Schultz D. Encyclopedia of the United States Constitution

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and business operators who were from out of state.

This, the Court ruled, was a violation of the com-

merce clause.

For more information: Langran, Robert W. The

Supreme Court: A Concise History. New York:

Peter Lang, 2004.

—Dan Krejci

candidate ﬁ ling fees

Candidate ﬁ ling fees are fees that individuals run-

ning for ofﬁ ce have to pay to gain access to the

ballot. The Supreme Court has declared these

fees to be unconstitutional as they are in violation

of the First Amendment.

The payment of a candidate ﬁ ling fee has long

been recognized as a way for a candidate to gain

ballot access. This form of ballot access provides

relatively easy access to those qualiﬁ ed candidates

seeking ballot access. At the same time, the can-

didate ﬁ ling fee has received criticism for block-

ing access to the ballot for qualiﬁ ed but low- and

middle-income candidates.

Generally, ballot access can be gained by pay-

ing a ﬁ ling fee, gathering enough valid signatures

on a petition, or by having the prospective candi-

date sign an afﬁ davit stating that there is a lack

of funds for paying a ﬁ ling fee. Alternative forms

of ballot access are not standard throughout all

political jurisdictions. However, alternatives to the

payment of a candidate ﬁ ling fee are necessary if

a system of ballot access is to be found constitu-

tional. Though candidacy is not mentioned in the

Constitution, the framers did stress the impor-

tance of keeping electoral restrictions to a mini-

mum. It was recognized by many of the founders

that a democratic republican form of government

necessitates ballot access for both voters and

candidates. While the early concerns with ballot

access were voiced, the early debates on the topic

did not result in its inclusion in the Constitution.

The debate and ratification of the Fifth

Amendment (1870) brought ballot access back to

the forefront. Both the House of Represen-

tatives and the Senate proposed versions of

the amendment that placed the right to vote

alongside a right to hold public ofﬁ ce. Ultimately,

the language dealing with the right to hold public

ofﬁ ce was stripped from the Fifth Amendment in

the House-Senate conference committee. When

the amendment was presented to the states, there

were even more debates about whether a right

to hold public ofﬁ ce should have been included

in the language of the amendment. Still, the fact

that there was such debate demonstrates the sig-

niﬁ cance given to the issue of ballot access at this

point in American history.

The U.S. Supreme Court held in Bullock v.

Carter, 405 U.S. 134 (1972), and in Lubin v.

Panish, 415 U.S. 709 (1974), that a candidate ﬁ ling

fee is constitutional only if an alternative form of

ﬁ ling is available. Not providing alternative ballot

access was found to deprive a potential candidate

of his or her right to equal protection under

the Fourteenth Amendment and the right of

the candidate to freedom of expression and asso-

ciation guaranteed by the First and Fourteenth

Amendments. Constitutionally accepted alterna-

tives are most often the gathering of a requisite

number of valid petition signatures or the signing

of an afﬁ davit stating that the prospective candi-

date cannot pay the ﬁ ling fee.

Candidate ﬁ ling fees have generally opened up

ballot access to a larger candidate pool. Even with

this basically positive outcome, a problem arises

when there is no alternative for a potential can-

didate who cannot pay the ﬁ ling fee or would be

severely hampered by doing so. Hence, an alter-

native must always be in place in order to gain bal-

lot access outside of the payment of a ﬁ ling fee, if a

state’s ballot access system is to pass constitutional

muster.

For more information: Gordon, Nicole A. “The

Constitutional Right to Candidacy.” Political Sci-

ence Quarterly 91 (Autumn 1976): 471–487.

—William Lester

capital punishment

Capital punishment refers to the use of the death

penalty as the punishment for the commission of

a crime. While death has been imposed as a pen-

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alty for numerous crimes since the early days of

colonial America, its use is subject to the limits

imposed by the Fifth, Sixth, Eighth, and Four-

teenth Amendments to the Constitution.

The original Constitution, written in 1787, con-

sidered with the nearly contemporaneous Bill of

Rights, shows that the drafters of both assumed

that the practice of imposing the death penalty,

derived from English law, on those convicted of

serious crimes would be continued. The issue of

the constitutionality of aspects of the death pen-

alty was not ﬁ rst considered until the latter part

of the 19th century, and it was not until the 1970s

that the U.S. Supreme Court began to impose

some limits on its imposition.

