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and employee (a liberty nowhere spelled out in

the Constitution) protected by the Fourteenth

Amendment. The New York law was an unreason-

able infringement on “the freedom of master and

employee to contract with each other in relation to

their employment.”

Justice Oliver Wendell Holmes, Jr., in

what is perhaps his most famous dissent, accused

the majority of writing into the ambiguous lan-

guage of the amendment their own laissez-faire

philosophy as to the proper relationship between

the individual and the state. He argued that a leg-

islature could reasonably conclude that excessive

working hours in a trade as dangerous as baking

were inimical to the health of the employee and

thus harmful to society. As Holmes caustically

noted, the “Fourteenth Amendment does not

enact Mr. Herbert Spencer’s Social Statics.”

The Lochner era ended in 1937, when a Court

dominated by Franklin Roosevelt’s appointees and

reﬂ ecting the New Deal’s philosophy of increased

governmental regulation reversed course and

began to uphold laws addressing a variety of social

and economic ills. As the Court noted in W

EST

COAST HOTEL V. PARRISH, 300 U.S. 379 (1937),

“[t]he Constitution does not speak of freedom of

contract. It speaks of liberty and prohibits the

deprivation of liberty without due process of law.”

For more information: Abraham, Henry J., and

Barbara A. Perrey. Freedom and the Court. 8th

ed. Lawrence: University Press of Kansas, 2003;

Chemerinsky, Erwin. Constitutional Law: Prin-

ciples and Policies. 3d ed. New York: Aspen Pub-

lishers, 2006; Fallon, Richard H., Jr. The Dynamic

Constitution. New York: Cambridge University

Press, 2004.

—Philip A. Dynia

Duncan v. Louisiana 391 U.C. 145 (1968)

In Duncan v. Louisiana, the Supreme Court held

that under the Fourteenth Amendment to

the U.S. Constitution, a defendant charged with a

serious crime in state court has a right to trial

by jury. Gary Duncan had been tried without a

jury and convicted in state court for simple bat-

tery, a crime punishable under state law with a

maximum of two years’ imprisonment and a $300

ﬁ ne. On appeal to the U.S. Supreme Court, Dun-

can argued that he was entitled to a jury trial for

this criminal charge.

The jury trial right is included in the Sixth

Amendment of the Bill of Rights, which

was added to the Constitution a few years after

its ratification, but in the leading case of B

AR-

RON V. MAYOR AND CITY COUNCIL OF BALTIMORE, 7

Pet. 243 (1833), the Court ruled that the rights

established in the Bill of Rights applied only to

the federal government, not state governments.

The Fourteenth Amendment (which was added to

the Constitution during Reconstruction) prohib-

ited the states from depriving a citizen of his life,

liberty, and property without due process, but

that amendment is silent on whether the array of

other rights in the Bill of Rights, such as the right

to a jury trial, apply to the states. Beginning in

the late 19th century, the Court began to address

this issue in a series of cases that would continue

well into the 20th century. In some cases, the

Court held that a particular right found in the

Bill of Rights was fundamental in the context of

American criminal justice systems and, therefore,

was incorporated into the concept of due process

applicable to the states under the Fourteenth

Amendment. Duncan v. Louisiana is an impor-

tant case in this series.

In concluding that the right to a jury trial was

fundamental, the Court noted that the right, which

developed as a protection against unchecked gov-

ernmental power, has deep roots in both English

and American law. Jury trials play a central role

in every American jurisdiction (both state and

federal). The Court also noted that other Sixth

Amendment rights, such as the right to coun-

sel (G

IDEON V. WAINRIGHT, 372 U.S. 335 [1963])

and the right to a speedy trial (Klopfer v. North

Carolina, 386 U.S. 213 [1967]), had already been

incorporated into the Fourteenth Amendment.

