Schultz D. Encyclopedia of the United States Constitution

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corporations and unions from directly seeking to

influence federal elections. The express versus

issue advocacy distinction supposedly maintained

the bar on speech directly affecting federal elec-

tions by these and other actors, such as nonproﬁ ts,

but preserved their First Amendment rights to

comment on matters of public concern.

The express versus issue advocacy distinction

became the loophole. Unions, corporations, and

nonproﬁ ts all exploited it to inﬂ uence federal elec-

tions by simply running ads that did everything an

express advocacy ad did except say “vote for” or

“support.” Instead, these ads often asked viewers

to call a senator or representative and ask him or

her why he or she opposed a given issue or piece

of legislation.

Section 203 of BCRA, or the McCain-Fein-

gold law, tried to ﬁ ll in the loophole. It deﬁ ned

“electioneering communication” to be any politi-

cal speech depicting or referring to an identiﬁ able

federal candidate within 30 days of a primary or

60 days of a general election to be presumed to

be directed at inﬂ uencing a federal election, and

therefore, if the ad were made by a corporation or

union, it would be illegal. In M

CCONNELL V. FEC,

540 U.S. 93 (2003), the Supreme Court upheld

Section 203 against a facial charge of unconstitu-

tionality but left open claims that it might violate

the First Amendment in an applied challenge.

In the Wisconsin Right to Life case, at issue was

a challenge by an ideological nonproﬁ t corporation

that wanted to run ads urging viewers to contact

their senators to oppose efforts to ﬁ libuster federal

judicial nominations. These ads would run within

30 days of a Wisconsin primary, the state where

the ads would air. Wisconsin Right to Life sought

a declaratory judgment against the FEC, claim-

ing that section 203 was unconstitutional. Initially,

a three-judge panel denied the request for an

injunction, and the Supreme Court vacated and

remanded the decision. A federal district court

then agreed with Wisconsin Right to Life, and the

Supreme Court upheld the decision.

Writing for the Court, Chief Justice John G.

Roberts, Jr., ruled that the ad or speech was

not functionally equivalent to express advocacy

and therefore deserved First Amendment protec-

tion. Because this or similar ads were not clearly

directed toward federal candidates, the general

justiﬁ cation to regulate political contributions or

corporate or union speech to address corruption

was not present. In addition, Chief Justice Roberts

stated that, as applied, Section 203 was overbroad

in banning the type of speech that was protected

by the First Amendment. In his concurrence,

Justice Antonin Gregory Scalia argued that

the Court had effectively overturned its McCo-

nnell decision, while in dissent Justices David

H. Souter, John Paul Stevens, Ruth Bader

Ginsburg, and Stephen G. Breyer would have

upheld Section 203.

The Wisconsin Right to Life decision effectively

restores the express advocacy–issue advocacy rule

to status quo prior to BCRA. The importance of

the decision is that it leaves open also the possi-

bility of a return to the types of political ads and

speech that BCRA sought to regulate and control.

For advocates of campaign finance reform, this

is a step backward, while for many First Amend-

ment supporters, it is a protection of core free

speech rights.

For more information: Schultz, David. “Buck-

ley v. Valeo, Randall v. Sorrell, and the Future

of Campaign Financing on the Roberts Court.”

Nexus 12 (2007): 153–176.

—David Schultz

federalism

Federalism involves the division of authority,

power, and function between a national govern-

ment and state governments. In federalism, the

national government’s sovereignty is limited by

the partially retained autonomy of the states. This

makes federalism a hybrid between unitary gov-

ernment and confederation. Federalism began

in the United States with the signing of the U.S.

Constitution in 1787, which replaced the Articles

of Confederation under which the budding nation

had united in pressing for independence from

Great Britain. The concept of federalism is rooted

structurally in the Constitution, most prominently

in the Tenth Amendment.

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Federalism is an institutional design feature

evident throughout the U.S. Constitution. As

explained by James Madison and Alexander

Hamilton in the F

EDERALIST PAPERS, federal-

ism’s potential benefits are many. Federalism

lends itself to checks and balances, a reduc-

tion in the monopolistic potential of factions, and

the heightening of national security through an

enlargement of governable territory. Federalism

enriches policy choices at the state level, ampliﬁ es

representation through the abundance of electoral

ofﬁ ces, and stimulates a nation’s economic engine

as commercial interests beneﬁ t from wider market

opportunities.

The attractions of federalism remain impressive.

In G

REGORY V. ASHCROFT, 501 U.S. 452 (1991), U.S.

Supreme Court justice Sandra Day O’Connor

delivered the opinion of the Court majority, writ-

ing that the “federalist structure” of the Constitu-

tion “assures a decentralized government that will

be more sensitive to the diverse needs of a heter-

ogenous society.” Continuing, O’Connor declared

that federalism allows for “more innovation and

experimentation in government” while mak-

ing “government more responsive by putting the

States in competition for a mobile citizenry.” These

considerations and others have been expounded

philosophically and studied empirically by politi-

cal scientists specializing in federalism and pub-

lishing academic work in serials such as Publius:

The Journal of Federalism. Notably, scholars such

as Samuel Beer, Martin Diamond, Daniel Elazar,

Donald Lutz, and Vincent Ostrom have provided

comprehensive theories and topical histories that

describe the American experience with federal-

ism from germination to its full blossom in the

modern bureaucratic state. Other political scien-

tists including Thomas Dye, John Kincaid, David

Walker, and Deil Wright have supplemented that

work with empirical research, statistical ﬁ ndings,

and erudite analysis.

