Schultz D. Encyclopedia of the United States Constitution

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Preamble to the

Constitution

preemption

presentment clause

presidential pardoning

power

presidential signing

statements

presumption of

innocence

Price v. Vincent

Printz v. United States

prisoners’ rights

privacy

privileges and

immunities

professional

sports and the

Constitution

prosecutorial

discretion

Pruneyard Shopping

Center v. Robins

public forum

racial proﬁ ling

racial quotas

Rasul v. Bush

ratiﬁ cation of the

Constitution

rational basis test

R.A.V. v. St. Paul

redistricting and

reapportionment

Regents of the Univer-

sity of California v.

Bakke

regulatory taking

Rehnquist, William

Hubbs

Rehnquist Court

religious displays on

public property

Religious Freedom

Restoration Act

Republicanism

Republican Party of

Minnesota v. White

revenue bill

Reynolds v. Sims

Rice v. Cayetano

right against

self-incrimination

right to a speedy and

public trial

right to bear arms

right to counsel

right to die

right to petition the

government

right to remain silent

right to trial by jury

right to vote

Ring v. Arizona

ripeness

Roberts, John G., Jr.

Roberts Court

Roe v. Wade

Romer v. Evans

Rosenberger v. Uni-

versity of Virginia

Rostker v. Goldberg

Roth v. U.S.

Rummel v. Estelle

Rumsfeld v. Padilla

Rust v. Sullivan

Saenz v. Roe

same-sex marriage

San Antonio v.

Rodriguez

Santa Clara County

v. Southern Paciﬁ c

Railroad

Santa Fe Independent

School District v.

Doe

Scales v. United States

Scalia, Antonin

Gregory

Schechter Poultry

Corporation v.

United States

Scheidler v. National

Organization for

Women, Inc.

Schenck v. United

States

Schmerber v.

California

school busing

school prayer

school vouchers

Scottsboro cases

search warrant

exceptions

Section 1983

seditious libel

Selective Service

System v. Minne-

sota Public Interest

Research Group

semi-suspect class

Senate

Seneca Falls

Resolution

sentencing and

proportionality

sentencing guidelines

separation of powers

September 11th

attacks and the

Constitution

Serrano v. Priest

Seventeenth

Amendment

Seventh Amendment

Shapiro v. Thompson

Shaw v. Reno

Shays’s Rebellion

Shelley v. Kraemer

Sheppard v. Maxwell

Sherman, Roger

shopping malls and the

First Amendment

Sixteenth Amendment

Sixth Amendment

Skinner v. Oklahoma

Skinner v. Railway

Labor Executives’

Association

slavery and the

Constitution

Smith v. Allwright

Smith v. City of

Jackson

Smith v. Doe

Souter, David H.

South Carolina v.

Katzenbach

South Dakota v. Dole

Southern Paciﬁ c

Company v.

Arizona

speech and govern-

ment funding

speech or debate

clause

Standard Oil Co.

of New Jersey v.

United States

standing

Stanford v. Kentucky

Stanley v. Georgia

Stanton, Elizabeth

Cady

state tax incentives

and interstate

commerce

Stevens, John Paul

Stone, Harlan Fiske

Stone Court

Stone v. Powell

stop and frisk

Story, Joseph

strict constructivism

strict scrutiny

student activity fees

student rights

substantive due

process

supremacy clause

n v. Charlotte-

Mecklenburg Board

of Education

Swift & Co. v. United

States

symbolic speech

Taft Court

takings clause

x Encyclopedia of the United States Constitution

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Taney, Roger

Taney Court

taxing and spending

powers

temporary restraining

order

Ten Commandments

(display of)

Tennessee v. Lane

Tenure of Ofﬁ ce Act

Terminiello v. City of

Chicago

term limits

Terry v. Ohio

Texas v. Johnson

Third Amendment

Thirteenth

Amendment

Thomas, Clarence

Timmons v. Twin Cit-

ies Area New Party

Tinker v. Des Moines

Independent Com-

munity School

District

titles of nobility

torture and the

Constitution

treason

treaty

Turner Broadcasting

System v. Federal

Communications

Commission

Twelfth Amendment

Twentieth Amendment

Twenty-ﬁ fth

Amendment

Twenty-ﬁ rst

Amendment

Twenty-fourth

Amendment

Twenty-second

Amendment

Twenty-seventh

Amendment

Twenty-si xth

Amendment

Twenty-third

Amendment

Twining v. State of

New Jersey

ultra vires

undue burden

standard

union dues and

political activity

United Jewish

Organization v.