Although the Court held that the jury trial right

is incorporated into the Fourteenth Amendment,

it was not willing to extend the right to every crim-

inal case in state courts. Based on Anglo-Ameri-

can legal tradition and the original understanding

212 Duncan v. Louisiana

xviii+446_EofUSConsti-v1.indd 212 3/12/09 3:04:44 PM

of the Sixth Amendment’s jury trial provision, the

Court limited the right to serious offenses, which

raised the issue of distinguishing between petty

and serious offenses. Rejecting Louisiana’s con-

tention that the actual punishment imposed on

the defendant should be the basis for classifying

the offense, the Court suggested that the length

of possible incarceration authorized by the leg-

islature as the penalty for a particular crime is a

more useful gauge of its seriousness. After consid-

ering both a six-month and a one-year rule, the

Court deferred this question to a future case and

concluded that because the crime for which Dun-

can was charged was punishable by two years in

prison, it was a serious, not a petty, offense, and

therefore, Duncan had a right to a jury trial.

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

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

cedure. 4th ed. St. Paul, Minn.: Thomson/West,

2004.

—Steven B. Dow

Duncan v. Louisiana 213

xviii+446_EofUSConsti-v1.indd 213 3/12/09 3:04:44 PM

214

ﱶﱷﱸ

economic protectionism and the states

Economic protection refers to a practice under-

taken by states to protect their own businesses and

industries at the expense of those located in other

states. This practice is a violation of the com-

merce clause of the Constitution.

The U.S. Constitution distributes economic

and political powers among the federal govern-

ment and the states. One of the areas in which

the Constitution apportions the respective roles

and powers of the federal government and the

states is interstate commerce (among states)

and international or foreign trade (with other

countries).

Clause 3 in Section 8 of Article I of the U.S.

Constitution, known as the commerce clause,

grants the U.S. Congress the powers “to regulate

Commerce with foreign Nations, and among the

several States, and with the Indian Tribes.” These

powers are sometimes classiﬁ ed into three com-

ponent parts: foreign commerce clause, the inter-

state commerce clause, and the Indian commerce

clause, which deal with foreign trade, interstate

trade, and economic transactions with sovereign

tribal governments, respectively.

Whereas the commerce clause grants the fed-

eral government the power to regulate interstate

commerce, a more expansive doctrinal interpreta-

tion has emerged out of the jurisprudence of the

Supreme Court and other courts of lower juris-

dictions. This doctrine is called the dormant

commerce clause, which maintains that states

cannot pass laws that restrict interstate commerce.

It is a preemptive doctrine in that it prohibits a

priori any future state legislation that imposes

restrictions on interstate commerce.

The commerce clause, particularly the dor-

mant commerce clause, has been the subject of

various and conflicting interpretations within

the Supreme Court and among legal scholars. In

simple terms, two overriding judicial perspectives

or doctrines dominate the debate among Supreme

Court jurists and legal scholars concerning the

reach of the commerce clause. The ﬁ rst perspec-

tive, a minimalist doctrine that is often associated

with the conservative wing of the Court, holds

that the commerce clause does not grant the fed-

eral government exclusive powers over the regu-

lation of interstate commerce, let alone preempt

any future law that states could pass to regulate

interstate trade. Antonin Gregory Scalia

and Clarence Thomas, the conservative jus-

tices of the Court, subscribe to this doctrine that

explicitly rejects the dormant commerce clause as

unconstitutional.

Proponents of the minimalist interpretation of

the commerce clause generally concur, however,

that the Constitution grants Congress and the fed-

eral government the power to regulate commerce

among states and internationally, but this power

is neither exclusive nor universal in the sense that

states retain some regulatory and legislative man-

date over certain aspects and types of interstate

commerce. Furthermore, the mandate of the

federal government is not unlimited as it may not

apply to interstate matters that are only partially

or tangentially related to commerce. A slightly

different version of the minimalist view maintains

that the commerce clause grants both Congress

and states “concurrent” powers to regulate inter-

state commerce. In this view, state regulation of

commerce is unconstitutional or invalid only if

xviii+446_EofUSConsti-v1.indd 214 3/12/09 3:04:44 PM

Congress passes speciﬁ c statutes that restrict or

remove the economic powers of states.

The second perspective represents a more

maximalist doctrinal principle in that it strips the

states of all powers to regulate commerce through

protectionist measures such as tariffs and vests in

the Congress exclusive mandate over most aspects

of interstate commerce. Proponents of the second

perspective believe that the commerce clause was

designed to prevent interstate conﬂ ict over com-

merce, a situation that could result if the states had

an exclusive mandate over interstate commerce.

