Schultz D. Encyclopedia of the United States Constitution

Подождите немного. Документ загружается.

The House of Representatives supported a statute

later that month by a wide margin. In October,

the Senate rejected a constitutional amendment

by a 51-48 vote.

In June 1990, the Supreme Court struck down

the statute that had been enacted in a case styled

United States v. Eichman, 496 U.S. 310. That

month a poll revealed that 59 percent of Americans

supported a constitutional amendment to protect

the ﬂ ag. Once again, however, the ﬂ ag amendment

was defeated. Pro-amendment speakers spent

much of their time on the defensive arguing that

the amendment would not be a threat to freedom

of speech and was consistent with the national

commitment to the Constitution. Anti-amendment

speakers focused on the strengths of the constitu-

tional system and supported broad First Amend-

ment interpretations. Anti-amendment forces also

relied heavily on individuals with military service

to bolster their case that the proposed amendment

was not needed to honor veterans.

Since 1990, there have been various attempts to

resurrect the ﬂ ag amendment with little success.

The attempts have generally been pushed by some

veterans groups and occasionally used to embar-

rass political opponents. However, since the wave

of ﬂ ag burnings predicted by the pro-amendment

side has never materialized, there has been less

and less public passion about the issue.

For more information: Goldstein, Robert Justin.

Flag Burning and Free Speech: The Case of Texas

v. Johnson. Lawrence: University Press of Kansas,

2000; Howard, Charles. A Lonely Place of Honor:

A Rhetorical Analysis of the Movement to Amend

the Constitution to Prevent Flag Burning. Disser-

tation. University of Kansas, 1992.

—Charles Howard

Flast v. Cohen 392 U.S. 83 (1968)

In Flast v. Cohen, the Supreme Court ruled that

taxpayers had standing to challenge in federal

court the constitutionality of how the federal gov-

ernment spent money.

Florance Flast and a number of other taxpay-

ers challenged the constitutionality of the Ele-

mentary and Secondary Education Act of 1965,

which called for federal monies to be spent on

instructional materials for use in religious schools.

Flast et al, challenged the act on the grounds that

spending money in this way would violate the

First Amendment’s prohibition on the estab-

lishment of religion and its guarantee of free exer-

cise of religion.

The Court held, by an 8-1 vote, that Flast et al.

did have standing to challenge the constitutional-

ity of taxpayer monies that would be spent under

the law’s provisions. In Chief Justice Earl Warren’s

majority opinion, he ﬁ rst distinguished this case

from the Court’s ruling in Frothingham v. Mellon,

262 U.S. 447 (1923). In Frothingham, the Court

held that, in the main, most taxpayer suits chal-

lenging how the federal government exercised its

taxing and spending power would fail to allege the

type of direct injury necessary to gain standing in

federal court.

Was the general rule in Frothingham appli-

cable in Flast? According to the Court majority,

the answer was no. First, Warren stated that the

Frothingham ruling was not necessarily a consti-

tutional requirement, that it was rooted in a policy

concern that the federal courts not get bogged

down with frivolous taxpayer lawsuits. Instead,

Warren announced a two-part test to guide federal

courts in deciding whether taxpayers had stand-

ing to sue over how federal monies were spent.

Part one of the test was whether a taxpayer had

established “a logical link between that status and

the type of legislative enactment attacked.” This

meant that a taxpayer could show standing only if

the expenditure was an exercise of congressional

taxing and spending power, and not just an inci-

dental expenditure per a regulatory scheme. Part

two of the test was that taxpayers had to show how

a speciﬁ c constitutional limitation had bearing on

Congress’s taxing and spending power (such as the

First Amendment).

As applied to these case facts, the monies being

spent under the act were done so per Congress’s

taxing and spending authority (thus, satisfying the

ﬁ rst part of the test). Additionally, as Flast et al,

were alleging a speciﬁ c constitutional infringe-

ment, that is, violation of the First Amendment’s

282 Flast v. Cohen

xviii+446_EofUSConsti-v1.indd 282 3/12/09 3:05:06 PM

establishment clause, Flast satisﬁ ed the sec-

ond part of the test and had standing to sue.

There were a number of concurring opinions,

highlighted by Justice William O. Douglas’s,

that would have explicitly overturned the Froth-

ingham decision and allowed broader taxpayer

standing to sue in federal courts than even War-

ren’s majority opinion granted. The lone dissent

was authored by Justice John Marshall Har-

lan, who acknowledged the Frothingham deci-

sion went too far in restricting taxpayer standing

but who was apprehensive about the majority rul-

ing’s dramatically increasing the caseloads of the

federal courts.

Some observers commented that the Flast deci-

sion was characteristic of the Warren Court’s

effort to increase the public’s access to the federal

courts to protect constitutional rights. Though

Warren, in his majority opinion in Flast, refused

to predict whether the ruling would lead to a slew

of lawsuits challenging how the federal govern-

ment spent taxpayer dollars, later Supreme Courts

strictly maintained the two-part Flast test, refus-

ing to grant standing unless the federal courts

could redress speciﬁ c constitutional errors related

to how Congress spent tax dollars.