In England, before the American Revolution,

the death penalty was prescribed for all serious

crimes, called “felonies,” as contrasted with minor

offenses, called “misdemeanors.” Most crimes

were felonies, including murder, robbery, bur-

glary, rape, arson, and larceny. Death was usually

by hanging. In the thirteen colonies, the death

penalty was similarly prescribed, as it was in the

new nation around the time of the ratiﬁ cation of

the original Constitution. In Virginia, for example,

a 1788 statute punishing bigamy (marrying for a

second time without a divorce from the ﬁ rst live

spouse) stated that “every such offense shall be

felony, and the person or persons, so offending,

shall suffer death as in cases of felony” (12 Hen-

ning’s Statutes at Large (Va) 691 [1823]).

The Constitution of 1787 makes no mention

of the death penalty, but the Fifth Amendment,

ratiﬁ ed along with the rest of the Bill of Rights

Opponents of the death penalty carry signs during a rally, January 12, 2005, on the steps of a California State

building in San Francisco.

(Justin Sullivan/Getty)

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in 1791, presupposes the existence of capital pun-

ishment in that it guarantees, among others, the

right to indictment by a grand jury in cases in

which a person is “held to answer for a capital or

otherwise infamous crime,” freedom from being

“twice put in jeopardy of life or limb” for the same

offense, and the right not to be “deprived of life,

liberty, or property without due process of law.”

Because the original Constitution would probably

not have been ratiﬁ ed without an assurance in the

ratifying conventions of a number of key states

that one of the ﬁ rst orders of business of the ﬁ rst

Congress would be the adoption of amendments

including a bill of rights, it is proper to think of the

Bill of Rights as functionally part of the original

Constitution.

In general, the death penalty continued to be

imposed in the 19th and 20th centuries but by a

gradual process became possible for only some

felonies; moreover, juries were given discretion

whether to impose it in specific cases. In 1846,

Michigan became the ﬁ rst state to abolish capital

punishment.

In a federal case in the late 19th century, the

U.S. Supreme Court ruled that execution by shoot-

ing was not a violation of the Eighth Amendment’s

proscription of cruel and unusual punish-

ment (Wilkerson v. Utah, 99 U.S. 130 [1879]). In

another case, In re Kemmler, 136 U.S. 436 (1890),

the Court concluded that the Fourteenth

Amendment’s guarantee of due process (again

with a reference to “life, liberty, or property”) was

not inconsistent with execution by electrocution.

(In the latter case, a state case, the Court did not

consider the possible effect of the Eighth Amend-

ment’s proscription of cruel and unusual punish-

ment because of a much earlier decision that the

Bill of Rights limited the federal government but

not the states.) In the middle of the 20th century,

the Court upheld a second effort at electrocution

of a condemned person, the ﬁ rst attempt having

failed, against a claim that this second attempt con-

stituted cruel and unusual punishment (Louisiana

ex rel. Francis v. Resweber, 329 U.S. 459 [1947]).

In McGautha v. California, 402 U.S. 183 (1971),

the U.S. Supreme Court upheld the imposition of

the death penalty and in so doing rejected a claim

that the death penalty violated the due process

clause of the Fourteenth Amendment because the

jury that imposed it had totally unlimited discre-

tion whether to impose it. A year later, in F

URMAN

V. GEORGIA, 408 U.S. 238 (1972), the Court struck

down the death penalty as then administered on

the ground that it violated the Eighth Amendment

(the Court having decided 10 years previously that

the Eighth Amendment did apply to the states after

all because it was “incorporated” into the due pro-

cess clause of the Fourteenth Amendment). There

were 10 opinions in Furman: a per curiam opinion

(that is, an unsigned opinion expressing the rul-

ing of the Court, in this instance that the death

penalty was unconstitutional), and nine separate

opinions, one by each of the justices.

Two members of the Court, Justices Wil-

liam J. Brennan, Jr., and Thurgood Marshall,

expressed the view that the death penalty was in

all circumstances cruel and unusual punishment,

while Justices Byron White, William O. Doug-

las, and Potter Stewart stated that the death

penalty was unconstitutional because of the arbi-

trariness of its imposition. (Justice Stewart, in par-

ticular, said that “[t]hese death sentences are cruel

and unusual in the same way that being struck by

lightning is cruel and unusual.”) Four justices dis-

sented, in part because they said that the issue,

in substance, had been resolved the other way

the previous year. The holding of the Court (the

part of the decision that was binding precedent)

was thus the approach of the three justices in the

middle: Presumably, whenever these three voted

to uphold the death penalty, they would be joined

by the four dissenters; presumably, whenever, the

three decided that the death penalty was uncon-

stitutional, they would be joined by the two who

would always vote to strike down the imposition of

the death penalty.