These competing judicial doctrines have pro-

duced a vast body of jurisprudence on the subject

of economic protectionism, an area of continued

conflict between the prerogatives of states as

autonomous economic units and the mandate of

the federal government. This important state-fed-

eral relationship has evolved over time through a

series of amendments and precedents, with the

Supreme Court and lower courts playing a vital

role since the 19th century. The long and estab-

lished jurisprudence of the Supreme Court and

other lower courts on the commerce clause afﬁ rms

federal authority over interstate commerce. How-

ever, recent decisions of the Court seem to give

credence to the conservative minimalist doctrine

that some state regulation is allowable under the

commerce clause.

For more information: Cho, Sungjoon. “Toward

a New Economic Constitution: Judicial Disciplines

on Trade Politics.” Wake Forest Law Review 42

(2007): 167–197; Moorman, John W. “Conﬂ icting

Commerce Clauses: How Raich and American

Trucking Dishonor Their Doctrines.” William &

Mary Bill of Rights Journal 15 (2006) 687–710.

—Daniel G. Ogbaharya

education and the Constitution

The Constitution, the Bill of Rights, and subse-

quent amendments do not mention education

anywhere. Yet, the First Amendment’s religion,

speech, and press clauses; the Fourth Amend-

ment’s unreasonable searches clause; the Eighth

Amendment’s cruel and unusual punish-

ment clause; the Fourteenth Amendment’s

due process and equal protection clauses;

and Congress’s spending power in Section 8 of

Article I of the U.S. Constitution have all

been interpreted by the U.S. Supreme Court in

ways that have a major impact on education.

Nothing in the U.S. Constitution requires a

state to have a public elementary and secondary

school system or a public higher education system.

In S

AN ANTONIO V. RODRIGUEZ, 411 U.S. 1 (1973),

the Supreme Court rejected the argument that

a free public education was a fundamental right

under the Fourteenth Amendment due process

or equal protection clauses. However, every state

constitution requires that residents be provided a

free public education, or in some states a free and

“adequate” public education.

While educational plans and policies have

historically been viewed as the province of the

states, the federal government in the last 40 years

has played a major role in setting national edu-

cation standards and providing aid to promote

access to education programs for lower-income

populations. Beginning in 1965, with passage of

the Elementary and Secondary Education Act

(ESEA), through to 2001, with passage of the

No Child Left Behind Act, Congress has used

its “spending” power under Article I, Section 8

to set national education policy as a condition to

federal grants to states. Congress has also passed

antidiscrimination laws under the same spending

clause authority, including Title VI of the Civil

Rights Act of 1964, which prohibits discrimi-

nation based on race or national origin in pro-

grams receiving federal funds, and Title IX of the

Education Amendments of 1972, which prohibits

discrimination based on gender in education pro-

grams receiving federal funds.

The Supreme Court has also found that other

parts of the Constitution have a signiﬁ cant impact

on education. In the case of T

INKER V. DES MOINES

NDEPENDENT COMMUNITY SCHOOL DISTRICT, 393 U.S.

503 (1969), the Supreme Court said that students

retain the First Amendment right to freedom of

speech in school. In the ruling, the highwater

education and the Constitution 215

xviii+446_EofUSConsti-v1.indd 215 3/12/09 3:04:45 PM

mark for recognition of student rights, the

Court stated: “It can hardly be argued that either

students or teachers shed their constitutional

rights to freedom of speech or expression at the

schoolhouse gate.” In Tinker, the Court ruled

that students who wore black armbands to school

to call for a truce in the Vietnam War should not

have been punished because there was no evi-

dence that their conduct threatened to disrupt

school activities.

In subsequent First Amendment rulings, how-

ever, the Court limited freedom of speech and

press rights, finding that schools may prohibit

speech that is lewd or profane (Bethel School

District v. Fraser, 478 U.S. 675 [1986]) and that

ofﬁ cials may censor speech or publications that

bear the imprimatur of the school, as long as ofﬁ -

cials have a legitimate pedagogical reason (H

AZEL-

WOOD SCHOOL DISTRICT V. KUHLMEIER, 484 U.S. 260

[1988]).