The high court’s work continues to be animated

by the complexities of competitive sovereignty. As

Justice O’Connor stated when writing for a united

court in Tafflin v. Levitt, 493 U.S. 455 (1990),

“We begin with the axiom that, under our federal

system, the States possess sovereignty concurrent

with that of the Federal Government, subject

only to limitations imposed by the supremacy

clause.” But just a year later, the Court was again

rufﬂ ed by disagreement about federalism. In Cole-

man v. Thompson, 501 U.S. 722 (1991), Justice

Harry A. Blackmun wrote a dissenting opinion for

three justices, claiming that the six justice major-

ity was mistaken in thinking the case to be about

federalism. Blackmun stated that federalism “has

no inherent normative value.” He then asserted

an earlier claim by Justice William J. Brennan,

Jr., that federalism “is a device for realizing the

concepts of decency and fairness which are among

the fundamental principles of liberty.”

While the philosophy of federalism is subject

to debate, a de facto description of federalism

appears in the Tenth Amendment of the Bill of

Rights, effective 1791. Reﬂ ecting the sentiments

of the new nation’s ﬁ rst Congress and the appre-

hensions of reluctant signers of the Constitution

(the so-called Anti-Federalists), the Tenth makes

this sweeping declaration: “The powers not del-

egated to the United States by the Constitution,

nor prohibited by it to the States, are reserved

to the States respectively, or to the people.” The

structure of the Constitution shows a multifac-

eted and sometimes concurrent sharing of author-

ity, creating, in the words of Madison, “a certain

degree of obscurity” in the document. This vague-

ness existed, Madison declared in Federalist 37,

because the convention was faced with an “ardu-

ous task” in trying to balance the authority of the

general government with that of the state govern-

ments, an observation echoed by Justice Anthony

M. Kennedy two centuries later in U

NITED STATES

V. LOPEZ, 514 U.S. 549 (1995).

The U.S. Constitution was but a proposed foun-

dation of government until ratiﬁ ed by nine of the

13 original American states, the states employing

conventions of delegates “chosen by the People

thereof” as instructed by the Constitutional

Convention in September 1787. The phrase the

people reflects back to the first sentence in the

Constitution, namely, “We the People of the United

States, in Order to form a more perfect Union . . .

do ordain and establish this Constitution.” In this

meaningful construction, the emphasis is on a

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people in their union existence. Still, the consti-

tutional formula is for state-governed elections for

Congress. Hence, a conceptual duality exists: The

Tenth Amendment and its associated features in

the Constitution planted alongside centralizing

elements in the original document.

The ﬁ rst milestone in the evolution of feder-

alism was laid when the U.S. Supreme Court

established precedence for judicial review in

ARBURY V. MADISON, 5 U.S. 137 (1803). The par-

ticulars of the case aside, the high court dramati-

cally expanded its role in determining the division

of authority between the respective states and the

national government. Once the Court’s reach was

extended, a series of cases presented themselves,

allowing the Court to elevate the role of jurispru-

dence in settling power struggles. In the landmark

case M

CCULLOCH V. MARYLAND, 17 U.S. 316 (1819),

the Court held that Congress had the power to

create a bank of the United States without reli-

ance upon an enumerated constitutional power.

This decision began the process of hemming in

the Tenth Amendment’s reach in protecting state

powers.

The McCulloch decision clariﬁ ed the suprem-

acy of the national government, as did many cases

that followed. In G

IBBONS V. OGDEN, 22 U.S. 1

(1824), the power of the Congress was asserted by

the high court, reducing the ability of the states

to regulate commerce. Likewise, in Worchester v.

Georgia, 31 U.S. 515 (1832), the Court held that

the Cherokee Nation within the state of Georgia

was a self-governing and distinct community, its

legal compunctions being to the U.S. government,

not the state of Georgia. This decision moved

the fulcrum supporting the seesaw of federal-

ism in favor of the national government, if only

incrementally.

In Prigg v. Pennsylvania, 41 U.S. 539 (1842),

the Supreme Court struck down laws that north-

ern states devised to protect fugitive slaves, the

Court viewing such laws as interdicted by Con-

gress’s 1793 Fugitive Slave Act. As the nation

lurched toward Civil War, Congress passed the

Fugitive Slave Act of 1850. The act was rebuffed

when the Wisconsin Supreme Court declared it

unconstitutional in 1854. The national high court

soon reversed the state court but to little avail

once the Wisconsin legislature claimed John C.

