Schultz D. Encyclopedia of the United States Constitution

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Yet Lincoln’s justices were a forceful and ambi-

tious lot who subtly yet consciously elevated the

proﬁ le of the Supreme Court. It is important to

note that the Supreme Court overturned only two

federal and 30 state acts of legislation through-

out its pre–Civil War history, whereas the Chase

Court overturned 10 federal and 46 state acts

of legislation in just eight years. There can be

little doubt that Chase and his fellow justices sat

through the most challenging chapter in Ameri-

can and Supreme Court history.

For more information: Fairman, Charles.

Reconstruction and Reunion: History of the

Supreme Court. New York: Macmillan, 1971; Kut-

ler, Stanley. Judicial Power and Reconstruction

Politics. Chicago: University of Chicago Press,

1968; Niven, John. Salmon P. Chase. New York:

Oxford University Press, 1995; Wyman, Harold,

and William Wiecek. Equal Justice Under Law:

Constitutional Development, 1835–1875. New

York: Harper & Row, 1982.

—Owen Williams

checks and balances

Checks and balances refers to a constitutional

system of limiting the political and legal power of

the three branches of government by giving the

executive, judicial, and legislative branches some

control over one another.

Checks and balances are absolutely basic to

the American constitutional structure. The most

fundamental of our checks and balances is the

separation of powers—the assignment of execu-

tive, legislative, and judicial authority to distinct

branches of government. The Founding Fathers

wanted to avoid concentrating power in a single

institution so as to foster, as John Adams famously

put it, “A government of laws and not of men.”

Their concept of checks and balances begins with

this separation of powers, but it also includes a

number of other elements that were built into our

constitutional structure.

Those who drafted the Constitution recog-

nized that the central government needed enough

authority to govern effectively. The fatal defect

of the Articles of Confederation, which the Con-

stitution replaced, had been the weakness of the

federal government. The Constitution attempted

to remedy that defect without endangering Amer-

ica’s newly won liberties. Accordingly, the entire

system was designed to check, or limit, use of the

increased authority being delegated to the federal

government.

In addition to separation of powers, drafters of

the Constitution opted for a representative, rather

than a direct, democracy. Representative govern-

ment was intended to provide a buffer between

public passions and government action; the found-

ers believed that the process of electing represen-

tatives who would then cast the actual votes on

public issues would encourage deliberation and

compromise. A federalist structure, in which state

and local governments each retained signiﬁ cant

powers, was intended to act as a check on the

authority of both. A bicameral legislature

and a requirement that laws be approved by both

the House of Representatives and the Sen-

ate was designed to slow further the legislative

process and encourage deliberation.

These decisions about our constitutional archi-

tecture grew out of a view of human nature ﬁ rmly

rooted in the philosophy of the Enlightenment.

It was a view that differed in important respects

from the Puritan beliefs of most of the early set-

tlers. The Puritans had come to America for reli-

gious liberty; however, the Puritan deﬁ nition of

liberty was freedom to “do the right thing.” The

government would still decide what the right

thing was. To these early colonists, religious free-

dom had simply meant establishing governments

that would require the “right” religion. The phi-

losophy of the Enlightenment, which ﬂ owered in

the period between those early settlements and

the American Revolution, dramatically changed

that view. Enlightenment philosophers believed

humans were entitled to personal autonomy—the

right to make their own political, moral, and reli-

gious decisions. They deﬁ ned liberty as freedom

from government interference in the rights of the

individual unless and until that individual was

harming the person or property of a nonconsent-

ing other. It was the Enlightenment understand-

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ing of liberty—not the earlier Puritan one—that

inspired America’s constitutional system.

The founders believed that the proper role

of the state was to protect individual liberty, not

to impose “right” behavior. This role requires

checks and balances, mechanisms that, as James

Madison put it in Federalist 10, will set “fac-

tion against faction” and thus avoid the tyranny

which is unavoidable when too much power is

concentrated in one person or institution. In the

Founding Fathers’ worldview, protection of indi-

vidual liberty and the creation of an empowered

citizenry were necessary to the cultivation of our

true nature as human beings. Protecting liberty

required the establishment of a state in which

no one would be above the law and government

would be accountable to its citizens, rather than

the other way around. Checks and balances were

intended to provide that accountability.