Hazelwood involved a school newspaper, but

it has been applied to restrict yearbooks, school

plays, and a range of other speech. Courts have

generally protected students’ right to criticize

school ofﬁ cials or policies on personal Web pages

created outside school. However, in M

ORSE V.

REDERICK, ___ U.S. ___ (2007), the Supreme

Court ruled that a student display of a banner at a

school event appearing to advocate the use of ille-

gal drugs was not protected by the First Amend-

ment. This decision seemed to signiﬁ cantly retract

on many of the expressive rights that the Court

had supported since Tinker.

Courts have also generally ruled that schools

have some control but cannot engage in view-

point discrimination when students wear T-

shirts with messages on them. However, while

the Supreme Court has not addressed the issue,

lower courts have upheld school restrictions on

hair length, hats, and clothing. Dress codes have

been widely afﬁ rmed by courts, ﬁ nding neither a

free expression problem nor any issue of privacy

under the due process clause of the Fourteenth

Amendment.

The high court has handled dozens of cases

applying the religion clauses to public education.

The Court has ruled that the establishment

clause prohibits formal, organized school

prayer, whether in the classroom (E

NGEL V.

ITALE, 370 U.S. 421 [1962]), at graduation (LEE V.

EISMAN, 505 U.S. 577 [1992]), or at a varsity foot-

ball game (Santa Fe Independent School District

v. Doe, 530 U.S. 290 [2000]). Other activities are

prohibited, too, when they are designed to pro-

mote religion, including the teaching of creation-

ism (E

DWARDS V. AGUILLARD, 482 U.S. 578 [1987])

and other religiously motivated attempts to under-

mine the teaching of evolution.

At the same time, students have both a free

speech right and a free exercise clause right to pray

at school, as long as it is not organized by or pro-

moted by school ofﬁ cials. And schools should be

able to teach courses about the history of religion

or comparative religion, as long as the curriculum

does not promote religion. School ofﬁ cials may not

discriminate against religious organizations; when

schools allow clubs to meet after school, religious

clubs cannot be excluded simply because their

focus is religious (G

OOD NEWS CLUB V. MILFORD

ENTRAL SCHOOL, 533 U.S. 98 [2001]).

In numerous cases, the Supreme Court has

read the establishment clause to impose some lim-

its on when federal aid can go to private religious

schools or to support religious education. The

Court placed strict limits for many years (L

EMON V.

KURTZMAN, 403 U.S. 602 [1971]), but more recently,

the Court has said tax dollars may ﬂ ow to religious

schools if they are part of a general aid program

that does not engage in religious indoctrination

(Agostini v. Felton, 521 U.S. 203 [1997]). The

Court has also upheld school vouchers, where

parents use tax dollars to pay for private schools,

including religious schools (Z

ELMAN V. SIMMONS-

ARRIS, 536 U.S. 639 [2002]).

In the area of privacy and security, the Supreme

Court has ruled that students have a reduced

expectation of privacy in school and may be sub-

jected to searches under the Fourth Amendment

based on the reasonableness of the circumstances

EW JERSEY V. T.L.O., 469 U.S. 325 [1985]). The

Court has also upheld drug testing without any

individual suspicion for students participating in

extracurricular activities (B

OARD OF EDUCATION POT-

TAWATOMIE COUNTY V. EARLS, 536 U.S. 822 [2002]).

216 education and the Constitution

xviii+446_EofUSConsti-v1.indd 216 3/12/09 3:04:45 PM

Lower courts have found no Fourth Amendment

problem with metal detectors at school entrances

or with most locker searches.

The Supreme Court dealt with the Eighth

Amendment’s cruel and unusual punishment

clause in the context of corporal punishment

in school. In Ingraham v. Wright, 430 U.S. 651

(1977), the Court ruled that imposition of corpo-

ral punishment did not trigger the Eighth Amend-

ment because it was not punishment for a crime.

Ingraham also involved the due process guar-

antee of the Fourteenth Amendment. The Court

ruled that students did not have a right to notice,

a hearing, or other procedural safeguards prior

to corporal punishment. In other contexts, par-

ticularly punishment in the form of suspension or

expulsion from school, the Supreme Court said

students facing suspension of 10 days or less do

have due process rights, including a right to notice,

details of evidence and charges, and a right to give

their version of events (Goss v. Lopez, 419 U.S.

