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War could not again be elected to Congress unless

a two-thirds vote of both houses permitted this.

Section 4 of the Fourteenth Amendment

appears to sanction the ability of Congress to pro-

vide for pensions for individuals who were veterans

of the Civil War. Finally, Section 5 was a general

provision that granted Congress the power to

enforce the provisions of the entire amendment.

The most signiﬁ cant litigation and impact sur-

rounding the Fourteenth Amendment is found in

Section 1. There, three clauses—the privileges or

immunities, due process, and equal protection—

have had important and wide ranging histories

with major constitutional importance.

Privileges and immunities are referred to

in two sections of the Constitution. Article IV, Sec-

tion 2 of the Constitution stipulates that the citizens

of each state “shall be entitled to all the Privileges

and Immunities of the Citizens in the several

States.” Section 1 of the Fourteenth Amendment

declares that no state can “abridge the privileges

or immunities of citizens of the United States.”

Notwithstanding the slight change in phrasing

in the two different clauses, what exactly are the

privileges or immunities that are referenced in the

Fourteenth Amendment? In C

ORFIELD V. CORYELL,

6 F. Cas. 546 (1823), Supreme Court Justice Bush-

rod Washington, while riding circuit court, stated

that the privileges and immunities of Article IV

included:

Protection by the government; the enjoyment of

life and liberty, with the right to acquire and pos-

sess property of every kind, and to pursue and

obtain happiness and safety; subject nevertheless

to such restraints as the government may justly

prescribe for the general good of the whole. The

right of a citizen of one state to pass through, or

to reside in any other state, for purposes of trade,

agriculture, professional pursuits, or otherwise;

to claim the beneﬁ t of the writ of habeas cor-

pus; to institute and maintain actions of any kind

in the courts of the state; to take, hold and dis-

pose of property, either real or personal; and an

exemption from higher taxes or impositions than

are paid by the other citizens of the state; may be

mentioned as some of the particular privileges

and immunities of citizens, which are clearly

embraced by the general description of privi-

leges deemed to be fundamental: to which may

be added, the elective franchise, as regulated

and established by the laws or constitution of the

state in which it is to be exercised.

It is these rights, referred to in Corﬁ eld, and

which were again mentioned in statute in the

Civil Rights Act of 1866, that seem to be the privi-

leges or immunities protected by the Fourteenth

Amendment. However, in the Slaughterhouse

Cases, 83 U.S. 36 (1873), the Supreme Court nar-

rowed the scope of the privileges or immunities

clause so much that most scholars had declared

it dead. This was true until S

AENZ V. ROE, 536

U.S. 489 (1999), when the Court struck down as

unconstitutional a state law limiting welfare ben-

eﬁ ts in cases involving recent immigrants to the

state. The Court used the privileges or immunities

clause in ruling that the right to interstate travel

was one of the rights protected by it.

The due process clause of Section 1 has also

been an important source of litigation and con-

stitutional law. First, due process has taken on

two different types of meanings—substantive

and procedural. Substantive due process

was an important legal concept developed by the

Supreme Court beginning in the 1870s and lasting

until the New Deal. In cases such as L

OCHNER V.

EW YORK, 198 U.S. 45 (1905), and ADKINS V. CHIL-

DREN’S HOSPITAL, 261 U.S. 525 (1923), the Court

used substantive due process as a legal doctrine

to place limits on state regulation of the economy.

Substantive due process, also known as liberty

of contract or economic due process, was also

employed to protect property rights. In both cases,

substantive due process employed strict scru-

tiny when the Court examined legislation affect-

ing the economy or property rights. It was not

until 1938 in United States v. Carolene Products,

304 U.S. 144 (1938), that the Court seemed to ofﬁ -

cially bring a close to substantive due process.

Procedural due process generally refers to

the rights of individuals to have hearings or be

informed about government procedures when they

are facing a challenge or threat to their personal or

292 Fourteenth Amendment

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property rights. In cases such as Goldberg v. Kelly,

397 U.S. 254 (1970), and Mathews v. Elbridge, 424

U.S. 19 (1976), the Court has used procedural due

process to determine if and what types of hearings

are due to individuals facing the potential loss of

government employment or beneﬁ ts.

The due process clause has also been impor-

tant in incorporating or applying numerous provi-

sions of the Bill of Rights to the states. In B

ARRON

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

243 (1833), the Supreme Court had ruled that

the various provisions of the Bill of Rights did not

place limits on states. However, starting with Chi-

cago, Burlington & Quincy Railroad Company v.

