Schultz D. Encyclopedia of the United States Constitution

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United States v. Deveaux, 9 U.S. 61, 87 [1809]).

Today a lively debate continues over the modern-

day need for diversity jurisdiction.

Because the federal courts are courts of lim-

ited jurisdiction, Congress and the Supreme

Court have worked to limit the reach of diversity

jurisdiction. The ﬁ rst major limitation is the statu-

tory requirement that litigants in diversity suits be

ﬁ ghting over at least a minimum amount of money

or value to keep trivial cases out of federal court

(28 U.S.C. Section 1332[a][1]). The Judiciary

Act of 1789 initially set the amount in contro-

versy at $500. In 1958, Congress increased it to

$10,000, then to $50,000 in 1988, and to the cur-

rent amount of $75,000 in 1996 (Erwin Chemer-

inski, Federal Jurisdiction 304 [Aspen 2003]). The

amount in controversy is judged from the per-

spective of the plaintiff. All a plaintiff must do is

claim more than the $75,000 required by the stat-

ute, and federal court jurisdiction exists unless it

appears “to a legal certainty that the claim is really

for less than the jurisdictional amount” (Saint Paul

Mercy Indemnity Co. v. Red Cab Co., 303 U.S.

283, 288 [1938]).

The second major limitation on the federal

courts’ diversity jurisdiction is judicially created.

In Strawbridge v. Curtiss, 7 U.S. 267 (1806), the

Supreme Court held that the federal courts only

had diversity jurisdiction if “complete diversity”

existed, that is, only if every defendant is a citizen

of a different state from every plaintiff. A party’s

citizenship is determined by his or her domicile.

Domicile is deﬁ ned as the place where an indi-

vidual has his or her true home, where he or she

is physically present and intends to remain (Mis-

sissippi Band of Choctaw Indians v. Holyﬁ eld,

490 U.S. 30, 48 [1989]). If one defendant has his

or her domicile in the same state as one plaintiff,

diversity is destroyed, and the case must be sent

to state court. Despite these limitations, however,

diversity jurisdiction remains an important door-

way into the federal courts, and so-called diversity

cases account for a signiﬁ cant portion of the cases

tried in federal court.

For more information: Rowe, Thomas D. “Abol-

ishing Diversity Jurisdiction: Positive Side Effects

and Potential for Further Reforms.” Harvard Law

Review 92 (1979): 963–1,012.

—Alaina Fotiu-Wojtowicz

Dolan v. City of Tigard 512 U.S. 374 (1994)

In Dolan v. City of Tigard, the Supreme Court

ruled that a requirement that an owner dedicate

part of her property to a public way in return

for obtaining a building permit was an unconsti-

tutional taking of private property without just

compensation.

Dolan is among several U.S. Supreme Court

opinions, tracing back to 1897, that address the

takings clause of the Fifth Amendment. Dolan

also represents a contemporary round in the long-

standing debate over the appropriate constitu-

tional relationship between property rights and

police powers. Furthermore, Dolan itself has

been the focal point of disputes over whether the

decision’s “regulatory takings” analysis resur-

rects a pre–New Deal jurisprudence derived from

the controversial L

OCHNER V. NEW YORK, 198 U.S.

45 (1905).

Acting under its Community Development

Code and its Master Drainage Plan, the city of

Tigard attached several conditions to a redevelop-

ment permit for which Florence Dolan, owner of

A-Boy Plumbing & Electrical, had applied. The

conditions required Dolan to cede part of her

property for storm drainage system improvements

and an additional portion as a pedestrian/bicycle

pathway. Dolan’s unsuccessful pursuit of vari-

ances through a series of administrative and judi-

cial appeals in Oregon venues culminated when

the Oregon Supreme Court rejected her petition.

The Oregon court’s decision turned on its inter-

pretation that a 1987 U.S. Supreme Court decision

(Nollan v. California Coastal Commission, 483

U.S. 825) held that so long as permit conditions

were “reasonably related” to the permit requested,

such conditions raised no takings problem.

Speaking through Chief Justice William

Hubbs Rehnquist, a 5-4 U.S. Supreme Court

reversed. Notably, the Court tacitly disagreed

with the Oregon Supreme Court’s reading of the

Nollan test. Repackaging and toughening Nollan’s

202 Dolan v. City of Tigard

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“essential nexus” test, Rehnquist elaborated on

the controlling “federal constitutional norm.” “We

think a term such as ‘rough proportionality’ best

encapsulates what we hold to be the requirement

of the Fifth Amendment,” he wrote. “No precise

mathematical calculation is required, but the city

must make some sort of individualized determina-

tion that the required dedication is related both in

nature and extent to the impact of the proposed

development.”