Calhoun’s nulliﬁ cation doctrine. This particular

conﬂ ict over the shape of evolving federalism cli-

maxed judicially with the U.S. Supreme Court’s

declaration of the constitutionality of the Fugitive

Slave Act in D

RED SCOTT V. SANDFORD, 60 U.S. (19

How.) 393 (1857). However, the ﬁ ght over federal-

ism would continue to build after Civil War guns

fell silent.

The U.S. Supreme Court’s jurisprudence on

federalism vacillated in the decades following

the Civil War. In Wabash v. Illinois, 118 U.S. 557

(1886), a six-justice majority circumscribed the

ability of states to regulate railroad rates within

their own jurisdictions on rail traffic passing

through. But in Muller v. Oregon, 208 U.S. 412

(1908), the Court upheld the state of Oregon’s

right to regulate labor laws in conjunction with the

state’s interest in women’s health. U

NITED STATES V.

ARBY LUMBER CO., 312 U.S. 100 (1941), came to

reﬂ ect the high court’s emerging understanding of

federalism: The Court overturned the precedence

of HAMMER V. DAGENHART, 247 U.S. 251 (1918),

which used the Tenth Amendment as a barri-

cade to the national government’s interference in

matters of commerce deemed to be local. In the

unanimous Darby decision, the Court maintained

that the Tenth Amendment did not give the states

any more power than they possessed by reason of

what was given or reserved to them elsewhere in

the Constitution, the Tenth thus being clariﬁ ed

as a mere “truism” to “allay fears” of Anti-Feder-

alists. The Court majority would continue to be

enamored by this line of reasoning in the decades

that followed, a change becoming evident in New

York v. United States, 488 U.S. 1041 (1992), and

afﬁ rmed in P

RINTZ V. UNITED STATES, 521 U.S. 898

(1997). In both instances, the nation’s highest

court endeavored to argue that the Tenth Amend-

ment does contain principles of federalism and is

not a mere encapsulation of federalist sentiment.

It was only a few years earlier, in G

ARCIA V.

AN ANTONIO METROPOLITAN TRANSIT AUTHORITY,

469 U.S. 528 (1985), that the ﬁ ve justice majority

in a sharply divided court argued for a political

process deﬁ nition of federalism. This is the argu-

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ment that the balance of power in federalism is

contingent on the electorate’s choosing congres-

sional representatives who uphold state interests

(hence, “representational federalism” in the par-

lance of political scientists). In a dissent joined

by Justices William Hubbs Rehnquist and

O’Connor, Justice Lewis Franklin Powell,

Jr., stated that the “States’ role in our system of

government is a matter of constitutional law, not of

legislative grace” and that “an unelected majority

of ﬁ ve justices . . . rejects almost 200 years of the

understanding of the constitutional status of fed-

eralism.” In a separate dissent, Justice O’Connor

argued that federalism was nearing irrelevance as

the set of activities beyond the reach of the com-

merce power became “negligible.”

Earlier in the Court’s jurisprudential evolu-

tion, the struggle to deﬁ ne federalism took a turn

with the ratiﬁ cation of the Fourteenth Amend-

ment in 1868, the amendment providing “due

process” and “equal protection” clauses as

ammunition for the national government in man-

aging the wayward ambitions of the states. For a

time, the Court used the due process clause in an

activist sense to curtail worker protections aris-

ing from progressive-era reforms at the state and

national level. In so doing, the Court cast a shadow

on its credibility, most notably in L

OCHNER V. NEW

YORK, 198 U.S. 45 (1905). Eventually, the nation’s

preeminent court adjusted its jurisprudence and

began using the due process clause to advance the

long repressed civil rights of African Ameri-

cans, ruling in B

ROWN V. BOARD OF EDUCATION OF

OPEKA, 347 U.S. 483 (1954), that separate is not

equal in racially segregated education. Brown was

a landmark ruling because it undid the Court’s

earlier work in PLESSY V. FERGUSON, 163 U.S. 537

(1896), in which separate facilities in railroad

cars were not deemed unconstitutional even

with the Fourteenth Amendment in place. Thus,

the Brown decision came to suggest what is now

widely assumed by court observers, namely, that

high-proﬁ le decisions by the U.S. Supreme Court

are affected by cultural constraints and the politi-

cal environment.

While the U.S. Constitution remains the

world’s seminal document of full-ﬂ edged federal-

ism, more than two dozen nations have adopted

federal political arrangements, notably Australia,

Canada, Germany, India, and Russia, among oth-

ers. With the spread of federalism, the scholarly

study of its applications is on the increase, a visible

proponent being the International Association of

Centers for Federal Studies (IACFS). In spite of

the fact that federalism is increasingly viewed as a

“best practices” design for representative democ-

racy, a complex global situation may produce

centrifugal forces that federal nations attempt

to manage by concentrating domestic powers in

national or global bureaucracies. The threat of ter-

rorism, the complications of global warming, the

complexities of multinational commerce, and the

realities of educational and economic insufﬁ ciency

for millions of Americans may produce increas-

ingly consequential incursions of federal power

into areas formerly under state control. Ultimately,

the American electorate will share a role alongside

the U.S. federal court system in determining the

future role of constitutional federalism in Ameri-

can governance.