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

that the takings clause of the Fifth Amend-

ment applied to the states through the due pro-

cess clause of the Fourteenth Amendment. After

that, in G

ITLOW V. NEW YORK, 268 U.S. 652 (1925),

the Court applied the First Amendment free

expression clauses to the states via the due pro-

cess. Gradually, through what has become known

as selective incorporation, almost all of the Bill

of Rights, with the notable exception of the Sec-

ond and Third Amendments, has been applied

to the states through the due process clause.

Finally, the equal protection clause of the

Fourteenth Amendment has been the subject of

signiﬁ cant and varied interpretation. Originally,

the clause was meant to ensure that states treat all

persons as legally the same. However, in M

INOR V.

APPERSETT, 88 U.S. 162 (1875), the Court rejected

claims that the equal protection clause granted

women the right to vote. In addition, in S

ANTA

LARA COUNTY V. SOUTHERN PACIFIC RAILROAD,

118 U.S. 394 (1886), the Court declared business

corporations to be persons under the Fourteenth

Amendment, but in P

LESSY V. FERGUSON, 163 U.S.

537 (1896), the Court rejected claims that the

equal protection clause barred laws that racially

segregated African Americans from whites. Dur-

ing the first half of the 20th century, the equal

protection clause was an ineffective tool in chal-

lenging discrimination until B

ROWN V. BOARD OF

EDUCATION, 347 U.S. 43 (1954), declared school

segregation unconstitutional under that clause. In

BOLLING V. SHARPE, 347 U.S. 497 (1954), a com-

panion case to Brown, the Court performed a

reverse incorporation, applying the equal protec-

tion clause to the federal government.

Since Brown, the equal protection clause has

been used to challenge numerous discrimination

laws as they affect race, gender, age, and national

origin. When the government classiﬁ es individuals

by one of these categories, such as race, the Court

will generally subject the law to either strict or

some other form of heightened scrutiny, demand-

ing of the government some compelling gov-

ernmental interest before it will allow such

a classiﬁ cation. When a suspect or semi-suspect

classiﬁ cation is not employed, the equal protec-

tion clause will require that the government have

a rational basis for its distinction. In this case, it is

generally easy for the government to prevail.

The equal protection clause has been invoked

to justify or attack numerous government activi-

ties since the 1970s. The clause has been impor-

tant in challenging laws that discriminate against

women, such as Frontiero v. Richardson, 411 U.S.

677 (1973). The clause has been at the center of

disputes involving affirmative action and

reapportionment in cases such as G

RUTTER V. BOL-

LINGER, 539 U.S. 306 (2003), and SHAW V. RENO,

509 U.S. 630 (1993), where the Court struggled

with the permissibility of using race in college

admissions or in the drawing of legislative and

congressional district lines. In BUSH V. GORE, 531

U.S. 98 (2000), and REYNOLDS V. SIMS, 377 U.S. 533

(1964), the equal protection clause was invoked in

matters affecting the right to vote. Finally, some

are increasingly arguing that the equal protection

clause should be used to invalidate laws that dis-

criminate against gays and lesbians.

Overall, some scholars such as Bruce Ackerman

have argued that the adoption of the Fourteenth

Amendment should be seen as effecting a major

constitutional restructuring in the United States.

It did that by rearranging state and federal power,

giving the national government more power over

the former than it had before the Civil War to pro-

tect individual rights.

For more information: Kelly, Alfred, Winfred

Harbinson, and Herman Belz. The American

Fourteenth Amendment 293

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Constitution: Its Origins and Development. New

York: W.W. Norton & Company, 1991; Schwartz,

Bernard. A History of the Supreme Court. New

York: Oxford University Press, 1993.

—David Schultz

Fourth Amendment

The Fourth Amendment protects individuals

against unreasonable searches and seizures and

generally requires the government to obtain a

warrant, issued by a judge, upon showing of rea-

sonableness, before one’s person, home, or prop-

erty can be searched. The Fourth Amendment

is one of the original ten, the Bill of Rights that

amended the Constitution in 1791, which was

proposed by James Madison. While originally

this amendment did not apply to the states, it has

been incorporated via the due process clause of

the Fourteenth Amendment to apply to the

states.

The Fourth Amendment, along with the Fifth,

Sixth, Seventh, and Eighth, were adopted to pro-

vide for the protection of those accused of crimes.