Justice John Paul Stevens, writing for him-

self and two other dissenters, took issue with this

restated Nollan standard. “The correct inquiry,”

Stevens argued, “should . . . concentrate on

whether the required nexus is present and ven-

ture beyond considerations of a condition’s nature

or germaneness only if the developer establishes

that a concededly germane condition is so grossly

disproportionate to the proposed development’s

adverse effects that it manifests motives other

than land use regulation on the part of the city.”

The Court’s reading of Nollan is mischievous twice

over, Stevens continued, because “[t]he Court . . .

made a serious error by abandoning the traditional

presumption of constitutionality and imposing a

novel burden of proof on a city implementing an

admittedly valid comprehensive land use plan.” In

addition, the Court “resurrect[ed] . . . a species of

substantive due process analysis that it ﬁ rmly

rejected decades ago.” “One can only hope,” Ste-

vens added, “that the Court’s . . . disavowal of the

term ‘rational basis’ to describe its new standard of

review do[es] not signify a reassertion of the kind

of superlegislative power the Court exercised dur-

ing the Lochner era.”

It remains to be seen if Justice Stevens’s hopes

will be realized or dashed. Three subsequent

takings decisions—Palazzolo v. Rhode Island,

533 U.S. 606 (2001); Tahoe-Sierra Preservation

Council v. Tahoe Regional Planning Agency, 535

U.S. 302 (2002); and K

ELO V. CITY OF NEW LONDON,

545 U.S. 469 (2005)—have muddied, rather than

clariﬁ ed, the situation.

For more information: Crane, Daniel A.

“Comment: A Poor Relation? Regulatory Tak-

ings after Dolan v. City of Tigard.” University

of Chicago Law Review 63 (Winter 1996): 199;

Sullivan, Edward J. “Substantive Due Process

Resurrected through the Takings Clause: Nol-

lan, Dolan, and Ehrlich.” Environmental Law

25 (Winter 1995): 155.

—James C. Foster

dormant commerce clause

The dormant commerce clause refers to a theory

of constitutional law that places limits on state

regulation of interstate trade, even in the absence

of explicit congressional action. This theory of how

to interpret the commerce clause has a long

and often controversial history.

The commerce clause of the Constitution gives

the federal government power “[t]o regulate Com-

merce . . . among the several States.” The Consti-

tution does not expressly restrict state regulation

of interstate trade; however, it is accepted that the

grant to the federal government of authority over

interstate commerce implies some limits on

the states’ authority in that area. The founders

called for the Constitutional Convention

of 1787 in large part because of divisive trade

disputes among the states, which threatened the

peace and economic viability of the new nation.

The delegates to the Constitutional Convention

gave the federal government power to regulate

interstate commerce in order to prevent those

disputes.

According to James Madison, the commerce

clause was not expected to result in federal regu-

lation of trade. Madison expected that Congress

would be unable to pass commerce-related regu-

lations because of the states’ conﬂ icting economic

interests. Instead, he expected the commerce

clause to act mainly “as a negative and preventive

provision against injustice among the States them-

selves.” What Madison referred to as the “nega-

tive” aspect of the commerce clause is often called

the “dormant” commerce clause.

The operation of the so-called dormant com-

merce clause must not be confused with that of

the commerce clause. The dormant commerce

clause does not come into play when Congress

has passed a law regulating commerce. In that

dormant commerce clause 203

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case (unless the regulation is unconstitutional

under the commerce clause), the federal law pre-

empts any inconsistent state laws, as all federal

regulations do under the supremacy clause.

The dormant commerce clause becomes relevant

only when a state law is challenged that regulates

a trade-related matter with which Congress has

not dealt. In that case, the challenged state law is

unconstitutional if the commerce clause implic-

itly denies the states’ power to pass the chal-

lenged law.

The dormant commerce clause denies the states

power to pass three kinds of laws. First, state laws

that overtly discriminate against out-of-state com-

mercial interests for the purpose of protecting

the state’s own economic interests are unconstitu-

tional. For example, in Welton v. Missouri, 1 Otto

(91 U.S.) 275 (1876), the Court struck down a Mis-

souri law that required peddlers of goods “not the

growth, produce, or manufacture of [Missouri]” to

be licensed but did not require peddlers of Mis-

souri goods to be licensed. In P

HILADELPHIA V. NEW

ERSEY, 437 U.S. 617 (1978), the Court struck down

a New Jersey law that banned the importation of

garbage from sources outside the state. The Court

also has struck down ordinances passed by local

governments that discriminate against nonlocal

interests. In Dean Milk Co. v. Madison, the Court

struck down a Madison, Wisconsin, ordinance

that prohibited the sale of milk processed at plants

located outside a ﬁ ve-mile radius of Madison.

In most cases, the state’s purpose is not evident

on the face of the statute. In such cases, the Court

has not hesitated to look beyond the text of the

statute for evidence of a protectionist purpose.

