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must directly advance the government interest,

and 4) there must be a “reasonable ﬁ t” between

the restriction and means chosen to achieve the

goal.

In recent years, the Court has applied the Cen-

tral Hudson test to variety of different commer-

cial messages including the advertising of alcohol

prices (44 L

IQUORMART V. RHODE ISLAND, 517 U.S.

484 [1996]) and casino gambling (Greater New

Orleans Broadcasting Association v. United

States, 527 U.S. 173 [1999]). In both of these cases,

the Court struck down laws that restricted adver-

tising. In the Liquormart case, the Court ruled

that the state interest (promoting temperance) was

legitimate, but the means (prohibiting the adver-

tising of prices) was too broad. In the Greater New

Orleans case, the Court said the federal law that

prohibited the advertising of private casinos was so

riddled with exceptions that it no longer advanced

the government’s interest.

While the Supreme Court has expanded pro-

tection for truthful advertising, many regulations

on advertising still exist. Five federal agencies

regulate advertising in one form or another. The

Federal Trade Commission (FTC) is generally

responsible for false advertising claims. The FTC

can use means from publicity to cease-and-desist

orders to stop false advertising. The Food and

Drug Administration polices product labeling.

The Federal Communications Commission regu-

lates compliance with the Public Health Cigarette

Smoking Act of 1969, which prohibits cigarette

advertising on radio or TV. The Securities and

Exchange Commission enforces regulations on

advertising stocks and bonds. Finally, the U.S.

Postal Service polices false advertisement sent

through the mail.

The governmental agencies at the state and

local level can enact laws that regulate advertis-

ing. Cities have passed ordinances on what kinds

of advertising can be placed on billboards close

to schools or parks, and state gaming commissions

can regulate the advertising that takes place in

casinos.

False advertising is generally determined by

two standards: specific dishonest claims and

deceptive advertising. Dishonest claims are sim-

ply false statements about prices, quality, or con-

ditions of products. Deception is more difﬁ cult

to prove. The FTC uses guidelines that assume

the consumer is a “reasonable person” who would

probably be deceived in a material way by the

advertisement taken as a whole.

For more information: Tedford, Thomas, and

Dale Herbeck. Freedom of Speech in the United

States. State College, Pa.: Strata Publishing, 2005;

Sunstein, Cass R. Democracy and the Problem of

Free Speech. New York: Free Press, 1995.

—Charles Howard

common law and the Constitution

Common law and the Constitution refers to

whether there are general rules of federal com-

mon law that can be applied by the federal courts.

While for nearly 100 years the U.S. Supreme Court

ruled that such rules existed, that legal doctrine is

no longer accepted.

The common law refers to unwritten rules of

tradition and law that affect business and personal

life; for example, many of the rules of contract and

property law, as well as tort and personal injury

law, are rooted in the common law. Common law is

a feature of English law dating back to the Middle

Ages. When the British colonized North America,

they brought the common law to it. English com-

mon law was regularly enforced in colonial courts

and, eventually, in the state courts after American

independence in 1776. The question, however, was

whether status should be given to the common law

in the federal courts.

Under Section 1 of Article III of the U.S.

Constitution, the Supreme Court and federal

courts were given diversity jurisdiction to

hear suits brought by citizens of one state against

citizens in another. Yet, in hearing these cases,

Article 34 of the Judiciary Act of 1789 declared,

“the laws of the several states, except where the

constitution, treaties or statutes of the United

States shall otherwise recognize or provide, shall

be regarded as rules of decision in trials at com-

mon law, in the courts of the United States.” Thus,

according to this act, the law of the states, includ-

152 common law and the Constitution

xviii+446_EofUSConsti-v1.indd 152 3/12/09 3:04:24 PM

ing state common law, was to be applied in diver-

sity suits in federal court. The question, though, in

a diversity case, was which state’s rules or common

law to apply. The Court answered that in Swift v.

Tyson, 41 U.S. 1 (1842).

At issue in Swift was what rules of common

law to apply in a diversity case involving a contract

law dispute. Justice Joseph Story, writing for

the Court, rejected the argument that state com-

mon law should always be applied in federal court.

Instead, he ruled that the Constitution, speciﬁ -

cally, Article III, Section 2, allowed the Supreme

Court to apply general rules of common law when

adjudicating disputes arising out of state courts. In

effect, the Constitution recognized or allowed for

the courts to discover and apply general federal

rules of common law when particular local com-

mon law was not applicable or appropriate to use.

Under this doctrine recognized in Swift, diversity

suits in federal court would apply substantive fed-

eral common law to resolve cases while also apply-

ing or following state rules of civil procedure to

determine, for example, what evidence the courts

would be permitted to hear.

The Swift decision was applied for nearly 100

years. During that time period, it generated signif-

icant criticism as a result of its difﬁ culty to apply.