In the case of the Fourth Amendment, its adop-

tion can be traced to the experiences of the Amer-

ican colonies under British rule. The authorization

of the use of general warrants by the British gov-

ernment to search persons and properties in the

colonies was one of the abuses alluded to when the

1776 Declaration of Independence provided

a bill of particulars regarding why the United

States sought its independence from Britain.

In interpreting the Fourth Amendment, several

issues arise. These include when does the Fourth

Amendment apply, what constitutes a search and

seizure, the requirements necessary to obtain a

warrant, when a warrant is required, and what to

do with evidence that has been illegally obtained.

In O

LMSTEAD V. UNITED STATES, 277 U.S. 438

(1928), the Supreme Court originally rejected the

application of the Fourth Amendment to elec-

tronic eavesdropping or surveillance. The Court

ruled that only physical things could be searched

and seized. However, in Katz v. United States,

389 U.S. 37 (1967), the Court rejected this argu-

ment, instead contending that the Fourth Amend-

ment applied to protect expectations of privacy.

Specifically, the Court stated that the Fourth

Amendment would apply when an individual had

an expectation of privacy that was respected or

endorsed by society. In Katz, the Court stated that

individuals had expectations of privacy in making

telephone calls from public phone booths. How-

ever, the Court has ruled that there is no expecta-

tion of privacy in placing one’s trash out on public

property for pickup. There is also no expectation

of privacy in most public places or in one’s auto-

mobile. However, there is generally a very high

expectation of privacy in one’s home or apartment,

and as the Court stated in K

YLLO V. UNITED STATES,

533 U.S. 27 (2001), the presumption is that a war-

rant is almost always needed when searches here

occur.

The Fourth Amendment bans unreasonable

searches and seizures. This phrase has been inter-

preted by the Supreme Court in Boyd v. United

States, 116 U.S. 616 (1886), to require that the

search be reasonable. Reasonable has been inter-

preted to require that there is particular or spe-

ciﬁ c suspicion that an individual is suspected of a

crime or that some location contains illegal goods.

The reasonableness requirement demands that

the police produce individualized and not gen-

eral suspicion. Merely believing one is a member

of a large group of individuals whom the police

may think are involved in criminal activity is not

enough to justify the search as reasonable.

Thus, in order to obtain a search warrant the

government must do three things. First, they

must have reasonable suspicion or probable cause

that one has done something illegal. Second, they

must then state with particularity whom they

wish to arrest or search, or what items they wish

to inspect. Third, the police or other law enforce-

ment ofﬁ cials must obtain a search warrant validly

issued by a neutral magistrate or judge.

The Fourth Amendment applies only when

a search and seizure has occurred. The Court

has developed a complex body of law to deter-

mine when one or a thing has been searched and

seized. In United States v. Mendenhall, 446 U.S.

544 (1980), the Supreme Court decided that one

was seized when a person was not free to leave. In

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Florida v. Bostick, 501 U.S. 429 (1991), the Court

ruled that searches of passengers on buses and

other public places were not necessarily unrea-

sonable or involved a seizure because one might

be free to leave. In terms of a search, drug sniffs

by dogs in public places do not constitute a search,

nor does a ﬂ ight by an airplane over a property.

However, a search would include the use of a ther-

mal heat detector directed at a house to detect the

use of lamps to grow marijuana.

The Court has created a general presumption

that search warrants are required to search homes

or individuals. Yet it has also carved out numerous

exceptions to this presumption. A search warrant

is not required if one consents to a search (Sch-

neckloth v. Bustamonte, 412 U.S. 218 [1972]; if the

search is incident to an arrest (C

HIMEL V. CALIFOR-

NIA, 395 U.S. 752 [1969]; if the search is limited

to looking for weapons (T

ERRY V. OHIO, 392 U.S. 1,

19 [1968] [stop and frisk]); if necessary due to

exigent circumstances (United States v. Watson,

423 U.S. 411 [1976]) or due to a public safety (New

York v. Quarles, 467 U.S. 649 [1984]); if there is

a risk of evidence’s being destroyed (U.S. v. Mac-

Donald, 335 U.S. 451 [1948]); or if the police are

in hot pursuit of a suspect (Warden v. Hayden,

387 U.S. 294 [1967]).

In addition, no warrant is required if items are

in plain view of the police (Arizona v. Hicks, 480

U.S. 321 [1987]) or if the items will inevitably be

discovered (Nix v. Williams, 467 U.S. 431 [1984]).

Finally, warrants are not required for searches of

automobiles (Carroll v. United States, 267 U.S.

132 [1925]), border searches (Almeida-Sanchez v.

