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nothing to improve the dreadful economic condi-

tion of blacks in the country. Its focus was on legal

issues, not those of social or economic equality.

The Civil Rights Act of 1964, though not per-

fect, is arguably the most important piece of leg-

islation in the history of American race relations,

and without President Johnson, it would not have

happened.

For more information: Klarman, Michael J.

From Jim Crow to Civil Rights. Oxford and New

York: Oxford University Press, 2004; Patterson,

James T. Grand Expectations: The United States,

1945–1974. Oxford and New York: Oxford Uni-

versity Press, 1996; Urofsky, Melvin, and Paul

Finkelman. A March of Liberty: A Constitutional

History of the United States. Vol. II. Oxford and

New York: Oxford University Press, 2002.

—Mark Alcorn

Civil Rights Cases 109 U.S. 3 (1883)

The Civil Rights Cases were five cases (U.S. v.

Singleton, U.S. v. Stanley, U.S. v. Nichols, U.S.

v. Ryan, and U.S. v. Robinson) consolidated into

one and mark the end of 19th-century efforts to

achieve civil rights for African Americans. The

Supreme Court held that Congress lacked the

constitutional authority under the Fourteenth

Amendment to prohibit racial discrimination by

private individuals, despite whatever power Con-

gress had over state governments.

Except for the Twelfth Amendment, rati-

ﬁ ed in 1804, the U.S. Constitution was amended

only three times in the 19th century, all in the ﬁ ve

years just after the Civil War. The Thirteenth

Amendment formally abolished slavery; the

Fourteenth made African Americans citizens and

prohibited the states from depriving “all persons”

of life, liberty, or property without due process

of the law; and the Fifteenth Amendment

made it illegal to deprive anyone of the right to

vote “on account of race, color, or previous condi-

tion of servitude.”

During the early 1870s, there was not a single

state in the country whose laws required the sep-

aration of whites from blacks. In fact, the trend

in the North and West was toward acceptance of

black patrons in most public facilities. Further-

more, most state and federal courts upheld state

statutes mandating black rights.

Senator Charles Sumner of Massachusetts

proposed the Civil Rights Act of 1875, which

was passed a year after his death, partly as a trib-

ute to his tireless devotion to equal rights. The

act expanded upon the civil and political rights

ensured by the Reconstruction amendments to

include social rights as well; it stated, thus, that

all people, regardless of race, were entitled to the

same treatment in “public accommodations.” In

five separate lower court cases, African Ameri-

cans sued theaters, hotels, and transit companies

that had denied them the access to “white-only”

facilities.

Justice Joseph P. Bradley delivered the opinion

for the Court. The Thirteenth Amendment, he

observed, had nothing to do with “social” injus-

tices, and the Fourteenth Amendment limited

only state actions but had no relevance or applica-

tion to private acts of discrimination. Bradley was

nothing if not direct: Blacks could not expect to be

coddled by the government nor “the special favor-

ite of the laws.” Bradley insisted that Congress had

no afﬁ rmative powers to ensure freedmen’s rights

but could only act in a remedial manner by block-

ing unconstitutional state legislation. Congress

could not initiate civil rights legislation. By this

decision, the Court essentially put private acts of

discrimination beyond the reach of Congress.

Justice John Marshall Harlan of Ken-

tucky, a Southerner and former slaveholder, was

the lone dissenter to the majority opinion. Justice

Harlan—one-time conservative slavery supporter

turned uncompromising black rights advocate—

proudly wrote his dissent with the very same pen

Chief Justice Roger Taney had used to write the

infamous D

RED SCOTT V. SANDFORD opinion of 1857,

one of the more important events leading up to the

Civil War. Harlan correctly pointed out that the

majority opinion deprived the Fourteenth Amend-

ment of all its meaning. The violence and vigilan-

tism spreading throughout the South convinced

Harlan that federal government guarantees were

imperative for the establishment of civil rights.

132 Civil Rights Cases

xviii+446_EofUSConsti-v1.indd 132 3/12/09 3:04:18 PM

In the aftermath of the Civil Rights Cases,

Southern states provided no protection against

a burgeoning number of assaults against African

Americans. The delicate balance that was gradually

shifting toward assimilation of blacks ground to a

halt. The U.S. Supreme Court essentially removed

any and all prospects for civil rights, which would

not begin to be realized until another, very dif-

ferent Supreme Court case—B

ROWN V. BOARD OF

EDUCATION OF TOPEKA—several decades later.

For more information: Urofsky, Melvin I., and

Paul Finkelman. A March of Liberty: A Consti-

tutional History of the United States. Oxford and

New York: Oxford University Press, 2002; Wes-

tin, Alan F. “The Case of the Prejudiced Door-

keeper.” In John A. Garraty, ed., Quarrels That

Have Shaped the Constitution. New York: Harper

& Row, 1962.