One problem was determining the line between

local versus uniform rules, or when one should

apply which. Another criticism was that the Swift

doctrine led to the federal courts ignoring state

courts or law. In other cases, it enabled situations

where individuals who did not like a speciﬁ c state

law moved out of state and ﬁ led a diversity suit in

order to challenge it. Overall, by the early 20th

century, efforts to apply federal common law in

diversity suits grew increasingly problematic.

Eventually, in Erie Railroad v. Tompkins, 304

U.S. 64 (1938), the Supreme Court overturned

the Swift decision. Writing for the Court, Justice

Louis Brandeis held: “There is no federal general

common law. Congress has no power to declare

substantive rules of common law applicable in

a state whether they be local in their nature or

‘general,’ be they commercial law or a part of the

law of torts. And no clause in the Constitution

purports to confer such a power upon the federal

courts.” Because the Swift doctrine had proved

to be unworkable and, more important, because

there appeared to be no speciﬁ c language in the

Constitution granting a power to declare federal

common law, the federal courts would no longer

apply it when hearing diversity jurisdiction cases.

Erie Railroad v. Tompkins was a major deci-

sion. First, it is important for the proposition that

the U.S. Constitution does not contain general

rules of common law that can be applied by the

federal courts. Second, it is important because it

stated that in diversity suits, state law, including

state common law, would be the substantive law

that would be applied when cases were held in

federal court. Finally, as a result of Erie Railroad

v. Tompkins, the procedural rules of the federal

courts in the Federal Rules of Civil Procedure

would be applied in diversity suits.

For more information: Cantor, Norman F.

Imagining the Law: Common Law and the Foun-

dations of the American Legal System. New York:

HarperCollins, 1997; Friedman, Lawrence M. A

History of American Law: Third Edition. New

York: Touchstone, 2005; Hazard, Geoffrey C., and

Michael Taruffo. American Civil Procedure: An

Introduction. New Haven, Conn.: Yale University

Press, 1995.

—David Schultz

Communications Decency Act (1996)

The Communications Decency Act (CDA) was an

initiative designed to protect minors from being

exposed to obscene and indecent material on the

Internet. Speciﬁ cally, the act made it a crime to

knowingly distribute sexually explicit content

online that was patently offensive or indecent and

not shielded from children who were under 18

years of age. As part of the Telecommunications

Act of 1996, the CDA was passed by Congress on

February 1, 1996, and signed into law by Presi-

dent Bill Clinton on February 8, 1996. In Reno

v. American Civil Liberties Union, 521 U.S. 844

(1997), the Supreme Court ruled that the CDA

was unconstitutional and had a chilling effect on

free speech.

Communications Decency Act 153

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When passed, the Telecommunications Act of

1996 had seven titles. Six of these were a result

of committee hearings. Title V—the Communi-

cations Decency Act—was authored by Senators

Slade Gorton (Republican from Washington)

and James Exon (Democrat from Nebraska) and

was included in the Telecommunications Act as

a result of amendments during ﬂ oor debates and

in executive committee after committee hearings

had ceased. A prominent example includes a pro-

vision made by Representatives Christopher Cox

(Republican from California) and Ron Wyden

(Democrat from Oregon), referred to as Section

230, that held Internet service providers legally

liable for the content posted online by individuals

who use their Internet portals.

The CDA was perceived by some observers as

a threat to free speech and First Amendment

rights as guaranteed by the U.S. Constitution.

Promptly after the act was signed into law, the

American Civil Liberties Union along with

19 other entities ﬁ led a lawsuit challenging its con-

stitutionality. The plaintiffs argued that the CDA

was too encompassing and would prohibit the free

exchange of ideas among adults on the Internet.

Despite the government’s claim of similarity,

the Supreme Court noted differences between

the need to regulate the content of terrestrial

broadcasting versus the content of the Internet.

When comparing the Internet with terrestrial

broadcasting, the Supreme Court ruled that

there was an important difference. Terrestrial

broadcasting uses space on the electromagnetic

spectrum, which justifies only limited First

Amendment protection. In Reno v. American

Civil Liberties Union, the Court determined

that the Internet did not use a scarce spectrum.

Unlike with terrestrial broadcasting, the Court

reasoned that if parents did not want their chil-

dren to have access to the Internet, then they

were not required to subscribe to an Internet

service provider.