Despite the decision in this case, taxpayer

standing has not been extended to other issues

beyond establishment clause challenges. In fact, in

Hein v. Freedom from Religious Foundation, U.S.

___ (2007), the Supreme Court ruled that taxpay-

ers did not have standing to challenge President

George W. Bush’s faith-based initiatives program.

In reaching this conclusion, several justices sug-

gested that Flast should be overturned.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—John M. Aughenbaugh

Fletcher v. Peck 10 U.S. (6 Cranch) 87 (1810)

Fletcher v. Peck was the ﬁ rst case in which the

Supreme Court found a piece of state legislation

unconstitutional and therefore overturned the

state action.

This case stemmed from Georgia, in which

a preliminary bill of sale of 35 million acres of

land, which came to be the Mississippi Territory,

was authorized by the Georgia legislature to the

Georgia Mississippi Company. The bill itself was

controversial because only one of the legisla-

tors who had voted to authorize the bill had not

been bribed. The Georgia Mississippi Company

subsequently sold 11 million acres of the origi-

nal parcel to the New England Mississippi Land

Company. On the same day as the sale, the suc-

ceeding Georgia state legislature voted to repeal

the original sale.

The land speculators attempted to get Con-

gress to allow the sale, but due to a change in the

party in power, the attempt failed. Eventually, the

conﬂ ict found its way to the Supreme Court and

proved to be an exceptionally interesting case. In

what is largely seen as a collusive suit, New Eng-

land Mississippi Land Company shareholder Rob-

ert Fletcher ﬁ led suit against coshareholder John

Peck, in which Fletcher alleged a breach of cov-

enant in a fabricated deed of a part of the compa-

ny’s land in the Mississippi Territory.

The case was granted a writ of error, sought

by Fletcher, by the U.S. Supreme Court, after the

original decision in a circuit court decision found

for Peck. At the Supreme Court, Peck was repre-

sented by future Supreme Court justice Joseph

Story and another attorney, while Fletcher was

represented by Luther Martin, a reputed drunk-

ard. In oral arguments, the Peck attorneys offered

an excellent case for their client, while Fletcher’s

attorney offered a weak case by failing to address

two major disputes of the case.

Chief Justice John Marshall announced the

decision on March 16, 1810, and found all of the

original details of the covenant legitimate. In other

words, the original sale by the Georgia legislature

established an obligation of sale. The subsequent

repeal of the sale was unconstitutional, because

Article I, Section 10 of the U.S. Constitution says

that no state may pass legislation that impairs the

obligation of contract. This decision was signiﬁ -

cant, in part, because the justices originally were

not sure they should hear the case based on its

collusive nature.

Fletcher v. Peck 283

xviii+446_EofUSConsti-v1.indd 283 3/12/09 3:05:06 PM

The decision in the case was made possible

by several contributing factors, this despite there

being no specific constitutional provision that

allows the Supreme Court to invalidate state laws.

First, the Court had already decided M

ARBURY

V. MADISON (1803), which provided for judicial

review. Second, due to the collusive nature of

the case, the parties themselves would not object

to outcome; indeed, that was the desired outcome

of the case. Moreover, the political trend leading

up to the decision was that the national courts had

allowed the Jefferson administration to build the

powers of the presidency and Congress; mean-

while, the political institutions had allowed the

Courts to nationalize power.

For more information: Lynch, Joseph M.

“Fletcher v. Peck: The Nature of the Contract

Clause.” Seton Hall Law Review 13 (1982): 1–20;

Robertson, Lindsay G. “ ‘A Mere Feigned Case’:

Rethinking the Fletcher v. Peck Conspiracy and

Early Republican Legal Culture.” Utah Law

Review (2000): 249–265.

—Tobias T. Gibson

Florida Prepaid Postsecondary Education

Expense Board v. College Savings Bank

527 U.S. 627 U.S. (1999) and College

Savings Bank v. Florida Prepaid Postsec-

ondary Education Expense Board

527

U.S. 666

(1999)

Florida Prepaid Postsecondary Education

Expense Board v. College Savings Bank and Col-

lege Savings Bank v. Florida Prepaid Postsecond-

ary Education Expense Board were two related

decisions arising out of the same sets of facts, in

which the Supreme Court limited Congress’s

authority to compel states to respond to private

suits for false advertising and patent infringement.

By expanding state sovereignty, these cases repre-

sented another opportunity for the Court to alter

the balance of power between the states and the

federal government.

In 1987, the College Savings Bank, chartered

in Princeton, New Jersey, created a program

that permitted parents to invest in certiﬁ cates of

deposit for their children’s future college expenses;

the bank owned the patent on the methods of

administering the accounts. Shortly thereafter,

the Florida Prepaid Postsecondary Education

Expense Board, a state agency, established a simi-

lar tuition savings program for Florida residents. A

few years later, the bank sued the state for patent

infringement, claiming the state had violated the

Patent Remedy Act (PRA) of 1992, a federal law

that allowed private individuals to sue states for

patent infringement.