Following the decision in Furman, approxi-

mately three-quarters of the state legislatures

enacted new statutes designed to meet the

requirement of less (or guided) jury discretion

set forth by the three middle justices. Some

opponents of the death penalty thought that the

Supreme Court would strike down all of these

statutes, but such was not to be. Four years after

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Furman, the Court decided a series of cases, in

three of which the Court upheld the death pen-

alty under new statutes: G

REGG V. GEORGIA, 428

U.S. 153 (1976); Profﬁ tt v. Florida, 428 U.S. 242

(1976); and Jurek v. Texas, 428 U.S. 262 (1976).

The Court as a whole concluded that the new stat-

utes were constitutional because they required a

jury to ﬁ nd facts that distinguished the murder

being prosecuted from the “ordinary” murder,

for example, that the victim was a police ofﬁ cer

acting in the line of duty, and thus limited the

jury’s discretion. The statutes contained lists of

such factors, referred to as aggravating factors, at

least one of which the prosecution had to prove at

a hearing separate from, and subsequent to, the

hearing at which the jury was to decide whether

the defendant was guilty or not guilty of the crime

charged. The person convicted in Gregg argued

that unconstitutional arbitrariness was still pres-

ent because the prosecutor, as contrasted with the

jury, still had complete discretion whether to try

a case as a capital case. The majority rejected this

claim. Also in Gregg, the Court concluded that a

desire for retribution could properly be considered

by the jury. In two cases decided on the same day

as Gregg—Woodson v. North Carolina, 428 U.S.

280 (1976), and Roberts v. Louisiana, 428 U.S.

325 (1976)—the Court ruled that statutes could

not provide for automatic imposition of the death

penalty when a defendant was convicted of ﬁ rst-

degree murder.

Since 1976, the U.S. Supreme Court has

declared unconstitutional the imposition of the

death penalty for some crimes and has also invali-

dated certain procedures, but also on occasion has

changed its mind. The Supreme Court has ruled,

under the Eighth Amendment, that the punish-

ment of death cannot be imposed for the crime of

rape when no victim was killed (Cooker v. Geor-

gia, 433 U.S. 584 [1977]). Similarly, the Court has

held that the death penalty cannot be imposed

on a defendant who was insane at the time of the

scheduled execution (Ford v. Wainwright, 477

U.S. 399 [1986]). The Court concluded that it was

unconstitutional to execute a juvenile who was

only 15 at the time of the commission of the mur-

der (Thompson v. Oklahoma, 487 U.S. 815 [1988]).

The Court initially reached the opposite conclu-

sion regarding juveniles over 15 (S

TANFORD V. KEN-

TUCKY, 492 U.S. 361 [1989]), but recently, the Court

has overruled Stanford, concluding that the death

penalty cannot be imposed on juveniles (Roper v.

Simmons, 543 U.S. 551 [2005]). At ﬁ rst, the Court

held that there was no blanket prohibition of capi-

tal punishment for the mentally retarded (P

ENRY V.

YNAUGH, 492 U.S. 302 [1989]), but the Court has

now ruled to the contrary (A

TKINS V. VIRGINIA, 536

U.S. 304 [2002]). Also, according to the Court, to

be eligible for the death penalty, a defendant in

a murder case must have had a state of mind at

the time of the killing that can be described as at

least a reckless indifference to human life (simple

negligence will not do), and where codefendants

are involved, the defendant’s participation in the

crime must have been major (Tison v. Arizona,

481 U.S. 137 [1987]).

Although 12 states and the District of

Columbia do not have statutes providing for the

death penalty, the federal death penalty statute

can be applied to any capital offense committed

within a U.S. territorial jurisdiction that is itself

located within any of the 50 states (18 U.S.C.S.

sec. 1111 [2006]). The Supreme Court cases deal-

ing with procedure in capital cases are numerous

and complex. For example, the Court has held that

if the defendant demands a jury, a judge cannot

make a factual ﬁ nding about the existence of an

aggravating factor that would make the defen-

dant eligible for the death penalty; in so doing,

the Court has relied on the Sixth Amendment’s

guarantee of trial by jury (R

ING V. ARIZONA, 536

U.S. 584 [2002]). Because the Supreme Court

has held that the sentencing decision must be an

individualized one, the sentencer must consider

any potentially mitigating evidence offered by the

defense, such as that the defendant had a troubled

childhood (Eddings v. Oklahoma, 455 U.S. 104

[1982]).

The Supreme Court has upheld the practice of

“death-qualifying” juries. This refers to the process

of selecting jurors in capital cases. To understand

this practice, one must first note that there are

at least two stages in a death penalty case. In the

ﬁ rst stage, the jury decides whether it is convinced

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beyond a reasonable doubt that the defendant has

committed the crime charged. If the jury ﬁ nds the

defendant not guilty, that ﬁ nding, of course, ends

the case. If the jury ﬁ nds the defendant guilty of

murder, the jury then must decide at a separate

hearing whether to impose the death penalty. The

states that have the death penalty use the same

jury for both purposes, and that is where a prob-

lem has been said to arise. Clearly, if a state has

chosen to have the death penalty, it cannot permit

prospective jurors who are unalterably opposed to

capital punishment to sit on the jury during the

second, or penalty, phase.

