Schultz D. Encyclopedia of the United States Constitution

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What ended Prohibition was the Great Depres-

sion. No longer was there apparent empirical veri-

ﬁ cation of its economic beneﬁ ts. Regaining lost tax

revenues looked increasingly attractive. Finally,

many Americans tired of the continuous contro-

versy over alcoholic beverages. They had hoped

and expected that with Prohibition, the coun-

try could cease the intense national debate over

alcoholic beverage regulation that was distracting

attention from other important issues. This had

not occurred. The hope grew that greater har-

mony and a less liquor-obsessed politics would be

achieved by repeal.

For more information: Clark, Norman. Deliver

Us from Evil: An Interpretation of American Pro-

hibition. New York: W.W. Norton, 1976; Pegram,

Thomas. Battling Demon Rum: The Struggle for

Dry America, 1800–1933. Chicago: Ivan R. Dee,

1998.

—Steve Diamond

Eisenstadt v. Baird 405 U.S. 438 (1972)

In Eisenstadt v. Baird, the U.S. Supreme Court

expanded the implied constitutional right to pri-

vacy, ruling that single men and women were

entitled to the same access to birth control that

was provided to married couples.

Massachusetts and numerous other states made

it a crime to prescribe contraceptives until

1965 when the Supreme Court, in G

RISWOLD V.

ONNECTICUT, 381 U.S. 479 (1965), ruled that the

right to privacy implicit in the Bill of Rights pro-

tected the right of married couples to use birth

control devices in their homes. The next year, the

Massachusetts legislature amended state law to

permit doctors to prescribe contraception to mar-

ried couples.

The Eisenstadt case arose in 1967 when Bill

Baird, a New York birth control and abortion

rights advocate, delivered a lecture on contracep-

tion to some 2,000 students at a Boston University

auditorium. After the lecture, he offered the audi-

ence the chance to come up to the stage to pick up

packages of contraceptive foam. One student did,

and Boston police arrested Baird for violating the

law that prohibited exhibition and distribution of

contraceptives to unmarried persons.

Baird was convicted in state court of exhibiting

and distributing contraceptives; the Massachu-

setts Supreme Court upheld only the distribut-

ing conviction, ruling that the ban on exhibiting

birth control violated the First Amendment.

Baird challenged his conviction in federal court

after serving a three-month jail sentence. A fed-

eral district court upheld his conviction, but the

U.S. Court of Appeals for the First Circuit over-

turned it. Thomas Eisenstadt, the sheriff of Suf-

folk County, which includes Boston, appealed to

the U.S. Supreme Court.

By a 6-1 vote, the Supreme Court ruled that

the Massachusetts law violated the equal pro-

tection clause of the Fourteenth Amendment,

because it discriminated against unmarried indi-

viduals. Although the Griswold decision had relied

heavily on the concept of marital privacy, Justice

William J. Brennan, Jr., wrote in Eisenstadt

that marriage is just a relationship of two individu-

als and that the privacy interests involved belong

to the individuals.

In the most oft-cited portion of the opinion,

Brennan is widely credited with planting a strong

statement that would bolster the Court’s ability to

ﬁ nd a constitutional right to abortion in a case that

was pending at the same time, ROE V. WADE, 410

U.S. 113 (1973). “If the right of privacy means any-

thing, it is the right of the individual, married or

single, to be free from unwarranted governmental

intrusion into matters so fundamentally affecting

a person as the decision whether to bear or beget

a child,” Brennan wrote in Eisenstadt. The state-

ment was quoted in Roe a year later.

Brennan said that the Massachusetts law was

marked by contradictions that made it difﬁ cult to

ﬁ nd any reasonable justiﬁ cation for it. The law, he

said, permitted access to contraceptives to prevent

disease but not to prevent pregnancy and permit-

ted married persons access to contraceptives even

for extramarital sexual activity. All of these contra-

dictions undermined any justiﬁ cations for the law

offered by the state, the Court said. Chief Justice

Warren E. Burger dissented, saying the Court

was interfering with areas of legitimate state reg-

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ulation without any constitutional justification.

Justices Lewis Franklin Powell, Jr., and

William Hubbs Rehnquist joined the Court

after the case was argued and so did not take

part in the decision. The Supreme Court decision

invalidated similar laws in at least two dozen other

states.

For more information: Garrow, David J. Liberty

and Sexuality: The Right to Privacy and the Mak-

ing of Roe v. Wade. New York: Macmillan, 1993;

Lucas, Roy. “New Historical Insights on the Curi-

ous Case of Baird v. Eisenstadt.” Roger Williams

University Law Review 9, no. 9 (2003): 9–55.