565 [1975]).

The equal protection clause of the Fourteenth

Amendment has been another source of Court

rulings and interplay between education and the

Constitution. In B

ROWN V. BOARD OF EDUCATION OF

OPEKA, 347 U.S. 483 (1954), the Supreme Court

ruled that segregated public schools violated the

equal protection guarantee of the Fourteenth

Amendment and, over the next 40 years, pre-

sided over efforts to desegregate public schools,

ﬁ rst in southern states, and then throughout the

nation. In Freeman v. Pitts, 503 U.S. 467 (1992),

the Supreme Court suggested that federal courts

should relinquish control of school systems that

had met their obligation to eliminate segregation.

As emphasis on eliminating formal segregation

began to wane, a new focus developed on the use

of race in admissions to promote diversity in the

classroom. In a narrow ruling in R

EGENTS OF THE

NIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S. 265

(1978), the Supreme Court kept the door open

to the use of race as one factor in admissions for

higher education programs in order to promote

diversity. Returning to this form of affirmative

action 25 years later, the Supreme Court ruled

in G

RUTTER V. BOLLINGER, 539 U.S. 306 (2003), that

race could be considered among numerous other

values to achieve a diverse law school classroom at

the University of Michigan. However, in G

RATZ V.

OLLINGER, 539 U.S. 244 (2003), the Court ruled

that Michigan’s use of race as a ﬁ xed point value

in the undergraduate admissions process was too

much like a rigid quota and violated the Four-

teenth Amendment.

Finally, in Parents Involved in Community

Schools v. Seattle School District No. 1, ___ U.S.

___ (2007), and its companion case, the Court ruled

that race may not be used as a factor in determin-

ing assignment plans for schools. Whether this case

means that the use of race as a factor in education

has ended remains to be seen.

For more information: Imber, Michael, and Tyll

Van Geel. A Teacher’s Guide to Education Law.

3d ed. Mahwah, N.J.: Lawrence Erlbaum, 2005;

Raskin, Jamin B. We the Students: Supreme Court

Cases for and about Students. 2d ed. Washington,

D.C.: CQ Press, 2003; Russo, Charles J. Reutter’s

The Law of Public Education. 6th ed. New York:

Foundation Press, 2006.

—Stephen Wermiel

Edwards v. Aguillard 482 U.S. 578 (1987)

In Edwards v. Aguillard, the Supreme Court

reviewed Louisiana’s Balanced Treatment for

Creation Science and Evolution Science in Pub-

lic School Instruction Act and declared it uncon-

stitutional. This case is the foundation for the

contemporary movement supporting inclusion of

intelligent design theory in public education.

The Louisiana law, though not requiring any

theory on life’s origins be taught, required that

creation theory must be included if evolution the-

ory was taught, or vice versa. Because the law did

not forbid the teaching of evolution, it did not run

afoul of the precedent established in Epperson v.

Arkansas, 393 U.S. 97 (1968); however, it did face

problems with the precedent established in L

EMON

V. KURTZMAN, 403 U.S. 602 (1971).

Parents, teachers, and religious leaders chal-

lenged the state law as an unconstitutional viola-

tion of the First Amendment’s establishment

Edwards v. Aguillard 217

xviii+446_EofUSConsti-v1.indd 217 3/12/09 3:04:45 PM

clause. The state attorney general argued that

the objective of the law was to ensure that “aca-

demic freedom” was provided for teachers who

desired to teach alternative theories to evolution.

Unfortunately for the state, the bill’s author’s

remarks in the legislative record belied this argu-

ment. Senator Keith stated: “My preference would

be that neither [creationism nor evolution] be

taught.” Consequently, the Court noted, “Such

a ban on teaching does not promote—indeed, it

undermines—the provision of a comprehensive

scientiﬁ c education.”