For more information: Beer, Samuel H. To Make

a Nation: The Rediscovery of American Federal-

ism. Cambridge, Mass.: Belknap Press of Harvard

University Press, 1993; Dye, Thomas. American

Federalism: Competition Among Governments.

Lexington, Mass.: Lexington Books, 1990; Epstein,

Lee, and Thomas G. Walker. Constitutional Law

for a Changing America: Institutional Powers and

Constraints. 5th ed. Washington, D.C.: CQ Press,

2004.

—Timothy J. Barnett

Federalist Papers (1787–1788)

The Federalist Papers, or The Federalist, a series

of articles composed by Alexander Hamil-

ton, James Madison, and John Jay in order

to push for the ratiﬁ cation of the newly written

Constitution, were first published as a set in

1788. Many articles within the set are viewed

as highly inﬂ uential and classic republican and

democratic treatises, offering readers an excel-

lent resource to better interpret, understand, and

Federalist Papers 265

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support the Constitution today and at the time of

ratiﬁ cation.

Following the closure of the Constitutional

Convention and the signing of the ﬁ nal docu-

ment in Philadelphia in 1787, the Constitution was

sent to all of the states for ratiﬁ cation. Once it was

released to the public, it suffered virulent attacks

throughout the young nation.

Separation between those who were in favor

of the Constitution and those who were against it

led to the creation of the country’s ﬁ rst de facto

political parties, known as the Federalists and the

Anti-Federalists. The Anti-Federalists opposed

the new Constitution because they believed that

it overcentralized power in the young nation at

the expense of the state governments. They began

publishing articles in newspapers throughout the

country but particularly in New York. The first

Anti-Federalist authors used such surnames as

Cato and Brutus, and their articles appeared as

soon as late September 1787.

In response, Hamilton organized a power-

ful and persuasive team of writers in defense

of the Constitution. He considered many of the

delegates at the Constitutional Convention, as

well as other prominent members of the political

society. Ultimately, he collaborated mostly with

Madison, author and father of the Constitution.

Others included Jay, who was suffering from an

illness that hampered his productivity, and Wil-

liam Duer, who had some of his compositions

rejected and disputed by Hamilton. Interestingly,

Hamilton also contacted Gouverneur Morris to

collaborate with him on the project, but Morris

rejected Hamilton’s proposal. Nevertheless, Ham-

ilton assembled a primarily three-person team

well capable of fulﬁ lling his goal of defending the

Constitution to better explain the new form of

government and to convince citizens to ratify it.

Following in the footsteps of the Anti-Federal-

ists, Hamilton, Madison, and Jay chose to write

under a shared Roman surname. They selected

the name Publius because they believed that it

was a stronger representation of their character,

especially compared to the names of Caesar,

Brutus, and Cato. Publius, a derivative of another

name the authors used, Publicola, means “friend

of the people” in Latin. Notably, it was not the

first time Hamilton had selected this name,

having used it to author three letters attacking

Maryland Continental Congress delegate Samuel

Chase in 1778.

The articles that came to be the Federalist

Papers began appearing in three New York pub-

lications, the Daily Advertiser, the Independent

Journal, and the New York Packet, starting in late

October 27, 1787. Although primarily concen-

trated in New York in the beginning, Hamilton

actively promoted their publication in other states.

Initially, the articles were published rather fre-

quently; often, three or four new articles appeared

every week. In all, 85 articles were published,

and actual authorship of most of the articles has

been determined, while scholars have used vari-

ous types of statistical analysis to rediscover for

certain who wrote one of the roughly 12 contested

articles. Hamilton was the most proliﬁ c writer in

the project, authoring roughly three-fourths of

all of the articles, while Madison came in second,

with a sickly Jay authoring the fewest.

Federalist 1, the ﬁ rst to appear, as they were

numbered chronologically, written by Hamilton,

introduced and outlined the goals and subjects

of the following articles. The six subjects were

1) the utility of the Union, 2) the insufficiency

of the present confederation, 3) the necessity of

a stronger government, 4) the conformity of the

proposed Constitution to republican government,

5) the relationship between federal and state

government, and 6) the additional securities of

the new government. The subjects were covered

somewhat chronologically as well; the ﬁ rst subject

was covered by Federalists 2–14; the second, by

15–22; the third, by 23–36; the fourth, by 27–84;

and the fifth and sixth, by 85. Interestingly, as

the writing and publishing occurred, the subjects

were not covered equally, as Hamilton, Madison,

and Jay were interested themselves in some of the

topics more than the others. Hamilton’s proposed

ﬁ fth and sixth subjects were, as a result of these

different interests and developments of opinion,

covered only rather brieﬂ y in Federalist 85.

