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clause. Some have argued that a strict “neutrality”

interpretation of the establishment clause runs the

risk of violating the free exercise clause, particu-

larly as it applies to individuals in public positions

who wish to express religious views. And, what

does it mean to be neutral? Must all references

to God be deleted from public life? (The word

public in this sense refers to matters pertaining to

government property and personnel, not to activi-

ties in public view but on private property such

as a Nativity scene on a church lawn.) Some have

argued also that forbidding government-sponsored

religious activities in public schools and other gov-

ernment-owned facilities violates the free exer-

cise rights of students; however, the Court stated

that the free exercise clause “never meant that

a majority could use the machinery of the State

to practice its beliefs” (A

BINGTON TOWNSHIP V.

CHEMPP, 374 U.S. 203 [1963]). Finally, some have

argued that the Court was violating the establish-

ment clause when it used the free exercise clause

to allow minority religious groups to engage in

behavior not legal to the citizenry at large, such

as allowing Amish children to leave school after

the eighth grade in contradiction to compulsory

education laws.

Establishment clause cases generally fall into

two categories: those primarily involving ﬁ nan-

cial outlays by government in support of religion

and those primarily involving symbolic support

in public schools and other public places. Early

ﬁ nancial cases addressed the desire of parochial

schools to obtain state aid on the basis that by edu-

cating children, they were taking a burden off the

state. In the landmark Everson case, the Court,

despite its expansive deﬁ nition of the establish-

A prayer opened the ﬁ rst session of the Continental Congress, illustrating the complex relationship of religion

and government in the United States.

(Billy Graham Museum)

242 establishment clause

xviii+446_EofUSConsti-v1.indd 242 3/12/09 3:04:53 PM

ment clause, upheld money for bus transportation

to Catholic schools by reasoning that the money

beneﬁ ted children directly. The Court later did

the same for the loan by the state of textbooks

to children. After that, the Court began to draw

the line, disallowing such items as instructional

materials or teacher salary supplements that ben-

eﬁ ted the school more directly. The tide began to

turn, however, in Agostini v. Felton, 114 U.S. 2481

(1997), in which the Court, in a 5-4 decision, over-

ruled its position in Aguilar v. Felton, 105 U.S.

3232 (1985), and allowed government-provided

teachers to offer remedial education in parochial

schools. Meanwhile, the issue of vouchers to help

families who chose to educate their children in

parochial schools became a rallying cry not just

for Catholic schools but for conservative Protes-

tant schools. In Z

ELMAN V. SIMMONS-HARRIS, 536

U.S. 639 (2002), the Court upheld by a 5-4 vote

a voucher program for children in substandard

schools. To the four dissenters, this case in essence

overturned Everson.

A recent financially related but non-school-

related establishment clause issue about which

the constitutionality has yet to be resolved by

the courts is President George W. Bush’s “faith-

based initiatives.” Under this, for the ﬁ rst time,

money is available to religious organizations to

use in providing social services without requiring

those organizations to maintain strict separation

between their social service activities and their

religious mission.

While ﬁ nancial considerations have not been

absent from public school establishment clause

rulings, these cases have focused more often on

the use of state power via public school authorities

to endorse, support, and promote religion through

such activities as teacher-led prayer recitations and

the use of the government to promote the religion

of the majority, generally Protestant Christianity.

Major Supreme Court public school cases have

addressed released time for religious instruction

during the school day, various forms of ofﬁ cially

led or government-endorsed prayers in public

schools, restrictions on the teaching of evolution

and the required teaching of the biblical creation

story or some disguised variant of it, and posting

of the Ten Commandments. Lower courts have

dealt with an even wider assortment of variations

on these issues. With the exception of allowing

religious instruction outside the school building

but during the school day, the Court, although

often very divided, has taken a consistently sepa-

rationist position in its application of the establish-

ment clause to public schools. In cases involving

religious symbolism in public places, the Court has

been more sympathetic to the accommodationist

position, allowing, for example, prayers in state

legislatures or government-sponsored displays of

Nativity scenes, menorahs, or Ten Commandments

monuments, but only in situations in which they

can make a convincing argument that tradition or

context has the overall effect of secularizing what

would otherwise be considered religious.

The Court articulated in Lemon v. Kurtzman a

three-part test for establishment clause violations.

In essence, a government action must have a secu-

lar purpose and a primary effect that is secular,

and it may not become entangled with religion or

promote religious divisiveness. The purpose and

effect prongs were drawn from Abington Town-

ship v. Schempp, while the entanglement prong

came from Walz v. Tax Commissioner, 397 U.S.