—R. Owen Williams

civil service and the Pendleton Act

Civil service refers to employment within a gov-

ernmental agency, particularly within the federal

bureaucracy. Civil service employees are pro-

tected by the Civil Service Act. The ﬁ rst Civil Ser-

vice Act was adopted in 1883. It was sponsored

by Ohio senator George Pendleton and came to

be known as the Pendleton Act. Although the

Pendleton Act ended the practice of awarding

government jobs based on political patronage for

most civil servants, the U.S. Supreme Court was

eventually asked to address the impact of politi-

cal patronage on the First Amendment rights

of government employees. The Court held that

the hiring practices of administrative agencies

could not be based on patronage unless political

party afﬁ liation is directly related to effective job

performance.

The Pendleton Act created the U.S. Civil Ser-

vice Commission and instituted hiring practices

based on job qualifications rather than social

status, political patronage, or scholarly achieve-

ment. It was adopted in response to two periods

of favoritism in government employment. During

the ﬁ rst period (1789–1829), employment in the

federal government was based on social status.

Jobs were reserved for upper-class “gentlemen” or

“aristocrats,” who were almost exclusively white,

educated male landowners.

During the second period (1829–83), govern-

ment jobs were awarded according to the “spoils

system,” which was implemented by President

Andrew Jackson after his election in 1829. Under

the spoils system, government jobs were awarded

based on political support rather than competence

or ability. Political parties recruited government

employees and job seekers alike to work on political

campaigns and required them to pay a percentage

of their salary, called a “political assessment,” to

support the party and the campaign. In exchange,

the employees received job security; the job seek-

ers received a promise of future employment. This

practice was accepted by government employees

because they risked being replaced by party activ-

ists after the election if they did not participate.

The practice was accepted by job seekers because

of the promise of future employment. At that time,

the spoils system was considered a democratic

employment process because it removed control

of employment in the bureaucracy from the aris-

tocracy and opened government employment to

ordinary citizens.

The spoils system, however, was criticized for

politicizing government employment and ren-

dering administrative agencies ineffective. The

system caused high rates of employee turnover

and low employee morale, because every presi-

dential election placed jobs at risk and resulted in

the replacement of large numbers of employees.

Additionally, the system led to the hiring of some

incompetent employees, as competence was not

required for appointment. Finally, the system also

led to corruption, as government employees used

their positions for personal proﬁ t through bribes

and graft. In response to these problems, reform-

minded citizens began to call for the implementa-

tion of a merit-based hiring system and the end

of political assessments. According to advocates, a

merit-based system would increase the efﬁ ciency

and effectiveness of the federal government by

creating a politically neutral, professional admin-

istrative staff.

civil service and the Pendleton Act 133

xviii+446_EofUSConsti-v1.indd 133 3/12/09 3:04:18 PM

The civil service reform movement did not

take hold, however, until the election of President

James A. Garfield, in 1881. Although President

Garfield supported civil service reform, he was

in the process of awarding jobs to his supporters

when he was shot by a disgruntled and demented

aspiring civil servant who had demanded a con-

sul position in exchange for his political support.

Garﬁ eld died several months later and became the

symbol of the civil service reform movement. The

Pendleton Act was adopted two years later.

The Pendleton Act created the U.S. Civil Ser-

vice Commission to administer the newly created

civil service system. The act required open, com-

petitive examinations that focused on the practi-

cal skills required for effective job performance.

It also required the hiring of applicants with the

highest test scores, apportioned civil service jobs

among the states, protected civil service employees

from political assessments, prohibited government

officials from soliciting campaign contributions

from employees, and prohibited anyone from

soliciting or receiving political contributions in a

government-owned building. It also created job

classiﬁ cations and allowed employees to enter at

the level of their competence, rather than limiting

entry to the lowest level. Finally, although the act

initially extended protection to a limited number

of civil servants, it empowered the president to

extend that protection by executive order. Within

20 years, employment protection was expanded

from 10 percent to 50 percent of civil servants.

Employees affected by political patronage soon

began to claim that the practice violated their

First Amendment rights to freedom of speech and

freedom of association. The First Amendment

states: “Congress shall make no law . . . abridg-

ing the freedom of speech.” This amendment has

been construed to protect the right of the people

to engage in the political activity of their choos-

ing, including associating with the political party

of their choice. Accordingly, the continuing prac-

tice of political patronage on a limited basis in

the federal government and on a broad basis in

state and local governments eventually drew the

U.S. Supreme Court into the debate. In a series of

cases, the Court ruled in favor of employees who

claimed that political patronage violated their

First Amendment rights to freedom of speech

and association. In doing so, the Court rejected

the government’s arguments in favor of patronage.

