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was convicted of falsifying payroll information

and given a sentence of 15 years of prison with

hard labor and a ﬁ ne of 4,000 pesetas. Weems’s

sentence was subsequently upheld by Philippine

courts, but the U.S. Supreme Court reversed, ﬁ nd-

ing it disproportionate to the crime committed.

In other cases, such as Robinson v. California,

370 U.S. 660 (1962), the Court drew limits as to

what the state could punish (in this case, addic-

tion to drugs) and incorporated the proportional-

ity requirement to state offenses. Yet in R

UMMEL V.

STELLE, 445 U.S. 263, 266 (1980), the defendant,

William James Rummel, was convicted in 1973

for obtaining $120.75 under false pretenses. This

conviction came after a 1964 conviction for $80 in

credit card fraud and a 1969 conviction for forg-

ing a check worth $28. Upon his third conviction,

Rummel was sentenced to life under a Texas stat-

ute that provided for life imprisonment for any-

one convicted of three felonies. Rummel appealed

his sentence, claiming that life for these crimes

was cruel and unusual punishment and a dispro-

portionate sentence to the three crimes, which

resulted in his stealing less than $240 in total.

In rejecting Rummel’s claims, the Supreme

Court ﬁ rst disposed of his arguments that recent

cases striking down death as a disproportionate

penalty were applicable to his case because death

was a unique type of penalty that had attached

to it special proportionality issues. Second, the

Supreme Court distinguished Rummel’s claims

from those found in Weems, arguing that in the

latter case, it was not merely the length of the

incarceration that was at issue. Instead, the hard

labor and other terms of conﬁ nement were also

important to the Court’s ﬁ nding the sentence to

be cruel and unusual and disproportionate. Third,

the Supreme Court argued that objective and not

merely subjective factors were required to deter-

mine what constituted disproportionality. Appeal-

ing merely to judges’ personal preferences was an

inappropriate way to determine what is cruel and

unusual or disproportionate. Once death is no

longer an issue, according to the Supreme Court,

determinations to what constitutes an appropriate

sentence are subjective and best left up to local

legislatures to decide.

In Hutto v. Davis, 454 U.S. 370 (1982), the

Supreme Court again deferred to local legislature

determination of what was an appropriate punish-

ment for a crime. The issue here was two concur-

rent 20-year sentences and a $20,000 ﬁ ne for the

possession of nine ounces of marijuana. In over-

turning habeas corpus based on proportionality

and the cruel and unusual punishment clause, the

Supreme Court indicated that its Rummel deci-

sion stood for the proposition that sentencing

guidelines are generally policy issues for the

legislatures and not the courts. However, in Solem

v. Helm, 463 U.S. 277 (1983), the Court reversed

itself and invalidated a life sentence imposed on a

defendant under a South Dakota statute for issu-

ing a bad check in the amount of $100. Writing for

the majority, Justice Lewis Franklin Powell,

Jr., ﬁ rst indicated that proportionality was deeply

rooted in English and American law and that it

applies to all types of sentences, including felo-

nies, even where death is not a penalty. Rejecting

Rummel’s claim that death is different in terms of

assessment of proportionality, the Supreme Court

indicated that it saw no reason to draw a “distinc-

tion with cases of imprisonment” versus death.

Powell stated:

In sum, we hold as a matter of principle that

a criminal sentence must be proportionate to

the crime for which the defendant has been

convicted. Reviewing courts, of course, should

grant substantial deference to the broad author-

ity that legislatures necessarily possess in deter-

mining the types and limits of punishments for

crimes, as well as to the discretion that trial

courts possess in sentencing convicted crimi-

nals. But no penalty is per se constitutional. As

the Court noted in Robinson v. California, a

single day in prison may be unconstitutional in

some circumstances.

Yet, in Harmelin v. Michigan, 501 U.S. 957 (1991),

the Court returned to its Rummel standards and

appeared to read proportionality out of the Eighth

Amendment, again stating that sentencing deci-

sions are legislative determinations. In E

WING

V. CALIFORNIA, 538 U.S. 11 (2003), in upholding

182 cruel and unusual punishment

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California’s three strikes law, the Court seemed to

concur in that sentiment.

