Schultz D. Encyclopedia of the United States Constitution

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clause posed a threat to the free exercise of chil-

dren wanting morning devotionals.

The Schempp ruling met with substantial pub-

lic criticism. Some school districts stubbornly

continued religious exercises, and others started

them. Yet, many religious leaders endorsed the

Court’s position.

For more information: Alley, Robert S. Without

a Prayer: Religious Expression in Public Schools.

Amherst, N.Y.: Prometheus Books, 1996; Ivers,

Gregg. Redeﬁ ning the First Freedom. New Bruns-

wick, N.J.: Transaction Publishers, 1993; Morgan,

Richard E. The Supreme Court and Religion.

New York: Free Press, 1972.

—Jane G. Rainey

abortion

Abortion, a procedure used to remove an embryo

or fetus from its mother’s womb, is a hotly con-

tested political issue. In addition, abortion and its

regulation implicates numerous legal questions,

most particularly, whether the Constitution pro-

tects a woman’s decision to terminate a pregnancy

and the rules the government may place on a

woman who makes this choice.

Throughout much of the 19th century, the

United States placed no national legal restrictions

on obtaining an abortion in the ﬁ rst few months

of pregnancy. Not until the 1830s did state gov-

ernments begin to enact bans on abortion after

quickening (the first notice of fetal movement

during a pregnancy). In the Civil War era, the

American Medical Association (AMA) lobbied

and persuaded most state governments to outlaw

abortions, based on fears that abortions were not

being performed safely. In 1873, Congress passed

the Comstock Act, which banned any mail or

mail advertisements about objects used for abor-

tion or contraceptive purposes as well as drugs or

medicines.

Throughout the ﬁ rst half of the 20th century,

little attention was devoted to abortion politics;

however, in the mid-1960s, in response to back-

alley deaths and unsanitary, illegal abortion pro-

cedures, pro-choice groups began to push for

abortion law reform. In response, many states

started allowing therapeutic and elective abor-

tion procedures. These early reformers argued for

abortion reforms on health grounds such as saving

the life or preserving the mental or physical health

of the mother. However, the political discourse on

abortion was headed for a dramatic change with

the ﬁ ling of R

OE V. WADE.

One of the most controversial cases of the

20th century, Roe v. Wade, 410 U.S. 113 (1973),

involved the constitutionality of the 1857 Texas

statute that banned abortion except to save the

mother’s life. The U.S. Supreme Court declared

the Texas law unconstitutional, claiming that state

laws outlawing or restricting access to abortion

violated a constitutional right to privacy. Jus-

tice Harry Blackmun, writing for the majority,

devised a trimester formula to balance a wom-

an’s right to end her pregnancy and a valid state

interest in protecting potential human life. In the

ﬁ rst trimester (ﬁ rst three months) of pregnancy,

the abortion decision is left to the medical judg-

ment of the woman and her assisting physician. In

the second trimester, the state may regulate the

abortion procedure in the interest of the mother’s

health. During the third trimester, the state may

regulate or even prohibit abortions to protect the

life of a fetus, and late-term abortions would be

allowed only when necessary to protect the life or

health of the mother.

With this sweeping decision, the Supreme

Court renewed the abortion debate. Now, every

year on January 22, the anniversary of the Roe

decision, antiabortion proponents protest on the

U.S. Capitol steps by calling for the protection

of the lives of the unborn, and pro-choice advo-

cates make speeches about maintaining the right

to reproductive freedom for women. Since Roe,

abortion politics has become more polarized

and contentious than ever. In a 2006 CNN–USA

Today–Gallup poll, about half of Americans

labeled themselves “pro-choice,” while 42 per-

cent called themselves “pro-life.” Almost 60 per-

cent of Americans favor keeping abortion legal by

supporting the laws as they currently stand or by

making access to abortions less cumbersome. A

large majority of Americans favor keeping abor-

2 abortion

xviii+446_EofUSConsti-v1.indd 2 3/12/09 3:03:35 PM

tion legal if necessary to preserve the mother’s

life, when the mother’s mental health is threat-

ened, or when the pregnancy occurred due to

rape or incest. Support drops off when women

seek elective abortions for reasons such as ﬁ nan-

cial hardship or a genetic defect of the fetus. An

extraordinary majority of Americans support leg-

islation to ban the controversial “partial-birth”

late-term abortion procedure unless the proce-

dure is necessary to save the mother’s life. Despite

the controversy over abortion since the Roe rul-

ing, most Americans oppose efforts to overturn

the decision and return to the pre-Roe era.