Individual liberty—newly defined as limited

state power—was also seen as essential to the

emerging system of capitalism. It was no accident

that belief in limiting state power ﬁ rst took root in

a nation with no feudal history, a nation composed

primarily of bourgeois, property-owning small

businessmen and farmers—people who under-

stood the importance of property rights and the

dangers that arbitrary exercises of power posed to

private property.

The founders also believed that effective checks

and balances would create the sort of open and

accountable system that would be likely to attract

people of integrity and substance to public service.

Just as the new Constitution required American

trials to be public in a way that European trials

had never been, U.S. government was to be public

and accountable in ways that European monarchs

had never been.

checks and balances 113

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Ultimately, a fair election process in which citi-

zens had the right to vote officeholders out

of power was designed to be the most important

check and balance of all.

For more information: Amar, Akhil Reed.

America’s Constitution: A Biography. New York:

Random House, 2005; Hamilton, A., J. Madison,

and J. Jay. The Federalist Papers. New York: New

American Library, 1961.

—Sheila Suess Kennedy

child labor

Child labor refers to the use of minors or indi-

viduals under the age of 18 at work. Regulations

banning or limiting child labor were the subject of

many lawsuits in the 19th and early 20th centuries

because of concerns that neither states nor the

federal government had the constitutional author-

ity to regulate it.

By the early part of the 20th century, only

three states placed no restrictions on the employ-

ment of children. Progressives, who had suc-

ceeded in enacting child-protective legislation in

most states, turned their attention to Congress to

establish national child labor standards, achieving

this goal with the enactment of the Federal Child

Labor Act of 1916. Using its commerce clause

powers that gave Congress authority over all

interstate commerce, Congress barred from

shipment in interstate commerce the products of

factories that employed children under the age of

14 or allowed children between the ages of 14 and

16 to work more than eight hours a day, more than

six days a week, or at night. Congress had been

pressed to enact such legislation both as a protec-

tive measure for children and to equalize compe-

tition among states, some of which enjoyed a price

advantage through the use of low-cost child labor.

Court challenges to the act came swiftly, reach-

ing the Supreme Court within two years of its

enactment.

In H

AMMER V. DAGENHART, 247 U.S. 251 (1918),

the Supreme Court declared the act an unconsti-

tutional usurpation of state power by Congress.

This case was one of a long line of cases handed

down by the Supreme Court between 1877 and

1937 in its effort to use the Tenth Amendment

to limit congressional action in the regulation of

business. This line of cases narrowing Congress’s

powers under the commerce clause amounted

to the Court’s constitutionalizing laissez faire

economics.

Thwarted in its ﬁ rst attempt to protect children

from, in the words of Justice Oliver Wendell

Holmes, Jr., in dissent in Hammer, “ruined lives,”

Congress passed the Child Labor Tax Law under

its taxing authority in 1919. In 1922, the Supreme

Court struck down this act as an unconstitutional

“penalty” against child labor and, thus, an uncon-

stitutional intrusion on the reserved powers of the

states. Consequently, children were left unpro-

tected by the national government until 1938,

when Congress enacted the Fair Labor Standards

Act, which established a minimum wage for all

workers. Without the ability to pay child labor

considerably less than adult labor, the desire for

child labor waned. In 1941, the Supreme Court

reversed course once again on Congress’s inter-

state commerce clause powers, reverting to its

broad interpretation of the power ﬁ rst articulated

in G

IBBONS V. OGDEN, 9 Wheat. (22 U.S.) 1 (1824),

and upholding the Fair Labor Standards Act in

NITED STATES V. DARBY LUMBER CO., 312 U.S. 100

(1941).

For more information: Wood, Stephen. Consti-

tutional Politics and the Progressive Era: Child

Labor and the Law. Chicago: University of Chi-

cago Press, 1968.