Citing the Supreme Court’s rulings on state

immunity from lawsuits, the state claimed it could

not be sued. The bank argued that the PRA was

a proper exercise of congressional authority under

the Fourteenth Amendment to enforce the

due process clause of the Fourteenth Amend-

ment. The lower courts held that Congress had

clearly indicated its intent to allow states to be

sued for patent infringement and that it had

authority under the Fourteenth Amendment to

prohibit states from depriving patent holders of

their property rights without due process.

In Florida Prepaid Postsecondary Education

Expense Board v. College Savings Bank, the U.S.

Supreme Court reversed, dismissing the claim

against the state agency. In his opinion for a ﬁ ve-

justice majority, Chief Justice William Hubbs

Rehnquist found that Congress had exceeded

its authority in enacting the PRA. The Court con-

cluded that Congress did not have the power to

enact a law holding states accountable under the

PRA.

The bank also ﬁ led a separate lawsuit against

the state for misrepresentation under the Trade-

mark Remedy Clariﬁ cation Act (TRCA) of 1992,

a law declaring that states engaging in interstate

marketing are subject to private suit under the

1946 Trademark Act (the Lanham Act). The state

argued it was immune on this charge as well, and

the lower courts agreed.

In College Savings Bank v. Florida Prepaid

Postsecondary Education Expense Board, the

Supreme Court afﬁ rmed, declaring that the state

was immune from suit. Speaking for the same

majority, Justice Antonin Gregory Scalia

reiterated that Congress’s power to revoke the

284 Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and . . .

xviii+446_EofUSConsti-v1.indd 284 3/12/09 3:05:07 PM

state’s immunity was limited to its authority to

enforce the guarantees of the due process clause

of the Fourteenth Amendment. The bank argued

that Congress had the proper authority to enforce

the due process clause, but the Court held that

because there were no property rights involved,

the due process clause was not implicated, and

Congress therefore lacked the power to revoke the

state’s immunity.

In denying Congress the power to authorize

individuals to sue states for violations of federal

law, the Court helped change the balance of power

of the U.S. federal system.

For more information: Mezey, Susan Gluck.

“The U.S. Supreme Court’s Federalism Jurispru-

dence: Alden v. Maine and the Enhancement of

State Sovereignty.” Publius: The Journal of Fed-

eralism 30 (2000): 21–38; Samardzija, Michael R.

“Philosophical and Doctrinal Foundations: Fed-

eral Trademark Infringement and State Sovereign

Immunity: A Case Note.” Journal of Contempo-

rary Legal Issues 12 (2001): 9–15.

—Susan Gluck Mezey

Florida v. J.L. 529 U.S. 266 (2000)

In Florida v. J.L., the U.S. Supreme Court held

that an anonymous telephone tip saying that

someone was carrying a concealed weapon did

not provide the necessary reasonable suspicion

that would justify a police ofﬁ cer stopping a trio

of individuals and subjecting them to a protective

patdown search for weapons.

A police department received an anonymous

telephone tip that a young black male, standing at

a speciﬁ c bus stop and wearing a plaid shirt, was

carrying a concealed gun. When ofﬁ cers arrived

at the bus stop, they saw three young black males,

one of whom was wearing a plaid shirt. Other than

the information from the tip, there was no rea-

son to suspect that any of the three was engag-

ing in illegal conduct. An ofﬁ cer approached the

male wearing the plaid shirt (referred to in the

Court’s opinion as “J.L.”), frisked him, and seized

a gun from his pocket. J.L., who was a minor, was

charged with the unlicensed possession of a con-

cealed ﬁ rearm. After the state’s high court ruled

that the search was unconstitutional, the state

appealed to the U.S. Supreme Court.

The Court began the analysis by citing T

ERRY V.

OHIO, 392 U.S. 1 (1968), which held that a police

ofﬁ cer may 1) stop and brieﬂ y detain a person if

the ofﬁ cer has reasonable suspicion that he or she

was engaging or about to engage in criminal activ-

ity and 2) conduct a protective patdown search of

the suspect for weapons if the ofﬁ cer has reason-

able suspicion that he or she is armed and danger-

ous. The question in Florida v. J.L. was whether

an anonymous telephone tip, without additional

information, provided the reasonable suspicion

necessary to justify the stop and frisk of J.L.