—Stephen Wermiel

electoral college

The electoral college is a mechanism established

in the Constitution as part of the process for

choosing the president and vice president of the

United States.

The Constitutional Convention in 1787

had difﬁ culty reaching closure on how to choose

the president. After rejecting a variety of methods

ranging from popular vote to selection by Con-

gress, the delegates ﬁ nally determined that the

president should be chosen by a group of electors.

This decision is often explained in terms of the

limited political knowledge of the average citizen

of 1787. A more plausible motivation was the need

to win support of the small states for the Consti-

tution. The creation of a Senate with equal rep-

resentation of states, an early small state victory,

became the foundation for an electoral college

that gives the small states a numerical advantage.

The term electoral college does not appear in

the Constitution, but its original description is

found in Section 1 of Article II of the U.S.

Constitution. (The word college here means a

group of people with a common purpose.) Each

state was to choose a number of electors equal

to the number of that state’s U.S. representatives

and senators. Since each state is constitutionally

granted one representative and two senators,

regardless of size, the smallest number of electoral

votes a state can have is three.

Meeting in the state capital, each elector would

cast votes for two candidates, at least one of whom

was from a different state than the elector’s. The

results would be tallied by Congress. The top

vote-getter would become president if he received

a majority (based on the number of electors, not of

total votes cast), and the runner-up would be vice

president. If two tied, both receiving a majority,

the House of Representatives would choose

between them. If no one received a majority, the

House would choose from among the top five,

with each state delegation casting only one vote.

If two people tied for second place, the Senate

would choose between them.

After a tie occurred in 1800, the Twelfth

Amendment was added to the Constitution,

in 1804, requiring electors to indicate separate

choices for president and vice president. If there

is no majority for president, the House, still vot-

ing by states, chooses from the top three. If no

one wins a majority of votes for vice president,

the Senate chooses from the top two. In 1961,

the Twenty-third Amendment gave the Dis-

trict of Columbia three electoral votes. Thus,

with the House of Representatives currently set

at 435, and a Senate of 100, the electoral college

consists of 538 electors.

Other than the addition of these amendments,

the electoral college technically functions as con-

ceived by the framers. However, in actuality, it

was transformed early in its history by the emer-

gence of political parties, the decision by states to

choose electors by popular vote, the appearance

of partisan lists of electors pledged to a particular

candidate, and the appearance of the “winner-

take-all” rule (currently used in all states except

Maine and Nebraska) in which the candidate win-

ning the popular vote in a state receives all of that

state’s electoral votes.

The electoral college is capable of producing

various anomalies. One is the potential for “faith-

less electors,” those who make their own choice

rather than voting for the candidate to whom they

are pledged. (This has rarely happened and never

affected the outcome of an election.) Another is a

president who wins an overwhelming majority of

electoral votes but a bare majority or mere plurality

electoral college 223

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of the popular vote, as was the case in 1980 when

Ronald Reagan won 489 of 538 electoral votes but

only 51 percent of the popular vote. Yet another is

a candidate who wins the popular vote while los-

ing the electoral vote, as happened in 2000 when

Al Gore won 48.38 percent of the popular vote

and George W. Bush 47.87 percent, but Bush won

the election with 273 electoral votes to Gore’s 266.

(The Green Party candidate, Ralph Nader, won

2.74 percent.)

Mathematically, the electoral college contains

a small state bias because of the inclusion of the

two votes per state based on Senate seats. In 2000,

Bush carried 30 states to Gore’s 20 plus the Dis-

trict of Columbia. Of Bush’s 30 states, 21 had elec-

toral votes in the single digits, and only three had

21 or more votes, while only 10 Gore states had

fewer than 10 electoral votes and four had more

than 21.

The terms red states (Republican states) and

blue states (Democratic states), featured promi-

nently in the media after the 2000 election, were

based on winners of states’ electoral votes. They

illustrate the potential of electoral vote counts to

make the partisan divide appear more skewed

than it actually is. The term purple state was sub-

sequently coined for closely divided states to cor-

rect this misimpression.

Under the winner-take-all rule, the largest

states may also have a particular advantage. A

candidate can secure the presidency by winning

the 11 most populous states for a narrow victory

of 271 to 268 electoral votes, regardless of the size

of the popular vote in those top 11 or in the rest

of the country. The argument is often made that

large states are also favored because candidates

spend more time campaigning in them; however,

there is no reason to think they would spend less

time in the large population centers in a popular

vote system.

The 2000 election was unusual in that the win-

ner was ultimately decided by the U.S. Supreme

Court in a 5-4 opinion in B

USH V. GORE, 531 U.S.