For example, in Baldwin v. Seelig, 294 U.S. 511

(1935), the Court struck down a New York law that

banned the sale of milk purchased from milk pro-

ducers at prices below minimum levels. The law

was challenged by a milk dealer who was prohib-

ited by the law from selling milk in New York that

he had purchased below the New York minimum

price in Vermont. The Court found that the law’s

purpose was to protect the economic interests of

New York milk producers.

In Bacchus Imports v. Dias, 468 U.S. 263

(1984), the Court struck down another protec-

tionist law, a Hawaii law that exempted brandy

distilled from a root native to the state from the

state liquor tax. The Court has sometimes relied

on a challenged law’s effect as evidence of a pro-

tectionist purpose. For example, in Hunt v. Wash-

ington State Apple Advertising Comm’n, 432 U.S.

333 (1977), the Court struck down a North Caro-

lina law that banned apples graded according to

any quality standard other than the U.S. Depart-

ment of Agriculture standard. In effect, the law

excluded apples from the state of Washington,

which required its apples to be graded according

to higher-quality standards. The Court has upheld

state regulations of intrastate commerce that only

“incidentally” affect interstate commerce.

In Milk Control Board v. Eisenberg Farm

Products Co., 306 U.S. 346 (1939), a law setting

minimum prices for Pennsylvania milk was chal-

lenged by a New York milk dealer. The Court

upheld the law because “[o]nly a small fraction of

the milk produced by farmers in Pennsylvania is

shipped out of [Pennsylvania]” and “[t]he purpose

of the [law] obviously is to reach a domestic situa-

tion in the interests of the welfare of the produc-

ers and consumers of milk in Pennsylvania.” In H.

P. H

OOD & SONS V. DU MOND, 336 U.S. 525 (1949),

however, the Court struck down another New

York law setting minimum prices for milk, ﬁ nd-

ing that the law’s purpose was not to deal with a

domestic concern but rather to protect New York

milk producers.

Finally, the Court has struck down state laws

that do not facially discriminate against out-of-

state interests or have an impermissible protection-

ist purpose but that nevertheless “unduly burden”

interstate commerce. In such cases, the Court has

applied a balancing test set forth in Pike v. Bruce

Church, 397 U.S. 137 (1970): “Where the statute

regulates evenhandedly to effectuate a legitimate

local public interest, and its effects on interstate

commerce are only incidental, it will be upheld

unless the burden imposed on such commerce is

clearly excessive in relation to the putative local

beneﬁ ts.” For example, in S

OUTHERN PACIFIC COM-

PANY V. ARIZONA, 325 U.S. 781 (1945), the Court

struck down a law that prohibited trains of more

than 14 passenger cars or 70 freight cars from run-

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ning on railroads in Arizona. The Court found that

the law placed a serious burden on interstate com-

merce and that that burden was not outweighed

by Arizona’s interest in train safety. In Kassel v.

Consolidated Freightways, 450 U.S. 662 (1981),

the Court struck down, under the same balanc-

ing test, an Iowa law that prohibited most trucks

over 55 feet in length from traveling on that state’s

highways.

For more information: Benson, Paul R. The

Supreme Court and the Commerce Clause,

1937–1970. New York: Dunellan Publishing, 1970;

Schwartz, Bernard. A History of the Supreme

Court. New York: Oxford University Press, 1993.

—Nathan M. Ingebretson

double jeopardy

Double jeopardy is standing trial for the same

offense more than once. It is a procedural defense

and understood to be the citizen’s right to be pro-

tected from prosecution, for the same offense, for

a second time after being convicted or acquitted

of the offense. The right arises from the Fifth

Amendment to the Constitution, where it is delin-

eated that “nor shall any person be subject for the

same offense to be twice put in jeopardy of life or

limb.” Here, the Constitution places limitations on

the legal system and speciﬁ cally the government

to limit potential abuse.

Tracing the roots of the concept of double

jeopardy leads back to the ancient Athenians and

Romans, who had codiﬁ ed the concept. The ban

on double jeopardy also has its roots in English

common law, and the framers of the Constitution

read the writings of British legal thinkers such as

Sir William Blackstone’s Commentaries on

the Laws of England (1769) and used his writings

as a basis for argument.

The concept of double jeopardy can be under-

stood as further deﬁ ned in three distinct areas,

which are protection from retrial after conviction,

protection from being tried again for a crime once

an acquittal has been rendered within the court,

and protection from multiple trials and punish-

ments for the same offense by the same jurisdic-

tion. An example of such a restriction of whether

someone can be brought to trial for the same

offense is found in the Supreme Court decision

in Fong Foo v. United States, 369 U.S. 141 (1962),

where the Court ruled that it was double jeopardy

to bring someone to trial again when he had been

acquitted for that offense. The Supreme Court

ruled in Benton v. Maryland, 39 U.S. 784 (1969),

that double jeopardy is incorporated to the states

through the due process clause of the Four-

teenth Amendment to the Constitution.