Since Roe, the U.S. Supreme Court has been

embroiled in numerous abortion disputes about

when and under what circumstances a woman

may obtain an abortion. One major challenge to

Roe came in P

LANNED PARENTHOOD V. CASEY, 505

U.S. 833 (1992). In Casey, the state of Pennsylva-

nia enacted a series of abortion restrictions requir-

ing parental consent, informed consent, a 24-hour

waiting period, and spousal notiﬁ cation prior to

obtaining an abortion. Antiabortion advocates

hoped that this case would result in the overturn

of Roe. Although the Court did not overturn Roe,

it abandoned the trimester formula by holding

that any abortion restriction that placed an undue

burden on a woman’s right to an abortion would

be struck down. An undue burden was deﬁ ned as

one which put a substantial obstacle in a woman’s

path who sought to have an abortion of a nonviable

fetus. Of Pennsylvania’s abortion restrictions, only

the spousal notiﬁ cation requirement was struck

down as unconstitutional under the undue bur-

den standard.

Many states, heartened by the Casey ruling,

developed laws regulating and limiting access to

abortion, such as requiring that an abortion be

On the anniversary of Roe v. Wade, thousands of antiabortion protesters gather outside the White House

before the start of a rally in Washington, D.C.

(Jamal Wilson/Getty)

abortion 3

xviii+446_EofUSConsti-v1.indd 3 3/12/09 3:03:35 PM

performed by a licensed physician or in hospitals,

prohibiting partial-birth abortions and abortions

when the fetuses are viable except when necessary

to protect a woman’s life, disallowing use of pub-

lic funds to provide abortions, allowing individual

health-care providers to refuse to insure or per-

form abortion procedures, mandating counseling

for women considering an abortion, mandating

waiting periods for women who seek an abortion,

and requiring some kind of parental involvement

in a minor’s decision to get an abortion. Most of

these state restrictions have passed constitutional

muster, except for the bans on partial-birth or

late-term abortion.

In Stenberg v. Carhart, 530 U.S. 914 (2000),

the U.S. Supreme Court examined a Nebraska

law that criminalized partial-birth abortions. The

term, partial-birth abortion, generally refers to

the dilation and extraction (D & X) procedure

in which a physician pulls all of the fetus’s body

except the head from the uterus and into the vagi-

nal canal. The fetus is then killed by extracting the

contents of the skull, and ﬁ nally the entire fetus is

delivered. The Court held that the Nebraska law

was unconstitutional because it placed an undue

burden on a woman’s right to choose, it did not

provide for allowing the D & X procedure if the

woman’s life or health were at stake, and it was

too broad, possibly encompassing other abortion

procedures aside from the D & X. In February

2006, the Court indicated a willingness to revisit

this issue by reviewing a case in which a lower fed-

eral court blocked the enforcement of the Partial-

Birth Abortion Ban Act. Yet, in a closely divided

5-4 opinion, the Court, in G

ONZALEZ, ATTORNEY

GENERAL V. CARHART, 550 U.S. ___ (2007), reversed

the lower court and upheld the law. This decision

was the ﬁ rst one ever to uphold the banning of a

speciﬁ c abortion procedure.

Since the turn of the 21st century, both Con-

gress and the president have shared antiabortion

tendencies and have used their legislative and

executive powers to restrict access to abortion.

In 2001, President George W. Bush reinstated

the global gag rule, stopping 430 organizations in

50 countries from performing or speaking about

abortion if they wish to qualify for U.S. foreign

aid. In 2003, he signed the Partial-Birth Abortion

Ban Act, the ﬁ rst federal ban on abortion since

Roe v. Wade was decided. Bush supported and

signed into law the Unborn Victims of Violence

Act in early 2004, which recognizes the embryo’s

rights as a person, separate and apart from the

mother. This law makes it a federal crime to harm

an embryo or fetus. Later in 2004, Congress

enacted and the president signed legislation that

allows health-care companies to deny insurance

coverage to women who seek abortion services.

In 2005, the House of Representatives passed the

Child Interstate Abortion Notiﬁ cation Act, which

makes it a crime for any relative or counselor other

than the parents to accompany a minor across

state lines to obtain an abortion. Bush indicated

his support for this should it pass in the Senate. In

addition, President Bush nominated and the Sen-

ate conﬁ rmed two new Supreme Court justices

on the bench—Chief Justice John G. Roberts,

Jr., and Justice Samuel Alito—who have dem-

onstrated hostility toward Roe v. Wade in their

writings.

In Gonzales, Attorney General v. Carhart, the

Supreme Court upheld the Partial-Birth Abortion

Ban Act in a 5-4 decision, with Justice Anthony

M. Kennedy writing the majority opinion. This

was the ﬁ rst abortion procedure ban the Supreme

Court had upheld since it decided Roe.