98 (2000). This scenario developed out of the

desperate need of both major candidates, after

all other states’ results had been tallied, to win

Florida’s 25 electoral votes. The case resulted

from challenges to a host of voting irregularities

in Florida. Had the Court awarded the votes to

Gore, he could have claimed a decisive victory

with both the popular vote and 291 electoral

votes, while Bush’s victory was won with a bare

margin in the electoral college and despite trail-

ing Gore in the popular vote.

Opponents of the electoral college noted that

in a popular vote, winner-take-all election the

country could have escaped this travail. The

rejoinder by electoral college supporters was that

direct election would not eliminate corruption at

the polls, and a national recount could be more

costly, time-consuming, and polarizing than even

the Florida debacle.

Many proposals have been offered to abolish or

reform the electoral college. Public opinion polls

show a strong preference for direct popular vote.

Reform proposals include abolishing electors but

keeping the electoral vote so that state popular

vote outcomes would be converted to electoral

votes without risk of “faithless electors”; choos-

ing electors by congressional districts with the

two votes representing the Senate seats going to

the statewide popular vote winner, as currently

done in Maine and Nebraska; dropping the win-

ner-take-all rule and dividing each state’s electoral

vote among the candidates proportional to their

share of the popular vote (usually without actual

electors, thus allowing fractions); and dropping

the two votes based on a state’s Senate seats and

having an electoral college based only on the num-

ber of representatives in each state. None of the

proposed solutions is without its own problems.

Arguments against change include an asser-

tion that the system has worked so far, that it is

an ingredient of federalism, and that change in

one part of the Constitution may lead to pressure

to change other parts. Nationwide change would

require either a constitutional amendment or

agreement among states to make changes within

their constitutional power (such as changing the

winner-take-all rule). Either method would likely

be difficult to achieve because of the vested

interest of small states in the current system and

because neither major political party shows much

interest in change.

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For more information: Best, Judith A. The

Choice of the People? Debating the Electoral Col-

lege. Lanham, Md.: Rowman & Littleﬁ eld Pub-

lishers, 1996; Longley, Lawrence D., and Neal

R. Peirce. The Electoral College Primer 2000.

New Haven, Conn.: Yale University Press, 1999;

Rainey, Glenn W., Jr., and Jane G. Rainey. “The

Electoral College: Political Advantage, the Small

States, and Implications for Reform.” In Counting

Votes: Lessons from the 2000 Presidential Elec-

tion in Florida. Gainesville: University Press of

Florida, 2004.

—Jane G. Rainey

Eleventh Amendment (1795)

The Eleventh Amendment prohibits suits in fed-

eral court by citizens of one state against a state

different from their own. This amendment was

adopted in order to protect the sovereign immu-

nity of states against lawsuits. Throughout U.S.

history, the Eleventh Amendment has been

invoked to insulate state governments against

a host of different types of lawsuits. Under the

Rehnquist Court, this amendment was often

invoked, along with the Tenth Amendment, to

protect state power.

Sovereign immunity is an ancient legal con-

cept that comes to the United States from English

common law. According to this concept, the king

or the government generally cannot be sued with-

out its consent. In writing the Constitution, the

framers appeared to have overlooked or under-

valued state sovereign immunity, permitting citi-

zens of one state to sue a state different from their

own under Section 2 of Article III of the U.S.

Constitution.

The Eleventh Amendment was ratiﬁ ed in 1795

to overturn the Supreme Court decision of C

HI-

SOLM V. GEORGIA, 2 U.S. 419 (1793), where the

Court ruled it had jurisdiction to hear a suit as

a matter of original jurisdiction involving a

dispute between an individual’s estate (in South

Carolina) and the state of Georgia for debts, spe-

cifically nonpayment of military supplies. The

fear was that without the Eleventh Amendment

protection of sovereign immunity, states would be

bankrupted by suits arising from the Revolution-

ary War.

Since its adoption, the Eleventh Amendment

has had an unusual history. In Hans v. Loui-

siana, 134 U.S. 1 (1890), the Court stated that

the Eleventh Amendment is a general blanket

of sovereign immunity that protects states from

lawsuits brought by its own citizens or those of

another state. There are some exceptions. In E

PARTE YOUNG, 209 U.S. 123 (1908), one exception

was that state ofﬁ cials could be sued individually

if they sought to enforce unconstitutional laws.

Another exception, as developed in Welch v.

Texas Department of Highways, 483 U.S. 468

(1987), was that Congress, in some circumstances,

could abrogate, or break, sovereign immunity as

long as it clearly intended to do that. Initially, in

Pennsylvania v. Union Gas Company, 491 U.S. 1

(1989), the Court ruled that Congress could use its

commerce clause power to abrogate sovereign

immunity but, subsequently, in Seminole Tribe of

Florida v. Florida, 517 U.S. 44 (1996), decided

that the federal government can only abrogate

state sovereign immunity via the Fourteenth

Amendment because the commerce clause is

limited by the Eleventh Amendment.