Not only did the Federalist Papers adamantly

support the Constitution, they also went on the

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offensive against the proposed amendments,

known today as the Bill of Rights. Federal-

ist 84 particularly attacks the Bill of Rights. This

opposition came directly from a controversy that

developed at the end of the Constitutional Con-

vention, as some feared that the new document

did not list or specify the rights of the people to

be protected by the new government. Hamil-

ton himself disliked the proposed Bill of Rights

because he feared that if the rights were listed,

the rights that were inherent and not listed would

not be respected later by individuals or by the

government.

Among Hamilton, Madison, and Jay, none of

them shared the same views on the Bill of Rights.

For many citizens and ultimately for many states,

the Constitution could not be ratiﬁ ed without a

Bill of Rights. For those who feared an empow-

ered central government developing into a tyran-

nical regime, the Bill of Rights restrained the new

government from doing so. In the end, the Bill of

Rights played an important role in allaying the

fears of those who were ultimately to vote in favor

the Constitution with the understanding that the

list of rights amended to the document would not

be interpreted by the government, courts, or pub-

lic as exhaustive, as Hamilton had feared.

The Federalist Papers became very popular not

just among scholars and politicians but also among

the general public who were interested in the new

government. As a result, they were frequently

republished together even after the ratification

debate. They were first republished together in

1788 and went on to be republished internation-

ally. Besides offering scholars an incredible insight

into the Constitution and the debate around it

during the time of ratification, the papers are

often consulted by U.S. judges, but their use as a

citation is controversial due to the articles’ lack of

legal status.

For more information: Founding Fathers

Online. “The Federalist Papers E-Text.” Available

online. URL: http://www.foundingfathers.info/

federalistpapers/. Accessed May 12, 2008; Ham-

ilton, Alexander, James Madison, and John Jay.

The Federalist Papers. New York: Bantam Clas-

sics, 1982; Ketcham, Ralph. The Anti-Federalist

Papers and Constitutional Convention Debates.

New York: Signet Classics, 2003.

—Arthur Holst

Federal Maritime Commission v. South

Carolina State Ports Authority

535 U.S.

743

(2002)

In Federal Maritime Commission v. South Caro-

lina State Ports Authority, the Supreme Court

ruled that state sovereign immunity precluded

independent administrative agencies from adjudi-

cating private claims against nonconsenting states.

Justice Clarence Thomas, writing for the 5-4

majority, affirmed the lower court’s decision,

extending the protection that the Eleventh

Amendment provides to nonconsenting states in

federal courts to administrative proceedings that

appear similar to judicial processes. Before this

case, the Eleventh Amendment applied only to

exercises of “judicial power of the United States.”

A cruise ship operator ﬁ led a private complaint

with the Federal Maritime Commission (FMC)

after the South Carolina State Ports Authority

(SPSCA) continued to deny its ships berth in one

of its port facilities. The operator’s ships contained

gambling facilities and believed the denials by

the SPSCA were discriminatory and thus were a

violation of the Shipping Act of 1984. The opera-

tor ﬁ led for injunctive relief and reparations. The

FMC referred the matter to an administrative law

judge (ALJ). The ALJ determined that the SCSPA

was entitled to sovereign immunity because it was

an arm of the state and dismissed the complaint.

The cruise ship operator decided not to appeal

the case.

The FMC nevertheless decided to review the

ALJ’s ruling and reversed the ALJ’s decision on

the grounds that Congress had given it the author-

ity to adjudicate such complaints. SCSPA then

filed an appeal with the U.S. Court of Appeals

for the Fourth Circuit, which reversed the FMC’s

decision. The court found that the FMC’s pro-

cedure for resolving private complaints “walks,

talks, and squawks very much like a lawsuit” and

that state sovereign immunity precludes lawsuits

Federal Maritime Commission v. South Carolina State Ports Authority 267

xviii+446_EofUSConsti-v1.indd 267 3/12/09 3:05:01 PM

against nonconsenting states in federal court. The

FMC was therefore barred from adjudicating the

operator’s complaint.

Writing for the majority, Justice Thomas found

that since private parties could not sue noncon-

senting states in federal court pursuant to the

Eleventh Amendment, they are not permitted

to do so in this case. He further stated: “. . . if

the framers thought it an impermissible affront

to a State’s dignity to be required to answer the

complaints of private parties in federal courts,

we cannot imagine that they would have found

it acceptable to compel a State to do exactly the

same thing before the administrative tribunal of

an agency such as the FMC.”

Justice John Paul Stevens wrote a separate

dissent ﬁ nding the majority opinion not reﬂ ective

of the legislative history of the Eleventh Amend-

ment. Justices Stevens, David H. Souter, and

Ruth Bader Ginsburg joined Justice Stephen G.

Breyer’s dissent wherein he vigorously challenged

the majority opinion. He argued that there was

no textual basis for the majority’s decision in the

Constitution. He reasoned that Congress gave the

FMC the authority to hold adjudicatory proceed-

ings when it formed the FMC as an independent

administrative agency. He reminded the major-

ity that administrative agencies are a part of the

executive branch, not the judicial branch, because

they execute the law, which includes making rules

and “adjudicating matters in dispute.” Thus, the

Eleventh Amendment was not applicable in the

dissent’s view.