The Federal Communications Commission reg-

ulates indecent and offensive speech on terrestrial

broadcasting and limits material to safe harbor

hours when children are not likely to be exposed

to the material. In Reno v. American Civil Liber-

ties Union, Justice John Paul Stevens, writing

for the Court majority, distinguished the Internet

from terrestrial broadcasting by noting it can “be

used to transmit text; [it] can transmit sound, pic-

tures, and moving video images. Taken together,

these tools constitute a unique medium—known

to its users as ‘cyberspace’—located in no particu-

lar geographical location but available to anyone,

anywhere in the world, with access to the Inter-

net.” Furthermore, Justice Stevens noted that

unlike “communications received by radio or tele-

vision, ‘the receipt of information on the Internet

requires a series of afﬁ rmative steps more delib-

erate and directed than merely turning a dial. A

child requires some sophistication and some abil-

ity to read and retrieve material and thereby to

use the Internet unattended.”

Although the Court protected the ability to

transmit indecent and patently offensive mate-

rial via the Internet, the Court did not protect

the distribution of obscene material via the Inter-

net. Obscene material is not protected by the

First Amendment and may not be distributed via

any mass medium. Justice Stevens wrote for the

Court: “We are persuaded that the CDA lacks the

precision that First Amendment requires when a

statute regulates the content of speech. In order to

deny minors access to potentially harmful speech,

the CDA effectively suppresses a large amount

of speech that adults have a constitutional right

to receive and to address one another.” In sum,

the Court ruled that the CDA was overbroad.

Justice Stevens asserted the “interest in encourag-

ing freedom of expression in a democratic society

outweighs any theoretical but unproven beneﬁ t of

censorship.”

For more information: Aufderheide, Patricia.

Communications Policy and the Public Interest:

The Telecommunications Act of 1996. New York:

Guilford Press, 1999.

—John Allen Hendricks

compelling governmental interest

Compelling governmental interest refers to a test

or set of objectives the government must offer in

154 compelling governmental interest

xviii+446_EofUSConsti-v1.indd 154 3/12/09 3:04:25 PM

order to limit a fundamental right or to justify

classifying individuals into suspect classiﬁ cations.

While there is no universal deﬁ nition or catalog of

what compelling interests are, the Supreme Court

has articulated many of them over time.

As a rule, the Constitution and the Bill of

Rights have created numerous rights and protec-

tions that the Supreme Court has found to be fun-

damental: The right to vote, free speech, the

free exercise of religion, and the right to habeas

corpus are all deemed to be fundamental

rights that generally cannot be ignored or denied

to individuals. However, none of these rights is

absolute, and instead, the Court has stated that

there may be situations when it would be neces-

sary to limit these rights in some way. For exam-

ple, the right to habeas corpus may be limited in

times of rebellion according to Section 9, Clause 2

of Article I of the U.S. Constitution.

In cases where there is a need to limit a fun-

damental right or use a suspect classiﬁ cation, the

government must ﬁ rst assert the compelling gov-

ernmental interest that it wishes to secure. It must

then show that the policy or program it is using is

the least restrictive means to securing its objective

and that, ﬁ nally, there is no other way of secur-

ing that objective except by the action it is taking.

Overall, the compelling governmental interest test

is very tough to meet, making it very difﬁ cult for

the government to use suspect classiﬁ cations, such

as race, or limiting fundamental rights, such as the

rights to free speech.

In R

EGENTS OF THE UNIVERSITY OF CALIFORNIA V.

AKKE, 438 U.S. 265 (1978), however, the Supreme

Court held that the use of race for remedial pur-

poses in affirmative action was permissible

in order to promote the compelling governmen-

tal interest of promoting educational diversity.

Similarly, in B

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

the Court said that the compelling governmental

interest of addressing political corruption or its

appearance permitted the limiting of campaign

contributions, even though the latter raised or

implicated First Amendment concerns. Over-

all, the compelling governmental interest test is an

important tool for weighing and protecting basic

constitutional protections.

For more information: Gottlieb, Stephen E.

Public Values in Constitutional Law. Ann Arbor:

University of Michigan Press, 1994; Schwartz,

Bernard. A History of the Supreme Court. New

York: Oxford University Press, 1993.

—Stephen E. Gottlieb, Albany Law School.

Complete Auto Transit, Inc. v. Brady 430

U.S. 274

(1977)

In Complete Auto Transit, Inc. v. Brady, the

Supreme Court laid out rules for how states may

tax businesses that operate within their borders

while also doing business in other communities.

The problem the Court was trying to address in

this case was what the Constitution permits when

taxing businesses that operate in many states.

Complete Auto Transit, Inc., a motor carrier

corporation based in Michigan, was transporting

cars for General Motors to car dealerships within

the state of Mississippi. Mississippi assessed a

transportation tax on Complete Auto Transit,

Inc., for a sum of $122,160.59. Complete Auto

Transit claimed this violated the commerce

clause of Section 8 in Article I of the U.S.

Constitution, which according to Black’s Law

Dictionary, “gives Congress the exclusive power

to regulate commerce among the states, with for-

eign nations and with Indian tribes.” The question

before the Court: Did Mississippi violate the com-

merce clause by assessing a transportation tax on

Complete Auto Transit, thereby placing an undue

burden on the company, which, in turn, affected

interstate commerce?