Carey

United States Term

Limits, Inc. v.

Thornton

United States Trust

Company v. New

Jersey

United States v.

American Library

Association

United States v.

Belmont

United States v.

Booker

United States v.

Classic

United States v.

Curtiss-Wright

Export Corp.

United States v.

Darby Lumber Co.

United States v. E. C.

Knight Co.

United States v. Lopez

United States v.

Morrison

United States v. Nixon

United States v.

O’Brien

United States v. Pink

United States v. Wong

Kim Ark

United Steelwork-

ers of America v.

Weber

Valley Forge Chris-

tian College v.

Americans United

for the Separation

of Church and

State, Inc.

Van Orden v. Perry

veto

vice president

Village of Euclid,

Ohio v. Ambler

Realty Co.

Vinson Court

Virginia Declaration

of Rights

Virginia Plan

Virginia State Board

of Pharmacy v.

Virginia Citizens

Consumer Council

void for vagueness

doctrine

Voting Rights Act of

Wagner Act

Waite Court

Wallace v. Jaffree

Ware v. Hylton

War Powers Act

Warren Court

Washington v. Davis

wealth and the

Constitution

Webster v.

Reproductive

Health Services

Weeks v. United

States

welfare and the

Constitution

West Coast Hotel v.

Parrish

West Lynn Creamery,

Inc., v. Healy

West River Bridge

Company v. Dix

White Court

Whitney v. California

Whren v. United

States

Wickard v. Filburn

wiretapping

Wisconsin v. Yoder

Wolf v. Colorado

Yick Wo v. Hopkins

Youngstown Sheet &

Tube v. Sawyer

youth curfew laws

Zelman v.

Simmons-Harris

Zobrest v. Catalina

Foothills School

District

Zorach v. Clausen

Zurcher v. Stanford

Daily

List of Entries xi

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ﱶﱷﱸ

xii

List of Contributors

Jason Abel, Independent scholar

David Adamany, Temple University

Takeshi Akiba, University of California, Berkeley

Mark Alcorn, Independent scholar

Nedda Allbray, Independent scholar

Bruce E. Altschuler, SUNY Oswego

Ellen Ann Anderson, Indiana University–Purdue

University Indianapolis

Kevin Anderson, Eastern Illinois University

Jennifer J. Ashley, Boise State University

Mary Welek Atwell, Radford University

John M. Aughenbaugh, Virginia Commonwealth

University

Gordon A. Babst, Chapman University

Nancy V. Baker, New Mexico State University

Gregory Baldi, Georgetown University

Thomas J. Baldino, Wilkes University

Jeremy D. Ball, Boise State University

Daniel Baracskay, Valdosta State University

Matthew W. Barber, University of Florida

Tim J. Barnett, Jacksonville State University

Elizabeth Beaumont, University of Minnesota

Valerie Bell, Boise State University

Michael John Berry, University of Colorado,

Boulder

Ryan Black, Washington University in St. Louis

Karen Blackistone, Holtzman Vogel PLLC

Neil Bradley, American Civil Liberties Union

Aaron-Andrew P. Bruhl, University of Houston

Brigette J. Bush, Northern Arizona University

Winston E. Calvert, Armstrong Teasdale LLP

Raymond V. Carman, Jr., Binghamton University

Walter F. Carroll, Bridgewater State College

Peter A. Collins, Boise State University

Frank J. Colucci, Purdue University Calumet

Michael Comiskey, Pennsylvania State University

Miles A. Cooper, Georgia Southwestern State

University

Erika N. Cornelius, Purdue University

Nathan H. Cristler, Charles W. Hanor, P.C.