There are some exceptions to double jeopardy;

for example, this Fifth Amendment prohibition

applies only to criminal prosecution. Thus, after O.

J. Simpson was acquitted in 1995 for the murder

of his ex-wife and Ronald Goldman, he was not

placed in double jeopardy (according to the Con-

stitution) when he was found responsible for their

deaths in a civil trial in 1997. Additionally, the

Court has ruled in Heath v. Alabama, 474 U.S. 82

(1985), that double jeopardy does not attach when

one is prosecuted by separate jurisdictions. Thus,

if one faces trial at the state level and is acquit-

ted, double jeopardy does not attach if one is then

prosecuted by the federal government. During

the 1960s, it was a common practice of the Justice

Department to prosecute civil rights cases in

federal court after state acquittals. Double jeop-

ardy does not apply if one is found guilty and then

an appellate court reserves the conviction.

Finally, determining exactly when double

jeopardy attaches is not always easy to ascertain.

While it comes into play once a verdict has been

reached in a case, it is not always applicable when

one has been acquitted under one statute and

then charged under another. Here, the courts say

that double jeopardy attaches when one is being

prosecuted for the same underlying facts.

The right against double jeopardy is an impor-

tant constitutional protection. It prevents the gov-

ernment from repeatedly harassing individuals

with prosecutions until some court ﬁ nally convicts

or the those charged with crimes give up.

For more information: LaFave, Wayne R., Jer-

old H. Israel, and Nancy J. King. Criminal Pro-

cedure. St. Paul, Minn.: Thomson/West, 2004;

double jeopardy 205

xviii+446_EofUSConsti-v1.indd 205 3/12/09 3:04:42 PM

Thomas, George C. III. Double Jeopardy: The

History, the Law. New York: New York University

Press, 1998.

—Ernest Gomez and David Schultz

Douglas, William O. (1898–1980) Supreme

Court justice

William O. Douglas was the longest-serving

Supreme Court justice in U.S. history. He was

nominated and confirmed in 1939; a debilitat-

ing stroke ﬁ nally forced his retirement in 1975.

Throughout his life, Douglas was a relentless

champion of individual rights, civil liberties,

and the environment. While on the bench, Doug-

las was a workhorse, participating in more than

1,200 decisions and drafting nearly 800 dissents.

This penchant for dissent earned Douglas the

nicknames “the Great Dissenter” and “the Lone

Ranger.”

Douglas, the second of three children, was born

in Maine, Minnesota, on October 16, 1898. When

he was very young the Douglas family moved west,

ﬁ nally settling in Washington State. Douglas’s early

life was quite challenging: Douglas fell ill, nearly

dying from a high fever before his second birth-

day; his father, a Presbyterian minister, died when

Douglas was six; and the family struggled with

poverty. Douglas overcame this adversity to gradu-

ate as valedictorian of his high school class. He

received a partial scholarship to attend Whitman

College, where, in 1920, he graduated Phi Beta

Kappa with a B.A. in English and economics.

After spending a few years as a high school

teacher, Douglas decided to attend Columbia

Law School. Upon graduation, he practiced law

for a brief time before taking a teaching position

at Columbia Law School and then at Yale Law

School. In 1936, President Franklin D. Roosevelt

appointed Douglas to the Securities and Exchange

Commission, and in 1937, Roosevelt elevated him

to serve as the commission’s chairman.

On February 13, 1939, Justice Louis Brandeis

retired from the Supreme Court. In March, Presi-

dent Roosevelt summoned Douglas to the White

House for “an important meeting.” Douglas feared

that he was being appointed chair of the Federal

Communications Commission, but instead, Roos-

evelt informed Douglas that he was being nomi-

nated to replace Brandeis. Douglas was quickly

conﬁ rmed by a 62-4 vote in the Senate and was

sworn in on April 17, 1939. Douglas, only 40 at the

time, became the second youngest person ever to

serve on the Court.

Douglas, along with longtime ally and friend

Justice Hugo Black, argued for a literalist

interpretation of the First Amendment. They

believed that the First Amendment’s command

that “no law” shall restrict freedom of speech

should be interpreted literally. Douglas even

went further, believing that conduct could also be

protected by the First Amendment. He voted to

prohibit the punishment of students who wore an

armband in protest of the Vietnam War in T

INKER

V. DES MOINES INDEPENDENT COMMUNITY SCHOOL

ISTRICT, 393 U.S. 503 (1969). In COHEN V. CALI-

FORNIA, 403 U.S. 15 (1971), he voted to protect the

wearing of a jacket with a four-letter expletive in

a courthouse as protected speech. And he filed

a concurrence in New York Times Co. v. United

States, 403 U.S. 713 (1971), a plurality opinion that

allowed the New York Times and the Washing-

ton Post to publish the classiﬁ ed Pentagon Papers

without fearing government censure.