The Court, in a unanimous decision delivered

by Justice Harry Blackmun, concluded the tax did

not violate the commerce clause of the Constitu-

tion; therefore, the tax was a valid tax. This case set

four criteria as prerequisites that need to be met

in order to determine whether a state tax is valid

and does not cause an undue burden on interstate

commerce. The criteria are as follows: The tax

must be connected with some activity taking place

within the state; the tax must be fair and appor-

tioned based on intrastate, not interstate, com-

merce; it must be nondiscriminatory; and ﬁ nally,

the tax must be related to services provided by the

Complete Auto Transit, Inc. v. Brady 155

xviii+446_EofUSConsti-v1.indd 155 3/12/09 3:04:25 PM

state. Since Complete Auto Transit had benefit

of services in the state (police protection, roads,

etc.), the tax was related to services provided by

the state. This decision afﬁ rmed the ruling of the

Mississippi Supreme Court. The aforementioned

criteria, according to the U.S. Supreme Court, are

valid only if Congress has not instituted any law

or regulation affecting such action. Therefore, the

Court acknowledged that the state of Mississippi

had a right to impose the tax, yet the supremacy

of the national government to override such a tax

was still a possibility and within the purview of

the Constitution.

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

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

and Materials on Constitutional Law: Themes for

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

West Publishing, 1993.

—Dan Krejci

confrontation clause

The confrontation clause of the Sixth Amend-

ment to the U.S. Constitution protects the right

of criminal defendants to question personally the

witnesses against them at trial in order to chal-

lenge the reliability of their testimony.

The Sixth Amendment states: “In all criminal

prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him.”

This right ensures that criminal defendants can

test, through rigorous questioning, the personal

credibility of witnesses and the reliability of their

testimony. This right plays an important role in the

justice system’s truth-seeking process by discour-

aging perjury and promoting truthful testimony.

The criminal justice system is an adversarial

process in which the government has the burden

of proving the defendant’s guilt of the charged

offense beyond a reasonable doubt. To that end,

the government’s prosecutor presents witnesses

and introduces evidence in support of the gov-

ernment’s case. The system is characterized as

adversarial because the defendant has a right to

question each witness and scrutinize each piece

of evidence. The confrontation clause entitles the

defendant to cross-examine witnesses in order to

challenge their truthfulness and the trustwor-

thiness of their testimony. Thus, the defendant’s

cross-examination may include challenges to the

accuracy of the witness’s perception, the reliability

of his or her recollection, or his or her personal

honesty. If a criminal defendant is not afforded

an opportunity to challenge the testimony of his

accusers and the witnesses against him, the testi-

mony is not admissible at the defendant’s trial.

Historically, the confrontation clause was

designed to prevent the conviction of a criminal

defendant based on written statements or depo-

sitions instead of live in-court testimony. Under

English common law, written statements, affi-

davits, and depositions taken out of court were

routinely used against criminal defendants at

trial. The prosecutor was allowed to rely on such

statements at trial even if the witness had an obvi-

ous reason to lie, such as the case of a witness

who gave a statement in exchange for leniency

regarding his own criminal charges. This prac-

tice was soundly criticized because it permitted

convictions to be rendered based on statements

from witnesses who were not subjected to any

questions concerning their credibility or reliabil-

ity. The out-of-court statements were allowed to

stand as challenges to the defendant’s own in-

court protestations of innocence. The injustice

of that situation inspired the framers of the U.S.

Constitution to include the confrontation clause

in the Sixth Amendment.

Generally, the confrontation clause applies only

to statements that are testimonial in nature. Tes-

timonial statements are solemn statements given

afﬁ rmatively to establish a fact, and they are usu-

ally given during a formal, structured interview or

a legal proceeding. For example, all of the follow-

ing statements are testimonial: statements while

a defendant is entering a guilty plea, affidavits

and depositions given under oath, custodial inter-

rogations by police officers, transcripts of prior

in-court testimony, and out-of-court statements

made in anticipation of use in a trial. Such state-

ments, and those like them, are not admissible in

a defendant’s criminal trial unless the defendant

had the opportunity to question the witness at the

156 confrontation clause

xviii+446_EofUSConsti-v1.indd 156 3/12/09 3:04:26 PM

time of the statement and the witness is not avail-

able to testify at the defendant’s trial. On the other

hand, the confrontation clause does not prohibit

admission of statements that are not testimonial.

These statements are given in a casual setting and

are not intended to prove a fact, such as casual

comments or spontaneous exclamations. These

statements lack the formality and structured con-

text to be considered testimonial.