Consequently, civil servants may not be denied a

beneﬁ t or discharged for exercising their constitu-

tional rights. Personnel decisions based on patron-

age, including the hiring, ﬁ ring, promoting, and

transferring of employees and independent con-

tractors, must be based on a demonstrable effect

that political party afﬁ liation has on performance

of the job itself. Generally, patronage decisions are

limited to policy-making positions, such as depart-

ment or agency leadership posts.

The Pendleton Act effectively separated the

administration of governmental programs from

the political process, and it governed the civil

service from its enactment in 1883 until it was

replaced by the Civil Service Act of 1978.

For more information: Hoogenboom, Ari.

Outlawing the Spoils: A History of Civil Ser-

vice Reform Movements, 1865–1883. Westport,

Conn.: Greenwood Press, 1961; Schultz, David,

and Robert Maranto. The Politics of Civil Service

Reform. New York: Peter Lang Publishing, 1998;

Van Riper, Paul. History of the United States Civil

Service. Westport, Conn.: Greenwood Press,

1958.

—Mark A. Fulks

Civil War and the Constitution, the

The U.S. Civil War was one of the most challeng-

ing and contentious eras in American history. The

war, which spanned from 1861 through 1865,

resulted from numerous disagreements and dis-

putes. Sectional tensions between Northern and

Southern states had noticeably surfaced in the

middle of the 19th century. One such tension

involved the institution of slavery, which existed

long before the Constitutional Convention

convened in 1787. However, slavery was only one

issue that caused Southern states to secede from

the Union.

The Constitution that was drafted in 1787 cre-

ated a system of separation of powers, checks

134 Civil War and the Constitution, the

xviii+446_EofUSConsti-v1.indd 134 3/12/09 3:04:19 PM

and balances, and federalism. Despite the

addition of the ﬁ rst 10 amendments to the U.S.

Constitution, known as the Bill of Rights, only

a fraction of the population enjoyed fundamental

protections or rights such as voting. The disagree-

ment and debate that engulfed the United States

during the ﬁ rst half of the 19th century grew in

small stages until it exploded into the Civil War.

Numerous leaders for both the Northern and

Southern states emerged to debate controversial

issues and advance their own political and cultural

perspectives. For instance, in the South, an inﬂ u-

ential politician named John C. Calhoun (from

South Carolina) became one of the principal sup-

porters of the Southern secessionist movement.

Calhoun served several terms in Congress and was

also vice president under John Quincy Adams

from 1825 to 1829 and Andrew Jackson from 1829

to 1832. He was best known as a staunch advocate

of states’ rights. Initially, Calhoun was a national-

ist and proponent of a strong central government

during his service in Congress.

After Calhoun was elected vice president for a

second time during Jackson’s presidency, several

personal and political differences surfaced to cause

extensive conﬂ ict between Jackson and Calhoun.

During this time, Calhoun began to support more

aggressively the doctrine of nulliﬁ cation, derived

from constitutional theory, under which states

could individually override legislation passed by

the federal government that they deemed uncon-

stitutional. The antecedents for the nulliﬁ cation

doctrine were found in arguments forwarded by

Thomas Jefferson and James Madison, who

drafted resolutions in the Kentucky and Virginia

legislatures, respectively, from 1798 to 1799 to jus-

tify a nulliﬁ cation of the Alien and Sedition Acts

by the states.

Calhoun resigned the vice presidency in 1832

to protest the stagnating effects that the “tariff of

abominations” had on states’ economies. He used

the ideas offered by Jefferson and Madison and

the Tenth Amendment to develop further the

theory of nulliﬁ cation. He viewed nulliﬁ cation as

a middle ground between submitting to an overly

aggressive federal government and outright seces-

sion, which ultimately came with the Civil War.

The doctrine also became a political statement

that indicated the South’s discontentment with

economic conditions and the fact that it was feel-

ing isolated from national policy, which was per-

ceived as falling under the inﬂ uence of Northern

states. Further, Calhoun viewed any successful

attempts by abolitionists either to curtail or to end

slavery as acts that would permanently weaken the

power of Southern states in relation to the North.

Jackson’s perspectives were much different. Jack-

son stated that any attempt to support nulliﬁ cation

would be considered treasonous and forced a bill

through Congress that permitted the president to

deploy military troops to enforce federal laws.

Calhoun’s ideas for supporting states’ rights

were relatively popular within the state of South

Carolina and selected portions of the South. Resi-

dents had come to perceive the federal govern-

ment as a source of friction and suppression, and

tariffs had disillusioned many farmers and trad-

ers who had been struggling economically. But

Jackson and others, such as Senator Henry Clay,

worked toward averting the nulliﬁ cation crisis by

proposing a tariff reduction to appease Southern

frustrations. Calhoun’s support of slavery became

a catalyst for the eventual secession of Southern

states from the Union and the commencement of

the Civil War.