Antiabortion and pro-choice groups remain

on high alert. Since the 1973 Roe ruling, all nine

of the original Roe justices have died or retired.

Thus, the abortion question is far from settled,

and Roe v. Wade could be signiﬁ cantly modiﬁ ed or

even overruled. The abortion controversy divides

people into seemingly irreconcilable camps of

those who sponsor family values and the rights of

the unborn versus those who champion women’s

individual rights and choice. Because the abortion

issue has been framed as a “rights” issue rather

than a matter of public health, common ground

and compromise in the political arena have been

almost impossible to attain.

For more information: Burns, Gene. The Moral

Veto: Framing Contraception, Abortion, and Cul-

tural Pluralism in the United States. New York:

4 abortion

xviii+446_EofUSConsti-v1.indd 4 3/12/09 3:03:36 PM

Cambridge University Press, 2005; Herring, Mark

Y. The Pro-Life/Choice Debate. Westport, Conn.:

Greenwood Press, 2003; Hull, N. E. H., William

James Hoffer, and Peter Charles Hoffer, eds. The

Abortion Rights Controversy in America: A Legal

Reader. Chapel Hill and London: University of

North Carolina Press, 2004; Jost, Kenneth. “Abor-

tion Debates.” CQ Researcher 13 (2003): 249–272;

Nossif, Rosemary. Before Roe: Abortion Policy in

the States. Philadelphia: Temple University Press,

2001; Smith, T. Alexander, and Raymond Tatalov-

ich. Cultures at War: Moral Conﬂ icts in Western

Democracies. Peterborough, Canada: Broadview

Press, 2003; Strickland, Ruth Ann. “Abortion:

Pro-Choice versus Pro-Life.” In Moral Contro-

versies in American Politics, 3d ed., edited by

Byron W. Danes and Raymond Tatalovich, 3–35.

Armonk, N.Y.: M. E. Sharpe, 2005.

—Ruth Ann Strickland

abstention doctrine

Abstention denotes a collection of judicially cre-

ated rules under which a federal court that has

jurisdiction over a case will decline to exercise its

jurisdiction out of deference to ongoing or antici-

pated proceedings in state court. This doctrine is

supposedly rooted in the constitutional concept of

federalism, which requires the federal courts to

respect litigation already occurring in state legal

proceedings.

Abstention represents an exception to normal

principles of judicial administration. The usual

practice is that parties may ﬁ le overlapping law-

suits in both the state and federal courts. Each

court can proceed with its case rather than stay-

ing its hand in favor of the other, at least until one

of the cases concludes. (Once one case concludes,

doctrines of preclusion may require the second

court to honor the ﬁ rst judgment rather than reex-

amining the same issues.) Abstention is accord-

ingly reserved for special circumstances. Several

distinct varieties of abstention have developed and

merit discussion.

One doctrine, named Pullman abstention,

requires federal courts to refrain from deciding

difficult or controversial federal constitutional

questions when the constitutional ruling could be

rendered unnecessary by future state proceed-

ings. The doctrine takes its name from Railroad

Commission of Texas v. Pullman Co., 312 U.S.

496 (1941), which involved a challenge to a state

regulation that required trains with sleeping cars

to be staffed by white employees instead of only

black employees. The railroad and some black

employees sued in federal court, contending that

the regulation both exceeded the state agency’s

authority as a matter of state law and violated the

U.S. Constitution.

The Supreme Court determined that the fed-

eral district court should abstain from deciding

the case so that the unsettled state law question

could ﬁ rst be litigated in the state courts. If the

state court decided that the agency had exceeded

its authority, then it would be unnecessary for

the federal court to decide the constitutional

questions. The Supreme Court believed this rule

would serve the goal of avoiding rulings on dif-

ficult and divisive constitutional questions and

would reduce friction between state and federal

courts. One disadvantage, of course, is that the

plaintiffs might have to go through two lawsuits to

get relief. Pullman abstention has become increas-

ingly rare in recent decades, as many states have

established procedures allowing federal courts to

“certify” questions to state courts (that is, send a

formal request for an opinion on a matter of state

law), thus eliminating the need for a separate law-

suit in state court.

Other abstention precedents require federal

courts to abstain in favor of pending state proceed-

ings when the federal case would interfere with a

complex state administrative scheme or involves

unsettled and especially sensitive questions of

state law. Unlike the case of Pullman abstention,

in these circumstances abstention is not motivated

by a desire to avoid a federal constitutional rul-

ing but is rather more directly concerned with

respecting state interests. Like Pullman absten-

tion, these types of abstention are rare.