The U.S. Supreme Court has on many occa-

sions decided cases that tested the parameters

of the confrontation clause. Most notably, the

Sixth Amendment was originally applicable only

to criminal cases prosecuted by the federal gov-

ernment; however, in Pointer v. Texas, 380 U.S.

400 (1965), the Court held that it was applicable

to the states through the due process clause

of the Fourteenth Amendment. Many other

cases have addressed the scope of the protection

afforded by the clause. In Crawford v. Washing-

ton, 541 U.S. 36 (2004), the Court held that the

confrontation clause precludes from evidence the

out-of-court testimonial statements of witnesses

unless the witness is not available to testify at

the trial and the defendant had a prior opportu-

nity to cross-examine the witness, regardless of

whether the circumstances of the statement make

it appear to be reliable. In Crawford, the Court

ruled inadmissible the out-of-court statement of

the defendant’s wife concerning the defendant’s

involvement in an altercation with the victim.

That result was compelled by the confrontation

clause because the defendant was deprived of the

opportunity to cross-examine his wife.

In Davis v. Washington, 126 S.Ct. 2266

(2006), the Court examined the admissibility of

the recording of a witness’s telephone conversa-

tion with a 911 operator and the written statement

of a domestic violence victim to an investigating

police ofﬁ cer. The 911 recording was ruled admis-

sible under the confrontation clause because it

was not testimony but was made for the purpose

of summoning emergency assistance to an ongo-

ing crisis. The victim’s statement to police was

ruled inadmissible under the confrontation clause

because it was given during a formal, structured

interview and was intended to establish the facts

of the assault being investigated; therefore, it was

testimonial and inadmissible.

In a series of cases, the Supreme Court has rec-

ognized that the confrontation clause does not pre-

clude admission in evidence of a statement made

while the witness was in contemplation of death,

known as a “dying declaration.” Nor is the right

to confrontation violated by the introduction of

the prior sworn testimony of a witness from a pro-

ceeding during which the defendant had an oppor-

tunity for cross-examination. Another notable

exception to the requirement of a face-to-face in-

court confrontation was recognized by the Court

in its decision in Maryland v. Craig, 497 U.S. 836

(1990). In that case, the Court approved a proce-

dure that allowed a child witness, who accused

the defendant of abuse, to testify by closed-circuit

television from a room outside the courtroom. The

confrontation clause was not violated because the

procedure ensured the reliability of the testimony

by requiring the child to testify under oath, allow-

ing the defendant to cross-examine the child, and

permitting the jury to see the child’s demeanor.

Finally, the Supreme Court has noted that a crimi-

nal defendant cannot use the confrontation clause

as a shield to subvert the prosecution by causing

a witness to be unavailable. Under those circum-

stances, the unavailable witness’s out-of-court

statement will be admissible against the defendant

under the “forfeiture by wrong-doing” exception to

the confrontation clause.

For more information: Garcia, Alfredo. The

Sixth Amendment in Modern American Jurispru-

dence. New York: Greenwood Press, 1992; Heller,

Francis. The Sixth Amendment to the Constitu-

tion of the United States. New York: Greenwood

Press, 1969.

—Mark A. Fulks

Congress and foreign policy

Directly and indirectly, Section 8 of Article

I of the U.S. Constitution gives or allows

Congress a range of foreign-policy powers. These

include the power to approve or reject nomina-

tions of ambassadors and other ofﬁ cials involved

Congress and foreign policy 157

xviii+446_EofUSConsti-v1.indd 157 3/12/09 3:04:26 PM

in foreign policy, to ratify or reject treaties with

other countries, to regulate trade and commerce,

to authorize and appropriate funds to maintain

the armed forces, to declare war, to hold commit-

tee and subcommittee meetings on foreign-policy

issues, to acquire additional territory, to approve

foreign military sales, and to pass resolutions stat-

ing its foreign-policy position or in support of the

president’s. In the modern and contemporary con-

stitutional history of the U.S. presidential system,

congressional foreign-policy activity has gener-

ally been reactive to presidential initiative. Since

the Spanish-American War (1898), Congress has

rarely set the U.S. foreign-policy agenda.

Limitations on congressional foreign-policy-

making began early. The Constitution of 1787

reinforced the political power of the slaveholding

southern states in several ways. Legislative for-

eign-policy-making was restricted. Speciﬁ cally,

Congress was prevented from declaring the inter-

national slave trade illegal before 1808 (Article I,

Section 9, Clause 1). Moreover, that clause was

even shielded from amendment (Article V). At

the same time, levying taxes of up to $10 per slave

on transoceanic human cargoes was permitted

(Article I).

Despite its constitutional power “to declare

war” (Article I, Section 8, Clause 11), Congress is

disadvantaged in shaping military foreign policy.