However, the Supreme Court has allowed states

to disqualify from the ﬁ rst (guilt-determination)

stage prospective jurors who would never impose

the death penalty regardless of the quantity or

quality of aggravating circumstances, even if those

prospective jurors said that they could impartially

judge whether the defendant was guilty or not

guilty of the crime (and thus could serve at the

ﬁ rst stage of the trial). Some social science studies

have shown that when these prospective jurors are

excluded from the guilt-determination stage, the

resulting jury is somewhat more likely to convict

than is a jury from which such prospective jurors

are not excluded.

In Lockhart v. McCree, 476 U.S. 162 (1986),

the defendant argued, among other things, that

this disqualiﬁ cation violated his Sixth Amendment

right to an impartial jury. The Supreme Court ﬁ rst

questioned the validity of the social science stud-

ies just mentioned but ultimately was willing to

assume that they were valid. The Court, never-

theless, rejected the defendant’s argument, con-

cluding, in part, that the state’s interest in having

a single jury, rather than two juries, outweighed

the defendant’s interest in having the sort of jury

to which the defendant would have been entitled

in any noncapital case, for example, a case involv-

ing robbery.

Federal review of state capital cases is possi-

ble in two ways: direct review of the decision of a

state’s highest court upholding imposition of the

death penalty, and habeas corpus proceedings,

beginning in a federal district court. As a practical

matter, such review is difﬁ cult to obtain. In the

first situation, the problem is that the Supreme

Court chooses to hear fewer than 100 cases

each year, whereas more than 8,000 petitions for

review have been filed each year in the recent

past. In the second situation, a 1996 federal stat-

ute has placed a number of obstacles in the path of

someone seeking habeas corpus review (28 U.S.C.

sec. 2254). For example, a petitioner (originally

the defendant) in a federal district court cannot

win by showing that the state court was wrong;

the petitioner must show that the state court was

clearly wrong on the basis of cases previously

decided by the U.S. Supreme Court. Cases previ-

ously decided in the lower federal courts cannot

help the petitioner.

No member of the present Supreme Court has

shown a willingness to use the Eighth Amend-

ment’s proscription of cruel and unusual punish-

ment to declare the death penalty unconstitutional

under all circumstances, as the late Justices Bren-

nan and Marshall did. Substantial differences

among members of the Court continue to exist,

however. There continues to be a basic disagree-

ment over whether the Eighth Amendment, like

other provisions of the Constitution and Bill of

Rights, should be interpreted according to the

original understanding at the time of its adop-

tion, or whether its meaning can evolve over time.

The latter approach was adopted by a majority of

the Court in the early part of the 20th century

(Weems v. United States, 217 U.S. 349 [1910]). The

former approach is taken by two members of the

present Court, Justices Antonin Gregory Sca-

lia and Clarence Thomas. Members of the

present Court are also divided, for example, over

the issue whether, in judging the constitutional-

ity of a death penalty provision, the Court should

take into account the practices in other countries.

For the foreseeable future, the U.S. Supreme

Court is likely to continue on its present path, tin-

kering with procedural aspects of the death pen-

alty, while refusing to declare it unconstitutional

as a whole. There will be no shortage of death

penalty cases reaching the Supreme Court since

defense attorneys in capital cases will seek to save

the lives of their clients regardless of whether

their clients have been properly found guilty of

106 capital punishment

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the offenses charged. With broad public support

for capital punishment as an abstract matter, it is

probable that a majority of states will not abandon

it, at least in the near term.

For more information: Bedau, Hugo Adam, and

Paul G. Cassell, eds. Debating the Death Penalty:

Should America Have Capital Punishment? The

Experts on Both Sides Make Their Best Case.

Oxford and New York: Oxford University Press,

2004; LaFave, Wayne R. Criminal Law. 4th ed.

St. Paul, Minn.: West-Thomson, 2003; LaFave,

Wayne R., Jerold H. Israel, and Nancy J. King.

Criminal Procedure. Vol. 5. 2d ed. St. Paul, Minn.:

West Group, 1999; Latzer, Barry. Death Penalty

Cases: Leading U.S. Supreme Court Cases on

Capital Punishment. Woburn, Mass.: Butter-

worth-Heinemann, 1998.

—Mary Welek Atwell and Robert Davidow

Carter v. Carter Coal Company 298 U.S.