Overall, the Supreme Court continues to look

to the evolving Trop standards of decency to help

determine what cruel and unusual punishment is.

However, except for a few narrow death penalty

issues, the Court appears to give wide latitude

to legislatures to decide what punishments are

appropriate.

For more information: Amar, Akhil Reed.

The Constitution and Criminal Procedure.

New Haven, Conn.: Yale University Press, 1997;

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

King. Criminal Procedure. St. Paul, Minn.: Thom-

son/West, 2004.

—Ernest Gomez and David Schultz

Cruzan v. Director, Missouri Department

of Health

497 U.S. 261 (1990)

Cruzan v. Director, Missouri Department of

Health is a signiﬁ cant decision in the area of pri-

vacy and health care. The Supreme Court held

that clear and convincing evidence must exist that

demonstrates an individual’s desire to refuse life-

sustaining medical care that perpetuates one’s

existence in an irreversible vegetative condition.

Nancy Cruzan was seriously injured in a car

accident, suffering irreversible brain damage that

left her in a persistent vegetative state. Cruzan’s

parents insisted that their adult daughter would

not wish to live in such a condition and requested

that the hospital withdraw food and liquids, has-

tening her death. Since the patient was incompe-

tent, explicit expression of her will was obviously

not possible. The hospital therefore refused to

withdraw life-sustaining care without a court

order. The parents petitioned state courts to com-

pel the hospital’s compliance with their request.

The courts concluded that since she could not

communicate, substituting Cruzan’s expression

of her own wish with a determination as to what

her decision would have been was reasonable. In

making such a determination, the state supreme

court required Cruzan’s parents to provide “clear

and convincing evidence” that their daughter

would not wish to live in a persistent vegetative

state. Since the Cruzan family was unable to doc-

ument Nancy’s alleged wish to the court’s satisfac-

tion, their request was denied. Cruzan’s parents

ﬁ led suit on their daughter’s behalf, arguing that

an adult may refuse life-sustaining medical treat-

ment under the due process clause of the Four-

teenth Amendment.

Writing for the Court, Chief Justice William

Hubbs Rehnquist upheld the state court’s deci-

sion requiring clear and convincing evidence

as to Nancy Cruzan’s wishes before terminating

life-sustaining medical care. Federal case law

has long recognized that a competent adult may

refuse medical treatment, including that which is

life sustaining. This right, however, is not absolute.

It must be balanced against the state’s interest in

preserving life. In so doing, the state court’s impo-

sition of the clear and convincing evidence thresh-

old reasonably safeguards the state’s interest while

preserving the individual’s liberty interest. Specif-

ically, in a situation such as this—where the per-

son whose life is at issue cannot speak—the state

may require a heightened level of evidence dem-

onstrating the patient’s wishes in order to assure

that the family is truly advocating their loved one’s

best interest and not their own preferences.

Thus, the clear and convincing evidence

requirement is a reasonable standard that states

may impose to protect invalid adults against those

who might seek to exploit such a circumstance.

This standard balances the state’s interest with

the individual’s liberty interest to refuse medi-

cal care; where the state’s requirement is satis-

ﬁ ed, life-sustaining medical care for an invalid

adult may be withdrawn. Conversely, where

insufﬁ cient evidence as to the individual’s will

exists, the state’s interest in preserving life pre-

vails. Therefore, the state’s requirement does not

impermissibly frustrate the liberty interest guar-

anteed by the due process clause of the Four-

teenth Amendment.

For more information: Glick, Henry R. The

Right to Die. New York: Columbia University

Press, 1994.

—Melanie K. Morris

Cruzan v. Director, Missouri Department of Health 183

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184

ﱶﱷﱸ

DaimlerChrysler v. Cuno 126 S. Ct. 1854

(2006)

In DaimlerChrysler v. Cuno, the Supreme Court

rejected a challenge to Ohio’s tax laws under the

dormant commerce clause because the plain-

tiffs lacked proper standing to bring their case

in federal court.

DaimlerChrysler arose when 18 Ohio taxpayers

ﬁ led suit to challenge a development agreement

between DaimlerChrysler and the city of Toledo.