A more consequential abstention doctrine is

Younger abstention, which takes its name from

Younger v. Harris, 401 U.S. 37 (1971). The Younger

doctrine generally forbids federal courts from

abstention doctrine 5

xviii+446_EofUSConsti-v1.indd 5 3/12/09 3:03:36 PM

interfering with a pending state court prosecution.

Thus, a criminal defendant with a potential federal

defense must present it to the state court rather

than ﬁ ling a separate federal case trying to stop

the prosecution. (It should be noted that a fed-

eral statute, the Anti-Injunction Act, also restricts

the federal courts’ authority to halt state lawsuits;

the judicially created Younger doctrine applies

even when the statute does not.) Younger absten-

tion reﬂ ects notions of respect for state courts as

well as the thought that an extraordinary remedy

such as an anti-suit injunction should not be

granted when the federal defense can be heard in

the due course of the state criminal proceedings.

Later cases have applied Younger abstention prin-

ciples to certain civil cases that resemble criminal

proceedings.

The various abstention doctrines are controver-

sial because Congress deﬁ nes the jurisdiction of

the federal courts by statute (within the bounds

set out by the Constitution). Therefore, just as it

would be improper for a court to expand its own

jurisdiction by hearing cases that it is not empow-

ered to hear, some argue that it is equally improper

for a court to refuse to act when it has been given

jurisdiction.

For more information: Chemerinsky, Erwin.

Chapters 12–14 in Federal Jurisdiction. 4th

ed. New York: Aspen, 2003; Redish, Martin H.

“Abstention, separation of powers, and the lim-

its of the judicial function.” Yale Law Journal 94

(1984): 71–115.

—Aaron-Andrew P. Bruhl

accommodation

Accommodation in the parlance of modern juris-

prudence is the interpretation of the U.S. Consti-

tution’s religion clauses in deference to traditional

views of religious liberty. This involves conces-

sions for limited nonpreferential governmental

assistance of religion. Court allowances for neu-

trally based encouragement of religion reflect

an enduring American tradition of facilitating

religious expression while separating church and

state.

The First Amendment declares: “Congress

shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof

. . .” The U.S. Supreme Court understood these

clauses at face value for decades. In its ﬁ rst case

involving the free exercise clause—Permoli v.

First Municipality of New Orleans, 44 U.S. (3

How.) 589 (1845)—the Court declared that the

Constitution “makes no provision for protecting

the citizens of the respective states in their reli-

gious liberties; that is left to the state constitutions

and laws. . . .”

Permoli continued to be the Court’s lens for

viewing the First Amendment’s religion clauses

until a litigious environment concerning religious

practices was well under way in the 1940s. World

Wars I and II elevated issues pertaining to reli-

gious oaths, religiosity in flag salutes, and reli-

giously based draft exemptions. Industrialization

and the nationalization of commerce pushed soci-

ety to deﬁ ne the nature of employers’ and work-

ers’ rights in matters pertaining to Sunday closing

laws, employment beneﬁ ts, and religious obser-

vances. The expansion of publicly funded educa-

tion raised questions about state aid to parochial

schools, released time from school for religious

studies, school prayer, and compulsory educa-

tion—each of these matters putting government

and religion on overlapping territory. Likewise,

government initiatives in medicine produced

controversy about vaccinations, blood transfu-

sions, and life-saving measures. Finally, ethnically

diverse immigration produced urbanization pat-

terns that heightened controversies over religious

solicitation, religious displays in public places, and

coercive religious expression in government-spon-

sored public forums.

The expansion of religiously fueled con-

flicts made the situation ripe for federal court

intervention, especially in instances where the

coercive powers of state governments were effec-

tively advantaging some sects at the expense of

others. Consequently, the U.S. Supreme Court

found pragmatic value in adjusting its longstand-

ing jurisprudence, finding cause to incorporate

the due process clause of the Fourteenth

Amendment against the religion clauses of the

6 accommodation

xviii+446_EofUSConsti-v1.indd 6 3/12/09 3:03:36 PM

First Amendment. Initially, this jurisprudential

adjustment was not viewed as hostile to religion

since the Court was in the process of applying the

due process clause to other parts of the Bill of

Rights, an endeavor highlighted by Justice Benja-

min N. Cardozo in P

ALKO V. STATE OF CONNECTICUT,

302 U.S. 319 (1937). The purpose of the Court’s

adjustment was to make the religion clauses bind-

ing upon state and local governments as well as

the federal government. As a consequence, reli-

gion began losing its place of policy privilege in

the states; however, the trend stabilized in the

1980s and has since readjusted slightly toward

accommodation.