Caitlin F. Currie, Florida Atlantic University

Robert Davidow, George Mason University

Julian M. Davis , University of Michigan

Katherine J. Davis, Monmouth College

Lorna M. Dawson, Lynchburg University

Robert DeWees, Louis D. Brandeis School,

University of Louisville

Steve Diamond, University of Miami

Amanda DiPaolo, Middle Tennessee State

University

Graham G. Dodds, Concordia University

(Montreal, Canada)

Scott Dodson, University of Arkansas

Steven B. Dow, Michigan State University

Philip A. Dynia, Loyola University New Orleans

Thomas C. Ellington, Wesleyan College

James Ely, Jr., Vanderbilt University

JeDon Emenhiser, Humboldt State University

Francene M. Engel, University of Maryland

Sean Evans, Union University

Stefano Fait, University of St. Andrews

Cleveland Ferguson III, Florida Coastal School

of Law

James Daniel Fisher, Edinboro University of

Pennsylvania

Joel Fishman, Duquesne University

Michael P. Fix, University of Kentucky

John Fliter, Kansas State University

James C. Foster, Oregon State University,

Cascades

Alaina Fotiu-Wojtowicz, University of Michigan

Law School

James R. Fox, Dickinson School of Law

Amanda Freeman, New Mexico State University

Barry D. Friedman, North Georgia College and

State University

xviii+446_EofUSConsti-v1.indd xii 3/12/09 3:03:34 PM

Mark A. Fulks, Tennessee State University

Cheryl Crozier Garcia, Hawai’i Paciﬁ c University

Alison Gash, University of California, Berkeley

Scott D. Gerber, Ohio Northern University

Tobias T. Gibson, Monmouth College

Laura Gimeno-Pahissa, Universitat Autonoma de

Barcelona

Ernest Gomez, University of Notre Dame

Timothey Gordinier, State University of New

York, Potsdam

Paul Gowder, Stanford University

J. David Granger, Georgetown University

Jensen Grant, Florida Atlantic University

Scott E. Graves, Georgia State University

William Crawford Green, Morehead State

University

Robert Drew Grey, Morehead State University

Ellen Grigsby, University of New Mexico

Martin Gruberg, University of Wisconsin,

Oshkosh

Kevin R. C. Gutzman, Western Connecticut

State University

Randy W. Hagedorn, University of Minnesota

Michael W. Hail, Morehead State University

Richard J. Hardy, Western Illinois University

Robin A. Harper, Wellesley College

Brian M. Harward, Southern Illinois University

Barbara J. Hayler, University of Illinois, Springﬁ eld

Craig Hemmens, Boise State University

John Allen Hendricks, Southeastern Oklahoma

State University

Ryan C. Hendrickson, Eastern Illinois University

Johanna Hickman, Georgetown University

Arthur Holst, Widener University

Charles Howard, Tarleton State University

Bruce Huber, University of California, Berkeley

Marianne Hudson, Boise State University

Steven F. Huefner, Ohio State University

Brian Iannacchione, Boise State University

Nathan M. Ingebretson, University of Minnesota

Randa Issa, University of Southern California

Jim Jacobson, Independent scholar

Aaron Jones, Morehead State University

Robert M. Kahn, University of St. Thomas School

of Law

Daniel M. Katz, University of Michigan

C. Woodward Kaupert, San Antonio College

Sheila Suess Kennedy, Indiana University–

Purdue University Indianapolis

Joshua A. Kimsey, Porter Wright Morris &

Arthur LLP

Kyle L. Kreider, Wilkes University

Dan Krejci, Jacksonville State University

Dylan R. Kytola, University of Minnesota

Stephen J. Lange, Morehead State University

Julie Lantrip, Georgetown University

R. Reid LeBeau, Lockridge, Grindal, Nauen,

PLLP

William Lester, Jacksonville State University

Justin Levitt, Brennan Center for Justice, New

York University School of Law

Steven B. Lichtman, Shippensburg University

Jinee Lokaneeta, Drew University

Jacqueline M. Loubet, University of Florida

Kim Mac Innes, Bridgewater State College