Under the agreement, DaimlerChrysler received

a 10-year exemption from local property taxes

and a credit against the state corporate franchise

tax in exchange for building a new assembly plant

near its existing facilities in Toledo. The district

court dismissed the plaintiffs’ claims that Ohio’s

tax laws violated the dormant commerce clause

because the property tax exemption and franchise

tax credit did not function as protective tariffs or

discriminatory proportional taxes.

The U.S. Court of Appeals for the Sixth Circuit

afﬁ rmed the trial court ruling with regard to the

property tax exemption but reversed on the fran-

chise tax credit, concluding that it had a coercive

effect and violated the commerce clause. Both

the district court and the court of appeals employed

the four-part commerce clause analysis articulated

in C

OMPLETE AUTO TRANSIT, INC. V. BRADY, 430 U.S.

274 (1977), which held that a tax provision will

survive a commerce clause challenge when it “is

applied to an activity with a substantial nexus to the

taxing State, is fairly apportioned, does not discrim-

inate against interstate commerce, and is fairly

related to the services provided by the State.”

On appeal, the Supreme Court examined

whether the plaintiffs had standing to sue under

Article III of the U.S. Constitution and

whether this was an appropriate “case or contro-

versy” for the Court to decide. Chief Justice John

G. Roberts, Jr., writing for an eight-member

majority, noted that standing requires the plaintiff

to show a “concrete and particularized” injury and

“redressability” through judicial action.

The injury in this case was “conjectural or

hypothetical” because the plaintiffs could not

prove that the property tax exemption or the

franchise tax credit caused the plaintiffs to suf-

fer heavier tax burdens. Likewise, the issue of

“redressability” was speculative because there

was no evidence that eliminating the property tax

exemption or franchise tax credit would cause the

state legislature to reduce the plaintiffs’ tax bur-

dens. Chief Justice Roberts rejected the plaintiffs’

claim of standing as state taxpayers because the

limited scope of federal taxpayer standing under

ALLEY FORGE CHRISTIAN COLLEGE V. AMERICANS

UNITED FOR SEPARATION OF CHURCH AND STATE, INC.,

454 U.S. 464 (1982), “applies with undiminished

force to state taxpayers.” The Court ruled that

the municipal taxpayer standing doctrine of Mas-

sachusetts v. Mellon, 262 U.S. 447 (1923), could

not support a challenge to the state franchise tax

credit. The Court also declined to expand the lim-

ited exception to the taxpayer standing doctrine

established in FLAST V. COHEN, 392 U.S. 83 (1968),

to permit commerce clause challenges. Justice

Ruth Bader Ginsburg, in a separate opinion, con-

curred with her colleagues in the result but noted

her disapproval of the Court’s broader precedents

on Article III standing limits. The decision in

DaimlerChrysler demonstrates the Supreme

Court’s commitment to the principle of limited

federal court jurisdiction and the importance of

the Article III standing inquiry for plaintiffs.

xviii+446_EofUSConsti-v1.indd 184 3/12/09 3:04:34 PM

For more information: Georgetown Journal of

Law & Public Policy 1, no. 4 (Winter 2006) (sym-

posium issue on Daimler Chrysler v. Cuno before

the Supreme Court ruling); Mank, Bradford C.

“Prudential Standing and the Dormant Com-

merce Clause: Why the ‘Zone of Interests’ Test

Should Not Apply to Constitutional Cases.” Ari-

zona Law Review 23, no. 48 (2006): 23–65.

—Joshua A. Kimsey

Dames & Moore v. Regan 453 U.S. 654

(1981)

The Dames & Moore v. Regan case grew out of

a presidential executive order that blocked access

to Iranian assets following the taking of Ameri-

can hostages in Iran in 1979. The Supreme Court

ruling upheld the agreements that had settled the

hostage crisis.

In 1979 when Americans were taken hostage

at the U.S. Embassy in Tehran, Iran, President

Jimmy Carter declared a national emergency

on November 14. Pursuant to the International

Emergency Economic Powers Act (IEEPA),

President Carter issued Executive Order 12170,

which blocked Iranian assets. Because Iranian

assets were frozen, Dames & Moore Corpora-

tion ﬁ led suit against several Iranian governmen-

tal agencies, alleging that services rendered for

the Atomic Energy Organization of Iran had not

been paid. A federal district court issued orders

of attachment that seized the property belong-

ing to some Iranian banks in an effort to secure

payment in any judgment that would be entered

against the Iranians.