First, the president is “commander in chief of

the Army and Navy of the United States” (Article

II, Section 2, Clause 1). Second, unlike countries

such as the Philippines where senators are elected

at-large, U.S. presidents are elected separately if

indirectly by a far broader national constituency

than any member of the national legislature.

Third, Congress implicitly conﬂ ates declaring that

a state of war exists with the executive decision

to commit military forces to combat and thereby

places an obstacle in the way of its opening up a

formal discussion of whether a state of war should

be declared. Fourth, while U.S. presidents have

initiated military intervention abroad almost 200

times, Congress has simply let its constitutional

power to declare war slip into disuse. It has not

done so since June 1942, missing subsequent

opportunities to lead national discussions of war

and peace. And fifth, Congress has otherwise

turned aside from opportunities to clarify its role.

During 1916–35, more than a dozen bills and a

proposed amendment requiring a plebiscite before

declaring war failed to receive sufﬁ cient congres-

sional support.

Late in the Vietnam War, discussions leading

to passage of the War Powers Act (1973) raised

expectations of a proactive Congress. Supporters

of this legislation hoped that it would bridge the

gap between congressional and presidential war-

making powers by limiting unilateral war made

by the chief executive. However, the ﬁ nal draft

of the War Powers Act has not seriously limited

presidential war-making. Replete with drafting

errors, it fails to define national emergency. It

does not state who is to decide when a presiden-

tial report on military intervention is required.

Meanwhile, by referring to three different kinds

of reports, only one of which involves a 60-day

time limit, the War Powers Act allows the presi-

dent to choose the type that suits his needs.

Despite mandating consultation with Congress,

the act does not say who in Congress must be con-

sulted. And to stop presidential war-making, the

act unluckily designated the “concurrent” reso-

lution. Since concurrent resolutions cannot be

vetoed, they were ruled unconstitutional in INS

v. Chadha (1983).

Treaties are one way to formalize agreement in

foreign affairs. Two-thirds of senators present and

voting may give the president their “advice and

consent” and “concur” in “treaties” proposed by

the executive branch (Article II, Section 2, Clause

2). But since “all treaties” are also “the supreme

law of the land” (Article VI, Clause 2), treaties

share characteristics of statutes (a legislative prod-

uct). Thus, treaties can become an understandable

focus of contention between executive and legisla-

tive branches. President Woodrow Wilson’s failure

to elicit Senate ratiﬁ cation for U.S. membership

in the League of Nations resulted from such a

clash, partly because of his unwillingness to elicit

the “advice and consent” of key senators in early

discussions of the proposed treaty. Later, during

the cold war, senators opposing two 1977 Panama

Canal treaties signed by President Jimmy Carter

158 Congress and foreign policy

xviii+446_EofUSConsti-v1.indd 158 3/12/09 3:04:26 PM

tried but failed a year later to attach limitations on

the treaties. But in a changed international climate

shortly thereafter, Senate hostility to Carter’s pro-

posed SALT II Treaty with the Soviet Union led

to suspension of ratiﬁ cation efforts.

U.S. foreign policy since the Civil War has been

marked by presidential preference for international

executive agreements. By the late 1920s, that pref-

erence was cumulatively overwhelming. Reliance

on these paraconstitutional instruments extricates

the executive branch from having to haggle for

votes in the Senate. And the U.S. Supreme Court

rejected a challenge to international executive

agreements in U

NITED STATES V. CURTISS-WRIGHT

EXPORT CORP. (1936). Yet congressional dissatis-

faction on that point continued to grow during

and after the presidency of President Franklin

D. Roosevelt. Even so, several proposed consti-

tutional amendments by Senator John Bricker in

the late 1940s and early 1950s failed. In a differ-

ent representative democracy, limitations in the

Konstitusyon of the republic of the Philippines on

the use of international executive agreements con-

tributed to President Corazon Aquino’s inability to

push through the Military Bases Agreement with

the United States in 1991.

Individual members of Congress challenged

President Carter’s withdrawal of U.S. diplomatic

recognition from the Republic of China (Taiwan)

in favor of the People’s Republic of China with

an ineffective court challenge in G

OLDWATER V.

ARTER (1979). Rebounding with unusual unity,

veto-proof majorities in Congress rebuked Carter

by passing a Taiwan Relations Act stronger than

the one he preferred.

The Senate also may approve or reject presi-

dential appointments of the secretaries of state

and defense, the national security advisor, ambas-

sadors, and other officials involved in the for-

mulation or implementation of foreign policy.

Increasingly, members of the Senate have insisted

on being consulted about nominations before they

are submitted. And instead of voting to approve or

reject a nominee, senators may also resort to ﬁ li-

busters and other delaying tactics in response to a

politically objectionable appointment in the hope

of causing it to be withdrawn. Even that may not

be sufﬁ cient. A nominee whose approval has been

delayed may be appointed on an interim basis

during congressional recesses (Article II, Sec-

tion 2, Clause 3). In the end, however, the Senate

approves most foreign-policy-related nominees.