Patrick Malcolmson, St. Thomas University,

Canada

Wendy L. Martinek, Binghamton University

David A. May, Eastern Washington University

Mark A. McGinnis, Independent scholar

Virginia Mellema, U.S. Equal Employment

Opportunity Commission, San Francisco

Jesse R. Merriam, Center for Constitutional

Litigation

Susan Gluck Mezey, Loyola University Chicago

Dennis B. Miles, Southeastern Oklahoma State

University

Mark C. Milewicz, Gordon College

Katherine M. Miller, Radford University

Dale Mineshima-Lowe, Center for International

Relations

Melanie K. Morris, Ball State University

Sharon L. Morrison, Southeastern Oklahoma

State University

David Mueller, Boise State University

Andre Mura, Center for Constitutional Litigation

Caryn E. Neumann, Ohio State University

Daniel G. Ogbaharya, Northern Arizona

University

Michael Paris, City University of New York

Matthew J. Parlow, Chapman University School

of Law

William D. Pederson, Louisiana State University,

Shreveport

List of Contributors xiii

xviii+446_EofUSConsti-v1.indd xiii 3/12/09 3:03:34 PM

George Peery, Mars Hill College

Steven A. Peterson, Pennsylvania State

University, Harrisburg

Jason Pierceson, University of Illinois, Springﬁ eld

Mark W. Podvia, Dickinson School of Law,

Pennsylvania State University

Vincent Kelly Pollard, University of Hawai’i,

Manoa

Norman Provizer, Metropolitan State College

Marc G. Pufong, Valdosta State University

Jane G. Rainey, Eastern Kentucky University

Kirk A. Randazzo, University of Kentucky

Michael Reese, North Georgia College and State

University

Ann D. Reynolds, Southeastern Oklahoma State

University

William W. Riggs, Texas A & M International

University

Phyllis Farley Rippey, Western Illinois University

William Rose, Albion College

Bertrall Ross, Independent scholar

Marc Rufﬁ nengo, Boise State University

Patrick Schmidt, Macalester College

David Schultz, Hamline University

Christopher E. Smith, Michigan State University

Jinney S. Smith, Lycoming College

Mark S. Stein, University of Missouri, St. Louis

Jerry E. Stephens, U.S. Court of Appeals for the

Tenth Circuit

Ryane McAuliffe Straus, College of St. Rose

Ruth Ann Strickland, Appalachian State

University

Rick A. Swanson, University of Louisiana,

Lafayette

Martin J. Sweet, Florida Atlantic University

Marshall Tanick, Mansﬁ eld, Tanick & Cohen PA

Douglas C. Telling, Framingham State College

K. Thirumaran, National University of

Singapore

Lydia Brashear Tiede, University of California,

San Diego

Jocelyn Tipton, Eastern llinois University

Jurij Toplak, University of Maribor

Jason Torchinsky, Holtzman Vogel PLLC

Margaret Tullai, State University of New York,

Albany

John Vile, Middle Tennessee State University

Carol Walker, Georgia State University

Bryan H. Ward, Ohio Northern University

College of Law

Maria Collins Warren, University of North

Carolina, Wilmington

Andrew J. Waskey, Dalton State College

Brian Weber, Morehead State University

Stephen Wermiel, American University,

Washington College of Law

Rebecca Wiggins, New Mexico State University

William R. Wilkerson, State University of New

York, Oneonta

April Willeford, New Mexico State University

Gwyneth I. Williams, Webster University

R. Owen Williams, Yale University

Loretta M. Young, NCC Family Court

Wilmington, Delaware

xiv Encyclopedia of the United States Constitution

xviii+446_EofUSConsti-v1.indd xiv 3/12/09 3:03:34 PM

Encyclopedia of the United States Constitution is

more than the product of one person’s efforts. As

editor, I have had the pleasure of working with

more than 200 authors who composed the hun-

dreds of essays in these volumes. Together, we

have done our best to produce a reference book

that readers should ﬁ nd informative and enjoyable.