Under the Rehnquist Court, the Eleventh

Amendment was employed to limit lawsuits by

individuals against states. In limiting these suits,

the Court often linked the Eleventh to the Tenth

Amendment as a constitutional means to limit

federal power. For example, in A

LDEN V. MAINE,

527 U.S. 706 (1999), the Court held that state

sovereign immunity bars state employees from

suing a state to comply with the federal Fair

Labor Standards Act. In Board of Trustees of the

University of Alabama v. Garrett, 531 U.S. 356

(2001), the Court held that state sovereignty pro-

hibited the state employees from being able to sue

under Title I of the Americans with Disability Act

(ADA). In F

EDERAL MARITIME COMMISSION V. SOUTH

AROLINA STATE PORTS AUTHORITY, 535 U.S. 743

(2002), the Court ruled that sovereign immunity

barred suits against states before federal adminis-

trative law bodies. However, in T

ENNESSEE V. LANE,

541 U.S. 509 (2004), the Supreme Court ruled

that states may be sued if they denied disabled

Eleventh Amendment 225

xviii+446_EofUSConsti-v1.indd 225 3/12/09 3:04:48 PM

individuals access to the courts. This decision

appeared to limit some of the more far-ranging

applications of sovereign immunity and the Elev-

enth Amendment.

For more information: Orth, John V. The Judi-

cial Power of the United States: The Eleventh

Amendment in American History. New York:

Oxford University Press, 1987.

—David Schultz

Ellsworth Court (1796–1800)

The Ellsworth Court refers to the Supreme Court

under Chief Justice Oliver Ellsworth. During his

term, the Ellsworth Court began the process of

giving life to the Supreme Court as a real institu-

tion and not simply a description found in Arti-

cle III of the U.S. Constitution.

Oliver Ellsworth was a Founding Father of great

distinction. Ellsworth was a leader of the Federal-

ist Party and served in several key leadership roles

during the revolutionary and founding era, includ-

ing representing Connecticut at the Constitu-

tional Convention, service to Connecticut in

Congress, and his work in the construction of the

Judiciary Act of 1789. Ellsworth also served as

the third U.S. Supreme Court chief justice.

Ellsworth was born in Windsor, Connecticut,

on April 29, 1745, and raised there. He pursued

his collegiate studies at Yale College, later trans-

ferring to and graduating from the College of New

Jersey (Princeton University) in 1766. Ellsworth

initially began his studies in theology but later

changed his focus to law and was admitted to the

bar in 1771. As an active member of the Federal-

ist Party, Ellsworth quickly turned to politics and

served as a member of the state general assembly

from 1773 to 1776. His involvement in the political

arena did not end there, as he served as a mem-

ber of the Continental Congress and Governor’s

Council, as well as a delegate at the Constitutional

Convention. Additionally, Ellsworth served as a

judge for the Connecticut Superior Court. Ells-

worth was later elected to ofﬁ ce as a U.S. senator,

serving from 1789 to 1796. Ellsworth was nomi-

nated by President George Washington to serve

as chief justice in the early spring of 1796. Though

Ellsworth’s tenure as chief justice lasted only three

years, there were several signiﬁ cant cases, ranging

from Congress’s power to tax to ratiﬁ cation of con-

stitutional amendments, as well as issues of juris-

diction. There were many cases argued before the

Ellsworth Court that settled a variety of issues

pertaining to what many view today as common

practice within the governmental system.

The ﬁ rst case that was heard under the Ells-

worth Court was H

YLTON V. UNITED STATES, 3

U.S. 171 (1796). The Hylton case dealt with a law

enacted by Congress that imposed a tax on car-

riages owned by individuals or businesses. The

plaintiff argued that the carriage tax was not

apportioned and was a direct tax. Subsequently,

the plaintiff contended that Congress violated

its taxing and spending powers as outlined

by the Constitution. The Court struck down the

plaintiff’s argument and held that the tax imposed

by Congress was constitutional, as it was an indi-

rect tax. In the Hylton case, the Court deﬁ ned a

direct tax as one that could not be apportioned

and reasoned that the carriage tax at issue was

properly apportioned.

In 1798, the Ellsworth Court was faced with

another issue involving the constitutionality of an

act of Congress. In Hollingsworth v. Virginia, 3

U.S. 378 (1798), the Court heard arguments that

involved the constitutionality of the president’s

involvement in the ratification of constitutional

amendments. In Hollingsworth, the Ellsworth

Court afﬁ rmed that no presidential signature was

required for Congress to propose an amendment

to the Constitution. While the Hollingsworth deci-

sion was narrowly tailored to the particular facts in

contention, it was clear in the Court’s early years

that it was committed to protecting the integrity

of the newly ratiﬁ ed Constitution.