The Court observed that unlike a tip from

a known informant whose reliability can be

assessed, an anonymous tip typically lacks “suf-

ﬁ cient indicia” of reliability to provide reasonable

suspicion. In some cases, the Court has found

that an anonymous tip with detailed prediction

of a suspect’s future movements, coupled with

police observation that those predictions were

accurate, provided reasonable suspicion. In this

case, however, the Court found that the tip com-

pletely lacked any indicia of reliability; that is,

there was no way to assess the informant’s repu-

tation for truthfulness and accuracy, no way to

assess the basis of the informant’s knowledge,

and no way to hold them responsible if the allega-

tions are false. The tip also lacked the predictive

information that might have allowed the police to

assess the information’s reliability. The fact that

the ofﬁ cer discovered a gun in J.L.’s pocket was

not relevant because, under the rule in Terry,

the ofﬁ cer must have reasonable suspicion before

stopping a suspect and subjecting the person to

a patdown. In light of the foregoing, the Court

concluded that the telephone tip did not pro-

vide the ofﬁ cers with reasonable suspicion. As a

result, the patdown search was unconstitutional,

and the gun was, therefore, inadmissible under

the exclusionary rule.

For more information: Drummond, Rob. “Flor-

ida v. J.L.: Phone Calls, Guns, and Searches.”

American Journal of Criminal Law 27 (2000):

Florida v. J.L. 285

xviii+446_EofUSConsti-v1.indd 285 3/12/09 3:05:07 PM

415–420; LaFave, Wayne R, Jerold H. Israel, and

Nancy J. King. Criminal Procedure. 4th ed. St.

Paul, Minn.: Thomson/West, 2004.

—Steven B. Dow

footnote four

Footnote four is the most famous and inﬂ uential

footnote in American constitutional law because

it provides the framework for analysis of consti-

tutional questions by distinguishing between laws

deserving strict judicial scrutiny and those entitled

to only minimal scrutiny.

When Justice Harlan Fiske Stone wrote the

opinion in U.S. v. Caroline Products Co., 304 U.S.

144 (1938), and its footnote four, the Supreme

Court had abandoned an agenda that had actively

protected economic interests and property rights

from state and national government regulation.

His Caroline Products decision confirmed the

Court’s altered agenda when it rejected a due

process claim that a federal statute forbidding

interstate shipment of adulterated milk was uncon-

stitutional. In the past, he supported the regula-

tion because the congressional record provided

a rational basis for the statute. Then in footnote

four, Justice Stone suggested a new agenda for the

Court by identifying three circumstances in which

greater judicial scrutiny of state and national laws

might be appropriate: ﬁ rst, if the laws restricted

the exercise of the Bill of Rights protections and

their application to the states by the Fourteenth

Amendment; second, if the laws restricted the

democratic political process, including the right

to participate, organize, express political views,

assemble, and vote; and third, if the laws affected

“discrete and insular minorities” (religious,

racial, and national minority groups who are hated

and feared by the majority and who are unable to

use the political process to protect themselves).

Justice Stone’s Caroline Products opinion and

footnote four are a deﬁ ning constitutional legal

moment. His opinion conﬁ rmed that the Court

would continue to presume that laws address-

ing economic subjects were constitutional and to

lower the level of its scrutiny of these laws by using

rational basis analysis. His footnote suggested that

the Court should not presume that laws concern-

ing civil liberties and civil rights were

constitutional and should heighten the level of its

examination of these laws by using strict scru-

tiny analysis.

The Supreme Court responded to Justice Stone’s

Caroline Products opinion and footnote four by

creating a two-track system to structure its anal-

ysis of constitutional questions. When the Court

now considers laws that are claimed to infringe a

fundamental right, such as the freedom to speak,

practice a religion, or vote, or laws that create a

suspect classiﬁ cation based on race, ethnicity, or

nationality, it will doubt their constitutionality, use

Track One analysis, and be likely to strike down

these laws unless they are narrowly tailored to

serve a compelling governmental inter-

est. When, however, the Court considers laws that

involve economic regulations, it will presume their

constitutionality, use Track Two, and be likely to

uphold these laws if they employ a rational means

to advance a legitimate government interest. To

these two tracks, the Court has added an Interme-

diate Track, which it uses to examine quasi-suspect

laws that may discriminate on the basis of gender

or illegitimacy and to uphold these laws only if they

are substantially related to the achievement of an

important governmental objective.

For more information: Miller, Geoffroy. “The

True Story of Carolina Products.” In Supreme

Court Review 1987 edited by Philip B. Kurland,

Gerhard Casper, and J. Hutchison, 397–428. Chi-

cago: University of Chicago Press Journals, 1988;

Tribe, Laurence. American Constitutional Law.

3d ed. New York: Foundation Press, 2000.

—William Crawford Green

foreign affairs and the Constitution

The realm of foreign affairs has often presented

unique and complex legal and constitutional ques-

tions in the United States, because the Constitu-

tion divides foreign relations authority between

the legislative and executive branches of govern-

ment, with a signiﬁ cant sharing of these respon-

sibilities. For example, the power to engage in a

286 footnote four

xviii+446_EofUSConsti-v1.indd 286 3/12/09 3:05:07 PM

military operation is authorized in both Article

I—granting Congress the authority to declare

war and to raise and establish the military—and

Article II—authorizing the president to lead the

military as commander in chief. Similarly, the

authority to negotiate agreements internationally

is given to the president initially, with the advice

and consent of the Senate. Thus, the overlapping

of authority creates an “invitation to struggle”

whereby the separate branches of government dil-

igently pursue additional powers. Since the Con-

stitution does not explicitly distinguish between

domestic and foreign affairs, the judiciary often

is involved in settling questions of foreign policy

powers.