238

(1936)

In Carter v. Carter Coal Company, the Supreme

Court declared unconstitutional a federal law

seeking to regulate the coal industry. The Court

said that the law was a violation of the com-

merce clause because Congress’s power under

this clause did not allow for the type of regulation

found in this law. The decision in this case is sig-

niﬁ cant because it was one of several important

cases testing the constitutional limits of the New

Deal.

Carter v. Carter Coal is perhaps most signiﬁ -

cant for the politics it reﬂ ected and engendered

rather than for any lasting contribution to constitu-

tional law. This case was generated from a lawsuit

brought by a stockholder in the Carter Coal Com-

pany that challenged the company’s submission to

the Bituminous Coal Conservation Act passed by

Congress in 1935 (also known as the Guffey Coal

Act, so-named for the senator who was its primary

sponsor). Because shareholder James Carter and

Carter Coal Company both had the same desire

of seeing this act of Congress declared unconsti-

tutional, the suit was without adverseness and on

that ground, alone, should not have been heard

by the Supreme Court, given its own threshold

requirement rules. In spite of the lack of adverse-

ness, the Court took the case because it presented

the opportunity for the Court to strike down,

yet again, Roosevelt administration legislation

that sought to bring the country out of the Great

Depression through government regulation of

business.

Between 1877 and 1936, the Supreme Court

had constitutionalized laissez faire economic

theory, as it developed lines of doctrine under

the Fourteenth Amendment’s due process

clause and Article I’s commerce clause, effectively

reading the Constitution as barring the regulation

of business by both the states (under the Four-

teenth Amendment) and Congress (under Article

I, Section 8, Clause 3).

By the time Carter reached the Court, in 1936,

the Court’s interpretation of the commerce clause

had come down to the question of whether the

subject of the regulatory act was directly or indi-

rectly tied to interstate commerce. Here, the

mining of coal was deemed to be a local matter,

since the mines themselves were situated in locali-

ties. The Court reasoned that even if the product

of the mines was intended for the national mar-

ket, extraction itself and regulations surrounding

its extraction were only indirectly related to inter-

state commerce. Congress’s purpose in enacting

the Bituminous Coal Conservation Act of 1935

was to stabilize coal prices and encourage fair

competition, production, wages, hours, and labor

relations. To fund the program, Congress imposed

a tax on coal producers whose participation in the

program was voluntary. Participating coal compa-

nies would be rewarded, however, with a rebate

of 90 percent of the tax paid. Carter Coal did not

want to participate, nor did it wish to pay the tax

and, consequently, challenged the constitutional-

ity of the legislation.

Although, in this case, the Court did embrace

the Carter Coal Company’s argument that Con-

gress could not regulate local aspects of produc-

tion, within a year, a new majority had formed on

the Court that returned to the broad understand-

ing of Congress’s commerce clause powers origi-

nally laid down in 1824 in G

IBBONS V. OGDEN, 9

Carter v. Carter Coal Company 107

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Wheat. (22 U.S.) 1 (1824). Carter v. Carter Coal

was one of the last cases heard by the Supreme

Court when it was dominated by activist justices

of the so-called Lochner era who saw their role on

the Court as that of “correcting the misguided pol-

icies” of Congress. Within a year of handing down

this decision, the Court had not only returned to

its original, broad interpretation of congressional

powers but had also repudiated the judicial activ-

ism that the Lochner era represented.

For more information: Benson, Paul R., Jr.

The Supreme Court and the Commerce Clause,

1937–1970. New York: Dunellen Publishing, 1970;

Schwartz, Bernard. A History of the Supreme

Court. New York: Oxford University Press, 1993.

—Phyllis Farley Rippey

case and controversy

Case and controversy refers to a constitutional

mandate that every issue the federal courts hear

must refer to a real and not a hypothetical issue

or claim.

Section 2 of Article III of the U.S. Con-

stitution states:

[J]udicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the

Laws of the United States, and Treaties made,

or which shall be made, under their Authority;

—to all Cases affecting Ambassadors, other

public Ministers and Consuls; —to all Cases

of admiralty and maritime Jurisdiction; —to

Controversies to which the United States shall

be a Party; —to Controversies between two or

more States; —between a State and Citizens of

another State; —between Citizens of different

States; —between Citizens of the Same State

claiming Lands under Grants of different States,

and between a State, or the Citizens thereof, and

foreign States, Citizens or Subjects.

The “case and controversy” requirement

therefore mandates that all federal courts deal

with real, actual disputes. As such, the U.S.

courts must have parties with standing disput-

ing their rights before a court can enter a bind-

ing judgment. Standing is a concept utilized to

determine if a party is sufﬁ ciently affected so as

to ensure that a justiciable controversy is pre-

sented to the court. It is the right to take the

initial step that frames legal issues for ultimate

adjudication by a court or jury (State ex rel.