Accommodationists generally seek to prevent

the secular state from encroaching on the place

of religion in the public square. They argue that

courts ought to give equal treatment or even pref-

erential treatment to religious free exercise and

expression in circumstances where religious rights

clash with other private rights. Many accommo-

dationists—legal scholars, political scientists, and

government officials—believe that the modern

state threatens the church more than the church

threatens the state; hence, where roles overlap,

they believe religion ought to be shown deference

on a nonpreferential basis except in instances

where state interests have compelling value. Tra-

ditional accommodationists recognize that purely

theoretical arguments can put the interests of

atypical religions on equal footing with tradi-

tional Western religions; as a result, some of these

accommodationists elevate the historic role of

culturally embedded religion (de facto religion) in

America, creating, in essence, a bias or preference

for Christianity.

The ideal of separationism exists in contrast to

notions of accommodation. Separationists aspire

not only to separate the affairs of church and state

but to prevent public religion from impinging on

freedom of choice and a wide range of possibili-

ties for private conduct. Separationists, while not

monolithic in their philosophy, tend to believe that

the autonomy of the individual is of overriding

importance in establishing the relative priority of

competing rights. Freedom of the individual usu-

ally therefore trumps preferences or claims of reli-

gious community—a libertarian ideal. However,

separationists tend to afﬁ rm the rights of nontra-

ditional religious communities against the estab-

lishment power of Western traditional religions,

demonstrating that an afﬁ nity for separation can

be strategic as well as philosophical. Strict sepa-

rationists claim both theoretical and empirical

support for state-constructed barriers between

religion and the state.

Interestingly, separationism sometimes accom-

modates traditional religious practices, especially

where state government compels religionists to

compromise their traditional religious practices.

This accommodationist form of separationism

is evident in some Supreme Court decisions,

most visibly in W

ISCONSIN V. YODER, 406 U.S. 205

(1972).

It is difficult to construct a constitutionally

viable and politically feasible jurisprudence of

pure accommodation or deﬁ nitive separation. The

Court’s landmark rulings as well as pedestrian

decisions have bounced between the two poles,

reﬂ ecting the change of personnel on the Court,

the idiosyncrasies of the selected cases, political

pressures, and the emergence of new interpre-

tive tools. Overall, the trend has been for the high

court to hybridize accommodation and separation,

producing a middle way that ﬁ ts most Americans.

Some scholars assert that if there is a Jefferso-

nian wall of separation it has become a serpentine

wall of varied height, well riddled with breeches

and constructed from assorted materials. From

all appearances, the Court has rationalized a set

of principles that regards the vulnerabilities, tra-

ditions, relative power, and fashionableness of

competing claims. Such assessments are hardly

derogatory to the work of the Court, the obser-

vations admitting the enormous challenges that

accompany the nationalization of religious, pri-

vate, corporate, and governmental rights.

Supreme Court cases that ﬁ gure prominently

in accommodation jurisprudence would include

Cantwell v. Connecticut, 310 U.S. 296 (1940),

and E

VERSON V. BOARD OF EDUCATION, 330 U.S. 1

(1947): The former case nationalized free exercise

at the expense of the states, and the latter accom-

plished the same for disestablishment. Zorach v.

accommodation 7

xviii+446_EofUSConsti-v1.indd 7 3/12/09 3:03:37 PM

Clauson, 343 U.S. 306 (1952), is viewed as one of

the earliest Supreme Court decisions articulating

a principle of accommodation; in this instance, the

accommodation of a narrowly constructed school

released-time program for religious studies. It was

in this case that Justice William O. Douglas

constructed a conceptual divide between permis-

sible and impermissible accommodation, stating

that Americans are “a religious people” for whom

the accommodation of religion “follows the best of

our traditions.”

Sherbert v. Verner, 374 U.S. 398 (1963), is

important because it stood for three decades as

the central precedent in free exercise law. Sher-

bert was a separationist decision with elements

of accommodation, since it held that government

must show a compelling interest in any law or gov-

ernmental practice that puts a burden on religious

exercise. Widmar v. Vincent, 454 U.S. 263 (1981),

is noteworthy because it put the accommodation

of religious speech on the same footing as the pro-

tection of secular speech.

MPLOYMENT DIVISION V. SMITH, 494 U.S. 872

(1990), is widely viewed as a landmark case and

one founded on a tactical change by the Court

in its religion clause jurisprudence. In Smith,

federalism is substituted for exemptions when

generally applicable laws are neutral toward reli-

gion. This approach reduces the burden on gov-

ernment to show a compelling state interest when

its actions touch religious practice. The effect of

this jurisprudence is to place greater responsibil-

ity on state legislatures and less burden on courts

in working out conﬂ icts that involve religious free

exercise.