664 (1970), in which the Court upheld the right

of governments to grant property tax exemp-

tions to churches under a concept of “benevolent

neutrality.”

Far from foolproof, the Lemon test soon proved

itself open to manipulation and criticism. In some

cases, both the majority and the dissent used the

Lemon test to try to prove their points. In others,

the Court just ignored it. Some justices began to

openly deride it in their opinions. Most colorfully,

Justice Antonin Gregory Scalia described it

as “like some ghoul in a late-night horror movie”

AMB’S CHAPEL V. CENTER MORICHES UNION FREE

CHOOL DISTRICT, 508 U.S. 384 [1993]). While the

Lemon test has not been totally disavowed by the

Court, some justices have begun sending up trial

balloons with alternative tests, allowing for a more

accommodationist application of the establish-

ment clause.

establishment clause 243

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At the start of the 21st century, and with a

decidedly more conservative membership, the

Court appeared to be gradually reshaping its stan-

dards for judging establishment clause cases. It

is too soon to predict how dramatic any changes

might be; however, as America becomes more

religiously diverse, interpreting and applying the

establishment clause will probably continue to be

a challenge for government.

For more information: Davis, Derek. “Separa-

tion, Integration, and Accommodation: Religion

and State in America in a Nutshell.” Journal of

Church and State 43, no. 1 (Winter 2001): 5–17;

Formicola, Jo Renee, et al. Faith Based Initia-

tives and the Bush Administration: The Good,

the Bad, and the Ugly. Lanham, Md.: Rowman

& Littleﬁ eld Publishers, 2003; Morgan, Richard

E. The Supreme Court and Religion. New York:

Free Press, 1972; Witte, John, Jr. Religion and the

American Constitutional Experiment. Boulder,

Colo.: Westview Press, 2000.

—Jane G. Rainey

Everson v. Board of Education 330 U.S. 1

(1947)

In Everson v. Board of Education, the Supreme

Court held that the government could reimburse

parents for the cost of sending their children to

Catholic schools on public buses.

The case arose from a New Jersey law that

allowed local school districts to provide transpor-

tation to and from public, private, and religious

schools. One local school district authorized a

transportation subsidy for parents who sent their

children to a religious school via public buses. A

local taxpayer sued, claiming that this practice vio-

lated the establishment clause of the First

Amendment.

In an opinion by Justice Hugo Black, the

Supreme Court held that the establishment clause

means, at a minimum, that neither a state nor

the federal government can set up a church. Fur-

thermore, government cannot pass laws that aid

religion, force a person to go to or not to go to

a church against their will, or force a person to

profess belief or disbelief in any religion. Adopt-

ing Thomas Jefferson’s metaphor, Justice Black

explained that the establishment clause erects a

wall of separation between church and state,

which must be “high and impregnable.” Even the

slightest breach of that wall of separation would

be unconstitutional.

Justice Black explained, however, that the

establishment clause does not prohibit a state from

spending tax-raised funds to pay for transporta-

tion of students at religious schools if it is part of a

general program under which it pays for the trans-

portation of students attending public and other

private schools. This subsidy was similar to provid-

ing ordinary government services such as ﬁ re and

police protection, which could not be denied to

schools simply because of their religious nature.

The Court held that the First Amendment merely

required a state to be neutral toward religion, not

to be against it. Here, New Jersey did not con-

tribute any money or in any way support Catholic

schools; it simply provided a transportation pro-

gram to help children get to their schools. The law

was therefore constitutional.

Justice Wiley B. Rutledge dissented, argu-

ing that the subsidy supported religion via use of

the taxing power. In Justice Rutledge’s view, the

objective of the establishment clause was to cre-

ate “a complete and permanent separation of the

spheres of religious activity and civil authority by

comprehensively forbidding every form of public

aid or support for religion.” Government aid to

religion had no less destructive force than state

interference with religious practice: “Establish-

ment” and “free exercise” are similar ideas and

represented merely different facets of the single

great and fundamental freedom.

For more information: Hunt, Thomas. Religion

and Schooling in Contemporary America. New

York: Garland Publishing, 1997.

—Winston E. Calvert

Ewing v. California 538 U.S. 11 (2003)

A companion case with Lockyer v. Andrade,

538 U.S. 63 (2003), Ewing v. California upheld

244 Everson v. Board of Education

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California’s three strikes law against an Eighth

Amendment cruel and unusual punishment

challenge. The California law required defendants

with two or more “serious” or “violent” felony

convictions be sentenced to life imprisonment.