Although Congress is institutionally ineffec-

tive as an independent force in foreign policy, its

individual members derive political beneﬁ t from

targeting speciﬁ c foreign-policy issues in commit-

tee hearings. There they investigate, criticize, and

propose alternatives. Amending essential foreign-

policy-related legislation—for example, requiring

reports on human rights in speciﬁ c countries—is

another way to draw attention to issues. Also, with

speeches reported by C-Span or other media, rep-

resentatives and senators can pressure the presi-

dent to clarify, defend, and occasionally modify

foreign-policy initiatives. Thus, the administra-

tion of Ronald Reagan felt compelled to dialogue

with noncommunist opponents of the dictator

Ferdinand E. Marcos in the Philippines after the

1983 assassination of opposition leader Benigno S.

Aquino, Jr.

Congress exercises the power “to regulate

commerce with foreign nations . . . and with the

Indian tribes” (Article I, Section 8, Clause 3). But

if labor unions anticipate that their members

may lose jobs as a result of proposed trade legisla-

tion, then the legislative process can be conten-

tious. The North American Free Trade Agreement

would have failed without strenuous efforts by

President Bill Clinton. On the other hand, con-

gressional opposition weighed in President George

W. Bush’s choice not to support Russia’s accession

to the World Trade Organization in 2006.

Members of Congress have become president,

usually first by being elected vice president.

Four of these former legislators are Harry S. Tru-

man, John F. Kennedy, Lyndon B. Johnson, and

Richard Nixon. However, the separation of

powers in the U.S. presidential system prevents

members of Congress from simultaneously hold-

ing cabinet positions, foreign-policy-related or

otherwise. In contradistinction, the parliamen-

tary systems of other representative democracies

routinely allow members of national legislatures to

serve in cabinet foreign-policy positions.

Congress and foreign policy 159

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Separation of powers is incomplete, and the

sharing of powers can create unexpected out-

comes affecting foreign policy. When the elec-

toral college failed to produce a winner in

1824, Congress elected John Quincy Adams as

president early in 1825 (Twelfth Amendment).

Meanwhile, the vice president presides over the

Senate and can cast tie-breaking votes on foreign-

policy-related and other legislation (Article I, Sec-

tion 3, Clause 4). And in 1969, for example, the

Senate approved the Anti-Ballistic Missile system

by a 51-50 vote. Conversely, in the Vietnam War,

congressional approval of Representative Gerald

R. Ford’s nomination as vice president in 1973

indirectly affected foreign policy after President

Nixon’s forced resignation eight months later.

When public opinion opposes presidential for-

eign policy, Congress has additional opportuni-

ties to react, even if belatedly. For example, the

Vietnam War left the United States divided more

sharply than at any time since the Civil War. At the

time, 18- to 20-year-old males were being drafted

to ﬁ ght in Vietnam. Eventually, in 1971, Congress

proposed lowering the voting age in federal elec-

tions to eighteen (Twenty-sixth Amendment)

while continuing to fund the war. And in the

fourth year of the Iraq War, a divided Supreme

Court rebuked the Bush administration for its

treatment of prisoners detained at Guantánamo

Bay in Hamdan v. Rumsfeld, Secretary of Defense,

et al. (2006), leaving it to a Republican Congress

to devise judicial review procedures consistent

with “Common Article 3” of the four Geneva Con-

ventions ratiﬁ ed by the Senate in 1949.

With the expansion of the right to vote

since 1787, individual representatives and sena-

tors in Congress remain susceptible to organized

constituent influence on specific foreign-policy

issues.

For more information: Currie, David P. The

Constitution in Congress: Democrats and Whigs,

1829–1861. Chicago: University of Chicago Press,

2005; Dahl, Robert A. Congress and Foreign

Policy. 1st ed. New York: Harcourt, Brace & Co,

1950; Fleming, Denna Frank. The Treaty Veto of

the American Senate. New York: AMS Press, 1973;

Hallett, Brien. The Lost Art of Declaring War.

Urbana: University of Illinois Press, 1998; Henkin,

Louis. Foreign Affairs and the United States Con-

stitution. 2d ed. Oxford and New York: Clarendon

Press/Oxford University Press, 1996; Holt, Pat M.

The War Powers Resolution: The Role of Congress

in U.S. Armed Intervention. Washington, D.C.:

American Enterprise Institute for Public Policy

Research, 1978.

—Vincent Kelly Pollard

Connecticut Compromise (1787)

The Connecticut Compromise, refers to the agree-

ment reached at the U.S. Constitutional Con-

vention between large and small states resulting

in the new constitutional “federalism.” The pri-

mary author of the Connecticut Compromise was

Roger Sherman of Connecticut.