On January 19, 1981, the American hostages

were released under terms agreed to by both gov-

ernments. One of the terms of the agreement was

that the U.S. government would drop all legal pro-

ceedings of U.S. nationals against Iran and nullify

all attachments and judgments via those pend-

ing proceedings. President Ronald Reagan then

issued Executive Order 12294, reasserting EO

12170 and requiring that banks holding Iranian

assets transfer them to the Federal Reserve Bank

of New York to be held or dispersed as the secre-

tary of the treasury directed. Dames & Moore,

seething from the presidential rebuke, ﬁ led action

against Secretary of the Treasury Donald Regan,

alleging that both executive orders exceeded

statutory and constitutional boundaries.

The Supreme Court opinion stated that IEEPA

empowered the president to take the actions

blocking the transfer of any property of Iran, or

any foreign country, within the jurisdiction of the

United States. These blocking orders enable the

president to have another tool available in negotia-

tions with a hostile country.

Perhaps the key element to the Court’s deci-

sion was the use Justice Robert Jackson’s concur-

rence in Y

OUNGSTOWN SHEET & TUBE V. SAWYER

(1952). Although Jackson was not writing for the

Court, his template for when the Supreme Court

would support actions undertaken by the presi-

dent has become the most inﬂ uential opinion of

the case. Jackson argued that the Supreme Court

would be most likely to rule in the president’s

favor when “the President acts pursuant to an

express or implied authorization of Congress, [as]

his authority is at its maximum, for it includes all

that he possesses in his own right plus all that

Congress may delegate.” Jackson’s opinion was

cited in the Court’s Dames & Moore opinion,

which was written by former Jackson clerk Justice

William Hubbs Rehnquist. Rehnquist stated

in the opinion of the Court that from “the infer-

ences to be drawn from the character of the leg-

islation Congress has enacted in the area, such

as the IEEPA and the Hostage Act, and from

the history of acquiescence in executive claims

settlement—we conclude that the President was

authorized to suspend pending claims pursuant

to Executive Order No. 12294.”

Overall, the Supreme Court in its opinion for

Dames & Moore v. Regan recognized that the

president’s power is at its maximum when Con-

gress has lent its support and that executive orders

are a key instrument in that power.

For more information: Galub, Arthur L.

“Dames and Moore v. Regan.” In The Burger

Court: 1968–1984. Danbury, Conn.: Grolier Edu-

cational, 1995.

—Tobias T. Gibson

Dames & Moore v. Regan 185

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Dartmouth College v. Woodward 17 U.S.

(4 Wheat.) 518, 4 L. Ed. 629

(1819)

In Dartmouth College v. Woodward, the Supreme

Court ruled that Dartmouth College’s charter was

protected by the U.S. Constitution and the New

Hampshire legislature could not constitutionally

interfere with the charter. Dartmouth College was

privately funded, and the state of New Hampshire

did not have the authority to make the school a

state institution. The case is important because of

its protection of property rights through the con-

tract clause of the Constitution.

Dartmouth College was a private institution,

and strides were being made by the New Hamp-

shire legislature to turn it into a public institu-

tion. In 1816, the New Hampshire legislature

attempted to convert the privately funded Dart-

mouth into a public college. Through the use of

three 1816 legislative acts, the New Hampshire

legislature amended the college’s original char-

ter by adding additional trustees and placing the

appointment of future trustees in the hands of the

governor. The trustees at the time challenged the

New Hampshire legislature. They retained the

services of Daniel Webster, an 1801 graduate of

Dartmouth College, to represent them against

William Woodward, who was newly appointed by

the state as Dartmouth’s treasurer. The trustees

based their claim on the charter that was granted

in 1769 to Dartmouth College by King George

III. On November 6, 1816, the New Hampshire

Superior Court of Judicature ruled on the side of

Woodward and the new governing body. The U.S.

Supreme Court later reversed the lower court’s

decision.

Chief Justice John Marshall wrote the opin-

ion for the five-person majority. In it, Marshall

considered two main points: first, whether the

contract was protected by the U.S. Constitution

and second, whether the contract is impaired by

the 1816 acts. The majority opinion held that the

contract is indeed protected by the U.S. Constitu-

tion. The majority opinion also held that the 1816

acts of the New Hampshire legislature were not in

agreement with the U.S. Constitution.