United States, 413 U.S. 266 [1973]), or for admin-

istrative inventory searches (Camera v. Municipal

Court, 387 U.S. 523 [1967]).

In some situations, the government or law

enforcement officials may secure evidence or

materials in violation of the Fourth Amendment.

In W

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

the Court held that the Fourth Amendment

barred the prosecution from introducing evidence

seized by federal ofﬁ cials during illegal searches.

This rule is commonly called the exclusionary

rule. Based on the Weeks decision, the exclusion-

ary rule applied only to federal cases. The Court

later extended the exclusionary rule to state cases

in Mapp v. Ohio, 367 U.S. 643 (1961). However, in

New York v. Harris, 495 U.S. 14 (1990) the Court

ruled that the exclusionary rule does not bar the

introduction of illegally obtained evidence for the

purposes of impeaching a witness. Such evidence

may also be introduced at grand jury proceedings.

Generally, third parties cannot object to exclu-

sionary rule violations; only those who have been

subject to the illegal search and seizure can.

The exclusionary rule and warrant require-

ments of the Fourth Amendment are often viewed

by some as an impediment to police apprehend-

ing criminals. There is little evidence that the

two hamstring law enforcement activity. More-

over, since 9/11, the PATRIOT Act has eased the

requirements for obtaining the search warrants

in national security matters. President George

Bush was criticized for authorizing electronic

surveillance of telephone and internet messages

in apparent violation of the Foreign Intel-

ligence Surveillance Act of 1978, which

outlined procedures to obtain warrants from a

special court in cases like this. While the ACLU

and other groups sought to challenge these war-

rantless searches, the courts have not been recep-

tive to hearing these cases.

Overall, the Fourth Amendment represents an

important constitutional protection of individual

rights that places several requirements upon the

government when it seeks to search individuals,

property, or places.

For more information: LaFave, Wayne R., Jer-

old H. Israel, and Nancy J. King. Criminal Proce-

dure. St. Paul, Minn.: Thomson West, 2004.

—David Schultz

Franklin, Benjamin (1706–1790) publisher,

scientist, inventor, diplomat, statesman

Benjamin Franklin was an inventor, publisher, and

diplomat and one of the most prominent ﬁ gures of

the American Revolution. He was born on Janu-

ary 17, 1706, in Boston, Massachusetts. He is best

known as a major Revolutionary War ﬁ gure and as

one of the Constitution’s Founding Fathers.

Franklin, Benjamin 295

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During his youth, Franklin learned how to print

and to publish from his older brother who worked

in Boston. Once he learned what he believed was

necessary to be successful in printing, Franklin

left Boston alone and on his own will, establishing

himself in the bustling city of Philadelphia.

In Philadelphia, Franklin became one of the

most prominent American statesmen. He set up

a printing business, selling almanacs and news-

papers. He gained notoriety as the publisher of

Poor Richard’s Almanack and The Pennsylvania

Gazette. He expanded into the merchant sec-

tor, accruing significant wealth, which he used

to finance numerous projects in Philadelphia

and throughout the colonies and later the young

nation. In Philadelphia, particularly, he estab-

lished the ﬁ rst public library and the ﬁ rst volun-

teer ﬁ re department in America, as well as setting

up the predecessor of the University of Pennsylva-

nia. His personal interests varied as well; he made

significant advances in science and technology,

speciﬁ cally in electricity and eyesight.

Franklin was a prominent member of the Penn-

sylvania Assembly, but lost his seat in the Paxton

Boys Affairs. This setback, however, allowed him

to return to England as a diplomat from Pennsyl-

vania to petition the King on colonial self-rule in

1764. Soon after, he became more of a voice for

many colonies, while arguing against the Stamp

Act and the Townshend Acts, leading to his rise as

one of the most famous and popular pro-Ameri-

can radicals.

He traveled around Britain, Ireland, and France

and met with King Louis XV. Everywhere, Frank-

lin’s exploits in electrical research, publishing, and

diplomacy preceded him. In 1775, as tensions wors-

ened, Franklin’s pro-American activities forced

him to leave England. When he reached America,

open war had already begun, and he was selected

as a delegate to the Second Continental Congress

from Pennsylvania. In 1776, he was a member of

the drafting team for the Declaration of Inde-

pendence, which he signed soon after.