Though the Supreme Court was split, ﬁ ve justices

found that California’s legislature was within its

constitutional boundaries when deciding that

“three strikes and you’re out” was a constitutional

way of dealing with the problem of recidivism.

The litigation commenced when Gary Ewing,

while out on parole from a nine-year prison term,

stole three golf clubs from a pro shop. He was

charged with and convicted of grand theft, a fel-

ony. Under California law, trial courts have discre-

tion in reducing some felonies to misdemeanors so

as to escape the three strikes sentence. Therefore,

Ewing, having four previous felony convictions,

asked the trial court to reduce his conviction to a

misdemeanor. The judge refused, and Ewing was

sentenced to 25 years to life in prison. The Califor-

nia court of appeal afﬁ rmed the trial judge’s deci-

sion, and the California Supreme Court denied

review. The U.S. Supreme Court then granted

Ewing’s petition for certiorari.

In announcing the judgment of the Court and

writing a plurality opinion that also included Chief

Justice William Hubbs Rehnquist and Justice

Anthony M. Kennedy, Justice Sandra Day

O’Connor declared California’s three strikes law

did not violate the Eighth Amendment’s propor-

tionality principle. In other words, the California

legislature was within its discretion in deciding

that lengthy prison sentences for criminals who

commit numerous violent felonies fit the sever-

ity of the crime. Furthermore, Justice O’Connor

wrote, the state law “reﬂ ects a rational legislative

judgment, entitled to deference, that offenders

who have committed serious or violent felonies

and who continue to commit felonies must be

incapacitated.”

Both Justice Antonin Gregory Scalia

and Justice Clarence Thomas wrote concur-

ring opinions. Justice Scalia agreed that the three

strikes law did not violate the Eighth Amendment,

but he chastised the plurality for applying the con-

cept of proportionality to prison sentences, since,

in his view, the proportionality requirement only

applied to retributive punishments such as execu-

tions. Justice Thomas wrote to express his view

that the Eighth Amendment does not include a

proportionality requirement and that the Court’s

attempt to decipher one has been a failure.

Justices John Paul Stevens, David H.

Souter, Ruth Bader Ginsburg, and Steven G.

Breyer dissented. Writing the principal dissent,

Justice Breyer concluded that Ewing’s sentence

was “grossly disproportionate” and, therefore,

violative of the Eighth Amendment’s prohibition

on cruel and unusual punishments. Particularly

troublesome to the dissenters was that between

1945 and 1994, when the three strikes law was

enacted, “no one like Ewing could have served

more than 10 years in prison.” Recidivists served

shorter terms than Ewing’s 25 years, and the 25

years to life in prison sentence has traditionally

been reserved for criminals “convicted of crimes

far worse than Ewing’s.”

Ewing v. California might be best understood

as another example of the Rehnquist Court’s

conservative tilt on law and order issues. Unlike

the more liberal Warren Court, the Rehnquist

Court has been more willing to allow states to fash-

ion unique remedies to the problems of crime.

For more information: Delaney, Blake J. “A

Cruel and Unusual Application of the Proportion-

ality Principle in Eighth Amendment Analysis:

Ewing v. California (2003).” Florida Law Review

56 (2004): 459–469.

—Kyle L. Kreider

exclusionary rule

The exclusionary rule provides that evidence

obtained by police officers in violation of the

Fourth Amendment prohibition of unreason-

able searches and seizures is not admissible in a

criminal trial to prove guilt. The rule was applied

by the U.S. Supreme Court to the states in Mapp

v. Ohio, 367 U.S. 642 (1961). The primary pur-

pose of the exclusionary rule is to deter police

misconduct. While some proponents argue that

the rule emanates from the Constitution, the

exclusionary rule 245

xviii+446_EofUSConsti-v1.indd 245 3/12/09 3:04:54 PM

Supreme Court has indicated it is merely a judi-

cially created remedy for violations of the Fourth

Amendment.

Application of the exclusionary rule may

lead to the exclusion of important evidence and

the acquittal of persons who are factually, if not

legally, guilty. Consequently, the rule has been

the subject of intense debate. Proponents argue

it is the only effective means of protecting indi-

vidual rights from police misconduct, while critics

decry the exclusion from trial of relevant evi-

dence. Despite calls for its abolition and shifts in

the composition of the Supreme Court, the exclu-

sionary rule remains entrenched in American

jurisprudence. But while the rule has survived, it

has not gone unscathed. Supreme Court decisions

have limited the scope of the rule and created sev-

eral exceptions.