Arguably Douglas’s most important and con-

troversial opinion was delivered in G

RISWOLD V.

ONNECTICUT, 381 U.S. 479 (1965). In striking a

state prohibition on aiding and abetting or coun-

seling the use of contraception, Douglas articu-

lated a broad constitutional right to privacy. He

found that the “speciﬁ c guarantees in the Bill of

Rights have penumbras, formed by emanations

from those guarantees that help give them life

and substance.” Douglas argued that these various

guarantees, such as the Fifth Amendment’s self-

incrimination clause, “create zones of privacy.”

This notion of privacy, ﬁ rst articulated in Gris-

wold, has since been expanded to protect a wom-

an’s right to abortion, the right to die, and

the rights of sexual intimacy for homosexuals.

In his waning years on the Court, Douglas

became frustrated and felt isolated. Though he

had been a champion of liberal causes for almost

15 years before Chief Justice Earl Warren and Jus-

206 Douglas, William O.

xviii+446_EofUSConsti-v1.indd 206 3/12/09 3:04:42 PM

tice William J. Brennan, Jr. joined the Court,

the couple received the credit for leading the

liberal bloc. And after the retirement of Justice

Black, Douglas never had another close relation-

ship on the bench. Douglas, however, was a true

survivor: He survived a heart attack in 1968, three

divorces, and multiple impeachment attempts.

On December 31, 1974, Douglas suffered a serious

stroke that left him partially paralyzed and con-

ﬁ ned to a wheelchair. Though he never recovered,

Douglas attempted to continue on the Court. For

11 months he was wheeled into oral arguments

and, after usually falling asleep at the bench, car-

ried away by Court personnel. On November 12,

1975, he ﬁ nally succumbed to the immense pres-

sure on him and announced his retirement.

Douglas died at Walter Reed Army Medical

Center in Bethesda, Maryland, on January 19,

1980. He lies buried at Arlington National Cem-

etery near the graves of Justices Brennan, Oliver

Wendell Holmes, Jr., Thurgood Marshall, and

Potter Stewart. In personal reﬂ ection, Douglas had

often said that one of his most shameful moments

was his vote to uphold President Roosevelt’s relo-

cation of Japanese Americans in K

OREMATSU V.

NITED STATES, 323 U.S. 214 (1944), and one of his

proudest moments was his vote to disallow Presi-

dent Richard Nixon to use executive privilege

to keep the Watergate tapes from Congress in

NITED STATES V. NIXON, 418 U.S. 683 (1974).

For more information: Douglas, William O. The

Court Years 1939–1975: The Autobiography of

William O. Douglas. New York: Random House,

1980; Douglas, William O. Go East Young Man:

The Early Years. New York: Random House, 1974;

Murphy, Bruce Allen. Wild Bill: The Legend and

Life of William O. Douglas. New York: Random

House, 2003; Simon, James F. Independent Jour-

ney: The Life of William O. Douglas. New York:

Harper & Row, 1980.

—Raymond V. Carman, Jr.

draft card burning

Draft card burning refers to the destruction of

papers inducting one into the military as a means

to protest a war or some other government policy.

While such an act is clearly political in nature, the

Supreme Court has ruled that this is not protected

expression under the First Amendment.

The U.S. government issued Selective Service

Registration Certiﬁ cates, or draft cards, to notify

young men to report for military duty. When Viet-

nam War protesters began burning their draft

cards, Congress amended the 1948 Universal

Military Training and Service Act, also referred

to as the Selective Service Act, in 1965, to make

the knowing destruction or mutilation of a draft

card a felony. Some antiwar protesters, however,

continued to burn their cards.

On March 31, 1966, David O’Brien and three of

his friends set their draft cards on ﬁ re in front of a

Boston courthouse as a form of protest to the Viet-

nam War. After being trampled by angry onlook-

ers, O’Brien and his party were detained and later

arrested by FBI agents. O’Brien was convicted of

violating the Selective Service Act and sentenced

to six years in prison. He appealed his conviction

on the grounds that burning his draft card was

symbolic speech. He further claimed that the

Selective Service Act had been hastily amended

for the purpose of suppressing antiwar dissent.

The U.S. court of appeals agreed that Con-

gress’s intent in amending the law violated the

First Amendment, yet the court upheld O’Brien’s

conviction on the grounds of “non-possession” of

his draft card, despite the fact that he had not

been charged with this offense prior to the appeals

ruling. Both O’Brien and the U.S. government,

represented by Solicitor General Erwin Griswold,

appealed this ruling and the U.S. Supreme Court

granted review. In oral argument, Griswold con-

ceded that burning drafts cards may constitute

symbolic speech, but he argued that Congress has

the power to criminalize O’Brien’s conduct, as he

fails to report for military duty. When O’Brien

burned his draft card, in other words, he impeded

the government’s communication with the men

who are obligated to serve in the military. This

case was timely given the heightened controversy

relating to antiwar protest.