Justices Joseph Story and Bushrod Washing-

ton issued separate concurring opinions. Justice

William Johnson concurred for the reasons stated

by Chief Justice Marshall. Justice Henry Brock-

holst Livingston concurred for the reasons stated

by the Chief Justice and Justices Washington and

Story. Justice Thomas Todd did not participate in

this decision, and Justice Gabriel Duvall dissented

without issuing an opinion.

The importance of this decision was not imme-

diately recognized. However, in 1885, Sir Henry

Maine described the decision by the Marshall

Court as “the bulwark of American individual-

ism against democratic impatience and socialistic

fantasy.”

For more information: Harrison, Maureen,

and Steve Gilbert, eds. Landmark Decisions of

the United States Supreme Court VI. San Diego,

Calif.: Excellent Books, 1999; Mason, Alpheus

Thomas, and Donald Grier Stephenson, Jr., eds.

American Constitutional Law: Introductory

Essays and Selected Cases. 12th ed. Upper Saddle

River, N.J.: Prentice Hall, 1999.

—Jacqueline M. Loubet

deadly force

Deadly force is a legal concept generally under-

stood to be any violent action that is reasonably

understood to cause or be the proximate cause

of substantial bodily harm or, ultimately, death

through the causation of the action. According to

the Supreme Court in Tennessee v. Garner, 471

U.S. 1 (1985), the use of deadly force by police and

law-enforcement ofﬁ cials is examined under the

Fourth Amendment.

In some situations, law-enforcement ofﬁ cials

must use deadly force to apprehend or stop an

individual. To determine when such force may be

used, the Court stated in Garner that a balancing

of interests test must be used to determine police

liability. One must balance the nature of the intru-

sion on the individual’s Fourth Amendment right

against the government interests to justify the

intrusion. For the citizen, the interest is substan-

tial—not to die.

To overcome this citizen interest, the police

must show that the ofﬁ cer believes that the sus-

186 Dartmouth College v. Woodward

xviii+446_EofUSConsti-v1.indd 186 3/12/09 3:04:35 PM

pect poses a threat of immediate and serious

physical harm to the ofﬁ cer or others. For there to

be a serious threat the person must be armed. In

determining whether the threat is serious, merely

being armed or having recently used a weapon is

not enough to justify the use of deadly force. Fac-

tors to be weighed include asking how proximate

to the past crime was force used and does the

suspect have a history of past or previous use of

the weapon. If law-enforcement ofﬁ cials correctly

use deadly force there is no Fourth Amendment

violation.

If excessive use of deadly force is determined to

be unwarranted, it is an illegal search and seizure

under 42 U.S. Code, Section 1983, for a violation

of civil or other protected rights.

For more information: Kappeler, Victor. Criti-

cal Issues in Police Civil Liability. Long Grove,

Ill.: Waveland Press, 2006.

—Ernest Gomez and David Schultz

Declaration of Independence (1776)

The Declaration of Independence is the founding

document of the American nation. Issued by the

Continental Congress on July 4, 1776, the decla-

ration announces America’s philosophy of govern-

ment and dedicates the United States of America

to the “self-evident truths” that “all men are cre-

ated equal, that they are endowed by their Creator

with certain unalienable Rights, that among these

are Life, Liberty and the pursuit of Happiness.”

Thomas Jefferson, junior member of the

Virginia delegation to the Continental Congress,

was the principal author of the Declaration of

Independence. Jefferson was chosen to draft the

declaration chieﬂ y because of his “masterly pen.”

The “peculiar felicity” with which the declaration

was written plays no small part in the power of its

message.

Jefferson drew on other documents in writ-

ing the Declaration of Independence, including

John Locke’s Second Treatise of Civil Govern-

ment (1690), Jefferson’s own Summary View of

the Rights of British America (1774), the Vir-

ginia Declaration of Rights (1776), and the

preamble to the Virginia Constitution (1776). The

declaration was informed by the major political

theories of the day, but the document is primarily

a statement of the Lockean liberal theory of gov-

ernment: The principal purpose of government

is to secure individual rights. “To secure these

rights,” the declaration proclaims, “Governments

are instituted among Men.”