—Phyllis Farley Rippey

child pornography

Child pornography generally refers to the use or

depiction of individuals under the age of 18 in

sexually explicit materials, such as ﬁ lms or maga-

zines. The Supreme Court has declared that child

pornography is not a form of speech protected by

the First Amendment.

The deﬁ nition of child pornography varies from

country to country. Most prohibit visual depic-

tions of sexual activities involving actual children

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under a speciﬁ ed age. Some countries go further

and prohibit any nude pictures of minors, whether

or not the minor is depicted in an erotic pose or

engaging in a sex act. Historically, according to

British rule, reactions to child pornography were

based on moral grounds, the claim being that con-

sumers’ minds would be corrupted. By distinction,

child pornography in the United States is prohib-

ited not by moral infraction but as a form of child

abuse.

Child pornography is not protected by the First

Amendment. Three landmark rulings—Ginzburg

v. United States, 383 U.S. 463 (1966); M

ILLER V.

CALIFORNIA, 413 U.S. 15 (1973); and New York v.

Ferber, 458 U.S. 747 (1982)—illustrate this lack

of protection. Regarding Ginzburg v. New York,

the Supreme Court held that the government can

constitutionally prohibit children from accessing

certain types of sexually explicit material that it

cannot constitutionally ban for adults. In Miller

v. California, the Supreme Court established that

material can be judged obscene by community

standards; in other words, the Supreme Court left

it up to communities to decide what they felt was

obscene.

In New York v. Ferber, the Supreme Court

upheld the constitutionality of a state statute that

prohibited anyone from knowingly producing,

promoting, directing, exhibiting, or selling any

material showing a sexual performance by a child

under the age of 16. This case also established

that child pornography does not have to meet all

of the requirements of the Miller test. Addition-

ally, the U.S. Supreme Court found a New York

law criminalizing child pornography as a form of

child abuse to be constitutional under the First

Amendment in New York v. Ferber. As amended

in 1996, Congress deﬁ ned the pornography it pro-

hibited as

any visual depiction, including photography,

ﬁ lm, video, picture, or computer, or computer-

generated image or picture, whether made or

produced by electronic, mechanical, or other

means, of sexually explicit conduct, where (A) the

production of such visual depiction involves the

use of a minor engaging in sexually explicit con-

duct; (B) such visual depiction is, or appears to

be, of a minor engaging in sexually explicit con-

duct; (C) such visual depiction has been created,

adapted or modiﬁ ed to appear that an identiﬁ -

able minor is engaging in sexually explicit con-

duct; or (D) such visual depiction is advertised,

promoted, presented, described or distributed in

such a manner that conveys the impression that

the material is or contains a visual depiction of a

minor engaging in sexually explicit conduct.

Sexually explicit conduct in this context was

deﬁ ned as actual or simulated sexual intercourse.

This includes genital-genital, oral-genital, anal-

genital, and oral-anal acts whether between per-

sons of the same or opposite sex. This also includes

bestiality, masturbation, sadistic or masochistic

abuse, and the lascivious exhibition of the genitals

and/or pubic area of any person. The Court found

that a work deemed to be child pornography could

be outlawed even if it is not obscene and that child

pornography ought to be banned because it con-

tributes to the sexual abuse of children.

The idea of protecting children from sexual

exploitation is relatively recent. As late as the

1880s in the United States, the age of consent for

girls was just 10 years. In 1977, only two states

had legislation speciﬁ cally outlawing the use of

children in obscene materials. The first federal

law concerning child pornography was passed in

1978, and the ﬁ rst laws that speciﬁ cally referred to

computers and pornography were passed in 1988.

The 1978 law referred to minors under the age of

16. Age of a minor covered by child pornography

legislation was raised to 18 in 1984.