Late in Chief Justice Ellsworth’s tenure, the

Court exercised for the first time its original

jurisdiction as enumerated in Article III, Sec-

tion 2, of the Constitution. In New York v. Con-

necticut, 4 U.S. 3 (1799), the Court exercised its

ability to hear a case in a dispute to which a state is

a party. In the New York case, there was a dispute

between two states over the right to a tract of land,

226 Ellsworth Court

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the “Connecticut gore.” The Court held that New

York was not a party to the ejectment action and

had no interest at stake. The case was signiﬁ cant

because it was the ﬁ rst time the Supreme Court

used original jurisdiction to hear a case.

In 1800, after three and a half years of service

as chief justice, Ellsworth announced his resigna-

tion. The Ellsworth Court made great advance-

ments in the Supreme Court’s young history to

protect and uphold the newly established Consti-

tution. The Ellsworth Court’s jurisprudence fol-

lowed the conservative judicial restraint of prior

Federalist courts and strengthened national insti-

tutions and federalism.

For more information: Buchanan, James M.

“Oliver Ellsworth, Third Chief Justice.” In Jour-

nal of Supreme Court History. Washington, D.C.:

Supreme Court Historical Society, 1991; Marbach,

Joseph R., Ellis Katz, and Troy E. Smith, eds. Fed-

eralism in America. Westport, Conn.: Greenwood

Publishing, 2005.

—Michael W. Hail and Sarah E. Wilson

Embargo Act of 1807

The Embargo Acts were a series of laws passed

between 1806 and 1808 during Thomas Jef-

ferson’s second term as president of the United

States. The aim was to punish Great Britain for its

operations against U.S. ships.

The British were experiencing a shortage of

sailors, mainly because of the harsh conditions

on board English ships and because many Brit-

ish sailors preferred working on American ships,

where conditions were better. The Royal Navy

consequently started stopping U.S. vessels and

impressing those sailors they suspected were

British deserters. Americans understood impress-

ments as an incursion on their independence. The

peak of this conﬂ ict was the boarding of the USS

Chesapeake by the sailors of the HMS Leopard off

the coast of Maryland on June 21, 1807. The Brit-

ish announced to the USS Chesapeake that they

would board the American vessel on the grounds

that they were looking for deserters. When the

Americans refused, the HMS Leopard discharged

its cannons against the USS Chesapeake, leaving

18 Americans wounded and three dead. The Brit-

ish finally boarded the ship and took away four

deserters.

One of Jefferson’s ﬁ rst measures was to issue

a proclamation by which British ships were not

allowed to navigate U.S. waters. Among other

actions such as the Non-Importation Act of

December 1807, the Jeffersonian government

began issuing a series of Embargo Acts. The

first one was passed on December 22, 1807. It

prohibited American ships from sailing foreign

waters unless speciﬁ cally allowed by the presi-

dent himself, it did not allow exports from the

United States by sea or land, and it did not autho-

rize certain British products to enter the United

States. This Embargo Act struck a terrible blow to

foreign trade, which was one of the most impor-

tant American activities at the time. After the

outbreak of war in Europe in 1783, the United

States had dominated overseas trade. Most ships

with tropical products such as coffee, sugar, tea,

and pepper sailed ﬁ rst into the United States, and

their cargoes were reshipped in order not to be

intercepted. The European war was also highly

beneﬁ cial for grain and cotton growers. The econ-

omy of the young United States was based on its

capacity to remain neutral. After the acts were

passed, however, American exports dropped by

80 percent.

In January 1808, Jefferson passed a second

Embargo Act by which all American ships had to

pay a fee of twice the value of the vessel and its

cargo. Since many merchants did not follow the

Embargo Acts regulations, a third one was passed

in March 1808 prohibiting the exportation of any

goods by sea or land and punishing violators of such

rule with ﬁ nes up to $10,000. The third act also

endowed the president with the authority to reject,

implement, or grant exceptions to this embargo.

The fourth Embargo Act (also known as

the Enforcement Act) passed in April 1808 and

enabled port authorities to bring to trial any mer-

chant they believed had violated the embargo.

The act also established that it was the president’s

right and duty to use the army and the navy to

administer the Embargo Acts.