Historically, the courts were fundamental par-

ticipants in the formulation of U.S. foreign policy

because of particular constitutional inter-

pretations. During the early 19th century, the

judiciary adjudicated several disputes between the

legislative and executive branch over the bound-

aries of foreign affairs decision making. In Bas

v. Tingy, 4 U.S. 37 (1800), the Supreme Court

ruled that only Congress is able to declare either

an “imperfect” (limited) war or a “perfect” (gen-

eral) war. In Talbot v. Seeman, 5 U.S. 1 (1801),

the Court determined that all powers of war are

constitutionally vested in Congress. In Little v.

Barreme, 6 U.S. 170 (1804), Chief Justice John

Marshall held that President Adams’s instructions

to seize hostile ships were in conﬂ ict with Con-

gress and therefore illegal. Finally, in the Prize

Cases, 67 U.S. 635 (1863), the Supreme Court

ruled that the president, in his capacity as com-

mander in chief, possesses the power to repel sud-

den attacks against the United States. These early

cases demonstrated the judiciary’s assertiveness in

deﬁ ning constitutional parameters within which

the political branches of government operated.

While the courts were active participants in

foreign affairs during the early 19th century, the

next century witnessed an exercise of judicial

restraint in these disputes. Consequently, the

president successfully expanded his constitutional

authority, although not without some legal con-

troversy. The two most prominent foreign affairs

decisions in the 19th century proscribe somewhat

contradictory rules for presidential authority. The

ﬁ rst case, U

NITED STATES V. CURTISS-WRIGHT EXPORT

ORP., 299 U.S. 304 (1936), involves the question

of whether the president can place embargoes on

arms and munitions exports to speciﬁ c countries

in order to promote peace. Writing on behalf of

the Court, Justice George Sutherland relied on

a quote from John Marshall (later Chief Jus-

tice of the Supreme Court) in 1800, “The Presi-

dent is the sole organ of the nation in its external

relations, and its sole representative with foreign

nations.” Based on these words, Justice Sutherland

concluded that the president had vast authority

when conducting the nation’s foreign affairs.

In contrast to the rule established in Curtiss-

Wright is the Court’s decision in Y

OUNGSTOWN

SHEET & TUBE COMPANY V. SAWYER, 343 U.S. 579

(1952). In this case, President Truman issued an

executive order directing Secretary of Commerce

Sawyer to seize control of most of the steel mills in

the United States. Truman believed this action was

necessary in order to avoid a potential strike by the

steelworkers that might adversely affect the mili-

tary involved in the Korean War. While the major-

ity opinion ultimately declared the president’s

actions unconstitutional, this case is most note-

worthy because of a concurring opinion written

by Justice Robert H. Jackson. In the concurrence,

Justice Jackson outlined three zones of authority

for presidents in the realm of foreign affairs.

The ﬁ rst zone occurs when the president acts in

accordance with congressional authorization. Here,

the president is most powerful because he can rely

on his constitutional authority under Article II and

on Congress’s constitutional authority in Article I.

In contrast, the last zone occurs when the presi-

dent acts in direct opposition to Congress. Here,

presidential authority is weakest because he must

subtract Congress’s Article I authority away from

his powers under Article II. Finally, Justice Jackson

describes the second zone of authority as the “zone

of twilight.” This occurs when the president acts

and Congress is silent, and it is unclear whether

these situations are constitutional. While the rul-

ings in these two cases contradict each other, it is

clear that the courts are important in determin-

ing the constitutional authority to conduct foreign

foreign affairs and the Constitution 287

xviii+446_EofUSConsti-v1.indd 287 3/12/09 3:05:08 PM

affairs. Therefore, what most individuals take for

granted regarding foreign relations is the prod-

uct of a long historical development in which the

courts played a vital role.

Part of the reason for the growing deference

toward executive power in foreign affairs involves

an increased use of certain threshold issues, such

as the political question doctrine and the act of

state doctrine, to limit judicial resolution of foreign

policy disputes. The political question doctrine

developed from concerns surrounding separa-

tion of powers and the Constitution. It holds that

some questions, although important to the general

public, may not be appropriate for resolution by

the courts; rather, they are best left to the politi-

cal branches of government. In the case B

AKER V.

CARR, 369 U.S. 186 (1962), Justice William J.