The Declaration of Independence has been

invoked throughout the course of U.S. history to

address a host of landmark questions of public

policy. Abraham Lincoln, universally regarded

as among the greatest of American presidents,

turned to the declaration to help abolish slavery

and save the Union, while Clarence Thomas,

the nation’s highest-ranking African-American

jurist, has relied on the declaration when consid-

ering questions of civil rights enforcement.

The principles of the declaration also were at the

heart of the classic orations of three other giants

of African-American history: Frederick Douglass’s

“What to the Slave Is the Fourth of July?” speech

(July 5, 1852); Martin Luther King, Jr.’s “I Have a

Dream” address (August 28, 1963); and Malcolm

X’s speech on “Black Revolution” (April 8, 1964).

The declaration, likewise, has been crucial to

the women’s rights movement. From 1776 to the

present, the principles of the declaration have

moved generations of women to demand equal-

ity. Abigail Adams echoed the declaration in her

letters to her husband, John Adams, one of the

leading figures of America’s founding period as

well as the second president of the United States.

The most famous document in the history of the

women’s rights movement—the Declaration of

Sentiments (1848)—was modeled directly on the

U.S. Declaration of Independence. Carrie Chap-

man Catt’s famous address to the U.S. Congress

in 1917 was replete with references to the declara-

tion, too. And the monumental, albeit unsuccess-

ful, Equal Rights Amendment of 1972 sought to

guarantee “equal justice under law” to all citizens,

regardless of gender.

The Declaration of Independence has similarly

inspired peoples around the world in their quest

for freedom and equality. The cultural possibili-

ties offered by different languages and the choices

Declaration of Independence 187

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The Declaration of Independence (Wikimedia Commons)

188 Declaration of Independence

xviii+446_EofUSConsti-v1.indd 188 3/12/09 3:04:36 PM

made by individual translators have shaped the

reception of the Declaration of Independence in

different languages.

Perhaps most important of all, the Declaration

of Independence has inﬂ uenced the political archi-

tecture and institutions of the U.S. regime. The

declaration was closely linked to the Articles of

Confederation, the ﬁ rst constitution of the United

States. The two documents formed a completed

constitutional covenant offering a set of formative

principles and reﬂ ecting shared commitments on

which America as a nation (a people) and as a state

(a government) was founded. The Constitution of

1787, which replaced the Articles of Confedera-

tion, and the Bill of Rights that followed also

are grounded in the principles of the Declaration

of Independence. What some might regard as

merely technical, institutional matters—feder-

alism, the rule of law, the content of public policy,

and the separation of powers—all have proved to

be integral to how the Constitution secures indi-

vidual rights. An analysis of the constitutions of

the states, the federal enabling acts deﬁ ning the

terms upon which new states were admitted to the

Union, and the congressional statutes and presi-

dential proclamations acknowledging admission

demonstrate how closely the states identify with—

or, in the case of the Southern states following the

Civil War, were forced to identify with—the prin-

ciples of the declaration.

Members of Congress and American presi-

dents have appealed to the Declaration of Inde-

pendence throughout the course of U.S. history.

They have participated within—and, therefore,

have been inﬂ uenced by—a political context and

tradition whose framework and principles were

ﬁ rst articulated in the declaration. U.S. Supreme

Court justices also have referred to the Declara-

tion of Independence in written opinions in two

identiﬁ able, and occasionally interrelated, ways: 1)

to determine a formal marker of the independence

of the United States of America and 2) to cast light

upon the founders’ views or the principles under-

lying the Constitution.

The Declaration of Independence is one of the

most valued and sacred political documents in

history. It articulates the origins, purposes, and

ideals of the U.S. regime, and it has inspired the

American people as well as peoples around the

world to seek constitutional change to conform to

its principles.

For more information: Becker, Carl L. The

Declaration of Independence: A Study in the His-

tory of Political Ideas. Rev. ed. New York: Vintage

Books, 1958; Gerber, Scott Douglas. To Secure

These Rights: The Declaration of Independence

and Constitutional Interpretation. New York: New

York University Press, 1995; Gerber, Scott Doug-

las, ed. The Declaration of Independence: Origins

and Impact. New York: CQ Press, 2002; Maier,

Pauline. American Scripture: Making the Declara-

tion of Independence. New York: Knopf, 1997.