Legally, morally, and socially, pornography is

difﬁ cult to deﬁ ne and classify, as it is a very com-

plex cultural process. Pornography is produced by

people and consumed by customers. Pornography

derives most of its meaning from the social con-

text in which it exists. The United States struggles

with consistent and unquestionable deﬁ nitions of

child pornography. Although the above deﬁ nition

of child pornography appears expansive, there is

no clear legal deﬁ nition in federal or state law as

to what constitutes lascivious exhibition. This term

is to be interpreted according to “ contemporary

child pornography 115

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community standards.” Additionally, the term

obscene is difficult to define. Obscenity has

moral connotations that the federal law does not

recognize as child abuse. Debate arose in the late

1990s as to whether the depiction of nudity of

minors could constitute obscenity. As a result of

this debate and the seizure of nude depictions of

minors from Europe, an appellate court ruled in

2000 that depictions of nude minors engaging in

activities otherwise normal for their age cannot be

held obscene. The idea is that nudity in and of itself

does not constitute obscenity.

The final decision as to whether an image is

pornographic is made by a judge. In the United

States, the production and sale of child pornogra-

phy is illegal. The United States also outlaws the

possession of child pornography. There are many

arguments against the production and distribution

of child pornography. The main argument is that

a child cannot consent to participating in porno-

graphic activities if the child is under a certain

age. This age varies according to state, but for the

most part it is under the age of 18. Federal and

state governments classify child pornography as a

form of child abuse including physical, sexual, and

emotional abuse. Additionally, child pornography

harms children because materials that capture

the child in pornography are permanent and that

permanent record increases the harm to the child

when it is circulated. The continued distribution

of such material contributes to the demand of

child pornography thus requiring the exploitation

of more children.

The Internet is currently the most popular

avenue for pornography and caused explosive

growth for the pornography industry. It has

escalated the problem of child pornography by

increasing the amount of material available, the

efﬁ ciency of its distribution, and the ease of its

accessibility. Some estimate there are more than

300,000 pornographic Web sites on the Internet.

At any one time, there are estimated to be more

than 1 million pornographic images of children

on the Internet, with 200 new images posted

daily. It has been reported that a single child

pornography site received a million hits in one

month. This means that pornography is instantly

available. It has been estimated that child por-

nography on the Internet is an industry worth

$20 billion a year. The most dangerous aspect

of the Internet is its use by pedophiles. It has

been estimated that there are between 50,000

and 100,000 pedophiles involved in organized

pornography rings around the world and that

one-third of these operate in the United States.

Many child molesters use the Internet to view

pornographic images of children and may also

pose as youngsters themselves to communicate

with other children, in chats, for example. Many

child molesters expose children to pornography

and arrange to meet them in person.

The National Center for Missing and Exploited

Children found that one in ﬁ ve children age 10–

17 who regularly use the Internet have received

invitations to meet supposed adults posing as

youngsters. Sociologists often point to a supply-

and-demand argument regarding pornography.

There is a demand for pornography because of

the existence of pedophiles. The only way one can

produce pornography is to molest a child. Child

pornography exists primarily for the consumption

of pedophiles; if there were no pedophiles, there

would be no child pornography.

Many pornographic images of children on the

Internet involve very young children. Speciﬁ cally,

83 percent of pornographic material conﬁ scated

by the Federal Bureau of Investigation (FBI) in

the past three years consisted of children between

the ages of six and 12, 12.4 percent had mate-

rial involving children between the ages of three

and ﬁ ve, and 19 percent had images of infants or

toddlers under the age of three. It has become

increasingly difﬁ cult to eradicate child pornogra-

phy on the Internet because of sophisticated tech-

nology and security; for example, adults can own

their own servers, change the site of the server,

or use proxy servers to hide the identification

of members. The ﬁ rst case in the United States

involving the conviction of a pedophile who made

contact with his victim on the Internet occurred

in 2002. The body of 13-year-old Christine Long

was discovered in Greenwich, Connecticut. Police

allege that she was strangled by a 25-year-old man

she met online.

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The Internet makes ﬁ nding child pornography

much easier. Someone who wishes to view child

pornography can do so without asking someone

else to locate such images. The Internet thus

makes accessing child pornography much more

anonymous. The user of this material can access

it from the privacy of his or her home 24 hours

a day, 365 days a year. The Internet also provides

legitimization. In online communities, users of

child pornography and pedophiles can join a vir-

tual world where the use of child pornography and

the abuse of children are considered acceptable.