Mere words cannot begin to describe the gratitude

I have toward all who contributed to this project. I

have beneﬁ ted immensely from all who participated

in this project, both intellectually and in a spirit of

friendship. In doing a project like this, one learns of

the great genius, knowledge, and passion so many

others share for the Constitution. I am a better per-

son for having worked with all the contributors and

leave this project with lifelong friends.

Finally, while all effort has been made to

acknowledge personally and individually every-

one who contributed, no doubt I have missed a

few people. To those unintentionally forgotten or

passed over, I apologize for this error and any oth-

ers in this encyclopedia.

Acknowledgments

ﱶﱷﱸ

xviii+446_EofUSConsti-v1.indd xv 3/12/09 3:03:34 PM

ﱶﱷﱸ

xvi

“We the People.” These three words elegantly grace

the opening sentence of the U.S. Constitution. For

many, these three words say it all when it comes to

understanding the document that the constitutional

framers wrote back in 1787. It is a constitution written

for all in the United States by noble, selﬂ ess patriots

and meant to endure forever. It is a document whose

meaning is ﬁ xed in time, meant to provide for personal

freedoms, a representative government, and an effec-

tive government that was to be a vast improvement

over the weak and decentralized Articles of Confed-

eration that it replaced. However, this interpretation is

not shared by everyone.

Former Supreme Court justice Thurgood Marshall,

in reﬂ ecting during the bicentennial in 1987 on the

Constitution and its opening three words remarked:

I do not believe that the meaning of the Constitu-

tion was forever “ﬁ xed” at the Philadelphia Con-

vention. Nor do I ﬁ nd the wisdom, foresight, and

sense of justice exhibited by the Framers particu-

larly profound. To the contrary, the government

they devised was defective from the start, requir-

ing several amendments, a civil war, and momen-

tous social transformation to attain the system of

constitutional government, and its respect for the

individual freedoms and human rights, we hold as

fundamental today. When contemporary Ameri-

cans cite “The Constitution,” they invoke a con-

cept that is vastly different from what the Framers

barely began to construct two centuries ago.

For a sense of the evolving nature of the Consti-

tution we need look no further than the ﬁ rst three

words of the document’s preamble: “We the Peo-

ple.” When the Founding Fathers used this phrase

in 1787, they did not have in mind the majority of

America’s citizens. “We the People” included, in the

words of the framers, “the whole Number of free

Persons.” On a matter so basic as the right to vote,

for example, Negro slaves were excluded, although

they were counted for representational purposes at

three-ﬁ fths each. Women did not gain the right to

vote for over a hundred and thirty years.

Marshall’s comments are as challenging as they are

disturbing. They challenge us to ask what the words

of the Constitution really mean and what this docu-

ment was meant to accomplish. For Federalists such as

James Madison and the other authors of the Federalist

Papers (a collection of 85 letters that many consider to

be the deﬁ nitive statement of the framers regarding

what the Constitution is supposed to mean), their goal

was to protect liberty, preserve popular government,

and limit the threats of what we would now call the

tyranny of the majority. It would secure these goals by

setting up an elaborate machine that would use checks

and balances, separation of powers, bicameralism,

federalism, and self-interest to check political power.

Yet for the Anti-Federalists, they saw the words of the

proposed constitution of 1787 as saying something else.

They spoke of a threat to personal liberty and the val-

ues inherent in the American Revolution and the 1776

Declaration of Independence.