—Scott D. Gerber

defamation

Defamation is one form of speech that generally

does not receive constitutional protection under

the First Amendment. However, the Supreme

Court has been willing, in the name of the First

Amendment, to give broad deference to individu-

als and the media who wish to criticize public ofﬁ -

cials, even if there are some factual inaccuracies

in the comments being made.

Defamation is one of the oldest torts, or civil

wrongdoings, dating back to precolonial English

law. Defamation consists of a false statement that

is communicated to third persons and causes harm

to the reputation of the person who was the sub-

ject of the communication. Similar to most torts,

defamation generally is governed by state law.

While the rules differ from state to state, there

are many similarities in defamation law in nearly

all jurisdictions of the United States.

Defamation consists of two forms: libel and

slander. Libel is a defamatory communication that

is in writing or other permanent form, including

drawings, broadcasts, and electronic communica-

tions. Slander is defamation that occurs orally or

in transitory form and not memorialized in some

form of documentation.

defamation 189

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Harm to reputation may be established by

proving a diminution in the regard that others

held for the subject of the defamation or that oth-

ers have shunned or refused to associate with the

subject. For individuals, this usually means prov-

ing that people actually have had a lower regard

for the person because of the defamatory commu-

nication. While businesses also may be the subject

of defamation, known as “trade libel,” a business

claimant usually must show that there has been a

diminution in income or revenue.

Constitutionally, the Supreme Court drew

some limits in N

EW YORK TIMES V. SULLIVAN, 376

U.S. 254 (1964), when it came to the defamation

of public ofﬁ cials. In that case, the Court ruled

that the First Amendment requires public ofﬁ cials

to show that someone acted with actual malice or

reckless disregard of the truth in printing or dis-

tributing information about them. The high bur-

den here of showing defamation was to preclude

individuals from being chilled or intimidated from

exercising their First Amendment rights of free

speech or press. In cases subsequent to Sullivan,

the Court has also extended signiﬁ cant constitu-

tional protection against defamation when speech

is directed at public figures. Finally, the courts

have generally been unwilling to allow candidates

for political ofﬁ ce to sue for defamation when they

are criticized by their opponents or other individ-

uals or groups. In the interest of promoting robust

political debate, the courts have applied the prin-

ciples of New York Times v. Sullivan to protect

campaign speech.

For more information: O’Neil, Robert M. The

First Amendment and Civil Liability. Blooming-

ton: Indiana University Press, 2001; Schwartz,

Bernard. A History of the Supreme Court. New

York: Oxford University Press, 1993.

—Marshall Tanick

Democracy and Distrust (1980)

Democracy and Distrust: A Theory of Judicial

Review is a book by John Hart Ely, a law professor,

in which Ely argues that judges should interpret

constitutional provisions to reinforce represen-

tative democracy. Ely’s book presents one of the

most inﬂ uential theories of judicial review.

In his book, Ely explains why neither of the

two predominant alternative theories for inter-

preting the Constitution are adequate to address

many of the most controversial issues. First, he

describes what he calls “interpretivism,” the view

that judges should “conﬁ ne themselves to enforc-

ing norms that are stated or clearly implicit in the

written Constitution.” Ely finds this view inad-

equate because the Constitution contains several

vague and ambiguous terms, as well as terms that

expressly require judges to apply values or prin-

ciples outside the Constitution itself.

Ely then dismisses “noninterpretetivism,”

which is the view that judges should apply norms

and values that cannot be discovered within the

text of the Constitution. One view among non-

interpretivists is that judges should invoke their

own personal values when they interpret the

Constitution and should invalidate laws that are

inconsistent with those values. Ely ﬁ nds noninter-

pretivism as equally inadequate as interpretivism

in that noninterpretivism does not constrain the

judge’s discretion and is contrary to many of the

democratic theories upon which the Constitution

is based.