In U

NITED STATES V. O’BRIEN, 391 U.S. 367

(1968), all but one of the justices agreed with

draft card burning 207

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the government. Writing for the majority, Chief

Justice Earl Warren ruled that O’Brien’s act of

burning his draft card was not protected expres-

sion under the First Amendment but a violation of

the 1965 amendment to the Selective Service Act.

In response to O’Brien’s defense that the card in

question did not truly provide notiﬁ cation, War-

ren explained the card’s use went beyond simply

notification and served an administrative pur-

pose that beneﬁ ted both the government and the

registrant.

In times of war, the courts have questioned

whether the acts of protesters are protected

under the First Amendment or hinder the func-

tions of government. In this case, Chief Justice

Warren broke the precedent of Stromberg v. Cal-

ifornia 283 U.S. 359 (1931) and found that draft

card burning was not protected speech under

the Constitution. Warren also established that

“non-speech” conduct may be regulated by the

government if the interest is sufﬁ cient to “justify

incidental limitations on the First Amendment

freedoms.”

For more information: Epstein, Lee, and

Thomas Walker. Constitutional Law for a Chang-

ing America. 5th ed. Washington, D.C.: CQ Press,

2004.

—April Willeford

Dred Scott v. Sandford 60 U.S. 393 (1856)

In Dred Scott v. Sandford (sic), (the plaintiff’s

name is actually spelled “Sanford,” but was mis-

spelled by a court clerk) the Supreme Court

defined the status of African Americans and

upheld the constitutionality of slavery as an insti-

tution. The decision stated that a black man had

“no rights that a white man was bound to respect,”

and the Court ruled that Congress had no author-

ity to ban slavery in the western territories of the

United States. This ruling overturned the Mis-

souri Compromise of 1820, a plan that allowed

Missouri to enter the Union as a slave state while

other northern territories remained free of slav-

ery, thus giving legal sanction to slavery in the

United States.

The case originated with Dred Scott, a slave

born in Virginia whose master moved him to the

slave state of Missouri and later transferred him

into the free state of Illinois for more than two

years and then into the Wisconsin territory, where

slavery was prohibited. Dred Scott was finally

brought back into Missouri. According to Missouri

law, any slave became emancipated once his or her

owner took them into a state or territory where

slavery was prohibited. (This law had been upheld

in the 1836 case Rachel v. Walker.) In seeking to

challenge the legality of slavery, a lawsuit was ﬁ led

seeking to obtain the freedom of Dred Scott and

his wife based on the fact that he had lived in a

free state and the legal status of slavery could not

apply to him in the state of Illinois and the Wis-

consin territory.

The Missouri Supreme Court ruled in 1852

that a doctrine of “conflict of laws” meant that

the laws of the state or territory could not trump

the laws of the state that made Dred Scott a slave

in the ﬁ rst place. This doctrine became a central

part of the appeal to the U.S. Supreme Court, in

which the major question to be resolved was, Does

Dred Scott (Library of Congress)

208 Dred Scott v. Sandford

xviii+446_EofUSConsti-v1.indd 208 3/12/09 3:04:43 PM

residence in a free state invalidate the legal con-

cept of slavery?

The Supreme Court in a 7-2 decision found

that the move to a free state did not invalidate the

institution of slavery and in fact that the regula-

tions of the expansion of slavery by Congress were

unconstitutional. Chief Justice Roger Taney

wrote the majority opinion for the case and went

further than the basic question of the legality of

slavery by addressing the legal status of the plain-

tiff, Dred Scott. Chief Justice Taney wrote that

African Americans “were not regarded as a portion

of the people or citizens of the Government then

formed.” Therefore, Dred Scott, as a slave, was not

a citizen and therefore had no standing to ﬁ le

a lawsuit. Justice Taney also offered that slavery

served a beneﬁ cial role for those not capable of

surviving on their own. He further argued for the

inferiority of blacks as a race, stating:

They were at that time considered as a subordi-

nate and inferior class of beings, who had been

subjugated by the dominant race, and, whether

emancipated or not, yet remained subject to

their authority, and had no rights or privileges

but such as those who held the power and the

government might choose to grant them.

The question of whether Congress had the right

to regulate the expansion of slavery was addressed

in the decision when Justice Taney wrote that the

power of the government over territories was lim-

ited to the expressed powers granted to Congress

and that the right of private property (including the

right to own slaves) could not be abridged without

due process of law. Until these territories came

under the express rule of the United States (by

joining the Union) and individuals directly vio-

lated the laws of the country, any restriction of the

ownership of slaves was void. The act of moving

across state lines or crossing over into territories

did not invalidate state laws; therefore, Dred Scott

was not free.