In the years just before the Civil War began,

Abraham Lincoln was also growing in political

notoriety. After a short interlude to practice law,

Lincoln reentered the political scene in the early

1850s to protest the Kansas-Nebraska Act of

1854. President Franklin Pierce was a supporter

of the act, which intensiﬁ ed the slavery issue and

split the Whig Party apart. It reorganized as the

Republican Party later that year, but the issue

of slavery persisted, particularly after the D

RED

COTT V. SANDFORD (1857) decision. Lincoln was

opposed to slavery but was not an abolitionist.

Lincoln won the presidential election in fall

1860. Soon after, the American Civil War erupted

when Calhoun’s home state of South Carolina

became the ﬁ rst to secede. Several other states

in the South followed suit over the next several

months, and the nation was divided between

Union forces in the North and Confederate forces

Civil War and the Constitution, the 135

xviii+446_EofUSConsti-v1.indd 135 3/12/09 3:04:19 PM

in the South. The beginning of the Civil War was

marked by an attack by the Confederate Army on

Fort Sumter in Charleston, South Carolina, on

April 12, 1861.

Also in April 1861, Lincoln suspended the writ

of habeas corpus, a fundamental right that

was derived from English common law and was

incorporated into Article I of the U.S. Con-

stitution. The writ requires that public ofﬁ cials

bring all prisoners before the court to present

their reason(s) for detainment. Lincoln’s suspen-

sion of the writ instigated an unprecedented use

of presidential power. Prior to this, only a select

few presidents used the latitude of the ofﬁ ce to

make decisions that were generally considered

beyond the scope of what the Founding Fathers

had likely intended for the chief executive. (Prior

examples, would be George Washington’s issu-

ance of the Proclamation of Neutrality during the

war between France and Britain after the French

Revolution, Thomas Jefferson’s use of presiden-

tial power to conduct the Louisiana Purchase,

and Andrew Jackson’s decision to remove federal

funds from the national bank and his dismissal of

the treasury secretary from his administration.)

Even though the nation was torn apart by civil

war, the U.S. Supreme Court ruled in E

X PARTE

MILLIGAN, 4 Wallace 2 (1866), that the president

did not have the authority to suspend the writ.

This decision set a precedent under which presi-

dents were afforded extensive powers, particularly

in times of crisis, but not to the extent that they

could suspend fundamental rights provided

for in the U.S. Constitution. Further, the case rein-

forced the power of the Court to check the execu-

tive branch and curtail presidential actions that are

perceived as exceeding the boundaries of executive

authority. This Civil War–era case precedent was

a poignant consideration when the U.S. Supreme

Court later became a check on several 20th-cen-

tury presidents, most notably Franklin D. Roos-

evelt, Harry Truman, and Richard M. Nixon.

As the Civil War continued, the number who

were either wounded and/or died grew to stagger-

ing numbers on both sides. Lincoln’s antislavery

stance intensified during the war, and in June

1862, he signed a law that banned slavery in the

United States. The Emancipation Proclamation,

issued by Lincoln on January 1, 1863, proclaimed

that all slaves living on Confederate soil were free.

Lincoln delivered the Gettysburg Address, one of

the more famous speeches in American history,

on November 19, 1863. He won a second term in

ofﬁ ce in the presidential election of 1864. Shortly

thereafter, the Confederate Army had endured

casualties so great that it was forced to surrender

on April 9, 1865. General Robert E. Lee surren-

dered to General Ulysses S. Grant at Appomattox

Courthouse, in Virginia. On April 11, Lincoln

spoke publicly for the ﬁ nal time. He was assassi-

nated on April 14, 1865, by John Wilkes Booth,

while attending a play in Washington, D.C.

Despite the divisive nature of the Civil

War, the nation reunited and the Constitution

remained intact, although not without amend-

ments. Lincoln’s legacy, the changing political cul-

ture of the nation, and the Reconstruction policies

after the war all became catalysts for change. The

post–Civil War era introduced a series of constitu-

tional amendments in the Reconstruction era that

were ratiﬁ ed to promote universal suffrage and

human rights. For instance, ratiﬁ ed on Decem-

ber 6, 1865, the Thirteenth Amendment was

designed to end slavery in the United States and

any associated territories falling under its jurisdic-

tion. The Fourteenth Amendment, ratiﬁ ed on

July 9, 1868, provided that freed slaves are U.S.

citizens. It also guarantees that citizens will be

afforded “equal protection of the laws” and

prohibits states from depriving “any person of life,

liberty, or property, without due process of law.”

The Fifteenth Amendment was the last of the

post–Civil War era. Ratiﬁ ed on February 3, 1870,

the Fifteenth Amendment extended voting rights

to all citizens, irrespective of “race, color, or previ-

ous condition of servitude.”