Brennan, Jr., indicated that questions surround-

ing foreign affairs potentially presented political

questions that were best resolved by either the

legislative or executive branch. Since this deci-

sion, federal courts have often invoked the politi-

cal question doctrine to avoid deciding foreign

policy issues. For example, a recent appeal to the

D.C. Circuit Court of Appeals asked the appellate

judges to overturn a federal district court decision

prohibiting a lawsuit against the United States and

former National Security Advisor Henry Kissinger

by the survivors of a murdered Chilean general. In

issuing the majority opinion in the case Schneider

v. Kissinger, 412 F. 3d 190 (2005), Circuit Judge

Sentelle stated that “there could still be no doubt

that decision-making in the ﬁ elds of foreign policy

and national security is textually committed to the

political branches of government” (at 194).

In a similar fashion, the act of state doctrine

evolved from Supreme Court decisions involv-

ing the actions of another sovereign state. In the

case Underhill v. Hernandez, 168 U.S. 250 (1897),

Chief Justice Fuller announced that “every sover-

eign State is bound to respect the independence

of every other sovereign State, and the courts of

one country will not sit in judgment on the acts

of the government of another done within its own

territory” (at 252).

For the next 60 years, U.S. federal courts

adhered to this rationale, and in 1964 the Supreme

Court ofﬁ cially labeled this precedent the “act of

state doctrine” in the case of Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 378 (1964). Since this

decision, there has been an ongoing legal debate

between the judiciary and Congress about the

appropriateness of the act of state doctrine. In

1988, Congress passed the Hickenlooper Amend-

ment, 22 U.S.C. Section 2370 (e)(2), which states

that no U.S. court shall invoke the act of state doc-

trine to decline to rule on a case involving inter-

national law and property rights. Following this

amendment, several lower federal courts issued

rulings which limited its effect (for example, see

FOGADE v. ENB Revocable Trust, 263 F. 3d

1274 [2001]) and reasserted the act of state prin-

ciple announced in Sabbatino.

Despite the development of the political ques-

tion and act of state doctrines, which call for

judicial deference in foreign affairs, courts con-

sistently receive cases involving foreign policy

concerns. In many instances, these concerns also

involve civil liberties, which consequently cre-

ate a legal dilemma for judges since they are tradi-

tionally viewed as protectors of individual rights.

Judge Cummings of the Seventh Circuit Court of

Appeals captures this judicial balancing role when

he states:

While the courts will scrutinize executive and

legislative action in several substantive areas

touching on foreign relations, the standard of

review in those cases is nonetheless a very def-

erential one. For example, an area concerning

foreign affairs that has been uniformly found

appropriate for judicial review is the protec-

tion of individual or constitutional rights from

government action (Flynn v. Schultz, 748 F. 2d.

1186 [1984]).

It is therefore apparent that judges presiding in

the federal courts view their responsibilities in a

similar fashion. The opinions consistently stress an

initial deference to the policymaking branches of

government, especially in foreign affairs, while at

the same time monitoring potential infringements

of constitutional liberties. However, as the cases

above illustrate, maintaining an appropriate bal-

288 foreign affairs and the Constitution

xviii+446_EofUSConsti-v1.indd 288 3/12/09 3:05:08 PM

ance between foreign affairs and the Constitution

is not an easy task.

For more information: Adler, David Gray,

and Larry N. George. The Constitution and the

Conduct of American Foreign Policy. Lawrence:

University of Kansas Press, 1996; Charney, Jona-

than I. “Judicial Deference in Foreign Relations.”

American Journal of International Law 83 (1989):

805–814; Fisher, Louis. Constitutional Conﬂ icts

Between Congress and the President. 4th ed. Law-

rence: University of Kansas Press, 1997; Franck,

Thomas M. Political Questions/Judicial Answers:

Does the Rule of Law Apply to Foreign Affairs?

Princeton, N.J.: Princeton University Press, 1992;

Fry, Earl H., Stan A. Taylor, and Robert S. Wood.

America the Vincible: U.S. Foreign Policy for the

Twenty-First Century. Englewood Cliffs, N.J.:

Prentice Hall, 1994; Genovese, Michael A. The

Power of the American Presidency, 1789–2000.

New York: Oxford University Press, 2001; Peter-

son, Paul E. “The President’s Dominance in For-

eign Policy Making.” Political Science Quarterly

109 (Summer 1994): 215–234; Rosati, Jerel A. The

Politics of United States Foreign Policy. 2d ed.

Fort Worth, Tex.: Harcourt Brace, 1999.

—Kirk A. Randazzo

Foreign Intelligence Surveillance Act of

1978

The Foreign Intelligence Surveillance Act of 1978

(FISA) deﬁ nes what intelligence-gathering activi-

ties in the United States are permitted and how

they are to be conducted. Since 1978, FISA has

been amended repeatedly, including revisions

made by the PATRIOT Act in 2001 and by the

Protect America Act of 2007. It is codiﬁ ed at 50

U.S.C. Section 1801 et seq.