Cartwright v. Oklahoma Tax Commission, Okl.,

653 P. 2d 1230, 1232). These federal courts may

consider only questions arising in a case or con-

troversy that equates to a “justiciable case.” The

phrase justiciable controversy refers to real and

substantial controversies that are appropriate for

judicial determination, as distinguished from dis-

pute or difference of contingent, hypothetical, or

abstract character (State v. Nardini, 187 Conn.

109, 445 A. 2d 304, 307). Therefore, the federal

courts are prohibited from giving advisory opin-

ions. Advisory opinions are opinions that give

advice about areas involving the legislative or

executive branches of the government when no

party is before the court who has suffered true

injury or faces actual future injury.

As such, judges have no “self-starting capac-

ity” in that they may not see a current issue and

then issue an opinion giving legal advice regarding

how to best solve the problem the way a president,

legislators, a governor, or a mayor might approach

the same issue. An actual issue between two par-

ties with rights at stake must bring their case to

the court in a format where they are asking for a

judicial remedy (court action) to be handed down.

The actual issue must be “ripe” and cannot be

moot. Ripeness refers to the fact that the issue

has completely come to a point where it is neces-

sary for legal action to be undertaken and where

there is nothing left to do but for a court to render

a judgment. Mootness, on the other hand, refers

to a case where the issue has ceased to exist and

is no longer a factor in need of a court-rendered

decision.

For more information: Murphy, Walter F.,

James E. Fleming, Sotirios A. Barber, and Stephen

Macedo. American Constitutional Interpretation.

3d ed. New York: Foundation Press, 2003.

—Kelli Styron

108 case and controversy

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Chaplinsky v. New Hampshire 315 U.S. 568

(1942)

In Chaplinsky v. New Hampshire, a unanimous

Supreme Court held that freedom of speech does

not extend to “ﬁ ghting words.”

The case grew out of a confrontation between

Jehovah’s Witnesses and police in Rochester, New

Hampshire. The Witnesses were holding a public

meeting to proselytize the masses during which

the crowd became unruly. Marshal Bowering of

the Rochester police confronted Walter Chaplin-

sky, one of the leaders of the meeting, who called

Bowering a “damned racketeer” and “a damned

Fascist.”

Chaplinsky was convicted under a New Hamp-

shire law making it illegal to utter “any offensive,

derisive, or annoying word” to a person in a public

place. On appeal, Chaplinsky argued that the stat-

ute violated his freedom of speech and religion.

The New Hampshire Supreme Court afﬁ rmed the

conviction, construing the statute as only involv-

ing those words having “a direct tendency to cause

acts of violence by the person to whom, individu-

ally, the remark is addressed.” These were words

that would “likely . . . cause an average addressee

to ﬁ ght.”

The U.S. Supreme Court affirmed. Writing

for the Court, Justice Frank Murphy rejected

Chaplinsky’s freedom of religion argument,

holding that the Constitution would not immu-

nize Chaplinsky “from the legal consequences of

concomitant acts committed in violation of a valid

criminal statute.” Justice Murphy then observed

that “free speech is not absolute at all times and

under all circumstances.” Instead, there are “cer-

tain well-defined and narrowly limited classes

of speech” whose banning does not raise a con-

stitutional problem. In addition to “the lewd and

obscene” and “the libelous,” this category included

“insulting or ﬁ ghting words,” which Justice Mur-

phy deﬁ ned as “those words which by their very

utterance inﬂ ict injury or tend to incite an imme-

diate breach of the peace.” Such words play “no

essential part of any exposition of ideas” and “are

of such slight social value” that any beneﬁ t gained

from protecting them “is outweighed by the social

interest in order and morality.” Turning to Chap-

linsky’s remarks, Justice Murphy held the terms

damn racketeer and damn Fascist would “pro-

voke the average person to retaliation and thereby

cause a breach of the peace.”

Over time, Chaplinsky has been narrowed

considerably. In C

OHEN V. CALIFORNIA, 403 U.S. 15

(1971), the Court held that a jacket bearing the

phrase “Fuck the Draft” did not constitute ﬁ ght-

ing words because the phrase was not directed at

a speciﬁ c person. For similar reasons, in Collin v.

Smith, 578 F.2d 1197 (7th Cir. 1978), the Seventh

Circuit held that the city of Skokie’s ban on Nazi

symbols fell outside the ﬁ ghting words doctrine.

Finally, in R.A.V.

V. ST. PAUL, 505 U.S. 377 (1992),

the Court held that the government could not ban

a subset of ﬁ ghting words that offend on the basis

of “race, color, creed, religion or gender.” How-

ever, R.A.V. reafﬁ rmed the government’s general

power to proscribe ﬁ ghting words, provided it did

so in a content-neutral manner.