For more information: Bladuell, Hector G.

“Twins or Triplets? Protecting the 11th Amend-

ment Through a Three Prong Arm-of-the-

State Test.” Michigan Law Review 105 (2007):

837–865; Brennan, Patrick McKinley. “Against

Actual Sovereignty: A Cautionary Note on the

Normative Power of the Actual.” Notre Dame

Law Review 82 (2006): 181–224; Chemerinsky,

Erwin. “Looking Backward, Looking Forward:

The Legacy of Chief Justice Rehnquist and Jus-

tice O’Connor, the Assumption of Federalism.”

San Diego Law Review 58 (2006): 1,763–1,791;

Sullivan, Kathleen M. “From States’ Rights

Blues to Blue States’ Rights: Federalism After

the Rehnquist Court.” Fordham Law Review 75

(2006): 799–813.

—Cleveland Ferguson III

Feiner v. New York 340 U.S. 315 (1951)

The case of Feiner v. New York raises the issue of

the “heckler’s veto,” the ability of an angry crowd

to disrupt an otherwise protected speech. Here,

the Supreme Court ruled that a sidewalk speaker

had crossed the line by inciting the crowd and that

the police were therefore justiﬁ ed in restricting his

speech. This case is signiﬁ cant because the Court

attempts to draw the constitutional line between

free speech and public safety.

On the evening of March 8, 1949, college stu-

dent Irving Feiner delivered a fiery speech on

the sidewalk in a predominately black shopping

area in Syracuse, New York. The purpose of his

speech was to spark interest in an upcoming rally

sponsored by the Young Progressives of America.

A crowd of about 80 people gathered as Feiner

stood on a wooden box shouting through a loud

speaker attached to his car. Among other things,

Feiner shouted: “President Truman is a Bum,”

“Mayor Costello is a champagne-sipping bum; he

does not speak for the Negro people,” and “The

Negroes don’t have equal rights, they should rise

up in arms and ﬁ ght for their rights.” The crowd

began to spill into the streets when two police ofﬁ -

cers arrived. The crowd grew “restless,” and one

bystander shouted to police, “If you don’t get that

son of a bitch off, I will go over and get him off

there myself.” Sensing danger, the ofﬁ cers asked

Feiner to stop speaking. He refused. After ignoring

repeated warnings, Feiner was arrested, charged,

and found guilty of disorderly conduct and sen-

tenced to 30 days in county jail. The conviction

was afﬁ rmed by the New York Court of Appeals,

and Feiner appealed to the U.S. Supreme Court

arguing that police action violated his right to

free speech under the First and Fourteenth

Amendments.

On certiorari, the U.S. Supreme Court upheld

the conviction. Speaking for a six-member majority,

Chief Justice Fred M. Vinson noted that Feiner was

268 Feiner v. New York

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arrested not for the content of his speech but for his

threat to public order and safety. Vinson wrote:

We are well aware that the ordinary murmurings

and objections of a hostile audience cannot be

allowed to silence a speaker, and are also mind-

ful of the possible danger of giving overzealous

police ofﬁ cials complete discretion to break up

otherwise lawful meetings. . . . But we are not

faced here with such a situation. It is one thing to

say that the police cannot be used as an instru-

ment for the suppression of unpopular views, and

yet another to say that, when, as here, the speaker

passes the bounds of argument or persuasion and

undertakes incitement to riot, they are powerless

to prevent a breach of the peace.

Joining Vinson were Justices Stanley Reed,

Felix Frankfurter, Robert Jackson, Harold Bur-

ton, and Tom C. Clark.

In a strong dissent, Justice William O. Doug-

las argued that Feiner was acting within his First

Amendment free speech rights, and the police

officers had an affirmative duty to protect him

from angry onlookers. According to Douglas,

Public assemblies and public speech occupy an

important role in American life. One high func-

tion of the police is to protect these lawful gath-

erings so that the speakers may exercise their

constitutional rights. When unpopular causes are

sponsored from the public platform, there will

commonly be mutterings and unrest and heck-

ling from the crowd. When a speaker mounts a

platform it is not unusual to ﬁ nd him resorting to

exaggeration, to viliﬁ cation of ideas and men, to

the making of false charges. But those extrava-

gances . . . do not justify penalizing the speaker

by depriving him of the platform or by punishing

him for disorderly conduct.

Justices Hugo Black and Sherman Minton

also signed their names to the dissent.

Thus, the demarcation between allowing

unpopular speech and breaking up an assembly

because it may be harmful to public safety appears

fuzzy at best.

For more information: Greenawalt, Kent.

Fighting Words: Individuals, Communities, and

Liberties of Speech. Princeton, N.J.: Princeton

University Press, 1996; Stone, Geoffrey R. Peril-

ous Times: Free Speech in Wartime from the Sedi-

tion Act of 1798 to the War on Terrorism. New

York: W. W. Norton & Co., 2004; Walker, Samuel.

Hate Speech: The History of an American Con-

troversy. Lincoln: University of Nebraska Press,

1994.