Since Smith, other Court decisions such as

ITY OF BOERNE V. FLORES, 521 U.S. 507 (1997),

have upheld the Smith logic, notwithstanding the

efforts of the U.S. Congress in the early 1990s to

resurrect a pre-Smith approach to accommoda-

tion by means of the now largely unconstitutional

Religious Freedom Restoration Act (1993).

While the long-term future of accommodation

will reﬂ ect the evolution of American culture, the

near-term prospects for accommodation are favor-

able. This is owed to the ideologically conserva-

tive disposition of the emerging Court majority

and the tendency of America to place religion in

its abiding self-image.

For more information: Finkleman, Paul, ed.

Religion and American Law: An Encyclope-

dia. New York: Garland Publishing, 2000; Perry,

Michael J. Under God? Religious Faith and Lib-

eral Democracy. New York: Cambridge University

Press, 2003.

—Timothy J. Barnett

Adams, John (1735–1826) ﬁ rst U.S. vice

president, second U.S. president

John Adams was the second president of the

United States and was one of the Founding Fathers

and Revolutionary War heroes who had an enor-

mous inﬂ uence upon the Constitution, especially

in his 1776 booklet Thoughts on Government and

his 1787 book A Defence of the Constitutions of

Government of the United States.

Adams was a blunt-speaking politician and bril-

liant political philosopher who rose to become the

second president of the United States of America,

and his impact on the formation of the country

was as profound as Thomas Jefferson’s, George

Washington’s, and James Madison’s. Adams was

born to a Massachusetts Bay family in 1735 and

obtained a law degree from Harvard. He served

nobly at the First (1774) and Second (1777) Con-

tinental Congresses as a delegate from Massachu-

setts while furthering his career as international

statesman while representing the emerging

democracy abroad.

The Revolutionary War had earlier taken him

overseas, during which time he mastered the for-

eign service both in Holland and then in France.

Through his leadership and efforts, he forged a

peace treaty with Britain and then returned

home from his post at the English court of St.

James’s. When Washington was elected president

in 1788, he was by his side as the duly elected vice

president for the ﬁ rst term. His ego drove him

to restlessness, and his lust for action and creation

in contrast to the boredoms of his double-termed

vice presidency shine through in several of his

personal writings of the period.

8 Adams, John

xviii+446_EofUSConsti-v1.indd 8 3/12/09 3:03:37 PM

Adams rose to the presidency in 1797, and Jef-

ferson, who lost the popular election by three elec-

toral votes to Adams, became the vice president.

Adams served with Alexander Hamilton in

his corner and Jefferson in the other through the

turbulent times of the war between France and

Britain that challenged both American trade and

loyalties. The difﬁ culties of the relationship with

France became evident politically when the coun-

try suspended trade relations with the United

States and refused to receive the American dip-

lomatic corps. Adams seized the opportunity and

used the French alienation to high degree when he

exposed the French request for what amounted to

a bribe in order to begin commercial negotiations.

As a spokesman for his party, he stood the test

of scrutiny, gaining a fervent group of followers,

which allowed him unparalleled political success

within the Congress and the emerging democ-

racy, as well as voracious challengers from the

Republican Party. Adams successfully obtained

powers to create a provisional army, build war-

ships (with the power to add more), impose taxes,

and even get the foreigner unfriendly Alien and

Sedition Acts passed.

Adams’s contributions to the Constitution are

varied. His Thoughts on Government is consid-

ered a classic of American political thought. In it,

he defends a mixed theory of government that calls

for several distinct national institutions to form the

basis of a national government. Many attribute the

eventual development of the bicameral legis-

lature and separation of powers idea to Adams.

A Defence of the Constitutions of Government of

the United States criticized the weakness of state

governments and paralleled Madison’s call for a

stronger national government. Adams’s support for

the Alien and Sedition Acts facilitated the devel-

opment of free speech and First Amendment

ideas. The acts prompted Madison and Jefferson

to write the Virginia and Kentucky Resolutions in

opposition, laying the groundwork for those who

viewed these acts as unconstitutional violations of

free speech.

For more information: McCullough, David.

John Adams. New York: Simon & Schuster, 2001;

Ryerson, Richard Alan, ed. John Adams and the

Founding of the Republic. Boston: Massachusetts

Historical Society, 2001.

—Ernest Gomez

Adarand Constructors, Inc. v. Peña 515

U.S. 200

(1995)

In Adarand Constructors, Inc. v. Peña, the

Supreme Court ruled on the issue of the proper

level of scrutiny for analyzing governmentally

imposed racial classiﬁ cations, including remedial

measures such as affirmative action. In a 5-4

plurality opinion, Justice Sandra Day O’Connor

wrote that all racial classiﬁ cations imposed by any

federal, state, or local governmental actor must be

analyzed by the reviewing court under a strict

scrutiny standard.