As an alternative to these two views, Ely pro-

poses his own theory of judicial review. Ely ﬁ nds

inspiration both in the history of the Constitution

itself and in the work of the Warren Court. The

Constitution, in Ely’s view, is primarily concerned,

not with protecting certain substantive values, but

rather with procedural issues. Similarly, although

many of the Warren Court’s decisions dealt with

issues of criminal procedure, which Ely describes

as process “in the most ordinary sense,” many of

the Warren Court’s decisions also addressed issues

such as free speech and voting rights, which Ely

describes as “process in the broader sense—the

process by which the laws that govern society are

made.” In Ely’s view, the Warren Court’s deci-

sions dealing with the equal protection clause

of the Fourteenth Amendment also relied on

two procedural principles: “clearing the channels

of political change” and “correcting certain kinds

of discrimination against minorities.”

190 Democracy and Distrust

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Judges applying Ely’s theory of judicial review

would invalidate laws that hamper the opportu-

nity to participate in the political process. For

example, the First Amendment’s text, which

only addresses Congress specifically, does not

prohibit the president, the judiciary, or the states

from banning speech. A judge applying Ely’s

theory, however, would hold that the free speech

clause should apply equally to all branches of

the federal government and to the states as well

because free speech rights are “critical to the

functioning of an open and effective democratic

process.” In cases dealing with the equal protec-

tion clause, judges applying Ely’s theory would

invalidate laws that threaten the ability of minor-

ities to participate in and be represented in the

political process.

For more information: Dworkin, Ronald. Free-

dom’s Law: The Moral Reading of the American

Constitution. Cambridge, Mass.: Harvard Univer-

sity Press, 1996; Tribe, Laurence. “The Puzzling

Persistence of Process-Based Constitutional The-

ories.” Yale Law Journal 89, no. 1,063 (1980).

—Winston E. Calvert

desegregation

Desegregation refers to the ending of racial segre-

gation in, for example, public places, transport, or

institutions. It is a term that has been commonly

used with reference to the United States, deseg-

regation of the military, and more especially, the

U.S. civil rights movement since the Supreme

Court’s landmark decision in B

ROWN V. BOARD OF

DUCATION OF TOPEKA, 347 U.S. 483 (1954), forcing

the desegregation of schools.

Historically, racial segregation has a long and

varied past in the United States. This is not to say

that integrationist ideas are a new or 20th-cen-

tury phenomenon, as the inclusion of the right

to vote for free blacks contained in the original

Tennessee state constitution of 1796 illustrates.

Unfortunately, such sentiments were not long

lasting at the time, and in many cases, reversed

(the Tennessee constitution was replaced with a

subsequent one in 1834 that did not adopt the

same voting rights for free blacks). In the United

States, two speciﬁ c areas of the racial desegrega-

tion movement merit particular attention: deseg-

regation in the military and desegregation of the

school system.

The U.S. military remained in segregated units

based on racial lines until just shortly after World

War II. It was with Executive Order 9981 by Pres-

ident Harry S. Truman that racial integration of

the armed forces became an issue. Up until this

point, blacks and other minorities were segregated

into separate units during combat. President Tru-

man chose to use an executive order rather

than going through Congress to have legislation

passed, as he felt there would be too much opposi-

tion within Congress, especially from representa-

tives of the southern states. However, during this

same period (1948), Congress debated the Selec-

tive Services bill. An amendment to the Selective

Services bill, attached in May 1948 by Senator

Richard B. Russell, proposed enabling draft-

ees and new inductees in the military to decide

whether they wanted to serve in segregated units

or not. The attachment was defeated twice. It was

with the onset of the Korean War in 1948 and the

huge casualties among the segregated units and

the need to ﬁ ll those units with able-bodied sol-

diers that army commanders accepted for the ﬁ rst

time black recruits into white units, thus integrat-

ing army units. The practice of integrating units

throughout the Korean War demonstrated that

integrated combat units could perform adequately,

gaining the notice of army high command, who

formally announced plans to desegregate in 1951,

three years after Executive Order 9981 was issued

by President Truman.

It is perhaps the move toward desegregating

the school system, however, that the desegrega-

tion movement is most associated with. Beginning

with the abolitionist movement, the first steps

toward desegregation occurred: the abolition of

slavery with the Thirteenth Amendment to

the U.S. Constitution and the granting of citizen-

ship and voting rights under the Fourteenth

and Fifteenth Amendments immediately

following the end of the Civil War. During the

Reconstruction era (1865–80), there were more

desegregation 191

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