Embargo Act of 1807 227

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Three days before Jefferson left office, Con-

gress repealed the Embargo Acts. Congress

decided to pass the Non-Intercourse Act on March

1, 1809, which repealed all the acts except those

that affected Great Britain and France. Since the

Non-Intercourse Act was also ineffective, it was

substituted in 1810 by Macon’s Bill Number 2 that

lifted the rest of the embargoes.

For more information: Cray, R. E. “Remember-

ing the USS Chesapeake: The Politics of Maritime

Death and Impressment.” Journal of the Early

Republic 25, no. 3 (2005): 445–474; Frankel, J. A.

“The 1807–1809 Embargo Against Great Britain.”

Journal of Economic History 42, no. 2 (1982):

291–308; Kaplan, Lawrence S. “Jefferson, the

Napoleonic Wars, and the Balance of Power.” Wil-

liam and Mary Quarterly 14, no. 2 (1957): 196–

217; Scoﬁ eld, M. E. “The Fatigues of His Table:

The Politics of Presidential Dining During the

Jefferson Administration.” Journal of the Early

Republic 26, no. 3 (2006): 449–469.

—Laura Gimeno-Pahissa

eminent domain

Eminent domain is the power of the government

to take private property for a public use as long as

just compensation is paid. While this power is

considered an inherent attribute of state govern-

ments and sovereign power, the Fifth Amendment

to the Constitution deﬁ nes the eminent domain

power of the federal government. While in B

ARRON

V. MAYOR AND CITY COUNCIL OF BALTIMORE, 32 U.S.

243 (1833), the Supreme Court had ruled that the

eminent domain provisions of the Fifth Amend-

ment did not apply to the states, starting with Chi-

cago, Burlington & Quincy Railroad Company v.

Chicago, 166 U.S. 226 (1897), the Court declared

that the just compensation requirement applied

to the states through the due process clause of

the Fourteenth Amendment. Today, all of the

provisions of the Fifth Amendment are incorpo-

rated as limits upon state power.

The power of eminent domain is one of the

basic powers of government, along with taxation

and the regulation of commerce at the federal

level and the police power with the states. The

power of eminent domain traces back to English

common law, under which individuals owned or

used land subject to the superior need and ability

of the monarchy to acquire property for its uses.

Traditionally, the superior right of the crown to

take property from individuals resided in the need

of the government to further some public projects,

such as to build roads or bridges. When this power

was passed on to the American colonies and then

on to the original thirteen states, these require-

ments generally limited their ability to use emi-

nent domain; however, there was no requirement

to pay just compensation. But, starting with the

Vermont Constitution after the Revolutionary

War, eminent domain and just compensation pro-

visions were codiﬁ ed in state laws.

Interpretations of the Fifth Amendment’s emi-

nent domain provisions generally center on three

questions: 1) What is a taking? 2) What is a public

use? and 3) What constitutes just compensation?

All three of these issues have been the subject

of intense and often heated constitutional

interpretation by the Supreme Court.

Generally, the Supreme Court has stated that

a taking occurs when there is either a direct or

physical taking or invasion of property or when

a regulation is so extensive that it has effected a

taking. In L

ORETTO V. TELEPROMPTER MANHATTAN

CATV C

ORP., 458 U.S. 419 (1982), the Supreme

Court stated that any type of physical invasion or

trespass of private property would constitute a tak-

ing. This could be when the government formally

takes the property to build a highway, bridge, or a

school or when it uses the property for some pur-

pose, such as water runoff or drainage.

In addition, in Pennsylvania Coal Company

v. Mahon, 260 U.S. 393 (1922), Justice Oliver

Wendell Holmes, Jr., argued that while some

government regulation of private property is per-

mitted, especially if one is using property in a way

that constitutes a nuisance, if the regulation goes

too far it could constitute a taking, necessitating

the payment of compensation to the owner. In this

case, the courts have called this action a regula-

tory taking. A taking, according to the Court in

First Evangelical Church of Glendale v. County

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xviii+446_EofUSConsti-v1.indd 228 3/12/09 3:04:49 PM

of Los Angeles, 482 U.S. 304 (1987), can occur

whether the government assumes permanent or

even temporary control of property.

A second issue in eminent domain surrounds

what constitutes a valid public use. Traditional

public uses limited the taking of private property

to building roads, highways, jails, schools, bridges,

and other facilities used by the public. This type

of use of eminent domain narrowly construed the

power to the taking of real property (land and

buildings) for a ﬁ nite type of project associated

with usual government projects. However, over

time, this narrow reading of public use has been

greatly expanded to where public use no longer

means used by the public. Instead, a valid public

use is any taking that would secure the public ben-

eﬁ t, good, or welfare.