Adarand Constructors, Inc., was the low bidder

on the guardrail portion of a highway construction

project that a division of the U.S. Department of

Transportation had awarded to prime contractor

Mountain Gravel & Construction Company. How-

ever, because the prime contract’s terms provided

that Mountain Gravel would receive additional

compensation if it hired subcontractors certi-

fied as small businesses controlled by “socially

and economically disadvantaged individuals,”

Adarand lost the subcontract to Gonzales Con-

struction Company. Federal law required that a

comparable subcontracting clause be included in

most federal agency contracts, and the clause had

to state that “[t]he contractor shall presume that

socially and economically disadvantaged individu-

als include Black Americans, Hispanic Americans,

Native Americans, Asian Paciﬁ c Americans, and

other minorities. . . .” Adarand claimed that this

presumption discriminated on the basis of race

in violation of the Fifth Amendment. Both the

district court and the Tenth Circuit upheld the

contract provision as constitutional, the court of

appeals holding that the Supreme Court’s deci-

sion in F

ULLILOVE V. KLUTZNICK (1980), further

developed in M

ETRO BROADCASTING, INC. V. FCC

(1990), established “a lenient standard, resembling

intermediate scrutiny” for evaluating federal race-

based action.

Adarand Constructors, Inc. v. Peña 9

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However, the Court plurality now repudiated

Fullilove and Metro Broadcasting to the extent

that they differentiated between federal and state

racial classiﬁ cations. Noting that the Court had

already held in C

ITY OF RICHMOND V. J. A. CROSON

O. (1989) that the Fourteenth Amendment

requires strict scrutiny of all race-conscious action

by state and local governments, Justice O’Connor

wrote that three general principles compel a simi-

lar outcome for federally imposed classiﬁ cations:

1) skepticism, based on the concept that “any

preference based on racial or ethnic criteria must

necessarily receive a most searching scrutiny”; 2)

consistency, which requires that the standard of

equal protection review should not depend

“on the race of those burdened or beneﬁ ted by a

particular classiﬁ cation”; and 3) congruence, which

dictates that Fifth Amendment equal protection

analysis should mirror that under the Fourteenth

Amendment.

In so holding, the Court finally resolved an

issue in contention since the plurality decision

in R

EGENTS OF THE UNIVERSITY OF CALIFORNIA V.

AKKE (1978), namely, the proper level of analy-

sis for remedial race-based governmental action.

Regardless of whether imposed by the federal or

a state or local governmental actor, any racial clas-

siﬁ cation, whether arguably benign or not, must

be narrowly tailored to serve a compelling gov-

ernmental interest.

Not surprisingly, in light of the fact that the

Court had been unable for almost two decades

to reach a consensus on the appropriate level of

analysis for racial distinctions made for remedial

purposes, the concurring and dissenting opinions

in Adarand were highly charged. Justice Anto-

nin Gregory Scalia opined in his concurrence

(contradicting Justice O’Connor’s claim that strict

scrutiny was not necessarily “strict in theory, but

fatal in fact”) that governments could “never have

a ‘compelling interest’ in discriminating on the

basis of race in order to ‘make up’ for past racial

discrimination in the opposite direction. Justice

Clarence Thomas in his concurrence went even

further and claimed that there was a constitutional

and moral equivalence between “laws designed to

subjugate a race and those that distribute beneﬁ ts

on the basis of race in order to foster some cur-

rent notion of equality.” Justice John Paul Ste-

vens, joined in his dissent by Justice Ruth Bader

Ginsburg, offered a particularly stinging rebuke,

asserting that while one might reasonably dispute

the efﬁ cacy of afﬁ rmative action programs, “[i]t

is another thing altogether to equate the many

well-meaning and intelligent lawmakers and their

constituents—whether members of majority or

minority races—who have supported affirma-

tive action over the years, to segregationists and

bigots.”

Ultimately, it appears for the most part that Jus-

tice O’Connor’s, not Justice Scalia’s viewpoint, has

prevailed. At least some lower courts have found

that some governmental programs, primarily fed-

eral, have met the strict scrutiny test by showing

the existence of private-sector discrimination that

a congressional afﬁ rmative action provision was

intended to address. However, although strict

scrutiny may not always be “fatal in fact,” there

can be no denying that setting the constitutional

bar at the highest level has had a profound impact

on the once ambitious afﬁ rmative action programs

of local, state, and federal governments.