In W

EEKS V. UNITED STATES, 232 U.S. 383 (1914),

the Supreme Court held that evidence illegally

obtained by federal law-enforcement ofﬁ cers was

not admissible in a federal criminal trial. At the

time, the Fourth Amendment did not apply to the

states. Because the Weeks decision applied only

to the federal government, state law-enforcement

ofﬁ cers were still free to seize evidence illegally

without fear of exclusion in state criminal pro-

ceedings. Additionally, evidence seized illegally by

state police could be turned over to federal law-

enforcement ofﬁ cers for use in federal prosecu-

tions as long as federal ofﬁ cers were not directly

involved in the illegal seizure. This was known as

the “silver platter doctrine.”

In W

OLF V. COLORADO, 338 U.S. 25 (1949), the

Supreme Court applied the Fourth Amendment

to the states, incorporating it into the due pro-

cess clause of the Fourteenth Amendment;

however, the Court refused to mandate the rem-

edy of the exclusionary rule. Just three years later,

the Court modiﬁ ed its position somewhat, hold-

ing in Rochin v. California, 342 U.S. 165 (1952),

that evidence seized in a manner that “shocked

the conscience” must be excluded as violative of

due process under the Fourteenth Amendment.

Exactly what type of conduct shocked the con-

science was left to be determined on a case-by-

case basis. The exclusionary rule thus became

applicable to state criminal proceedings, but its

application was uneven.

Finally, in 1961, in Mapp v. Ohio, 367 U.S. 643

(1961), the Court took the step it failed to take

in Wolf and explicitly applied the remedy of the

exclusionary rule to the states. The Court did so

because it acknowledged that the states had failed

to provide an adequate alternative remedy for vio-

lations of the Fourth Amendment.

The Supreme Court, in Mapp, stated that the

exclusionary rule serves at least two purposes: the

deterrence of police misconduct and the protec-

tion of judicial integrity. In recent years, however,

the Court has focused almost entirely upon the

deterrence of police misconduct, leading to the

creation of several exceptions to the rule. Addi-

tionally, the Court has held that the exclusionary

rule does not apply to a variety of proceedings

other than the criminal trial.

In Massachusetts v. Sheppard, 468 U.S. 981

(1984), the Supreme Court held that evidence

obtained by the police acting in good faith on a

search warrant issued by a neutral and detached

magistrate, that is ultimately found to be invalid,

may nonetheless be admitted at trial. The Court

stressed that the primary rationale for the exclu-

sionary rule—deterrence of police misconduct—

did not warrant exclusion of evidence obtained by

police who act reasonably and in good faith reli-

ance upon the actions of a judge. By “good faith,”

the Court meant the police were unaware that the

warrant was invalid.

The Court emphasized that the good faith

exception did not apply to errors made by the

police, even if the errors were entirely inadver-

tent. The exception applies only to situations

where the police relied on others who, it later

turns out, made a mistake. Subsequent cases reit-

erated this point. In Illinois v. Krull, 480 U.S. 340

(1987), the Court extended the good faith excep-

tion to instances where the police act in reliance

on a statute that is later declared unconstitutional.

In Arizona v. Evans, 514 U.S. 1 (1995), the Court

refused to apply the exclusionary rule to evidence

seized by a police ofﬁ cer who acted on reliance of

a computer entry, made by a court clerk, that was

later found to be in error.

246 exclusionary rule

xviii+446_EofUSConsti-v1.indd 246 3/12/09 3:04:54 PM

The Court has also established the “inevitable

discovery” exception to the exclusionary rule. This

exception, developed in Nix v. Williams, 467 U.S.

431 (1984), permits the use at trial of evidence

illegally obtained by the police if they can dem-

onstrate that they would have discovered the evi-

dence anyway by legal means. The burden is on

the police to prove they would in fact have dis-

covered the evidence lawfully even if they had not

acted illegally.

The Supreme Court has been reluctant to

extend the reach of the exclusionary rule to pro-

ceedings other than the criminal trial. The Court

has consistently refused to apply the exclusionary

rule to evidence seized by private parties if they

are not acting in concert with or at the behest of

the police. The rule does not apply to evidence

presented to the grand jury. An unlawful arrest

does not bar prosecution of the arrestee, as the

exclusionary rule is an evidentiary rule rather

than a rule of jurisdictional limitation. The rule is

inapplicable in both civil tax assessment proceed-

ings and civil deportation proceedings. The exclu-

sionary rule does not apply to parole revocation

hearings.