Justice Marshall’s comments are also disturbing

because in many respects he is correct. The Constitu-

tion of today is very different from the one written by

the framers. The document of 1787 was born of the

politics of the times. It was a constitution written for an

agrarian society fearful of central power. It was a consti-

tution that provided for slavery and failed to guarantee

explicitly the right to vote, and it was a document pro-

duced in an era well before the advent of the Internet,

cell phones, cars, airplanes, and nuclear bombs. More-

over, as the historian Richard Hofstadter contended in

The American Political Tradition, the men who wrote

the Constitution went to Philadelphia with value-laden

assumptions about human nature and theories of poli-

Preface

xviii+446_EofUSConsti-v1.indd xvi 3/12/09 3:03:34 PM

tics and economics that may be very different from the

ones that many of us hold today.

In the course of the more than 220 years since the

Constitution was written, a Bill of Rights has been

attached to it, in addition to 17 other amendments,

with literally hundreds of other efforts to amend it.

The United States has been though a civil war, two

world wars, a civil rights revolution, and dramatic

cultural changes in how its citizens view women and

racial, ethnic, and political minorities, as well as those

who adopt different religions (or no faith) and have dif-

fering sexual orientations.

America has also experienced dramatic techno-

logical changes, as well as seen a world transformed so

much that it is not isolated from others as it once was but

instead is enmeshed in an interdependent global econ-

omy. The world of the 21st century is vastly different

from the one the constitutional framers experienced.

Given all this, what did the U.S. Constitution mean

in 1787? What does it mean today? And how has an

understanding of it (and the document itself) evolved to

respond to all the changes that have occurred through-

out U.S. history? This is what the Encyclopedia of the

United States Constitution seeks to explain.

This encyclopedia is not meant to be the defini-

tive last word on what the Constitution means. In fact,

given the evolving nature of the document, persistent

efforts to amend it, and scores of new Supreme Court

decisions every year seeking to interpret it, there can

be no deﬁ nitive last word. Instead, this encyclopedia,

written primarily for students, the general public, and

perhaps even some legal specialists, seeks to explain

some of the major clauses, amendments, court deci-

sions, personalities, issues, and challenges that have

affected the Constitution over its history. It is an effort

to respect the spirit of Chief Justice John Marshall’s

words in McCulloch v. Maryland, 17 U.S. 316 (1819),

in which he stated: “We must never forget that it is a

constitution we are expounding.” The goal here is, thus,

to expound on the history of the Constitution. After all,

the history of the United States is interconnected with

the Constitution, and one can see how the challenges

that America faced are played out in this document.

Battles over the power of states versus the national

government, prayer in public school, abortion, gay

rights, censorship, peace, war, the death penalty, and

a host of other issues inevitably reach the Constitution.

Here one ﬁ nds that, over time, some issues once domi-

nant in their day, such as slavery, have long since faded,

but new ones, such as how to respond to international

terrorism since the events of September 11, 2001, con-

tinue to challenge the Constitution. But throughout

all these challenges, there is the assumption, as best

captured by Chief Justice Salmon P. Chase in Texas

v. White, 74 U.S. 700 (1869), that “[t]he Constitution,

in all its provisions, looks to an indestructible Union,

composed of indestructible States.” The document that

the framers created over 220 years ago, despite all the

changes in it and in the world, is at its core supposed

to represent something timeless and permanent about

how the United States wishes to govern itself.

Inasmuch as the Constitution is supposed to be

permanent in one respect, some claim that it is out-

dated, despite all the changes Thurgood Marshall

described. Some would argue that in a world of terror-

ist threats, the framework of the Constitution is inad-

equate, necessitating either abandoning it in time of

crisis or giving its clauses new meanings, much in the

same way some claim the Supreme Court did during

the New Deal, World War II, or during the cold war.

In response, as Chief Justice Charles Evans Hughes

stated so eloquently in Home Bldg. & Loan Ass’n v.

Blaisdell, 290 U.S. 398 (1934),

Emergency does not create power. Emergency does

not increase granted power or remove or diminish the

restrictions imposed upon power granted or reserved.