Justice William J. Brennan, Jr., delivered

the 7-2 majority opinion, stating the law violated

the ﬁ rst prong of the Lemon test (a test for deter-

mining whether there is a violation of the estab-

lishment clause) since it lacked a secular legislative

purpose. Justice Antonin Gregory Scalia’s

dissent challenged that the majority’s conclusion

was hasty because the appellate court’s decision to

grant summary judgment never allowed evidence

to be introduced on legislative intent. Yet, Justice

Brennan noted:

the Act evinces a discriminatory preference . . .

requiring curriculum guides be developed and

resource services supplied for teaching cre-

ationism but not for teaching evolution, limit-

ing membership on the resource services panel

to “creation scientists,” and forbidding school

boards from discriminating against “creation

scientists,” and teaching creation science, while

failing to protect teachers of other theories or

those refusing to teach creation science.

Brennan’s statement made Justice Scalia’s remarks

disingenuous. Also, Scalia argued for abandoning

Lemon’s purpose test altogether, stating this prong

serves as “a test which exacerbates the tension

between the Free Exercise and Establishment

Clauses.”

The Lemon test’s second prong presented

problems for the law, too. The Court noted: “The

Act is designed either to promote the theory of

creation science . . . or to prohibit the teaching of

a scientiﬁ c theory disfavored by certain religious

sects.” The legislative record details the view that

“a creator [was] responsible for the universe and

everything in it.” Furthermore, the legislative his-

tory clearly indicates “creation science” embodies

a religious belief that a supernatural creator was

responsible for the creation of humankind.

Third, the law entangled the interests of

church and state by seeking “the symbolic and

financial support of government to achieve a

religious purpose.” Because Louisiana proposed

to develop special curricula and provide teach-

ing resources for the clear purpose of advancing

creation theory but none for evolution theory,

this excessively involved the state and education

authorities in advancing a theistic viewpoint in

violation of Lemon and the First Amendment’s

establishment clause.

For more information: Forrest, Barbara, and

Paul R. Gross. Creationism’s Trojan Horse: The

Wedge of Intelligent Design. New York: Oxford

University Press, 2004; Numbers, R. L. The Cre-

ationists: The Evolution of Scientiﬁ c Creationism.

Berkeley: University of California Press, 1993.

—Christy Woodward Kaupert

Edwards v. California 314 U.S. 160 (1941)

In Edwards v. California, the Supreme Court

held that the commerce clause (in Section 8

of Article I of the U.S. Constitution) bars

states from restricting interstate travel.

The decade of the 1930s witnessed the Great

Depression, in which scores of businesses went

bankrupt and millions of Americans became

unemployed. People in the southwestern states

were additionally impacted by farm foreclosures

caused by poor agricultural methods, oppressive

heat, severe droughts, and dirt storms. Among the

hardest-hit states in the so-called Dust Bowl were

Arkansas, Kansas, Oklahoma, and Texas. Thou-

sands of farmers and laborers from the Dust Bowl

were forced to pack their belongings and seek

employment in other states. California was one

of the states that offered hope for these displaced

Americans.

The mass migration of Americans was not with-

out controversy. This sudden inﬂ ux of newcomers

218 Edwards v. California

xviii+446_EofUSConsti-v1.indd 218 3/12/09 3:04:46 PM

strained state budgets and limited resources. As a

result, more than 20 states enacted laws restricting

the movement of indigents into their borders. The

Welfare and Institutions Code of California was

emblematic of efforts to stem the tide of migra-

tion from the Dust Bowl. Section 2615 of that act

provided: “Every person, ﬁ rm or corporation . . .

that brings or assists in bringing into the State any

indigent person who is not a resident of the State,

knowing him to be an indigent person, is guilty of

a misdemeanor.”

In December 1939, Fred F. Edwards, a resi-

dent of Marysville, California, drove his auto-

mobile to the home of his wife’s brother, Frank

Duncan, in Spur, Texas. Duncan was unemployed

and Edwards agreed to help his brother-in-law

in ﬁ nding work in California. Together, the two

men returned to California with just $20 between

them. After arriving in California, Duncan lived

with Edwards’s family for 10 days, until he could

receive federal governmental assistance. Edwards

was convicted of violating Section 2615 and sen-

tenced to six months in county jail. The Califor-

nia Supreme Court afﬁ rmed the conviction, and

Edwards appealed.