In the physical world, most people view child por-

nography as repugnant.

In the United States, since 1995, there has been

a special unit of the FBI called Innocent Images.

This unit is devoted to tracking down those who

use the Internet to sexually exploit children. This

is now a $10 million a year operation.

For more information: Gillespie, A. A. “Inde-

cent Images of Children: The Ever-Changing

Law.” Child Abuse Review 14 (2005): 430 –443;

MacKinnon, Catharine. Sex Equality. New York:

Foundation Press, 2001; Quinn, James F., and

Craig J. Forsyth. “Describing Sexual Behavior in

the Era of the Internet: A Typology for Empiri-

cal Research.” Deviant Behavior 26 (2005): 191;

Wortley, Richard, and Stephen Smallbone. Child

Pornography on the Internet. Washington, D.C.:

U.S. Department of Justice, 2006.

—Kim MacInnis

Chimel v. California 395 U.S. 752 (1969)

In Chimel v. California, the U.S. Supreme Court

drew clearer boundaries for law-enforcement ofﬁ -

cials in the area of search and seizure. The Court

held that an officer may search only the area

“within the immediate control” of a person fol-

lowing a lawful arrest.

On September 13, 1965, California police

arrested Ted Chimel on burglary charges. At the

time of their arrival, Chimel was not home, but

his wife permitted the ofﬁ cers to wait in the liv-

ing room. Immediately upon entering the home,

the arrest warrant was executed, and Chimel was

taken into custody in connection with numer-

ous burglaries. The officers sought consent to

“look around the house,” but Chimel and his wife

declined their requests. The police then pro-

ceeded to conduct a room-by-room search, turn-

ing up numerous items that had been reported

stolen in several burglaries. The evidence seized

during the search was admitted into evidence at

trial and resulted in a conviction for the state.

Chimel is a landmark constitutional law case.

The Constitution is the document that deﬁ nes and

shapes the relationship between the government

and the people of the United States. The ﬁ rst 10

amendments to the Constitution are known as the

Bill of Rights and were adopted to address the

concerns of citizens that the rights of the people

were not clearly or adequately covered in the Con-

stitution. The Fourth Amendment addresses

search and seizure and guarantees “the right of

the people to be secure in their persons, houses,

papers, and effects against unreasonable searches

and seizures.” It requires that no search and/or

seizure shall take place absent a warrant based on

probable cause and that the warrant describe with

speciﬁ city the place to be searched and what items

or persons are being searched for.

The trial court held that the search was con-

stitutional because it was conducted immediately

following the arrest of Chimel. On certiorari, the

Supreme Court reversed the ﬁ nding of the trial

court.

Whenever the Court is asked to make a deter-

mination of the constitutionality of a search and

seizure, it must address whether the actions of

the government were reasonable under the cir-

cumstances. In Chimel, the Court found that a

warrantless search of the area immediately sur-

rounding the arrestee would be justiﬁ ed by the

need to remove any weapon the arrestee might

seek to use to resist arrest or escape and the need

to prevent the concealment and destruction of

evidence. However, the evidence seized from

Chimel’s house was taken from rooms and other

areas outside his immediate control. Chimel was

arrested as soon as he entered his home; his access

to other areas was limited. There was no testimony

that raised concerns about the officer’s safety,

Chimel v. California 117

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Chimel’s escape, or the possible destruction of

evidence. The conduct of the police was found to

be unreasonable and a violation of Chimel’s con-

stitutional rights.

For more information: Allen, Ronald J. Crimi-

nal Procedure: Investigation and Right to Coun-

sel. New York: Aspen Publishers, 2005; Schwartz,

Bernard. A History of the Supreme Court. New

York: Oxford University Press, 1993.

—Loretta M. Young

Chisholm v. Georgia 2 U.S. 419 (1793)

In Chisholm v. Georgia, the Supreme Court ruled

that a state was not immune from suit from citi-

zens of other states or foreign nations. As a result

of the decision, the Eleventh Amendment was

adopted to overturn the ruling.