The Court has also been reluctant to apply the

exclusionary rule to aspects of the criminal trial

that are not directly related to the determination

of guilt. Thus, illegally obtained evidence may

be used to impeach a defendant’s testimony or

to determine the appropriate sentence for a con-

victed defendant.

The exclusionary rule has aroused much debate

since its application to the states some 40 years

ago. The rule remains in place, although its appli-

cation has been limited and exceptions created.

Nonetheless, the rule still has a major and con-

tinuing impact on police practices, acting as the

primary constraint on unlawful searches and sei-

zures. No other remedies have proven effective at

deterring police misconduct.

The Supreme Court has refused numerous

opportunities to discard the rule, so as long as

the exclusionary rule exists, it will serve, to some

extent, as a limitation on police overreaching. It

will also continue to result in the freeing of some

“guilty” people. It is both the reward and the price

we pay for living under a government of limited

powers.

For more information: Amar, Akhil Reed.

The Constitution and Criminal Procedure. New

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

Carmen, Rolando V. Criminal Procedure: Law

and Practice. 7th ed. Belmont, Calif.: Wadsworth/

Thomson, 2006; Hemmens, Craig, John Wor-

rall, and Alan Thompson. Criminal Justice Case

Briefs: Signiﬁ cant Cases in Criminal Procedure.

Los Angeles: Roxbury, 2004.

—Craig Hemmens

executive orders

Executive orders are documents that the president

of the United States issues unilaterally that have

the force of law. They are one of some two dozen

types of unilateral presidential directives, another

of which is proclamations, that are legally identical

to executive orders and often used interchangeably

(Wolsey v. Chapman, 101 U.S. 755 [1879]). Execu-

tive orders are an important tool of the presiden-

tial office and have figured in many interesting

moments in American political history.

There is no official definition of executive

orders; there is no law, nor even an executive order,

that deﬁ nes what an executive order is. They are

written documents that the president designates

as such and that direct the actions of government

ofﬁ cials or bodies. Executive orders help the chief

executive manage the enormous executive branch

of the federal government. Many executive orders

are for minor administrative matters, but others

have a dramatic impact on government and soci-

ety. Since executive orders give presidents the

means to enact binding public policies by a mere

stroke of the pen, presidents have often used them

to circumvent Congress and the rigors of the nor-

mal policy-making process.

Just as there is no strict deﬁ nition of executive

orders, there is also some ambiguity with regard

to their formatting, numbering, and cataloging.

Several executive orders have proscribed the for-

mat for future executive orders, but these norms

are routinely ignored, and in practice, executive

executive orders 247

xviii+446_EofUSConsti-v1.indd 247 3/12/09 3:04:55 PM

orders vary greatly in terms of form and style. The

U.S. government’s cataloging of executive orders

is spotty, as hundreds or even thousands of early

executive orders have been lost forever. Indeed,

the government’s ofﬁ cial sequential numbering of

executive orders starts only with one of Abraham

Lincoln’s directives, ignoring all earlier orders

and even some subsequent ones. In 1935, the

hundreds of executive orders issued by Franklin

Roosevelt made the government’s poor account-

ing of executive orders acutely problematic, so

Congress required that all future executive orders

and proclamations be published in the Federal

the present—at least those that are not secret and

classiﬁ ed—can be found online via the National

Archives.

Executive orders are not mentioned in the

Constitution, but they may be justiﬁ ed in terms

of the broad grant of executive power and other

ambiguous phrases that can be construed to con-

fer power on the president in Article II of the

U.S. Constitution. Courts have held that execu-

tive orders cannot contradict a clear constitutional

provision or the expressed will of Congress (a law).

However, there is a great deal of leeway between

those two limits, and presidents have issued exec-

utive orders for a host of purposes that are politi-

cally and constitutionally controversial. Executive

orders can be justiﬁ ed in terms of the president’s

constitutional authority or can be authorized by

legislation calling for some particular presidential

action or determination, but many executive orders

do not invoke any speciﬁ c justiﬁ cation. The legis-

lative and judicial branches can overturn execu-

tive orders, but they seldom do so. The Supreme

Court’s decision to strike down Harry Truman’s

executive order seizing the nation’s steel industry

OUNGSTOWN SHEET & TUBE V. SAWYER, 343 U.S.

579 [1952]) is an exception to the rule that the

other branches generally do not resist presidential

lawmaking by executive order. Future presidents

can issue executive orders to overturn their prede-

cessors’ executive orders, and they often do so.