The U.S. Supreme Court reversed Edwards’s

conviction. Writing for the Court, Justice James

F. Byrnes noted that California had exceeded its

Tenth Amendment police power by unduly

restricting the freedom of travel. While the Court

recognized a state’s legitimate interests in prohib-

iting criminals from entering its borders, Byrnes

made it clear that poverty and immorality are not

synonymous and that Section 2615 violated the

commerce clause. Joining Byrnes were Justices

Felix Frankfurter, Stanley Reed, Harlan Fiske

Stone, and Owen Roberts. Justice William O.

Douglas, supported by Justices Hugo Black

and Frank Murphy, offered a concurring opinion

in which he asserted that the right of Americans

to interstate commerce is a fundamental

right that states cannot restrict. A second concur-

ring opinion, written by Justice Robert Jackson,

asserted that property qualifications and travel

restrictions on U.S. citizens violate the privi-

leges and immunities clause of the Four-

teenth Amendment.

This case is important in federal-state rela-

tions because it broadened the application of the

commerce clause and clariﬁ ed rights of citizens

to move freely and seek housing and employment

in other states. Jackson’s opinion in this case also

provided the groundwork for Saenz v. California

(1999), where the Supreme Court struck down

residency requirements for state welfare beneﬁ ts

on grounds of privileges and immunities.

For more information: Gregory, James N. Amer-

ican Exodus: The Dust Bowl Migration and Okie

Culture in California. New York: Oxford Uni-

versity Press, 1998; Lange, Dorthea, and Paul S.

Taylor. An American Exodus: A Record of Human

Erosion in the Thirties. New Haven, Conn.: Oak-

land Museum/Yale University Press, 1969.

—Richard J. Hardy

Eighteenth Amendment (1919)

The Eighteenth Amendment to the Constitution,

which was ratiﬁ ed in 1919, banned the manufac-

turing and the sale of alcohol for consumption in

the United States. It was subsequently repealed

with the Twenty-first Amendment in 1933.

The Eighteenth Amendment is commonly dis-

missed as a disaster, an inappropriate police regu-

lation in the Constitution that met with deserved

failure. It was asserted from the time of its pas-

sage that the Prohibition amendment had been

slipped by the American people while they were

at war and many, presumably hard-drinking, sol-

diers were abroad. The amendment, however, was

ratified by all but two state legislatures, and in

only a few of those states was the victory close.

No prior amendment was enacted with such near

unanimity.

Some have asserted that the amendment was

sumptuary legislation, but many of its supporters

were careful to note that they opposed the sale

of intoxicating liquor because of the social costs

that came with it. It was the sale, not drinking,

of intoxicating liquors that was prohibited. Sales

in general and saloon drinking in particular could

not be considered as private acts beyond the legit-

imate legislative jurisdiction of the state. It was

Eighteenth Amendment 219

xviii+446_EofUSConsti-v1.indd 219 3/12/09 3:04:46 PM

asserted, most famously by H. L. Mencken, that

Prohibition was foisted on to the American people

by rural evangelicals, (“Christian Moronia,” as

he called rural America), attempting to impose

a Puritan sensibility, a hatred of pleasure, on

the United States, and doing so because of their

mean-spirited resentment that others were having

a good time.

Yet Prohibition was also supported by Robert

Woods, Lillian Wald, Jane Addams, and other stal-

warts of the Progressive movement. They believed

in using law for uplift and thought that their pro-

gram was supported by the best scientiﬁ c data and

expertise. The American Medical Association had

declared against intoxicating beverages. Empiri-

cal veriﬁ cation supposedly conﬁ rmed the threat

that alcoholic beverages posed to the human germ

plasm, as it was called, and intoxicating liquor’s

role in stimulating criminal activity. There was

indeed widespread disgust with the excesses of

public drinking occurring in the saloon and fear

of the threat to public order posed by what social

historians now term homosocial inebriation. War-

time centralization of powers and regimentation

eased the way to further regulatory control from

Washington.