—Richard J. Hardy

Ferguson v. Skrupa 372 U.S. 726 (1963)

Ferguson v. Skrupa is notable primarily because,

in a unanimous decision, the U.S. Supreme Court

rejected decisively—if not necessarily defini-

tively—a pre–New Deal due process jurispru-

dence epitomized by the controversial L

OCHNER V.

NEW YORK, 198 U.S. 45 (1905). That jurisprudence,

known as economic substantive due process,

is skeptical of exercises of the police powers

that regulate privately ordered market relations.

Frank C. Skrupa ran a debt-adjusting business

in Kansas. His ﬁ rm violated a Kansas statute that

made “it a misdemeanor for any person to engage

‘in the business of debt adjusting’ except as an inci-

dent to ‘the lawful practice of law in this state.’ ”

The statute deﬁ ned debt adjusting as “making . . .

a contract, express, or implied with a particular

debtor whereby the debtor agrees to pay a cer-

tain amount of money periodically to the person

engaged in the debt adjusting business who shall

for a consideration distribute the same among

certain specified creditors in accordance with a

plan agreed upon.” Acting on Skrupa’s challenge

to the law, a divided three-judge panel of the U.S.

District Court for the District of Kansas enjoined

its enforcement, holding that the regulation vio-

lated the due process clause of the Fourteenth

Amendment. The district court’s reasoning resem-

bled that in Adams v. Tanner, 244 U.S. 590 (1917),

a U.S. Supreme Court decision that distinguished

between “useful” businesses, which states could

not prohibit under the Fourteenth Amendment,

and businesses “inherently immoral or dangerous

to public welfare,” which states could prohibit.

Ferguson v. Skrupa 269

xviii+446_EofUSConsti-v1.indd 269 3/12/09 3:05:02 PM

Speaking through Justice Hugo Black, the

U.S. Supreme Court reafﬁ rmed that it had aban-

doned the Adams analysis and its underlying con-

ception of due process. “There was a time,” Black

wrote, “when the Due Process Clause was used by

this Court to strike down laws which were thought

unreasonable, that is, unwise or incompatible with

some particular economic or social philosophy.”

No longer, Black explained: “We have returned to

the original constitutional proposition that courts

do not substitute their social and economic beliefs

for the judgment of legislative bodies, who are

elected to pass laws.”

Economic substantive due process has been

buried, exhumed, and reburied so many times it

resembles a doctrinal Lazarus. Was it W

EST COAST

HOTEL V. PARRISH, 300 U.S. 379 (1937)—the so-

called Switch in Time That Saved Nine—that

signaled the end of the Lochner era? Or did Wil-

liamson v. Lee Optical of Oklahoma, Inc., 348

U.S. 483 (1955), sound its death knell? Was Fergu-

son the tipping point? Actually, processes of con-

stitutional change being open textured as they are,

no single case can mark the conclusive end, or the

beginning. Justice William O. Douglas’s asser-

tion in Williamson that “[t]he day is gone when

this Court uses the Due Process Clause of the

Fourteenth Amendment to strike down state laws,

regulatory of business and industrial conditions,

because they may be unwise, improvident, or out

of harmony with a particular school of thought,”

may be formally accurate, but it misjudges the

elasticity of doctrine.

For more information: McCloskey, Robert G.

“Economic Due Process and the Supreme Court:

An Exhumation and Reburial.” Supreme Court

Review. (1962): 34–62; McUsic, Molly S. “The

Ghost of Lochner: Modern Takings Doctrine

and Its Impact on Economic Legislation.” Boston

University Law Review 76 (October 1996): 650;

Sanders, Anthony B. “Comment: Exhumation

Through Burial: How Challenging Casket Regula-

tions Helped Unearth Economic Substantive Due

Process in Craigmiles v. Giles.” Minnesota Law

Review 88 (February 2004): 668.

—James C. Foster

Field, Stephen J. (1816–1899) Supreme Court

justice

Stephen J. Field was a U.S. Supreme Court jus-

tice from May 20, 1863, until December 1, 1897.

Known primarily for his steadfast defense of indi-

viduals’ prerogative to control their property free

from government regulation, Field also played a

volatile role in California history. One Califor-

nia episode led to a landmark Supreme Court

decision.

Born in Connecticut on November 4, 1816,

the entrepreneurial Field migrated to California

shortly after gold was discovered there in 1849.

Reestablishing his law practice in Marysville,

Field immediately became immersed in local

politics. Within three days of arriving in Marys-

ville, on January 15, 1850, he was elected alcade

(the Spanish term for chief magistrate). That same

year saw feisty Field cross swords with two local

judges, William Turner and William T. Barbour.

The latter challenged Field (abortively) to a duel.

In 1857, Field was appointed to the new California

Supreme Court as a free-soil, antislavery Demo-

crat. He became chief justice in 1859 following

David S. Terry’s retirement. Field and Terry later

met in a fateful 1889 encounter where Terry was

shot to death by Field’s bodyguard, Federal Mar-

shal David Neagle. Terry had threatened Field’s

life due to a decision adverse to Terry that Field

had rendered in his capacity as a judge on the U.S.