During the war, Franklin was America’s dip-

lomat to France, where he was well received. He

successfully negotiated a critical military alliance

and ultimately the Treaty of Paris in 1783, grant-

ing independence to the United States. He ﬁ nally

returned home in 1785, as turmoil from the failing

Articles of Confederation was increasing. He soon

after freed his two slaves, becoming an ardent

abolitionist.

Although aged and in retirement, Franklin

agreed to join the Constitutional Conven-

tion in Philadelphia as a delegate in 1787. As the

Convention seemed to be degenerating, Franklin

acted as a calming force and power. On the last day

of the Convention, Franklin, who was 81, wrote a

speech that he was too weak and gout-ridden to

deliver, which is generally judged to be one of the

masterpieces of the Convention. On September 17,

1787, fellow Pennsylvanian delegate James Wilson

read it aloud. In it, he appealed for unity behind

the new government even though he and others

had certain minor qualms with the ﬁ nal proposal.

He argued that although it had faults, in his opin-

ion, it could get no better. Soon after, he signed

the new Constitution, becoming the only man to

sign all three of America’s most crucial and forma-

Benjamin Franklin. Portrait by Charles Willson

Peale

(Library of Congress)

296 Franklin, Benjamin

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tive documents: the Declaration of Independence,

the Treaty of Paris, and the Constitution.

For more information: “Ben Franklin on the

Federal Constitution.” Available online. URL:

http://lexrex.com/enlightened/writings/franklin_

on_const.htm. Accessed May 12, 2008; Brands,

H. W. The First American: The Life and Times

of Benjamin Franklin. New York: Anchor Publish-

ing, 2002; Collier, Christopher. Decision in Phila-

delphia: The Constitutional Convention of 1787.

New York: Ballantine Books, 1987.

—Arthur Holst

freedom of religion

Freedom of religion is a distinguishing attribute of

the American ethos. It is also a feature of the U.S.

Constitution as amended in the congressionally

formulated Bill of Rights. The First Amend-

ment begins famously, “Congress shall make no

law respecting an establishment of religion, or pro-

hibiting the free exercise thereof.” The 13 states

that ratiﬁ ed the constitution had varying ways of

deﬁ ning religion and defending religious liberties.

Recognizing the differences, the ﬁ rst Congress

chose broad terms. According to constitutional

scholar John Witte, the terminology summarizes

a range of principles such as liberty of conscience,

religious equality, religious pluralism, and separa-

tion of church and state. The federal government

was thus restrained by declaration from a legal

power to privilege any religious sect or interfere

with any state’s decisions regarding the religious

liberties of sects or individuals.

During the American colonial era, religious

liberty tended to be communitarian, moralistic,

and exclusive. Most immigrants who migrated to

America in search of religious freedom did not

seek an environment of religious pluralism but a

context liberated from the control of European

ecclesiastical institutions. While the religious plu-

ralism of Roger William’s Providence Plantation

was a harbinger of religious toleration that would

spread, most Pilgrims, Puritans, and religion-

ists saw no philosophical contradiction in setting

up community-based religious establishments in

America. From this point of view, palatable reli-

gious liberty developed more from competitive

circumstances, experimental learning, and the

advent of federalism than from purposeful

design.

The nature of religious liberty began to change

when the 13 original American states turned away

from the Articles of Confederation and formulated

a federal constitution. Under the Articles, the

union was merely a league of friendship—power

at the center being diminutive. In this context,

there was no need of a shared understanding of

private or public religion, although a good deal

of commonality existed. Each state’s constitution

created its own unique place for religion. Some

states had moved to religious pluralism, some had

partial establishments, and a few still held to full

establishments. The challenge for the 1787 Con-

stitutional Convention was to satisfy those

who felt the convention best served states’ inter-

ests by remaining silent on religious liberty as well

as others who wanted a positive declaration that

all powers pertaining to religion remained with

the states. The convention chose to leave it up to

the new U.S. Congress regarding how best to deal

with the issue.

In 1789 the first session of Congress began

their work on a bill of rights. Many members of

this Congress, including James Madison, had

been delegates to the Constitutional Convention,

so there was little loss of continuity. The Congress

and its committees worked their way through 20

proposals and drafts on religious freedom before

agreeing upon wording that proved to be brilliant

for the times. The ﬁ nal construction of the religion

clauses in the Bill of Rights effectively prevented

the federal government from meddling in the reli-

gious affairs of the states prior to the nation’s cul-

tural readiness for such incursions. Such readiness

was a long way off as evidenced over a half cen-

tury later in Permoli v. First Municipality of New

Orleans, 44 U.S. (3 How.) 589 (1844) when the

Court ruled unanimously that citizens’ religious

liberties were not protected by the Constitution

but only by the laws of the respective states.