Virtually every president has issued execu-

tive orders or similar directives. Early examples

include George Washington’s Neutrality Proc-

lamation and Abraham Lincoln’s Emancipation

Proclamation; however, executive orders were

generally used infrequently before the 20th cen-

tury. There was a large increase in their use under

Theodore Roosevelt, who utilized them for land

conservation and various other matters. The num-

ber of executive orders issued continued to climb

through the presidency of Franklin Roosevelt, who

used them to ﬁ ght the depression and to prosecute

World War II, including ordering the internment

of some 120,000 Americans of Japanese descent

in 1942. There has been a drop-off in the number

of executive orders issued from the postwar era

to the present, from a couple hundred a year to

just a couple dozen. Nevertheless, presidents since

the mid-20th century have issued executive orders

for many important purposes, including to deseg-

regate the military, to establish the Peace Corps

and affirmative action, to prohibit the United

States from assassinating foreign political leaders,

to limit or alter governmental regulations, to cre-

ate new executive agencies, to establish national

monuments, and to advance certain positions

about abortion, organized labor, and environ-

mental protection. Despite periodic outcries over

particular executive orders, they continue to be

an important and powerful presidential tool in the

21st century.

For more information: Cooper, Phillip J. By

Order of the President: The Use and Abuse of

Executive Direct Action. Lawrence: Univer-

sity Press of Kansas, 2002; Dodds, Graham G.

“Executive Orders Since Nixon.” In Executing the

Constitution. New York: State University of New

York, 2006; Mayer, Kenneth R. With the Stroke of

a Pen. Princeton, N.J.: Princeton University Press,

2001; U.S. House Committee on Governmental

Operations. “Executive Orders and Proclama-

tions: A Study of a Use of Presidential Powers,

1945–1956.” December 1957.

—Graham G. Dodds

Ex parte Grossman 267 U.S. 87 (1925)

In Ex parte Grossman, the Supreme Court ruled

that the pardoning power of the president of the

248 Ex parte Grossman

xviii+446_EofUSConsti-v1.indd 248 3/12/09 3:04:55 PM

United States extended to include the pardoning

of an individual who had been held in contempt

of court. The case is signiﬁ cant because it helped

deﬁ ne the constitutional breadth of the power of

the president to pardon individuals.

Ex parte Grossman involved Philip Grossman,

an individual who was charged in November 1920

with the offense of maintaining a nuisance at his

business by selling alcoholic beverages in violation

of the National Prohibition Act (better known as the

Volstead Act) and the Eighteenth Amendment.

The district court judge issued a restraining order,

yet two days after the order, Grossman was charged

with selling liquor to people on the premises of his

business. He was arrested, tried, and convicted

of contempt of court for ignoring the restraining

order. He was sentenced to one-year imprisonment,

to be served in the Chicago House of Corrections,

and ordered to pay court costs and a ﬁ ne of $1,000

to the United States. The circuit court of appeals

afﬁ rmed the lower court decision.

In December 1923, President Calvin Coolidge

issued Grossman a presidential pardon (commuta-

tion) under the condition that Grossman pay the

$1,000 ﬁ ne. Grossman accepted the pardon and

its conditions. In May of the following year, the

district court, ignoring the presidential pardon,

ordered Grossman imprisoned in the Chicago

House of Corrections. The case was appealed to

the Supreme Court.

The question before the Court in this situation

was, Did the president have constitutional powers

to commute Grossman’s sentence for contempt of

court? According to Section 2, Clause 1 of Arti-

cle II of the U.S. Constitution, “The Presi-

dent . . . shall have power to grant Reprieves and

Pardons for Offences against the United States,

except in Cases of Impeachment.” The Court con-

cluded, in a unanimous decision, the pardon for

criminal contempt of court was in the purview

of the powers granted to the president by the

Constitution.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—Dan Krejci

Ex parte McCardle 74 U.S. 506 (1869)

In Ex parte McCardle, the Supreme Court ruled

that it lacked the jurisdiction to hear a habeas

corpus petition by an individual even though

it had already heard oral arguments in his case.

McCardle is considered important because it

affirms the broad power of Congress to affect

or change the appellate jurisdiction of the

Supreme Court.

After the Civil War, over President Andrew

Johnson’s veto, Congress adopted the Recon-

struction Acts imposing military rule in the South.

Military rule would be lifted only if new constitu-

tions were adopted, elections were held, and the

Southern states accepted both the Thirteenth

Amendment and Fourteenth Amendment,

abolishing slavery and guaranteeing rights to for-

mer slaves, respectively. Constitutional conven-

tions required approval in elections in which a

majority of eligible voters cast ballots, and some

Southern whites attempted to block new conven-

tions by refusing to vote.