Circuit Court for the Northern District of Califor-

nia. Neagle was arrested and charged with mur-

der under California law. The U.S. Supreme Court

ordered the marshal released in I

N RE NEAGLE, 135

U.S. 1 (1890). (Field did not participate.)

Civil War–era politics led Abraham Lincoln

to appoint Field to the Supreme Court. To dilute

possible judicial opposition to Lincoln’s controver-

sial wartime policies and to give Lincoln another

appointment, Congress had expanded the Court’s

membership to 10 in March 1863. Field joined the

Court at a tumultuous time in American history,

and fear of chaos formed his jurisprudence. The

stormy 1876 presidential election, which had to

be decided by an electoral commission on which

Field served, convinced him that social dissolution

was never a remote prospect and that property—

270 Field, Stephen J.

xviii+446_EofUSConsti-v1.indd 270 3/12/09 3:05:02 PM

held by individuals and protected by a strong

judiciary—was the essential fortiﬁ cation. As the

vehicle for his constitutional defense of property,

Justice Field found fertile ground in the due pro-

cess clause of the Fourteenth Amendment.

In three pivotal dissenting opinions, Field laid

the doctrinal foundations for what conventionally

is termed economic substantive due process.

Economic substantive due process holds that prop-

erty rights intrinsically limit government’s ability

to regulate. In the Slaughterhouse Cases, 16 Wal-

lace 36 (1873), and in M

UNN V. ILLINOIS, 94 U.S.

113 (1877), he chided his colleagues for not draw-

ing a line between regulation and conﬁ scation. In

the Legal Tender Cases, 12 Wallace 457 (1870),

Field opined: “The legislature . . . cannot change

innocence into guilt, or punish innocence as a

crime, or violate the rights of an antecedent lawful

private contract, or the right of private property.”

Field’s dissenting view of due process became the

majority position six years after his 1899 death in

OCHNER V. NEW YORK, 198 U.S. 45 (1905).

For more information: Bergen, Philip, J., Owen

M. Fiss, and Charles W. McCurdy. The Fields and

the Law: Essays. New York: Federal Bar Council,

1986; Kens, Paul. Justice Stephen Field: Shap-

ing Liberty from the Gold Rush to the Gilded

Age. Lawrence: University Press of Kansas, 1997;

Tocklin, Adrian, M. “Pennoyer v. Neff: The Hid-

den Agenda of Stephen J. Field.” Seton Hall Law

Review 28 (1997): 75.

—James C. Foster

Fifteenth Amendment (1870)

The Fifteenth Amendment, added to the Consti-

tution in 1870, prohibited discrimination against

voters on the basis of race or previous condition

of servitude. It was intended to ensure that black

men were able to vote in federal and state elections

(women were not guaranteed the vote until pas-

sage of the Nineteenth Amendment in 1920.)

Despite the amendment’s clear language, how-

ever, many states successfully prevented black citi-

zens from voting for nearly another century. The

Fifteenth Amendment was not fully implemented

until Congress passed the Voting Rights Act

of 1965.

The Fifteenth Amendment was enacted for two

main reasons. Southern states had been required

to extend the vote to black men as a condition of

reentry into the Union after the Civil War, but 16

of the Northern states continued to limit voting

to white men. Some members of Congress sup-

ported the Fifteenth Amendment to address this

problem. Others had more partisan motives. They

believed that the Fifteenth Amendment would

help Republicans keep control over Congress and

many state legislatures, because black citizens

strongly favored the Republican Party, viewing it

as the party of abolition.

African Americans flocked to the polls once

they were given the ballot. During Reconstruc-

tion (1865–76), hundreds of thousands registered

to vote. More than 1,500 black men were elected

to political ofﬁ ce in the former Confederate states.

But many whites ﬁ ercely opposed the Fifteenth

Amendment. The Ku Klux Klan, the Knights of

the White Camillia, and others waged a war of

intimidation, beating and even killing blacks who

tried to vote. When Democrats regained control

of Southern legislatures at the end of Reconstruc-

tion, they began passing laws that were technically

color blind but clearly designed to keep blacks

from voting. Such laws included poll taxes, liter-

acy tests, requirements that all voters show vouch-

ers proving their “good character,” and property

ownership qualiﬁ cations. Other laws made it very

complicated to even register to vote. Because

such laws also threatened to prevent many whites

from voting, many states also enacted grandfather

clauses, which waived the voting restrictions for

any man whose grandfather had been entitled to

vote; a requirement black men obviously could not

meet. Southern states were able to do this because

under the U.S. Constitution, states are free to

determine what qualiﬁ cations citizens need to be

eligible to vote. (Many Northern states also had

voter qualiﬁ cation laws, but these laws were rarely

passed speciﬁ cally to keep blacks from voting.)

The combination of new laws and voter intimi-

dation effectively stripped blacks of their right

to vote, despite the Fifteenth Amendment.

Fifteenth Amendment 271

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