In formulating the religion clauses, the Congress

dropped the popular House-sponsored phrase “nor

freedom of religion 297

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shall the rights of conscience be infringed”—reli-

gious conscience potentially broadening the nature

of actions defendable as religious expression. A

question illustrating the connection of conscience

to action appeared in the landmark case Reynolds

v. United States, 98 U.S. 145 (1879). In Reynolds,

a unanimous Court ruled against religiously justi-

ﬁ ed polygamy, the Court stating that human action

could be regulated even if beliefs could not. The

same jurisprudential latitude remained evident a

century later when the Rehnquist Court held

that freedom of religion did not give individuals,

including Native Americans, the right to smoke

the sacramental hallucinogenic peyote when use

of the drug was prohibited by neutral and rational

state law (E

MPLOYMENT DIVISION V. SMITH, 494 U.S.

872 [1990]). The ﬂ exibility of this jurisprudence is

rooted in the decision of the Founders not to fed-

erally deﬁ ne religion in the Constitution.

In present times, not all of what is constitu-

tionally guaranteed in the First Amendment’s

religion clauses is clear, leading to a “tangled

jurisprudence” according to Kenneth Wald and

many political scientists. Some legal theorists

follow a “thick reading” of the religious clauses

while others advocate a “thin reading.” The thick

reading mines inferences and clues from the ﬁ rst

Congress’s work, concluding that the democratic

majority had specific intent that is knowable

today. By contrast, the thin reading suggests an

intentional vagueness so that later generations

could make the constitutional guarantees secure a

framework of religious freedoms pertinent to the

times. Not surprisingly, jurisprudence has drifted

toward the politicization of the clauses as the only

means of surmounting interpretative impasses.

Still, this situation has not stopped the search for

universal principles.

The Court’s search for principles to replace

federalism in the religion clauses gained traction

with the due process and equal protection

clauses of the Fourteenth Amendment. In

IERCE V. SOCIETY OF SISTERS, 268 U.S. 510 (1925),

the Supreme Court ruled against an Oregon law

aimed at undermining Catholic schools as alter-

native venues of education. The Court claimed

a “fundamental theory of liberty,” clarifying this

idea a few years later in Cantwell v. Connecti-

cut, 310 U.S. 296 (1940). In Cantwell, the Court

decided that the Fourteenth Amendment had

“rendered the legislatures of the states as incom-

petent as Congress” to enact laws that work to

deprive people “of their liberty without due pro-

cess of law.” In this instance, Jehovah’s Witnesses

were afﬁ rmed in their liberty to proselytize in a

Connecticut city without a solicitation license,

while the city’s apparent effort to protect the

community’s religious tendencies failed the high

court’s emerging standard. Cantwell thus incor-

porated the Fourteenth Amendment against the

First Amendment’s free exercise clause. But it

would take another seven years before the Court

would duplicate the new jurisprudence in regard

to the no establishment clause.

When the Court decided E

VERSON V. BOARD OF

DUCATION, 330 U.S. 1 (1947), it formalized on a

national level a judicial philosophy of disestab-

lishment that many of the states had signiﬁ cantly

moved toward in their constitutions—mostly on

a piecemeal basis. Full-scale sectarian establish-

ment at the state level failed much earlier because

religious liberties achieved through religious plu-

ralism within states had stronger appeal than did

religious freedom accomplished through federal-

ism between states. Nevertheless, fragmentary

establishment continued in some states—state

majorities wishing to discourage unpopular sects

from populating, proselytizing, or creating disrup-

tive inﬂ uences in their communities. In these mat-

ters, it would take a long series of U.S. Supreme

Court decisions to build a metaphorical wall of

separation between church and state.

As the passage of time demonstrated, the high

court found that a wall of separation did not

always facilitate fundamental religious freedoms,

these liberties better protected in some instances

by policies of accommodation. Consequently,

the Court followed an accommodating line of

church and state jurisprudence in about half of

its important religious cases from 1943 to 2003.

The difﬁ culty is that the nationalization of reli-

gious liberties has put the establishment clause

in frequent disjunction with the free exercise

clause.

298 freedom of religion

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The U.S. Supreme Court faces a large chal-

lenge in ﬁ nding neutral ground when one person’s

free exercise of religion conflicts with another

person’s religious belief against that exercise, or

some group’s free exercise seems like a public

establishment of religion to an opposing group.