This case is important because it is about sover-

eignty and the idea that a state was immune from

suit from citizens of other states or foreign nations.

The concept of sovereign immunity had its roots

in the English maxim “the sovereign could not be

sued without his consent.”

Chisholm began as a claim for the repayment

of money the state of Georgia owed to a citizen

from South Carolina, Robert Farquhar. Farquhar

tried to bring suit against Georgia in the federal

circuit court, but to no avail. When Farquhar

died, Alexander Chisholm, one of the executors of

his estate, appealed the ruling and brought suit

against Georgia in the Supreme Court.

Georgia was so adamant in assertion of sov-

ereign immunity that it refused to even appear

in Court to plead its case against Edmund Ran-

dolph, attorney general for the United States and

also Chisholm’s counsel. In a 4-1 decision, the

Court ruled in favor of Chisholm. Justice William

Cushing found that the Constitution expressly

granted the Court jurisdiction over controversies

between a “State and citizens of another state.”

Therefore, when a citizen of one state has a dis-

pute with another state, the Court is presented

with a real controversy that is no different than

the state having the dispute with the citizens of

another state.

Chief Justice John Jay invoked Section 2 of

Article III of the U.S. Constitution, which

provides that the judicial power extends to all cases

under the Constitution, including controversies

between a “State and citizens of another state.” Jay

rejected the contention that Article III, Section 2,

covered states only as plaintiffs, not defendants,

instead focusing simply on the language of the

Constitution extending to the Court original

jurisdiction in all cases arising between a state

and a citizen of another state.

Another theme resonating among the justices

was the rejection of state sovereignty and an

emphasis on popular sovereignty, the idea that the

United States was a union of people. Justice James

Wilson asserted that sovereignty rested with the

people of the United States, not with the states,

which meant that states were subordinate to the

people and therefore could be sued by them.

The Chisholm decision was met with quick and

considerable outrage considering that there were a

number of similar suits pending against the states.

The Georgia House of Representatives tried to

pass a bill declaring that anyone who attempted

to bring suit against the state would be guilty of

a felony punishable by death. The Massachusetts

and Virginia legislatures proposed amendments to

the Constitution removing any clause that could

be construed as forcing the states to be subject to

federal suit by citizens of other states. In Congress,

efforts to curtail federal judicial power produced

variations of an amendment that was supported by

both sides of the aisle.

On March 4, 1794, Congress passed the Elev-

enth Amendment, and by February 7, 1795, the

amendment was ratified. It provided that: “the

judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the

United States by citizens of another state, or by

citizens or subjects of any foreign state.”

For more information: Jacobs, Clyde E. The

Eleventh Amendment and Sovereign Immunity.

Westport, Conn.: Greenwood Press, 1972; Mathis,

Doyle. “Chisholm v. Georgia: Background and

Settlement.” Journal of American History 54

118 Chisholm v. Georgia

xviii+446_EofUSConsti-v1.indd 118 3/12/09 3:04:13 PM

(1967): 19–29; Orth, John V. The Judicial Power

of the United States: The Eleventh Amendment

in American History. New York and Oxford:

Oxford University Press, 1987; Swindler, William

F. “Mr. Chisholm and the Eleventh Amendment.”

Supreme Court Historical Society, Annual Year-

book. Washington, D.C.: Supreme Court His-

torical Society, 1981; Wintersteen, A. H. “The

Eleventh Amendment and the Nonsuability of the

State.” American Law Register 39 (1891): 1–15.

—Randa Issa

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah

508 U.S. 520 (1993)

In Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeah, the Supreme Court ruled that a law

forbidding a religion from performing animal sac-

riﬁ ces was unconstitutional because the law was

speciﬁ cally targeted at the religion.

This case involved practitioners of Santeria.

One of the religion’s practices involved animal sac-

riﬁ ce, in which practitioners would kill, cook, and

eat an animal. A Santeria church purchased land

in the city of Hialeah, Florida, and announced

plans to worship there. In response, the city

passed ordinances prohibiting animal sacriﬁ ce but

permitting the killing of animals in a number of

other contexts, such as in slaughterhouses. Church

members sued, claiming that the ordinances vio-

lated their rights under the free exercise clause of

the First Amendment.