These amendments did not guarantee that

such safeguards would be aggressively enforced,

and their implementation in U.S. society has often

been a slow and incremental process. Opposition

against efforts to end racial and prejudicial behav-

ior was apparent, particularly in the South where

an agricultural economy had traditionally relied

extensively on slave labor. It was not until the mid-

136 Civil War and the Constitution, the

xviii+446_EofUSConsti-v1.indd 136 3/12/09 3:04:19 PM

dle of the 20th century, when the civil rights

movement ﬁ nally saw Congress pass various acts

and pieces of legislation culminating in the land-

mark Supreme Court decision in B

ROWN V. BOARD

OF EDUCATION OF TOPEKA (1954), that the issue of

equality was championed on a national level.

For more information: Belz, Herman. Recon-

structing the Union: Theory and Policy During

the Civil War. Ithaca, N.Y.: American Histori-

cal Association/Cornell University Press, 1969;

Degler, Carl N. The Other South. New York:

Harper & Row, 1974; Donald, David. The Poli-

tics of Reconstruction, 1863–1867. Baton Rouge:

Louisiana State University Press, 1965; Freehling,

William W. The Road to Disunion. Vol 1: Seces-

sionists at Bay. Oxford and New York: Oxford

University Press, 1990; Harmon, M. Judd, ed.

Essays on the Constitution of the United States.

New York: National University Publications, 1978;

Randall, J. G., and David Donald. The Civil War

and Reconstruction. 2d ed. Boston: D.C. Heath

& Co., 1961.

—Daniel Baracskay

Clayton Antitrust Act (1914)

The Clayton Antitrust Act of 1914 together with

the Sherman Act of 1890 are major pieces of con-

gressional legislation regulating anticompetitive

behavior of corporations and businesses.

Among the focal points of President Woodrow

Wilson’s “New Freedom” was trust busting, and

one of his answers to this problem was legisla-

tion that became the Clayton Antitrust Act. The

Sherman Act of 1890 notwithstanding, the cen-

tralization of economic power continued to grow

through the end of the 19th century and into the

20th century, something that greatly troubled

Wilson and his supporters. This piece of legis-

lation exempted trade unions and agricultural

groups from antitrust laws, and it reined in the use

of court injunctions during strikes. There were

business practices that it prohibited as well as an

expansion of permitted labor activities.

Alabama representative Henry D. Clayton,

a Democrat, drafted an antitrust bill that would

prohibit practices such as price discrimination

and agreements that restricted the right of dealers

handling the products of competing manufactur-

ers. The debate was fairly lengthy with much of

the focus on the sections involving labor unions

and their activities. Despite the amount of debate,

the legislation passed both houses of congress

fairly easily. The Senate vote was 46-16, and the

vote in the House of Representatives was

277-54, with 102 not voting. The Federal Trade

Commission (FTC) was established at roughly the

same time as the Clayton Act to enforce the provi-

sions of the antitrust legislation but was passed in

a weakened form because conservatives from the

North and South amended the act to provide for

broad judicial review of the FTC’s decisions.

Since passage of the Sherman Antitrust Act,

Samuel Gompers and his American Federation of

Labor had been lobbying for labor groups to be

exempt from antitrust laws. The new law stated

that unions should not be considered illegal com-

binations as applied to the restraint of trade. It

also denied federal courts the authority to issue

injunctions against striking unions unless required

to prevent irreversible damage to property. It legal-

ized strikes and peaceful picketing while exempt-

ing union and agricultural groups from antitrust

prosecution. Furthermore, it increased the list of

objectionable business practices to include price

discrimination and interlocking directorates.

Labor groups were so thrilled with the Clay-

ton Act that Gompers called the legislation the

“Magna Carta of Labor.” At the time of its pas-

sage, the bill signaled a change in the relationship

between management and labor, but future court

decisions weakened the legislation. For example,

in Duplex Printing Co. v. Deering, 254 U.S. 443

(1921), the Supreme Court held, 6-3, that the

Clayton Antitrust Act did not insulate labor unions

engaged in illegal activities, such as the conduct of

a secondary boycott. Because of the narrow inter-

pretation of the act, lower courts found it easier

to issue injunctions against organizing activities of

unions.

On the other hand, there were Court decisions

suggesting that the Clayton Antitrust Act had sig-

niﬁ cant power. In the dissenting opinion in U.S.

Clayton Antitrust Act 137

xviii+446_EofUSConsti-v1.indd 137 3/12/09 3:04:19 PM

v. E. I. du Pont, 353 U.S. 586 (1957), there is the

suggestion that if a corporation has acquired stock

in another corporation and has business dealings

with that corporation, they are in violation of Sec-

tion 7’s prohibition of interlocking directorates.

The Clayton Antitrust Act remains in effect

today as the nation’s basic antitrust law. Later,

amendment to the legislation strengthened its

provisions against unreasonable price reductions

and intercorporate stockholdings.

For more information: Harbeson, Robert W.

“The Clayton Act: Sleeping Giant of Antitrust?”