For more information: Spann, Girardeau A. The

Law of Afﬁ rmative Action: Twenty-Five Years of

Supreme Court Decisions on Race and Remedies.

New York: New York University Press, 2000.

—Virginia Mellema

Adderley et al. v. Florida 385 U.S. 39 (1966)

In Adderley v. Florida, the Supreme Court upheld

the conviction of the defendants on a charge of

trespassing at the county jail. In a 5-4 decision,

the Court ruled that the Florida trespass statute

was not void on the grounds of vagueness, an

infringement on the Civil Rights Act of 1964,

or a denial of due process, and that the convic-

tions did not unconstitutionally deprive the defen-

dants of their rights to freedom of speech, press,

assembly, or petition.

Harriet Adderley and 31 other students at

Florida A & M University left the school and pro-

ceeded to the jail to protest the arrest of other

10 Adderley et al. v. Florida

xviii+446_EofUSConsti-v1.indd 10 3/12/09 3:03:38 PM

Florida A & M students demonstrating against

racial segregation, including at the county jail in

Tallahassee. The students gathered on a nonpublic

jail driveway and the adjacent county jail property

and demonstrated against the arrest of their class-

mates by singing, clapping, and dancing. The sher-

iff advised the students that they were trespassing

and would have to leave or be arrested; those stu-

dents who did not leave were arrested and charged

with “trespass with a malicious and mischievous

intent.” The students were tried and convicted by

a jury in Leon County, Florida, and the convic-

tions were afﬁ rmed by the Florida circuit court

and the Florida district court of appeals. The case

was then appealed and granted certiorari by the

U.S. Supreme Court.

Justice Hugo Black, writing for the ﬁ ve-per-

son majority, found that the conviction should be

upheld because the students gathered at a facil-

ity that has a primary public function of security

and the public protest at the jail compromised that

essential function. The students argued that their

case was similar to Edwards v. South Carolina, a

case in which a number of students were arrested

after a protest at the South Carolina State House,

yet the court had found the function of the jail to

be a mitigating factor in this circumstance. The

Court also found in Adderley that no services or

accommodations were being denied by the actions

of the sheriff, thus the complaint of violation of the

Civil Rights Act of 1964 did not apply. The Court

ruled that the actual charges did not signal a clear

violation of due process and that the restriction

on assembly hereby ordered did not infringe upon

the speech, press, petition, or assembly rights of

the students.

The importance of this case emanates from

the legitimate restrictions that can be placed on

the freedom to assemble in order to protect the

public good. In this case, the Court found reasons

to place limits on the protest in order to protect

the larger public good of security for the com-

munity. The guidelines for granting a permit for

picketing and parading are spelled out as follows:

1) The permit must be reasonable, 2) it must be

precisely drawn (including the time, date, and

location of the march), and 3) it must be applied

fairly. These guidelines help to balance the right

to assemble with the broader concern of a peace-

ful community.

For more information: Emerson, Thomas. The

System of Freedom of Expression. New York: Ran-

dom House, 1971; Stone, Geoffrey. “Fora Ameri-

cana: Speech in Public Places.” Supreme Court

Review 233 (1974): 233–279.

—Kevin Anderson

Adkins v. Children’s Hospital 261 U.S. 525

(1923)

In Adkins v. Children’s Hospital, the Supreme

Court struck down a federal statute ﬁ xing mini-

mum wages for women and children employed

within the District of Columbia. The Court

ruled Congress had violated the Fifth Amend-

ment by interfering with a “liberty of con-

tract” protected by the Fifth’s due process

clause. This case both discarded the decision set

forth in Muller v. Oregon, 208 U.S. 412 (1908),

which had allowed legislatures to provide special

protections for female employees, and began a 14-

year period in which the notion of substantive

due process reached its zenith.

In the latter part of the 19th century, the nation’s

rapid industrialization created political pressures

on both state legislatures and Congress to restrain

a multitude of business practices. When govern-

ments responded with various types of regulations

on businesses, corporations challenged the regu-

lations in court, arguing that this use of police

power unconstitutionally deprived them of the

“liberty” guaranteed by the due process clauses

of the Fifth and Fourteenth Amendments.

This doctrine, known as substantive due process,

included the concept that employers and employ-

ees have a constitutionally protected liberty to

form an employment contract free from legislative

interference. The Supreme Court ﬁ rst announced

the liberty of contract in Allgeyer v. Louisiana,

165 U.S. 578 (1897), but did not hold that this lib-

erty was absolutely protected from governmental

regulation. For the next two decades, the Court

struck down some pieces of labor legislation and

Adkins v. Children’s Hospital 11

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