The Supreme Court reversed, in an opinion

by Justice Anthony M. Kennedy, holding that

the ordinances violated the free exercise clause.

Applying the framework established in E

MPLOY-

MENT DIVISION V. SMITH, 494 U.S. 872 (1990), Jus-

tice Kennedy determined that the ordinances

were not neutral because the city singled out the

Santeria religion for suppression. In other words,

the ordinances were enacted because of, rather

than in spite of, their suppression of Santeria reli-

gious practice. Justice Kennedy also determined

that the ordinances were not generally applicable

under Smith because the city only pursued its

governmental interest in protecting the health

and safety of animals and the community when it

related to conduct with a religious motivation; that

is, the ordinances did not apply to killing animals

for purely secular reasons.

Because the resolutions were not neutral or

generally applicable, Justice Kennedy applied

strict scrutiny. Although the governmen-

tal interests at issue, protecting public health

and preventing cruelty to animals, may be a

compelling governmental interest, the

ordinances were not narrowly tailored to these

interests. The Court held that each of the ordi-

nances were either overly broad or underinclu-

sive; therefore, the Court invalidated each of the

ordinances.

In Justice Antonin Gregory Scalia’s con-

currence, with which Chief Justice William

Hubbs Rehnquist joined, he argued that the

terms neutral and generally applicable in Smith

were not only interrelated but that they substan-

tially overlapped. They further argued that a leg-

islative body’s motive in enacting an ordinance

should be irrelevant: There is no way to determine

the single motivational force behind a piece of leg-

islation, and the First Amendment does not refer

to the purposes for which legislators enact laws

but to the effects of the laws enacted.

For more information: O’Brien, David. Animal

Sacriﬁ ce and Religious Freedom: Church of the

Lukumi Babalu Aye v. City of Hialeah. Lawrence:

University of Kansas Press, 2004.

—Winston E. Calvert

citizenship and alienage

Citizenship and alienage refer to the legal status

and rights and privileges of individuals in the

United States. The national government has the

constitutional authority to regulate both.

Immigration and naturalization remain an

important component of nation building since the

founding of the United States. The Declaration

of Independence cites the lack of free migration

and establishment of a system of naturalization

as rationales for declaring independence. How-

ever, there has always been tension between the

need for people and the rights accorded to those

citizenship and alienage 119

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people. The Supreme Court maintains the Con-

stitution relegates immigration and naturalization

to congressional control (plenary power), preclud-

ing judicial review. Constitutional matters still

permit judicial review.

From the early days of the republic, it has been

easy to naturalize; however, the founders feared

instant naturalization of foreigners and concomi-

tant antidemocratic sentiment in the new nation.

They therefore imposed a waiting period to give

aliens time to acculturate politically. One of the

ﬁ rst acts of the ﬁ rst Congress was a naturaliza-

tion law (March 26, 1790, 1Stat. 103) providing

the opportunity to apply for naturalization to any

free white person who had been a resident in the

United States for two years and in his own state

for one year, showed good moral character, and

was willing to swear an oath of allegiance to the

state. If the state deemed him worthy, he could

naturalize. Few requirements have changed since.

Most notably, race requirements on people of

African descent were lifted in the 1870s and on

Asians in the 1940s. Women gained equal access

to citizenship in the 1990s. The Immigration and

Naturalization Act currently requires that per-

manent residents maintain continuous residency

for ﬁ ve years (three years if married to a U.S. citi-

zen); ﬁ le in their own state; prove literacy, basic

English, and U.S. history competence; have good

moral character; pay taxes; register for the draft (if

male); and take the oath of naturalization. Armed

service members have fewer requirements for

naturalization.