American Economic Review 48, no. 1 (March

1958): 92–104; Hovenkamp, Herbert. The Anti-

trust Enterprise: Principle and Execution. Cam-

bridge, Mass.: Harvard University Press, 2006;

Posner, Richard A. Antitrust Law. 2d ed. Chicago:

University of Chicago Press, 2001.

—Mark Alcorn

clear and present danger test

The clear and present danger test began as an

attempt to balance free speech under the First

Amendment and national security during war-

time. In Masses Publishing Co. v. Patten, 244 F.

535 (1917)—a prosecution of a Socialist magazine

under the Espionage Act—Judge Learned Hand,

then a district court judge, held that government

could punish only speech that offers “direct incite-

ment to violent resistance.” Applying the test nar-

rowly, Judge Hand found no incitement.

Two years later, however, in S

CHENCK V. UNITED

TATES, 249 U.S. 47 (1919), Supreme Court justice

Oliver Wendell Holmes, Jr., held that the

key question was whether the words, and their

surrounding circumstances, “create a clear and

present danger that they will bring about the sub-

stantive evils that Congress has a right to prevent.”

Applying the test, Justice Holmes upheld the con-

viction of a Socialist Party ofﬁ cial charged with

distributing anticonscription leaﬂ ets.

Six months later, in Abrams v. United States,

250 U.S. 616 (1919), Justice Holmes, now writing

in dissent, used the test to oppose the conviction

of a man charged under the Espionage Act with

promoting the Bolshevik revolution. Over the next

decade, Justice Holmes, joined by Justice Louis

Brandeis, issued a series of dissenting opinions

in which they used the clear and present danger

test to defend speech. The most notable of these

dissents was W

HITNEY V. CALIFORNIA, 274 U.S.

357 (1927), in which Justice Brandeis linked the

test to libertarian values of “[t]hose who won our

independence.” He added that “no danger ﬂ ow-

ing from speech can be deemed clear and present,

unless the incidence of the evil . . . is so imminent

that it may befall before there is opportunity for

full discussion.”

Eventually, as the Court took a more libertar-

ian turn during the 1940s, the clear and present

danger test became the law of the land. During

this period, the Court used it to protect speech in

a wide variety of cases ranging from labor picket-

ing to denaturalization proceedings. But the test’s

heyday was short-lived. Dennis v. United States,

341 U.S. 494 (1952), a case involving prosecu-

tions of Communists at the height of the cold war,

added a new factor to the test—the gravity of the

evil. This meant that a very grave danger (such as

a Communist takeover of the United States) could

justify restrictions on speech even if it was not

likely in the immediate future.

While its potential damage to free speech was

mitigated by the United States v. Yates ruling, 354

U.S. 298 (1957), which took the ﬁ rst steps back

toward a broader protection of speech, Dennis

marked the end of the clear and present danger

test. When the Supreme Court issued its broad

protection of speech in B

RANDENBURG V. OHIO,

395 U.S. 444 (1969), there was no mention of the

clear and present danger test. Instead, the Court

held that the state could restrict only speech that

directly incites imminent lawless action.

The test survives in other areas of law, how-

ever. In particular, it is used in cases involving

contempt of court and in cases involving attacks

on the integrity of the judicial process.

For more information: Hentoff, Tom. “Note,

Speech, Harm, and Self-government: Understand-

ing the Ambit of the Clear and Present Danger

Test.” Columbia Law Review 91 (October 1991):

138 clear and present danger test

xviii+446_EofUSConsti-v1.indd 138 3/12/09 3:04:20 PM

1,453–94; Kalven, Harry, Jr. A Worthy Tradition:

Freedom of Speech in America. New York: Harper

& Row, 1974.

—Robert A. Kahn

Clinton v. City of New York 524 U.S. 417

(1998)

In Clinton v. City of New York, the Supreme

Court declared unconstitutional a federal law giv-

ing the president of the United States line-item

veto authority.

In 1997, President Bill Clinton used the Line

Item Veto Act of 1996 to remove or delete indi-

vidual items that were contained within bills,

resolutions, and other budgetary items that he

would otherwise have vetoed. Through the new

act, the president basically had the power to can-

cel three major types of ﬁ nancially deﬁ ned items.

The range of his authority to veto began at one

end with the ability to challenge the dollar amount

of discretionary budget authority. This allowed for

the limitations of several constituent or lobbyist

rewards that derived from a potential quid pro

quo format that was common within the congres-

sional ranks. Thus, in order to get approval for the

item, the president retained an ability to alter the

political scheme in an effort to gain concession for

his party or from the congressperson.

The president also retained the ability to veto

an item that was of newer direct spending, which

allowed him to challenge the size of government

to limit the operational expansion of agencies. This

could serve as the ability to bring agency heads

under his control and limit their independence.

Third, the president was able to veto potential tax

changes that would be established solely as reward

for political lobbyists and thus limit the congres-

sional power to trade supportive laws for their

respective constituencies for political support,

thereby stemming the tide of opposing power

growth by limiting what these leaders could do for

their followers.