Justice John McLean in his dissenting opin-

ion argued that the power to govern is inherent

in the right to acquire territory, thus the laws of

Congress (including the Missouri Compromise

prohibiting slavery) do apply in this case. He

also pointed out that if a slave escapes, that is a

breach of a legal arrangement and the slave can

be legally reclaimed, yet if a master takes the

slave into an area that prohibits slavery, Can the

slave be coerced into service without the author-

ity of local law but in fact expressly violating local

provisions? This question of local authority as

opposed to national power at the root of this case

became a bigger political problem and ultimately

led to the political upheaval that culminated in

the Civil War.

Dred Scott is considered one of the most infa-

mous and disliked Court decisions in American

history. It was overturned by Congress with the

passage of the Fourteenth Amendment.

For more information: Fehrenbacher, Don. The

Dred Scott Case: Its Significance in American

Law and Politics. New York: Oxford University

Press, 1978; Higginbotham, A. Leon. Shades of

Freedom: Racial Politics and Presumptions of the

American Legal Process. New York: Oxford Uni-

versity Press, 1996.

—Kevin Anderson

due process

The command that government not deprive any-

one of “life, liberty, or property” without “due

process of law” is found in the Fifth Amendment

(applicable to the federal government) and in the

Fourteenth Amendment (applicable to state

governments). The concept is fundamental in the

Anglo-American legal tradition, traceable at least

as far back as Chapter 39 of the Magna Carta

in 1215.

Taken literally, the language requires govern-

ment to follow certain procedures before subject-

ing anyone to such severe penalties as deprivation

of life, liberty, or property. But the phrase has also

been interpreted as including protection of cer-

tain substantive rights, making some deprivations

of liberty or property unconstitutional no matter

what procedures the government follows. These

two components are usually described (arguably

redundantly) as “procedural due process” and

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(arguably oxymoronically) as “substantive due

process.” Procedural due process is the older

of the two, while substantive due process first

appeared in U.S. constitutional law in the decades

following the Civil War—growing out of the

Supreme Court’s interpretations of the Fourteenth

Amendment—though the concept can be seen in

a few very early Supreme Court decisions and can

be traced beyond Magna Carta to the ancient Sto-

ics and their understandings of natural law.

The Constitution’s fair procedure guarantees

serve at least two purposes: helping ensure fair

decision making and respecting the fundamental

human dignity of persons threatened with adverse

governmental action. With respect to the first,

consider the criminal trial process. Police may be

certain they have their perpetrator, but our sys-

tem presumes innocence until guilt is proven (a

procedural protection not speciﬁ cally listed in the

Constitution but considered fundamental in our

legal tradition) in a process where both prosecu-

tion and defense can present their case and then

allow a jury of the accused’s peers make the ﬁ nal

determination. Regarding the second, giving

people the right to be heard when facing adverse

governmental action is a sign of respect for them

as human beings.

Not all governmental deprivations are of equal

magnitude, and consequently, the question of

exactly what process is due becomes crucial. A

student facing a three-day suspension from school

does not need a full-blown trial by jury; the cost

of such a procedure would simply be prohibitive.

Yet, on the other hand, someone charged with a

capital offense deserves the full panoply of proce-

dural protections accorded by our legal tradition

generally and the Bill of Rights speciﬁ cally—

in particular, the Fourth through Eighth Amend-

ments, concerned primarily with the rights of the

accused. It is fair to say that procedural guaran-

tees are at their zenith in criminal cases.

Most criminal trials take place in state courts,

just as most criminal offenses are deﬁ ned by state,

not federal, laws. Federal criminal procedures,

since 1791, have been held to the standards of the

Fourth through Eighth Amendments. However,

Supreme Court interpretations of these amend-

ments had little impact nationwide since the Bill

of Rights applied only to the national government,

not states, though many of the guarantees in the

Bill of Rights found counterparts in state constitu-

tions and procedural statutes.

Dramatic changes occurred during the 1960s

when the Warren Court (1953 –69) began

applying federal constitutional standards to state

criminal processes in a development that has

been described as “the nationalization of the Bill

of Rights” or “the incorporation of the Bill of

Rights into the Fourteenth Amendment.” The

process began in 1925 when the Court held that

freedom of speech was among the liberties pro-

tected by the due process clause of the Fourteenth

Amendment against state infringement. Shortly

thereafter, freedom of the press was “incor-

porated” into the amendment, and by the late

1940s, all of the basic freedoms found in the First

Amendment had been applied to the states.