FISA, passed in the wake of revelations of

abuses by the intelligence community in spying

on Americans, prohibits the electronic surveil-

lance of “U.S. persons” without a warrant and

establishes the Foreign Intelligence Surveillance

Court, which issues warrants to allow surveillance

of people involved in espionage or terrorism or

acting as agents of a foreign power. In some situa-

tions warrants may be issued retroactively. A U.S.

person is deﬁ ned as an American citizen or corpo-

ration or a legal permanent resident.

The enactment of FISA came after a series of

published reports and congressional investiga-

tions in the mid-1970s revealed that a number

of government agencies, including the FBI, CIA,

and NSA had harassed and spied on Americans

engaged in lawful activities, particularly critics of

the Vietnam War and civil rights activists. The

law was intended to prevent future abuses while

allowing legitimate intelligence-gathering activi-

ties to continue.

FISA has been criticized as both a toothless

law that places few practical limits on govern-

ment surveillance and as a cumbersome limita-

tion on intelligence gathering that is ill-suited to

the realities of international terrorism. The Bush

administration has also suggested that it is an

unconstitutional infringement on the president’s

power as commander in chief under Article

II of the U.S. Constitution.

In 2002, the Foreign Intelligence Surveillance

Court denied a request by the Justice Depart-

ment seeking to give prosecutors routine access

to intelligence information, ruling that the Justice

Department and FBI had misled the court on at

least 75 occasions in order to obtain FISA war-

rants. This ruling was ultimately overturned in

the ﬁ rst-ever session of the Foreign Intelligence

Surveillance Court of Review, an appellate court

set up by FISA.

Warrant requests are rarely denied under FISA.

According to annual reports ﬁ led with Congress,

through 2005, the FISA court had denied just

four requests out of 20,806 it received. All four of

those denials came in 2003.

In December 2005, a Pulitzer Prize-winning

series of stories by the New York Times revealed

that since 2002 a program administered by the

National Security Agency had engaged in eaves-

dropping in the United States without warrants,

an apparent violation of FISA’s requirements.

President Bush conﬁ rmed that he had authorized

the program but he and other administration

ofﬁ cials insisted that it was a necessary and legal

response to the threat on international terrorism.

Foreign Intelligence Surveillance Act of 1978 289

xviii+446_EofUSConsti-v1.indd 289 3/12/09 3:05:08 PM

Defending the program, they argued that the

Times had acted irresponsibly in revealing its exis-

tence, that Congress had implicitly authorized it in

2001 by passing the Authorization for Use of Mili-

tary Force and the PATRIOT Act, and that in any

case the president already possessed the power to

authorize such a program under Article II of the

U.S. Constitution. In response to concerns regard-

ing whether the president had the authority to

order this surveillance, Congress passed the Pro-

tect America Act in 2007, which authorizes him

to order warrantless wiretapping of intelligence

targets located outside the United States. While

some have argued that these searches violate the

Fourth Amendment, the courts have thus far

not allowed suits contesting this issue to proceed.

For more information: Bazan, Elizabeth B. The

Foreign Intelligence Surveillance Act: An Over-

view of the Statutory Framework and Recent

Judicial Decisions. Washington: Congressional

Research Service, 2004; Perritt, Henry H., Jr.

Law and the Information Superhighway. 2nd

ed. New York: Aspen Law and Business, 2001;

Risen, James, and Eric Lichtblau. “Bush Lets U.S.

Spy on Callers Without Courts: Secret Order to

Widen Domestic Monitoring,” New York Times,

16 December 2005.

—Thomas C. Ellington

44 Liquormart v. Rhode Island 517 U.S. 484

(1996)

In 44 Liquormart v. Rhode Island, the Supreme

Court struck down a Rhode Island law that pro-

hibited the advertising of liquor prices. Although

it was a nominally unanimous verdict, the opinions

were complex and included a number of concur-

rences. The Court could not agree on a basic rea-

soning even after coming to the same conclusion

about the law’s constitutionality. The importance

of this case lies in the Court’s defense of commer-

cial free speech rights.

The law in question was enacted in 1956 and

banned Rhode Island liquor stores from advertis-

ing within the state by any means other than signs

or tags within the store. The law was challenged

and struck down by a district court, and that deci-

sion was reversed by the First Circuit Court of

Appeals before the case was taken to the Supreme

Court. The district court ruled that the ad ban was

more extensive than necessary and used studies

from the Federal Trade Commission to dispute the

allegation that advertising would increase alcohol

consumption. The Court of Appeals reversed and

found “inherent merit” in the state’s assumption

that competitive advertising would lower prices

and increase consumption.