For example, in W

EST RIVER BRIDGE V. DIX, 47

U.S. 507 (1848), the Court held that all types of

property—including contracts and franchises—

could be acquired by eminent domain. In Berman

v. Parker, 348 U.S. 26 (1956), the Court ruled it

was a valid public use to take unblighted property

for the purpose of slum clearance. In H

AWAII HOUS-

ING AUTHORITY V. MIDKIFF, 467 U.S. 229 (1984), the

Court upheld the use of eminent domain in order

to break up land monopolies or large estates and

sell smaller units to tenants. Justice Sandra Day

O’Connor, writing for the Court, declared that

the meaning of public use was equal to that of the

scope of a state’s police power. In effect, states

had broad authority to take private property for

all types of public uses including not just build-

ing bridges or highways but also for slum clear-

ance, building cemeteries, sports stadiums, public

housing, and other purposes. In K

ELO V. CITY OF

EW LONDON, 545 U.S. 469 (2005), many argued

that the U.S. Supreme Court pushed the public

use provision too far, upholding the taking of pri-

vate property for economic development purposes

as constituting a valid public use. The Kelo deci-

sion was seen by many as a signiﬁ cant erosion of

property rights, and it resulted in many state and

local governments restricting the power of emi-

nent domain.

The third issue in eminent domain litigation is

that once a taking has occurred, the owner must

be paid just compensation for the property that

has been taken. Just compensation, according to

the Court, means that the owner must be paid

fair market value for the property. Fair market

value is determined by asking what a reasonable

buyer would give the owner in a private sale. To

determine this, the courts often use one of three

methods to value property. First, they would look

to what price was paid for similar properties.

Second, they would look at what it would cost to

replace or rebuild the property. Third, they look

to the income of investment value of the prop-

erty, seeking to determine its worth in terms of its

income stream. Courts are often required to use

all three of these valuation techniques when seek-

ing to ascertain what constitutes just compensa-

tion for property.

Overall, eminent domain is a powerful and

necessary tool of the federal and state govern-

ments, and it is subject to numerous restrictions

under the Fifth Amendment. Yet, many defenders

of property rights worry that the eminent domain

had been abused and that more restrictions need

to be imposed on it.

For more information: Schultz, David. Prop-

erty, Power, and American Democracy. New

Brunswick, N.J.: Transaction, 1992; Schultz,

David. “What’s Yours Can Be Mine: Are There

Any Private Takings after City of New London v.

Kelo?” UCLA Journal of Environmental Law and

Policy 24, no. 195 (2006).

—David Schultz

employment discrimination

Employment discrimination refers to making ille-

gal employment decisions based on an employee’s

race, color, age, creed, religion, national origin,

gender, or disability. While the Constitution has

been interpreted to ban intentional discrimi-

nation on the basis of race and other factors

through the equal protection clause of both

the Fourteenth Amendment and the Fifth

Amendment, most of the law regarding employ-

ment discrimination is found in legislation adopted

by Congress.

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All employment practices, including applica-

tion procedures; interviewing; testing; selecting

and hiring; layoff and seniority policies; evalua-

tion procedures; the distribution of organizational

rewards such as pay, leave, training, and promo-

tions; and disciplining and ﬁ ring; may be subject to

discrimination claims. Numerous federal antidis-

crimination laws are in place to reduce discrimi-

nation and harassment in the workplace; these

include Title VII of the Civil Rights Act of

1964 and, as amended in 1991, the Age Discrimi-

nation in Employment Act (ADEA) of 1967, the

Pregnancy Discrimination Act of 1978, and the

Americans with Disabilities Act (ADA) of 1990. In

addition, the federal government and many states

and municipalities forbid discrimination based on

sexual orientation, political afﬁ liation, and marital

status. Some states give additional antidiscrimina-

tion protections to workers and groups who are

not covered by federal law.

The U.S. Supreme Court in McDonnell Doug-

las Corporation v. Green, 411 U.S. 792 (1973),

describes how to build a prima facie showing of

hiring discrimination. A prima facie case (or a

case that is valid at ﬁ rst glance) could be created

by demonstrating that 1) applicants or employees

belonged to a protected group, 2) they applied for

and were qualiﬁ ed for the position, 3) they were

rejected despite meeting the job qualifications,

and 4) employers continued, after rejection, to

seek employees with the same qualiﬁ cations.

To prove illegal employment discrimination, an

applicant or employee must show disparate treat-

ment or disparate impact. Disparate treatment

claims demonstrate that an employer treated a par-

ticular group differently from another group. For

example, racial prejudice resulted in one group,

say white employees, getting hired or promoted

over black employees. Under disparate treatment,

plaintiffs must show that employers intentionally

discriminated against them.