The Warren Court accelerated the process,

applying many of the safeguards of the Fourth

through Eighth Amendments to the states. Rich-

ard H. Fallon, Jr., identiﬁ es three lines of crimi-

nal procedure cases that constitute the essential

legacy of the Warren Court in this respect: 1)

the right to counsel (Sixth Amendment),

including appointment of a lawyer for criminal

defendants who cannot afford to hire one; 2) the

right against self-incrimination, includ-

ing the requirement that police provide certain

warnings before custodial questioning of criminal

suspects; and 3) applying the so-called exclu-

sionary rule to state criminal proceedings (the

rule that evidence seized in violation of a suspect’s

constitutional rights would be excluded from the

trial).

Earl Warren was succeeded as chief justice

by Warren E. Burger, and the Burger Court

(1969–86)—and its successor Rehnquist Court

(1986–2005)—cut back on many of the criminal

procedure rulings of the Warren Court. None

of the landmark cases were explicitly overruled;

rather, these successor courts created a variety

of exceptions to the Warren Court rules and in

general handed down decisions more favorable to

prosecutors than to criminal defendants.

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Many of the procedural guarantees found in

the Bill of Rights apply only to criminal cases, but

the Supreme Court has consistently held that pro-

cedural guarantees are essential in civil cases as

well. Prominent among the requirements of due

process in civil cases are the right to an impartial

judge, the right to fair notice of scheduled pro-

ceedings, and the right to both present and chal-

lenge evidence.

There are other instances beyond the trial

setting where the government may take actions

against people that may deprive them of liberty

or property. Municipal health inspectors may

ﬁ nd health code violations and order a restaurant

closed until they are corrected. Customs agents

may seize contraband that a person purchased

abroad and seeks to bring into the country. A pub-

lic school principal may have reason to place a stu-

dent in detention or require that student to stay

home for several days of suspension. What proce-

dures must governmental agents follow to guide

their decision making in such instances?

The traditional approach relied on a distinction

between “rights” and “privileges.” Government

had to respect the due process clause in proceed-

ings involving rights to liberty or property, but not

with respect to benefits (privileges) voluntarily

conferred on people by the government. What

the government voluntarily gave the government

could freely take away.

In G

OLDBERG V. KELLY, 397 U.S. 254 (1970),

the Court rejected this distinction and held that

a person could not be taken off the welfare rolls

without advance notice and the opportunity for a

hearing on the facts. The Court assumed that wel-

fare beneﬁ ts were a form of property. The Court

stressed that due process is a flexible concept

whose requirements might vary depending on

context. The Court elaborated on the appropriate

analytical method in Mathews v. Eldridge, 424

U.S. 319 (1976), arguing for a balancing approach

that addressed three factors: 1) the importance

of the interest to the individual (more important

interests will require more procedural safeguards),

2) the likelihood that additional procedures will

increase the accuracy of the fact-ﬁ nding process

(the higher the likelihood, the greater the pro-

cedural requirements), and 3) the burden placed

on the government by requiring additional pro-

cedures, burden being understood as additional

expense.

In U.S. constitutional law, the philosophy

undergirding substantive due process can be

traced back at least to 1798 and the case of C

ALDER

V. BULL, 3 U.S. 386. Supreme Court justice Samuel

Chase wrote an opinion in which he argued that

the power of American governments is subject not

only to speciﬁ c, written constitutional provisions

but also higher principles, such as those found in

natural law, which dictate that government must

be limited in any attempts to interfere with rights

vested in the people by the law of nature. Chase’s

opinion was rejected by a majority of his col-

leagues in Calder and by an overwhelming major-

ity of judges ever since.

The great era of substantive due process began

in the last few decades of the 19th century. By

then, the rapid industrialization that followed the

Civil War gave rise not only to great prosperity but

to serious social problems: child labor, sweat-

shops, unsafe workplaces, excessive working hours,

and payment of the lowest wages the market would

allow. Many states, as well as occasionally the fed-

eral government, sought to pass laws to regulate

some of these harmful conditions. The economic

interests that found themselves subject to such

regulation turned to the due process clause of the

Fourteenth Amendment and began to argue that

these laws interfered with fundamental liberties

protected by natural law and that such interfer-

ence with basic rights was itself a violation of due

process, however legitimate the procedures used

to enact the laws.

This approach, seen in the dissenting opinions

in the Slaughterhouse Cases, 83 U.S. 36 (1872)—

the first occasion the Supreme Court had to

interpret the newly enacted Fourteenth Amend-

ment—had by the beginnings of the 20th century

commanded a majority of the justices, as reﬂ ected

in the case that gave its name to the Lochner era

(1905–37). In L

OCHNER V. NEW YORK, 198 U.S. 45

(1905), the Court overturned a New York law lim-

iting the weekly work hours of bakers. The Court

found a “liberty to contract” between an employer

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