William McCardle, the editor of the Vickburg

(Mississippi) Times, wrote ﬁ ery editorials urging

whites to boycott the voting and, some believed,

threatening harm to whites who did vote. McCa-

rdle was charged before a military commission

with impeding Reconstruction. He sought a writ

of habeas corpus in federal court under an 1867

law that had been passed to assure court proceed-

ings to free the families of slaves who had enlisted

in the Union Army. The lower court denied a writ

of habeas corpus, and McCardle appealed to the

Supreme Court.

The Supreme Court heard arguments in the

ﬁ rst week of March 1868. Fearful that the Court

would strike down military reconstruction in the

South, Congress passed a law, over the veto of

President Johnson, that took away the Supreme

Court’s habeas corpus jurisdiction under the 1867

law. On April 6, the Court adjourned without

deciding the McCardle case. Justices Robert Coo-

per Grier and Stephen Johnson Field stated that

the Court should have reached a decision.

More than a year later, the Court heard argu-

ments about whether the repeal of its habeas cor-

pus jurisdiction could affect a case it had already

Ex parte McCardle 249

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heard. On April 12, 1869, the Court announced

that the congressional repeal of jurisdiction had

deprived the Court of its authority. Article III

of the U.S. Constitution allows Congress to

“make exceptions to the appellate jurisdiction” of

the Supreme Court, and Congress had done so.

In Ex parte McCardle, Chief Justice Salmon P.

Chase declared for a unanimous Court that the

justices would not look into the motives of Con-

gress. It was enough that Congress had exercised

its constitutional authority. “Jurisdiction is the

power to declare the law,” the chief justice said,

“and when it ceases to exist, the only function

remaining to the court is that of announcing the

fact and dismissing the cause.” Within weeks, in a

private letter, the chief justice disclosed his view

that if the Court had decided the McCardle case,

it “would doubtless have held that his [McCardle’s]

imprisonment for trial before a military commis-

sion was illegal.”

The Court was careful in McCardle not to con-

cede that Congress could deprive it completely

of all habeas corpus jurisdiction. Instead, Chief

Justice Chase warned that the 1868 congressional

action took away only the Court’s habeas corpus

jurisdiction granted in the 1867 law, but “it does

not affect the jurisdiction [over habeas corpus]

that was previously exercised [by the Court].”

In later cases, including Ex parte Yerger, 75

U.S. 85 (1869), and Felker v. Turpin, 518 U.S. 651

(1996), the Court avoided a confrontation with

Congress over the underlying issue in McCardle—

whether Congress can deprive the Court entirely

of jurisdiction in certain kinds of cases—by ﬁ nd-

ing that the Court retained jurisdiction under

other existing laws.

For more information: Fairman, Charles. His-

tory of the Supreme Court of the United States.

Vol. 6: Reconstruction and Reunion, 1868–88.

New York: Macmillan: 1971.

—David Adamany

Ex parte Milligan 71 U.S. 4 Wall. 2 (1866)

In Ex parte Milligan, the Supreme Court ruled

that an American citizen could not be tried by

military commission when the civil federal courts

were open and operational. The significance of

the Milligan decision was that it limited the ability

of the president to try American citizens without

all the constitutionally protected guarantees when

accused of a crime.

In March 1863, Congress passed an act autho-

rizing the suspension of the writ of habeas cor-

pus by the president during the ongoing rebellion.

The following September, Abraham Lincoln

suspended the writ of habeas corpus for cases con-

cerning prisoners of war, spies, and those aiding

and abetting the enemy, as well as for members of

the armed services accused of being in violation

of the laws of war. Lamdin P. Milligan was a resi-

dent of Indiana, a citizen of the United States, and

a civilian. He was arrested on October 5, 1864,

at his home and was tried by military commis-

sion. Milligan and four other conspirators were

accused of planning to liberate prisoners of war in

a Union prison and were charged with conspiracy

against the United States, inciting insurrection,

and violating the laws of war. Milligan was found

guilty of all charges and was sentenced to death

by hanging.