In contrast, disparate impact claims involve

employment practices that appear neutral on the

surface and, therefore, not deliberately discrimi-

natory in nature. Although the practice makes no

reference to race, color, sex, religion, or national

origin, it may in practice have an adverse effect

on a protected group and no effect on groups who

are not in the protected category. For example,

if a correctional facility requires all prospective

prison guards to stand at least ﬁ ve feet, four inches

tall, the height requirement could have a disparate

impact on women, who are often shorter than men.

The correctional facility may be sued for disparate

impact discrimination unless it can show a job-

related need for the height requirement. Employ-

ers cannot excuse discriminatory treatment by

saying they did not intend to discriminate. If a

plaintiff makes an initial showing of discrimina-

tion, the employer must provide a legitimate, non-

discriminatory reason for an adverse employment

practice or decision.

The Civil Rights Act of 1964 became the cen-

terpiece of antidiscrimination law and spawned

other major employee protection legislation.

Title VII of the Civil Rights Act of 1964 put fair

employment practices in the spotlight. Title VII

forbids employers from discriminating against

employees in hiring, termination, classiﬁ cation,

and compensation and on terms, conditions, or

privileges of employment based on race, color,

religion, gender, or national origin. Because every

worker has a race, a color, a gender, a religion (or

no religious beliefs), and a national origin, persons

with any of these characteristics are protected

against discrimination. Thus, men and women are

protected from gender discrimination such as sex-

ual harassment. European Americans and African

Americans are protected against race, color, and

nationality discrimination. Protestants, Catholics,

Jews, and Muslims are protected against religious

discrimination. Congress passed the law ﬁ rst and

foremost to protect African Americans and women

from discriminatory practices, but, in practice, the

law is quite broad and extends protections to many

more groups.

As women entered the workforce after World

War II in record numbers, many employers dis-

criminated against married women by refusing

to hire them for fear that their work productivity

would be interrupted by pregnancy. Often women

were ﬁ red or asked to resign once they became

pregnant. To address this, Congress passed the

Pregnancy Discrimination Act, which requires

230 employment discrimination

xviii+446_EofUSConsti-v1.indd 230 3/12/09 3:04:49 PM

employers to treat pregnant women the same as

other job applicants or employees. Employment

practices that discriminate against an employee

due to pregnancy, childbirth, or medical con-

ditions associated with pregnancy are encom-

passed under Title VII and are a form of gender

discrimination.

Age discrimination spurred additional legisla-

tion. Under the Age Discrimination in Employ-

ment Act, it is illegal to make discriminatory

employment decisions against those who are 40

years of age or older if the employer regularly

employs 20 or more employees. The ADEA does

not protect employees younger than 40 who were

denied a job because they were too young. If age is

an important component of one’s job and is related

to one’s ability to perform the job, such as being

an effective ﬁ reﬁ ghter, certain employees may not

be covered by the ADEA. Most ADEA suits are

based on disparate treatment, claiming that the

age discrimination was intentional.

To combat discrimination against qualiﬁ ed dis-

abled applicants and employees, Congress passed

the Americans with Disabilities Act, prohibiting

physical or mental disability discrimination and

requiring employers to make reasonable accom-

modations for the disabled. The ADA provides

three deﬁ nitions of disability: 1) being substantially

impaired and thus unable to perform a major life

activity, such as being blind, 2) being on the record

as having a disability and being ﬁ red because of

this medical history, and 3) being regarded as

having a disability such as being overweight and

being perceived as unable to perform required job

duties. To accommodate the disabled, employers

should ensure that work facilities are accessible

to the qualiﬁ ed disabled applicants or employees.

This could become expensive, and consequently,

the courts have held that such accommodations

cannot impose an “undue hardship” on employers

by requiring signiﬁ cant expense given the agency’s

size and ﬁ nancial resources. The ADA applies to

all public employees and private employers who

employ 15 or more employees.

With increased workplace diversity and with

approximately 47 million U.S. residents age ﬁ ve

or older speaking a language other than English,

national origin discrimination claims are on the

rise. National origin discrimination refers to

employment decisions that are linked to a person’s

birthplace or culture. One controversy associ-

ated with this area of discrimination law occurred

when some employers implemented “English-

only” policies at work. Numerous workers have

challenged these policies as a form of national ori-

gin discrimination. Employers with English-only

policies justiﬁ ed them on grounds of safety, busi-

ness necessity, and workplace efﬁ ciency; however,

courts have ruled that employers may not require

employees to speak in English at all times on the

job. Employees have freedom to express them-

selves in situations where they are not required to

Disabled demonstrators rally in Los Angeles, Califor-

nia, to protest the decision of the state of California

to challenge in the Supreme Court the Americans

with Disabilities Act of 1990.

(McNew/Newsmakers)

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