The Constitution was adopted in a period of grave

emergency. Its grants of power to the federal govern-

ment and its limitations of the power of the States were

determined in the light of emergency, and they are not

altered by emergency. What power was thus granted

and what limitations were thus imposed are questions

which have always been, and always will be, the subject

of close examination under our constitutional system.

The Encyclopedia of the United States Constitu-

tion aims to assist its readers in undertaking a closer

examination of the Constitution, a document that has

endured well for many years and with little indication

that it will soon disappear or become irrelevant to an

understanding of U.S. government and history.

—David Schultz

Hamline University

Preface xvii

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NOTE

When a case has been decided, but not yet published in the case reporter,

the citation may note the volume but leave blank the page of the case

reporter until it is determined. For example, Meredith v. Jefferson, 551

U.S. ___ (2007).

xviii+446_EofUSConsti-v1.indd xviii 3/12/09 3:03:35 PM

ﱶﱷﱸ

Abington Township v. Schempp 374 U.S.

203

(1963)

In Abington Township v. Schempp, the second

landmark “school prayer” case, the Supreme

Court, in an 8-1 decision, invalidated state-spon-

sored devotional Bible reading and Lord’s Prayer

recitation in public schools as a violation of the

establishment clause of the First Amend-

ment, placing in jeopardy the laws and policies

of many states and school districts and prompting

efforts to contravene the Court’s ruling or amend

the Constitution and verbal attacks on the Court

as antireligion. In fact, the justices took great pains

to explain both what they were and were not doing

and to show that they were not hostile to religion.

The Schempps, a Unitarian family, objected to

Abington High School’s morning devotionals con-

sisting of Bible verses and recitation of the Lord’s

Prayer. Students could leave or not participate,

but the Schempps worried that leaving during the

devotional could endanger relations with teach-

ers and other students. Along with the Schempp

case, the Court addressed the similar complaint

of Madalyn Murray O’Hair, an outspoken athe-

ist from Baltimore, who welcomed the notoriety

associated with ending the religious exercises.

In his majority opinion, Justice Thomas Clark

reviewed the history of the establishment clause

that led to a standard of government neutrality

toward religion and the relation of the establish-

ment clause to the free exercise clause that guar-

anteed the right of all to choose their religions

without state coercion. (Unlike the free exercise

clause, however, coercion need not be a factor in

establishment clause cases.) Clark distilled the

precedent of previous Court decisions into two

criteria: a law or government action must have

both a secular purpose and a primary effect that

neither promotes nor restricts religion. These

later became two elements of the three-pronged

Lemon test used to decide many major establish-

ment clause cases. In response to charges that the

Court was creating a “religion of secularism” in

the schools, Clark reiterated that this decision did

not forbid objective study of the Bible in school

for its literary and historic qualities. Finally, he

rejected the idea that the free exercise clause gave

members of the majority religion the right to have

their school devotionals: “While the free exercise

clause clearly prohibits the use of state action to

deny the rights of free exercise to anyone, it has

never meant that a majority could use the machin-

ery of the State to practice its beliefs.”

Several justices wrote concurring opinions

to augment Clark’s analysis. Justice William

O. Douglas focused on the impropriety of the

expenditure of any public money to fund a reli-

gious exercise. Justice William J. Brennan, Jr.’s

lengthy concurrence expanded on Clark’s discus-

sion of the relation of Schempp to the whole scope

of the Court’s establishment clause jurispru-

dence. He cataloged the futility of trying to apply

the “original intent” of the Founding Fathers to

Schempp. While acknowledging the long tradi-

tion of prayer and Bible reading in U.S. schools,

he amassed ample evidence that even in the 19th

century, school devotionals were not universally

considered appropriate by state governments.

Brennan, however, also suggested situations in

which government accommodation of religion

should not be affected by Schempp.

Justice Potter Stewart, the sole dissenter, said

the Court’s rigid reading of the establishment

xviii+446_EofUSConsti-v1.indd 1 3/12/09 3:03:35 PM