The major question in this case was whether

the President had violated the presentment

clause of Article I of the U.S. Constitu-

tion. The decision by the high court affirmed

that he did in fact violate that component of the

Constitution and thus exceeded his presidential

authority. In the opinion of the Court, the pre-

sentment clause requires any legislation to pass

both houses of Congress, and if this is accom-

plished, then the president must approve or veto

the legislation in its entirety. It was here that the

Court stood its ground, interpreting that the line-

item veto actions amounted to a tailoring of the

law and thus fundamentally altered the meaning

of the legislation in sum created by the legisla-

tive bodies. This “amending” as granted in the

act was without authority and incongruent with

the spirit of the Constitution, according to the

Court. The Court argued that the negotiations

enjoyed though the legislative creation process

that had existed for 200-some years, based on

constant compromise, was now a useless concept

and endeavor.

The actual repeal of the act has never occurred,

but the unconstitutionality of the operational

endeavor makes the pulling it off the books, in a

matter of speaking, highly likely.

For more information: Brownell, Roy E. “The

Unnecessary Demise of the Line Item Veto Act:

The Clinton Administration’s Costly Failure to

Seek Acknowledgement of ‘National Security

Resc iss ion.’ ” American Law Review 1,273–1,351,

no. 47 (1997–98): 357–373; Kennedy, J. Stephen.

“How a Bill Does Not Become Law: The Supreme

Court Sounds the Death Knell of the Line Item

Veto.” Mississippi College Law Review 357, no. 20

(1999–2000); Langran, Robert W. The Supreme

Court: A Concise History. New York: Peter Lang,

2004.

—Ernest Gomez

Clinton v. Jones 520 U.S. 681 (1997)

In Clinton v. Jones, the Supreme Court ruled that

the Constitution does not provide the president

immunity from civil suits for misconduct that

occurred before he took ofﬁ ce. The signiﬁ cance of

the case is that it reafﬁ rmed the principle that no

one is above the law and set the stage for President

Bill Clinton’s impeachment.

Clinton v. Jones 139

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On May 8, 1991, then-governor Bill Clinton

gave a speech at an official conference at the

Excelsior Hotel in Little Rock, Arkansas, where

Paula Jones, a state employee, was working the

registration desk. That afternoon, Jones alleged

that Danny Ferguson, an Arkansas state trooper,

persuaded her to visit the governor in a hotel suite

where he made unwanted sexual advances that she

immediately rejected. Due to her rejection of the

governor, she claims that her superiors punished

her by creating a hostile working environment and

changing her job duties.

Three years later, Jones sued President Clinton

for sexual harassment. Clinton’s attorney ﬁ led a

motion to dismiss Jones’s suit until after the presi-

dent left ofﬁ ce, claiming that presidential immu-

nity prevents the judicial branch from interfering

with the performance of the president’s constitu-

tional duties by subjecting him to litigation. The

district court rejected the motion but did extend

temporary immunity by postponing the trial until

the end of Clinton’s presidency. The U.S. Court

of Appeals for the Eighth Circuit reversed the

postponement, and on appeal, the Supreme Court

held for Jones, ordering the trial to proceed.

Writing for a unanimous court, Justice John

Paul Stevens rejected the presidential immu-

nity claim because the Constitution provides no

immunity for unofﬁ cial acts. Moreover, impair-

ment of duties is unlikely because history shows

that presidents are rarely sued and the time it

takes to resolve these cases is minimal. Further,

Justice Stevens argued that the Court was not vio-

lating the separation of powers by interfering with

the performance of executive duties by ordering

the trial to proceed. Rather, the Court was merely

pursuing its authority under Article III of the

U.S. Constitution to resolve cases and contro-

versies. Finally, the Court ruled that deferring

the trial was an abuse of discretion by the district

court because delay would increase the probabil-

ity of denying justice to Jones due to a loss of evi-

dence, the inability of witnesses to recall speciﬁ c

facts, or the possible death of one of the parties.

Concurring in the judgment, Justice Stephen

G. Breyer expressed skepticism that litigation

would not impair presidential performance. He

preferred a narrower ruling that allowed the Court

to consider temporary immunity if the president

could prove impairment.

As a result, the case went to trial and was dis-

missed as groundless. Eventually, Clinton settled

the case with Jones out of court for $850,000 but

no admission of guilt. However, Clinton’s legal

and political troubles continued as he was found

in contempt of court for misleading and evasive

testimony in the Jones case. This led to a ﬁ ne, the

voluntary surrender of his law license, and the

basis for two articles of impeachment that the

House of Representatives approved in 1998,

making Clinton only the second president in his-

tory to be impeached. Overall, Clinton v. Jones is

an important case both in terms of its impact upon

the Clinton presidency and in terms of ruling that

in many cases sitting presidents could face civil

judgments.