Even most southern members of Congress,

peculiarly concerned with the preservation of

states’ rights, voted for Prohibition, or more pre-

cisely, as some of them argued, voted to let the

states decide whether to enact a prohibitory

amendment. The amendment may not have been

passed without wartime concern for protecting the

food supply, hostility to German-American brew-

ers, and increasingly centralized regimentation,

but that does not make it illegitimate. The fact that

the details of the actual amendment, in particular

the language granting concurrent authority to the

states and federal government to enforce it, do not

seem to have been subject to much thought, sug-

Law ofﬁ cials raid a cellar during Prohibition. (Library of Congress)

220 Eighteenth Amendment

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gests that it was perhaps drafted and evaluated in

haste, although the Anti-Saloon League insisted

that there had been 70 years of deliberate experi-

mentation with less drastic restrictions.

For all that support for Prohibition was wide-

spread, except in large cities, it was also some-

what thin and not always carefully considered.

Few people seem to understand that, in theory,

national Prohibition would be more comprehen-

sive than had been state prohibition. Although

two-thirds of the U.S. population was subject to

state prohibition in 1917, few states were bone

dry. Sale for beverage purposes was prohibited

within the state, but alcoholic beverages could

still be imported, for instance. While only manu-

facture, sale, and transportation of intoxicating

liquors for beverage purposes were prohibited by

the Eighteenth Amendment, a national ban posed

the ﬁ rst serious threat to all access to alcoholic

beverages.

The focus of Prohibition rhetoric was the

saloon. The Anti-Saloon League, the most effec-

tive instrument in engineering passage of the

amendment, was the prototype of a single-issue

lobbying organization. Its general counsel, Wayne

Wheeler, drafted the language of the Eighteenth

Amendment and then, as the “dry boss,” as he

happily called himself, was the chief strategist of

its enforcement until his death in 1927. The Anti-

Saloon League refused to include in the amend-

ment any prohibition of drinking. Whether this was

because they thought that the American people in

general would not approve of such direct regula-

tion of personal behavior or that rich and powerful

Americans who could stockpile intoxicating bever-

ages would cease supporting Prohibition for their

employees, or whether they simply focused only

on stimulated public sale of alcoholic beverages or

some combination of these, is unclear.

As contemporary observers noted, national

Prohibition was simply another variation in a

long line of regulatory strategies. Only the man-

ufacture, sale, and transportation of intoxicating

liquors were prohibited and only for beverage

purposes. Such liquors, with restrictions, were

still available for medicinal and sacramental pur-

poses, exceptions which led to widespread evasion.

Cider was not banned, perhaps because it would

be impossible to prevent natural fermentation.

This led to allegations that the Volstead Act, the

congressional act enforcing Prohibition, permit-

ted the farmer his drink of choice, but it deprived

the urban worker of his beer. The prohibition of

sale but not consumption focused on commerce

in alcoholic beverages but invited charges that the

rich were permitted to stockpile while the poor

were deprived. Any ﬂ exibility was criticized, per-

haps unfairly, as discriminatory.

Enforcement of Prohibition was also criticized.

First of all, it was pursued on the cheap, whether

because the Anti-Saloon League wanted to avoid

taxpayer resistance or because its supporters really

expected resistance to cease once the amend-

ment was enacted. States quickly abandoned any

enforcement efforts. The federal government fell

into a pattern of periodic sweeps accompanied by

over-sanguine predictions that enforcement, once

reorganized, would turn a corner and become

effective. The corner was never reached. Enforce-

ment was probably not helped by Wheeler’s refusal

to allow enforcement ofﬁ cers to be under civil ser-

vice protection. He thought this would permit the

selection of true believers and thus more effec-

tive enforcement (or perhaps, he just thought this

would facilitate his personal authority). The result

was a thriving patronage system. As Charles Merz

observed, Congress responded to evasion not by

funding more effective enforcement but by pass-

ing more punitive and unenforced laws. This only

highlighted the perceived gap between law and

practice and spurred a national lamentation about

American disobedience.

To call Prohibition a failure, however, is an over-

statement. Historians now conclude that increased

price and decreased availability did tend to reduce

access to alcoholic beverages, to the poor in par-

ticular. At the margin, abuse was reduced. Visits

to speakeasies were an item for conspicuous con-

sumption by the wealthy, whether male or female,

ending the homosociability of public alcoholic

beverage consumption. Urban defiance of Pro-

hibition, publicized by the press, which featured

glimpses of celebrity culture, led to an impression

that the law was being ﬂ outed everywhere.

Eighteenth Amendment 221

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