Sherman led a complex negotiation effort

through summer 1787 at the Philadelphia Con-

stitutional Convention, where delegates had been

gridlocked between the large state plan, or the

Virginia Plan, as proposed by Edmund Ran-

dolph of Virginia, and the small state plan, or New

Jersey Plan, as proposed by William Paterson of

New Jersey. The Connecticut Compromise com-

bined elements of the Virginia and New Jersey

Plans. States would receive two delegates each in

the U.S. Senate, and the number of members of

each state in the U.S. House of Representa-

tives would be apportioned by population, the

states thus being represented in the Senate and

the people of the states represented in the House.

In addition to these central structural features

incorporated into the Constitution, the Connecti-

cut Compromise included provisions for spending

bills originating in the House and for the Three-

ﬁ fths Compromise allowing for the counting of

slaves in the apportionment of House seats.

The Connecticut Compromise enabled the

Philadelphia convention to move forward and pro-

vided the crucial foundation of U.S. federalism.

For more information: Diamond, Martin.

“What the Framers Meant by Federalism.” In A

Nation of States. Chicago: Rand McNally, 1974;

160 Connecticut Compromise

xviii+446_EofUSConsti-v1.indd 160 3/12/09 3:04:27 PM

Rossiter, Clinton, ed. The Federalist Papers. New

York: Penguin, 1961.

—Michael W. Hail

Constitutional Convention (1787)

The Constitutional Convention refers to the 1787

meetings called to revise the Articles of Confed-

eration that ultimately resulted in the creation of

a new constitution.

By the mid-1780s, many people in the United

States recognized that the Articles of Confedera-

tion as written were not leading the country in a

good direction. Some thought it lacked enough

central authority to regulate commerce or for-

eign affairs, for example, or that it was to slow to

respond to pressing issues. Because of these con-

cerns, a convention was called to take place in

Philadelphia to amend the articles. Each state was

asked to send delegates to this gathering.

The convention was supposed to start in the

middle of May, but it was not until May 25 that

there were enough delegates (29) present to consti-

tute a quorum. Eventually, 55 made it to the con-

vention, with 29 becoming full timers. The voting

on each issue was by state as was the practice in

Congress. Until late July, when New Hampshire’s

delegation arrived, there were just 11 states repre-

sented. Rhode Island’s legislature was controlled

by those opposed to a stronger national govern-

ment, thus, it did not send any delegates. One of

the ﬁ rst issues to come before the delegates was

the selection of a chair, and George Washington

was unanimously selected to preside over the

convention.

Pierce Butler from South Carolina proposed

keeping the proceedings of the convention secret,

and the delegates voted to do so until the conven-

tion was concluded. The idea was readily adopted

and rigidly observed by the framers and was gen-

erally accepted by the press and public. James

Madison thought the Constitution would never

have been adopted if the debates had been public,

and his sometime nemesis during the summer of

1787, George Mason, also believed this a neces-

sary precaution to prevent misrepresentations of

mistakes.

Madison spent months preparing for the con-

vention, reading all he could ﬁ nd on the history of

governments and related topics. While the Virginia

delegation waited in Philadelphia for a quorum to

congregate, they met and discussed Madison’s plan

in great detail. They decided that Virginia’s gover-

nor, Edmund Randolph, would present the plan

to the convention, as he had more stature with

the rest of the delegates than Madison did. The

plan, known as the Virginia Plan, eliminated

the Articles of Confederation and established in

its place a strong national government based on

popular will.

The plan, also known as the large state plan,

removed the state legislatures both structurally

and in terms of power from any place in the new

government. It established a national legislature

consisting of two houses. The people of each state

would elect the members of the ﬁ rst house, with

representation based on the population of each

state. The second house of the legislature would

then be elected by the ﬁ rst. The national legisla-

ture would have the power to legislate in all cases

to which the separate states could not and could

nullify all laws passed by a state that contradicted

the national legislature. This legislature would also

elect a national executive, as well as create and

select a national judiciary. This new plan for gov-

ernment would be ratiﬁ ed by the people through

assemblies of delegates chosen by the people.

During the debate about the Virginia Plan,

Madison and another avowed nationalist, James

Wilson of Pennsylvania, almost drove the other

delegates too hard in pushing uncompromisingly

for this plan. Early debate on the plan favoring

the large states focused on how the national leg-

islature would be elected, the length of terms,

and how the national executive would be able to

negate legislation passed by the national body.

After the Virginia Plan was introduced, Wil-

liam Paterson of New Jersey, who recognized the

weaknesses of the current national government

under the Articles of Confederation, asked for

an adjournment to consider it. On June 14 and

15, 1787, a caucus of small state delegates met to

develop a response to the large state plan. Under

the Articles of Confederation, each state was

Constitutional Convention 161

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