Prior to the incorporation of the Fourteenth

Amendment against the First, the choice of which

freedom to protect was merely an expression of

federalism, each state having its own formula.

But in the modern era, federalism in religion has

become mostly unconstitutional, opening the way

for religiously interested groups to litigate for pub-

lic policy wins in a national context. Many of these

contests have involved religious speech and dis-

plays, religious schooling, Bible reading and prayer

in public schools, and the teaching of evolution.

Major precedent-setting cases involving public

education include E

NGEL V. VITALE, 370 U.S. 421

(1962), Epperson v. Arkansas, 393 U.S. 97 (1968),

and L

EMON V. KURTZMAN, 403 U.S. 602 (1971). In

cases involving issues of licensing, labor laws, gov-

ernment grants and beneﬁ ts, tax exemptions, civil

powers, equal access, and medical care, McGowan

v. Maryland, 366 U.S. 420 (1961), and Sherbert

v. Verner, 374 U.S. 398 (1963) stand as landmark

decisions, both addressing Sabbath Day issues.

Some leading scholars who observe problems

in the evolving jurisprudence are at the same time

sanguine about the outcomes, the Court showing

ﬁ nesse in balancing its decisions between accom-

modation and separatism. Many astute observers

conclude that the Court’s nuanced approach is

stimulative of the continuing vitality of religion in

America. With the expansion of religious diversity

and the development of the commercial state, the

breakdown of religious federalism was inevitable,

requiring a national level intervention by the high

Court. In spite of some uncertainties as to where

the Court’s jurisprudence will lead, polls show

that most Americans believe the U.S. Constitu-

tion continues to be the world’s gold standard for

protecting freedom of religion.

For more information: Wald, Kenneth D. Reli-

gion, and Politics in the United States. 4th ed.

Lanham, Md.: Rowman & Littleﬁ eld Publishers,

2003; Witte, John, Jr. Religion and the Ameri-

can Constitutional Experiment. 2nd ed. Boulder,

Colo.: Westview Press, 2005.

—Timothy J. Barnett

freedom of the press

Freedom of the press refers to one of the expres-

sive freedoms found in the First Amendment.

Thomas Jefferson once said that “our liberty

depends on the freedom of the press, and that

cannot be limited without being lost.” The framers

of the U.S. Constitution ensured that Jefferson’s

sentiment would live on by including a clause in

the First Amendment of the Bill of Rights that

protects freedom of the press: “Congress shall

make no law . . . abridging the freedom of speech,

or of the press.” Although the press in the United

States does not operate free of all restrictions, the

U.S. Supreme Court has given reporters, editors,

and publishers a great deal of latitude in terms of

what they can say in their pages, on the airwaves,

and now in cyberspace.

But long before Jefferson wrote those words

or the colonists fought the Revolutionary War or

the founding fathers drafted the Constitution,

the trial of a New York printer demonstrated the

importance Americans placed on maintaining a

free press. John Peter Zenger was the printer and

editor of the New York Weekly Journal, which

published articles critical of New York’s colonial

governor. In November 1734, the governor had

Zenger arrested and jailed for 10 months on the

charge of seditious libel. Philadelphia Attorney

Andrew Hamilton, who defended Zenger, admit-

ted to the jury that Zenger published the offend-

ing stories but argued that if the information in

the articles were true, then he should not be found

guilty for his criticism of the government. Zenger

was acquitted despite the judge’s instructions that

he be convicted.

If the Zenger trial marked the beginning of

American jurisprudence regarding freedom of the

press in the United States, then the next 200-plus

years have been spent determining the boundar-

ies of that freedom. Generally, it is accepted that

the press is entitled to no more freedom than the

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public. However, the U.S. Supreme Court has

issued numerous rulings that have dealt directly

with the press’s ability to gather information and

publish that information.

One of the central tenets of press freedom in

the United States is the near total prohibition on

prior restraint. This means that if the government

wants to stop a newspaper or other media outlet

from presenting material to the public, it better

have a very compelling reason for doing so. N

EAR

V. MINNESOTA, 283 U.S. 697 (1931), crystallized

that notion when it struck down a Minnesota law

that allowed government ofﬁ cials to prevent the

publication of “malicious, scandalous and defama-

tory” periodicals.