For more information: Conasan, Joe, and Gene

Lyons. The Hunting of the President. New York:

St. Martin’s Press, 2001; Miller, Randall K. “Presi-

dential Sanctuaries After the Clinton Sex Scan-

dal.” Harvard Journal of Law and Public Policy

22, no. 2 (1999): 647–735; Turley, Jonathan. “From

Pillar to Post: The Prosecution of American Presi-

dents.” American Criminal Law Review 37 (Sum-

mer 2000): 149–217.

—Sean F. Evans

Coe v. Town of Errol 116 U.S. 517 (1886)

In Coe v. Town of Errol, the Supreme Court ruled

that goods may be taxed by a state as “the general

mass of property of that state” prior to the actual

commencement of the goods’ journey toward

another state. The significance of this decision

is that it established a point of time after which

goods become interstate commerce. Coe v.

Town of Errol is of particular importance to states

whose primary exports are natural resources; such

goods are often subject to storage or holdover for

a period of time prior to actual shipment to other

states or foreign countries.

Edward Coe owned an operation that cut trees

for export as timber in New Hampshire. Coe

140 Coe v. Town of Errol

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banked logs along a stream within the jurisdic-

tion of the town of Errol, New Hampshire, in the

winter of 1879 with the intention of shipping the

logs down the Androscoggin River toward Maine

in the spring of 1880. The town of Errol assessed

taxes on the logs as they awaited transit, during

the winter months, toward Maine. Coe argued

before the New Hampshire Supreme Court that

the logs were not subject to taxation in the state of

New Hampshire on the grounds that the Andro-

scoggin River constituted an interstate water-

way, that the goods were in transit while in New

Hampshire, and that this transit route was long

established. The New Hampshire Supreme Court

upheld the town of Errol’s assessment of taxes on

the logs.

The case was heard by the U.S. Supreme

Court, and Justice Joseph P. Bradley wrote the

majority opinion. Justice Bradley argued that

the intention to export goods does not provide

immunity from state taxation. The point of com-

mencement for goods intended for export does

not necessarily start at the earliest stage of activ-

ity. In this case, the felling of timber would not

constitute the point at which the timber became

interstate commerce. The timber became inter-

state commerce when it began its actual journey

down the Androscoggin River toward Maine. Jus-

tice Bradley made an important point by noting

that the owner’s intention to export cannot always

be taken for granted; the owner can change his

mind. The goods are considered the general mass

of property in the state “until [goods are] actually

put in motion for some place out of state, or com-

mitted to the custody of a carrier for transporta-

tion to such place.”

Justice Bradley made another point by noting

that the economies of some states, particularly

those in the West and South, depend primarily

on the exportation of agricultural goods. Preclud-

ing agricultural goods from state taxation prior to

the point of their commencement along a ship-

ping route or prior to their custody by a carrier

would have a signiﬁ cant impact on the economies

of these states. Justice Bradley cited the case of

The Daniel Ball, 10 Wall. 565 (1870), in discern-

ing the boundaries of interstate commerce. In

The Daniel Ball, it was argued that a ship did not

need a federal license, because it was engaged

only in the internal commerce of a state even if

the river it sailed on was considered to be a navi-

gable waterway of the United States. The Supreme

Court found that a navigable waterway was one

that allowed for a continuous movement between

states and that goods being transported along it

could be considered interstate commerce even if

the ship carrying them did not leave the state. The

decision of the Supreme Court in The Daniel Ball

is reﬂ ected in Justice Bradley’s opinion.

Whenever a commodity has begun to move as

an article of trade from one state to another, com-

merce in that commodity between the states has

commenced, but this movement does not begin

until the articles have been shipped or started for

transportation from one state to the other. The

carrying of them in carts or other vehicles, or even

ﬂ oating them to the depot where the journey is

to commence, is not part of that journey. That is

all preliminary work, performed for the purpose

of putting the property of a state in preparation

and readiness for transportation. Until actually

launched on its way to another state, or commit-

ted to a common carrier for transportation to such

state, its destination is not ﬁ xed and certain.

The case examines one ﬁ nal question: Can spe-

cial taxes be assessed by a state on goods intended

for exportation? Justice Bradley argues that goods

intended for export are not subject to special taxa-

tion on the grounds that such goods are exports.

The manner of taxation of the goods, prior to the

commencement of their actual journey, is to be

one that would be applied to such goods as the

general mass of property of that state and not as

goods intended for export.

Coe v. Town of Errol was important in estab-

lishing a point in time at which goods begin to be

considered interstate commerce. Goods are sub-

ject to state taxation, as products of the state and

not as exports. Once the journey toward another

state actually commences, the goods become inter-

state commerce and are subject to regulation by

the federal government. This case is particularly

relevant for states whose economies depend pri-

marily on the export of natural resources because

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