The Fourteenth Amendment (1868) clari-

fied many citizenship issues left unclear in the

Constitution as part of the compromise over slav-

ery. It established an ius soli system of citizenship,

granting citizenship to anyone born in U.S. ter-

Demonstrators for immigrants’ rights march May 1, 2008, in Los Angeles, California. (David McNew/Getty Images)

120 citizenship and alienage

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ritory, thus conferring citizenship to all former

slaves and to the native-born children of immi-

grants. It extended U.S. citizenship to citizens

of any state. It made all citizens, native born or

naturalized, equal under the law. Practically, citi-

zens and noncitizens may be treated differently

in many areas. There are more than 30 different

classes of aliens, each with different rights and

responsibilities; however, the Fourteenth Amend-

ment includes a due process clause mandating

due process for all people, not just citizens. The

Supreme Court has held that due process extends

to all of the rights to “people” stated in the Bill of

Rights and does not limit those rights to citizens.

Citizenship traditionally conferred few legal,

economic, or social advantages. The major advan-

tage of citizenship is the right to enter, exit, and

remain permanently without possibility of depor-

tation. Aliens remain in the United States at the

pleasure of the government and may be removed

in accordance with law. Citizens may vote, serve

on juries, hold elected ofﬁ ce, and join political

parties. All residents regardless of status main-

tain the rights enumerated in the Bill of Rights

including (but not limited to) the right to speech,

association, press, religion, petition, protection

from government intrusion, and due process.

The law permits political participation but limits

campaign donations to citizens and legal perma-

nent residents (LPRs). Only citizens may get fed-

eral jobs, certain national security positions, and

some public welfare beneﬁ ts. Citizens hold U.S.

passports, which may facilitate easier travel and

protection of the U.S. government when abroad.

Citizens may sponsor overseas relatives for immi-

gration. Only LPRs may also sponsor a more

limited list of relatives for immigration. Nonciti-

zens may join the armed forces and, like citizens,

must (if male) register for the draft. Everyone is

entitled to emergency health care, public educa-

tion, and public services such as ﬁ re and police

protection.

The longer an immigrant remains in the United

States, the more likely he or she will naturalize.

There are, however, large discrepancies between

naturalizations based on country of origin.

As of the 2000 census, more than 31 million

immigrants resided in the United States. Forty

percent had naturalized, and the remaining 60

percent were aliens of different statuses. There

are more than 30 government-deﬁ ned noncitizen

statuses. Even as naturalization is expected, the

government has traditionally treated natural-

ization as a policy-neutral event, assuming that

immigrants want to naturalize. This changed in

1996 when the government encouraged natural-

ization as a way to move vast blocks of immigrants

from alien to citizen status. The policy, coming in

conjunction with burgeoning national anti-immi-

grant sentiment and a change in beneﬁ t eligibility

rules that conditioned eligibility on citizenship

status and the achievement of ﬁ ve years’ residency

for immigrants amnestied in 1986 (Immigration

Reform and Control Act, Pub. L. No. 99-603, 100

Stat. 3359), resulted in the largest number of nat-

uralizations in the history of the country. Almost

all citizenship-based beneﬁ t eligibility require-

ments have since been overturned.

For more information: Aleinikoff, T. Alexan-

der. “United States.” In T. Alexander Aleinikoff

and Douglas Klusmeyer, From Migrants to Citi-

zens: Membership in a Changing World, 137–147.

Washington, D.C.: Carnegie Endowment for

International Peace, 2000; Bosniak, Linda. The

Citizen and the Alien: Dilemmas of Contempo-

rary Membership. Princeton, N.J.: Princeton Uni-

versity Press, 2006.

—Robin A. Harper

City of Boerne v. Flores 521 U.S. 507 (1997)

In City of Boerne v. Flores, the Supreme Court

held that the Religious Freedom Restora-

tion Act (RFRA) of 1993 was unconstitutional

because it exceeded Congress’s powers under Sec-

tion 5 of the Fourteenth Amendment. The

Boerne decision was the ﬁ nal nail in the cofﬁ n of

the strict scrutiny test as it applied in religion

cases prior to E

MPLOYMENT DIVISION V. SMITH, 494

U.S. 872 (1990), and it introduced the “congru-

ence and proportionality” test into the Court’s

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