Chaplinsky is also signiﬁ cant because, for the

first time, the Court explicitly stated that some

speech did not merit full First Amendment

protection, an idea the Court would later extend

to the areas of group libel, obscenity, and com-

mercial speech.

For more information: Kalven, Harry, Jr. A

Worthy Tradition: Freedom of Speech in America.

New York: Harper & Row, 1974; Walker, Samuel.

Hate Speech: The History of an American Con-

troversy. Lincoln: University of Nebraska Press,

1994.

—Robert A. Kahn

Chase Court (1864–1873)

The Chase Court could also be called the Recon-

struction Court. Only months before the end of

the Civil War, President Abraham Lincoln

appointed Salmon P. Chase (1808–73) as chief

justice of the U.S. Supreme Court. During the

decade that followed, Americans reevaluated and

redesigned most aspects of their society. Even the

U.S. Constitution came under close scrutiny; it

was amended three times in just ﬁ ve years. The

task of interpreting those amendments and the

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newly empowered national government essentially

created by them fell to the Chase Court.

The previous chief justice, Roger Taney,

presided over the Court from 1836 until his death

in October 1864. He wrote the majority opinion

in the most notorious decision in Supreme Court

history, the 1857 case of D

RED SCOTT V. SANDFORD.

In that case, Taney held that Congress lacked the

power to prohibit slavery in a territory, much less

a state, and that African Americans were “a sub-

ordinate and inferior class of beings” who had

“no rights which the white man was bound to

respect.” That decision unleashed a fury among

Northerners that hastened the Civil War; it also

caused Lincoln to fear how the Court, in the

wrong hands, might undermine his war mea-

sures. Prior to the Civil War, the Supreme Court

always consisted of Democrats, most of them

Southerners.

In just two years, from 1862 to 1864, the pass-

ing of old Jacksonians enabled President Lincoln

to appoint five justices, thus transforming the

Supreme Court to a fully Republican majority,

which is how it remained for more than a gen-

eration. Indeed, between 1862 and 1882, five

Republican presidents appointed 14 justices to

the Supreme Court. Although the justices were

expected to be nonpartisan, their politics often

informed their decisions on the bench. More

important, their political ambitions led four of

Lincoln’s ﬁ ve appointees—the bulk and backbone

of the Chase Court—to run for president while

members of the Supreme Court.

The number of justices on the bench vacil-

lated between six and 10, due to bad health and

the struggle between the branches. Noah Swayne,

Lincoln’s ﬁ rst appointee, was a Quaker who moved

from Virginia to Ohio out of opposition to slav-

ery. Dr. Samuel Miller practiced medicine in his

home state of Kentucky before becoming Iowa’s

most successful advocate for small farmers. David

Davis, a judge who presided over many cases

argued by Lincoln the backwoods lawyer, became

Lincoln’s campaign manager in the presidential

election of 1860 and served as his third appoint-

ment to the Supreme Court. Exhausted by Recon-

struction, Davis resigned from the bench when

elected to the U.S. Senate seat Lincoln failed to

secure in 1858.

Stephen Field, regarded as Lincoln’s ﬁ nest addi-

tion to the Court, ﬁ lled the new federal Tenth Cir-

cuit that Congress created in California and Oregon,

intended to shore up the pro-Union majority on the

bench. With this appointment, Lincoln became the

ﬁ rst president to nominate a justice from another

party, since Field was a pro-Union Democrat. Field

supported Lincoln’s war measures and later buoyed

business in most of the 620 opinions he wrote in his

record-setting 34 years on the bench.

The best known of Lincoln’s justices, of course,

was Chase, who ran against Lincoln for president

in 1860. After graduating from Dartmouth Col-

lege and gaining a reputation as an antislavery

lawyer, Chase helped form the Free Soil Party.

He served Ohio as both U.S. senator and gover-

nor before becoming Lincoln’s secretary of the

treasury, a post from which he rather petulantly

resigned (for the fourth time) just prior to being

made chief justice. Chase tried hard to create a

socially amicable environment within the Court,

but those efforts failed as most of the justices

tended to dislike and distrust each other, Chase

most of all. That Lincoln’s justices were highly

regarded is best demonstrated by the fact that all

were conﬁ rmed within days of nomination. Three

more justices joined the Chase Court when Presi-

dent Ulysses S. Grant appointed William Strong

and Joseph Bradley in 1870 and Ward Hunt in

1873. Grant’s fourth appointee, Morrison Remick

Waite, replaced Chase as chief justice in 1874.