Justice John Paul Stevens, writing for a

majority of justices, declared that Rhode Island did

not meet a heavy burden of proof for banning all

advertisements. He said, “However, when a State

entirely prohibits the dissemination of truthful,

nonmisleading commercial messages for reasons

unrelated to the preservation of a fair bargaining

process, there is far less reason to depart from the

rigorous review that the First Amendment gen-

erally demands.” Stevens’s opinion also goes a long

way to rejecting a previous commercial speech

case, P

OSADAS DE PUERTO RICO ASSOCIATES V. TOURISM

O. OF P. R., 478 U.S. 328 (1986). In that case, the

Court had given the legislature a great deal of lati-

tude in regulating commercial speech but Stevens

rejects much of the Posadas reasoning and states,

“We decline to give force to its highly deferential

approach.” The state of Rhode Island argued that

they had a state interest in promoting temperance

and that banning liquor ads was a way of achiev-

ing that. Stevens employed the Central Hudson

test in determining that the legislation at issue was

broader than necessary to meet the state’s compel-

ling interest in the restricting advertising.

Justice Clarence Thomas, in a concurring

opinion, rejected the Central Hudson test entirely.

According to Thomas, “I do not see a philosophical

or historical basis for asserting that ‘commercial’

speech is of ‘lower value’ than ‘noncommercial’

speech.” Another concurrence, written by Justice

Sandra Day O’Connor, agreed that the Rhode

Island law failed the Central Hudson test, but

interpreted the test more narrowly than did Ste-

vens’s opinion. Those who joined in this concur-

290 44 Liquormart v. Rhode Island

xviii+446_EofUSConsti-v1.indd 290 3/12/09 3:05:08 PM

rence (including Chief Justice William Hubbs

Rehnquist, the author of the Posadas decision)

called for narrower protection of advertising but

still regarded the Rhode Island law as failing the

Central Hudson test.

The lack of agreement about the reasoning in 44

Liquormart illustrates the complexity with which

the Court has dealt with the issue of commercial

speech. In many cases, the Court has refused to

give full protection to advertising and other forms

of commercial speech. Yet in case after case, the

Court has established differing boundaries and

justiﬁ cations for some restrictions as opposed to

others.

For more information: Smith, Craig R. “44

Liquormart: Unanimity without Consensus.” Free

Speech Yearbook 26 (1998): 1–14.

—Charles C. Howard

Fourteenth Amendment

The Fourteenth Amendment is one of three con-

stitutional amendments adopted by Congress

after the Civil War during Reconstruction that

was meant to protect the rights and liberties of

recently freed slaves. However, the Fourteenth

Amendment has become one of the most impor-

tant constitutional amendments ever, with various

provisions of it used to address discrimination, the

rights of individuals facing government hearings,

economic regulation, and the application of the

Bill of Rights to state governments.

The Fourteenth Amendment was originally

proposed in Congress by Representative John

Bingham of Ohio on June 13, 1866, and ratiﬁ ed

on July 28, 1868. The reasons for the amendment

were to offer constitutional protection to the rights

of the recently freed slaves and to overturn earlier

Supreme Court decisions that the Reconstruction

Republicans in Congress did not like. For exam-

ple, following the Civil War, many southern states

adopted Black Codes and other legal provisions

which limited the rights of African Americans.

While Congress had adopted in April, 1866, the

Civil Rights Act of 1866, which sought to guaran-

tee the rights of these individuals by overriding

the Black Codes, there were questions whether

this law was constitutional. Moreover, also because

of the unpopular Supreme Court decision in D

RED

COTT V. SANDFORD, 60 U.S. 393 (1857), which had

declared that African Americans could never be

citizens, there was additional concern that any

effort to protect the rights of the freed slaves

would be found unconstitutional.

The Fourteenth Amendment is composed of

ﬁ ve sections. The ﬁ rst section is perhaps the most

important. It overturns Dred Scott by declaring

that all persons “born or naturalized in the United

States” are citizens of both the country and the

state where they reside. Section 1 also guarantees

to all citizens that no state shall deprive any per-

son of their “privileges or immunities.” This ﬁ rst

section of the Fourteenth Amendment declares

that no one shall be deprived of their life, liberty,

or property without due process of law, and it

prevents states from denying individuals equal

protection of the law.

Sections 2 and 3 appear aimed at punishing

southern states that continued to deny freed slaves

their rights. Section 2 sanctions states by reduc-

ing the size of the congressional delegation or the

number of electoral votes they have for president

if they deny any males of their state age 21 or over

the right to vote. It does provide for one excep-

tion: States may deny individuals the right to vote

if they have participated in a rebellion or a crime.

This exception was cited by the Supreme Court in a

controversial decision, Richardson v. Ramirez, 418

U.S. 24, (1974), where the Supreme Court upheld

felon disenfranchisement laws that took away the

voting rights of individuals, either temporarily or

permanently, of those who had committed felony

crimes. In this decision, Justices William Hubbs

Rehnquist, William J. Brennan, Jr., and

Thurgood Marshall engaged in a heated debate

over the historical meaning of Section 2.

Section 3 prevented previous members of Con-

gress from holding ofﬁ ce if they engaged in rebel-

lion against the United States. Effectively, this

provision meant that former members of Congress

who then supported the South during the Civil

Fourteenth Amendment 291

xviii+446_EofUSConsti-v1.indd 291 3/12/09 3:05:09 PM