Justice David Davis wrote the majority opinion

for the Supreme Court and was joined by Justices

Nathan Clifford, Stephen Johnson Field, Robert

Cooper Grier, and Samuel Nelson. The Court

reversed the ruling of the military commission,

arguing that a civilian could not be denied a civil-

ian trial when the civil federal courts are opera-

tional. Furthermore, Davis held that military

commissions could not be organized in a state that

had not been invaded and had not been engaged

in the rebellion. The Court held that military com-

missions could not be used to try a citizen that was

not a resident of a rebellious state nor a prisoner

of war and had no afﬁ liation to the military of the

United States. Furthermore, Congress could not

grant such power to the executive to create the

commissions in question.

Chief Justice Salmon P. Chase wrote a dissent,

joined by Justices James Moore Wayne, Noah

Haynes Swayne, and Samuel Freeman Miller,

believing that military commissions were indeed

allowed to be set up by Congress. Chase reiterated

250 Ex parte Milligan

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that the Constitution grants Congress the author-

ity to make rules concerning the government of

the army and navy, as well as the authority to set

up courts inferior to the Supreme Court. One

such court that can be set up is a military com-

mission if the conditions of war require it. Chase

placed emphasis on the power of Congress, not

the courts, to decide whether the conditions of

war require such action.

Overall, Milligan appears to be an important

statement by the Court, protecting individual

rights as well as limiting the power of the execu-

tive in times of war. However, since this time, the

federal courts have decided cases more in line with

Chase’s dissent rather than the Court opinion,

stating that if Congress authorizes the commis-

sions, they stand up to judicial scrutiny (as in Ex

parte Quirin, 317 U.S. 1 [1942], and Eisentrager

v. Johnson, 339 U.S. 763 [1950]). Even Hamdan

v. Rumsfeld, 548 U.S. 557 (2006), in which the

Court stated that the military commissions of the

George W. Bush administration were not constitu-

tionally authorized, could have stood up to judicial

scrutiny had Congress given more explicit authori-

zation for their establishment.

For more information: Fisher, Louis. Presi-

dential War Power. Lawrence: University Press

of Kansas, 2004; Henkin, Louis. Constitutional-

ism, Democracy, and Foreign Affairs. New York:

Columbia University Press, 1990; Henkin, Louis.

Foreign Affairs and the United States Constitu-

tion. Oxford: Clarendon Press, 1996.

—Amanda DiPaolo

Ex parte Young 209 U.S. 123 (1908)

In Ex parte Young, the Supreme Court held that

the Eleventh Amendment does not prevent

suits against state ofﬁ cials for prospective injunc-

tive relief, even if that injunctive relief would

enjoin an ofﬁ cial state policy.

Around the turn of the 20th century, Minnesota

passed a law limiting railroad rates. The railroads

believed these regulations were unconstitutional

and sought to prevent their enforcement, but get-

ting the case to court was problematic. Although

ordinarily someone could have violated the law

and challenged its validity when arrested, Min-

nesota had an inordinately large fine of $2,500

for each violation and imprisonment for as long

as ﬁ ve years. Because of this, the railroads were

unlikely to ﬁ nd anyone willing to test the validity

of the law. Instead, the shareholders of the rail-

roads brought a lawsuit in federal court seeking an

injunction against the attorney general of Min-

nesota, Edward Young, individually, to prevent

him from enforcing the state law. Young claimed

that granting the injunction would be a violation

of the Eleventh Amendment and Minnesota’s sov-

ereign immunity.

A full understanding of the importance of Ex

parte Young requires a basic understanding of the

Supreme Court’s reading of the Eleventh Amend-

ment. The text of the Eleventh Amendment reads:

“The Judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by Citizens of another State.”

Despite the plain language of the amendment,

in Hans v. Louisiana, 134 U.S. 1 (1890), the

Supreme Court held that the Eleventh Amend-

ment expressed a broader concept of sovereign

immunity. This principle protects states from suits

in federal court not only by citizens of other states

but also from suits by a state’s own citizens.

Unwilling to completely trust the states to

uphold the Constitution and the civil rights

of its citizens (as was the case of Jim Crow laws),

the Supreme Court has devised limited exceptions

to this broad concept of sovereign immunity. The

most important of these exceptions was announced

in Ex parte Young. The Supreme Court held that

neither the Eleventh Amendment nor the principle

of sovereign immunity barred suits for prospective

injunctive relief against state ofﬁ cers. In so hold-

ing, the Court created a legal ﬁ ction. Because a

state can give no ofﬁ cer the power to act contrary

to the Constitution, when a state ofﬁ cer does act

contrary to the Constitution, he is stripped of state

power and can no longer hide behind the state’s

immunity from suit in federal court. The Supreme

Court, speaking through Justice Rufus Wheeler

Peckham, held: “The act to be enforced is alleged

Ex parte Young 251

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