From 1860 to 1935, the U.S. Supreme Court

met in the old Senate chamber, on the ﬁ rst ﬂ oor

of the Capitol building. The case docket grew

from 360 cases per year at the start of the Chase

Court—more than three times the current load—

to 623 in 1891 when Congress finally provided

relief by creating an intermediary tribunal called

the Circuit Court of Appeals. That same legisla-

tion, the Judiciary Act of 1891, also eliminated

the dreaded task of “circuit riding” that consumed

three-quarters of the justices every year. The

Court was in session from December to March

each year, 11 a.m. to 3 p.m. Monday through Fri-

day and 11 a.m. to 4 p.m. on Saturday. The justices

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received a salary of $6,000 and lived in a board-

inghouse at No. 23 Four-and-a-half Street, though

they upgraded their lodgings to hotels when their

salaries were increased in 1871.

The Court’s bulging docket consisted of mostly

quotidian and uninteresting cases pertaining to

commercial matters of banking, state taxes, and

government bonds that waited two to three years

to be heard. During the Civil War, the Court

contended with the constitutionality of Lincoln’s

suspension of habeas corpus and Congress’s

issuance of legal tender, but by the early years of

the Chase Court, maritime cases—addressing the

law of prize regarding enemy property captured at

sea—provided the greatest excitement.

The Chase Court remained divided along par-

tisan lines regarding several issues, not least the

proper reach of federal military authority. The

Freedmen’s Bureau, a federal agency responsible

for assimilating the 4 million recently freed slaves,

was often accused of operating unconstitutionally.

Whereas the Court upheld Lincoln’s ability to cur-

tail civil liberties in wartime in the 1864 case

of Ex parte Vallandigham, by 1866, in E

X PARTE

MILLIGAN, the Court cast doubt on the notion that

“military necessity” excused the abridgment of

civil liberties and rights such as habeas corpus.

The postwar concern for amnesty and pardon

of secessionists gave rise to oaths of allegiance in

various occupations. When a lawyer balked at the

iron-clad oaths required to practice law before the

Supreme Court and a priest resisted such oaths

in Missouri, the Court ruled against such oaths

as unconstitutional, in Ex parte Garland and Mis-

souri v. Cummings, both in 1867. The Democrats,

including Field, provided the majority in those

decisions, while the Republicans dissented. Con-

gress, upset by the test oath decisions, granted

itself the authority to decide such matters in the

Fourteenth Amendment, ratiﬁ ed in 1868.

Later that same year, the Court somewhat

surprisingly accepted Congress’s ﬁ at, as demon-

strated in E

X PARTE MCCARDLE, yet another habeas

corpus case. The Court knocked heads with Con-

gress again in the Legal Tender Cases, in which

paper money (ﬁ rst issued under Chase’s watch as

secretary of treasury) was ironically ruled uncon-

stitutional by Chase and the Democrats, then two

years later deemed appropriate by the Republi-

can majority made stronger by President Grant’s

appointments to the Court. On the thorniest issue

of all, rights for blacks, the Court at ﬁ rst supported

a broad conception of their freedom, as seen in

United States v. Rhodes, which struck down a

lower court opinion barring black testimony in

cases involving whites. But by Blyew v. United

States, ﬁ ve years later, in 1871, the Court oddly

reversed itself. In the most famous decision of the

Chase Court, the Slaughterhouse Cases of 1873,

the justices seemed to support blacks but actually

narrowed their rights in a manner that lasted well

into the 20th century. That decision laid the seed

of “state action” jurisprudence by holding that the

federal government could prohibit only state, not

private, acts of discrimination.

The standard textbook treatment suggests

that the Supreme Court grew steadily in stature

from the founding era until the Dred Scott case

of 1857, at which point the bench suffered a blow

to its power and prestige that lasted late into the

19th century. Other historians insist the Court

was quite weak until Reconstruction, when the

justices stepped in to help decide how secession-

ist states would be readmitted and to determine

the scope of the Thirteenth, Fourteenth, and Fif-

teenth Amendments (the Thirteenth Amend-

ment abolished slavery, the Fourteenth

Amendment reversed Dred Scott by granting

citizenship to African Americans, and the Fif-

teenth Amendment extended the franchise to

all American males).

There can be little doubt but that the Supreme

Court participated in the war between the

branches that was so important a part of Recon-

struction. Historians tend to focus more on the

conﬂ icts between the executive and the legislative

branches of the federal government, in particu-

lar the efforts by radicals to impeach President

Andrew Johnson. But the members of Congress

made several efforts to alter or contain the Court

as well; some congressmen even spoke of elimi-

nating the Supreme Court altogether. Witness the

four Judiciary Acts within the 1860s that reshaped

the size and composition of the Court.

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