Furthermore, if a publisher had been stopped

from publishing such a periodical, the publisher

had to receive government approval before resum-

ing operations. Although the Near Court found the

law unconstitutional, it was not ready to say that

the government had no recourse at all in prevent-

ing the publication of certain information. Chief

Justice Charles Evans Hughes wrote that the pub-

lication of troop movements could be prevented

prior to publication. He added that “the primary

requirements of decency may be enforced against

obscene publications. The security of the com-

munity life may be protected against incitements

to acts of violence and the overthrow by force

of orderly government.” Despite these apparent

loopholes that allowed the government to engage

in prior restraint, the Supreme Court continued to

set the bar quite high when it came to the notion

of prior restraint.

In the famous Pentagon Papers case the Court

ruled against the Nixon Administration, which

claimed that national security required the Court

to enjoin the New York Times and the Washington

Post from publishing classiﬁ ed documents about

the country’s conduct of the Vietnam War. In an

extremely brief decision, the Court wrote that the

government failed to meet its “heavy burden” to

stop the publication of the Pentagon Papers.

Furthermore, the government cannot use the

back door to stiﬂ e the press when it can not get in

the front. Grosjean v. American Press, 297 U.S.

233(1936), dealt with a state tax on ads in publica-

tions that had a circulation of more than 20,000

copies a week. The Court found the law violated

the First Amendment. The Court said that the

press could be treated as the government would

treat any other business, but it could not create

laws that would single out the media and lead to

prior restraint or limit circulation. Justice George

Sutherland, writing for the Court, said that when

the framers wrote the First Amendment, it “was

meant to preclude the national government, and,

by the Fourteenth Amendment, to preclude

the states, from adopting any form of previous

restraint upon printed publications, or their circu-

lation, including that which had theretofore been

effected by . . . well known and odious methods,”

such as the English tradition of taxing the press.

Sutherland added, “The form in which the tax

is imposed is, in itself, suspicious. It is not mea-

sured or limited by the volume of advertisements.

It is measured alone by the extent of the circula-

tion of the publication in which the advertisements

are carried, with the plain purpose of penalizing

the publishers and curtailing the circulation of a

selected group of newspapers.” Just as the govern-

ment cannot curtail publishing under the First

Amendment’s free speech clause, it cannot com-

pel it either. In M

IAMI HERALD PUBLISHING CO. V.

TORNILLO, 418 U.S. 241 (1974), the U.S. Supreme

Court struck down a Florida statute that required

newspapers to give access to candidates when they

ran political editorials critical of the candidates.

But the cases interpreting freedom of the press

have addressed more than just prior restraint. For

example, the Supreme Court has issued a ruling

establishing how much the press can say about

someone, even if what the media outlet says hurts

that person’s reputation. The ultimate defense to

a libel claim is, of course, the truth. Until 1964,

however, state common law governed these cases.

In that year, the U.S. Supreme Court applied the

First Amendment to the question of libel and

gave the press a defense beyond simply the truth.

The case that gave rise to this enhanced defense

resulted from an advertisement related to the Civil

Rights movement that ran in the New York Times.

The ad criticized the Montgomery, Alabama,

police department and contained some facts that

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were incorrect. Although he was not mentioned by

name, L. B. Sullivan, Montgomery’s police com-

missioner, sued the Times for libel and won. The

newspaper appealed. The Supreme Court ruled in

EW YORK TIMES V. SULLIVAN, 376 U.S. 254 (1964),

that the government cannot, under the First and

Fourteenth Amendments, award damages to a

public official for a defamatory falsehood relat-

ing to his or her ofﬁ cial conduct unless the ofﬁ cial

proves “actual malice.” Also, the Court deter-

mined that a public ofﬁ cial could be libeled only if

the press published the statement with knowledge

of its falsity or with reckless disregard of whether

it was true or false. The Court made its determi-

nation in order to promote the nation’s “commit-

ment to the principle that debate on public issues

should be uninhibited, robust and wide-open, and

that it may well include vehement, caustic and

sometimes unpleasantly sharp attacks on govern-

ment and public ofﬁ cials.” Although Sullivan dealt

with statements about public ofﬁ cials, over time,

other cases have applied the principles developed

in Sullivan to public ﬁ gures as well.

Beyond protecting the press’s ability to pub-

lish news and giving reporters and editors some

leeway to make mistakes, the First Amendment

also protects the news-gathering function of the

media. Justice Byron White said in B

RANZBURG V.

HAYES, 408 U.S. 665 (1972), that although report-

ers do not have a First Amendment privilege to

refuse to answer grand jury questions directly

related to criminal conduct the journalists wit-

nessed, his opinion did not “suggest that news

gathering does not qualify for First Amendment

protection.” He added that “without some pro-

tection for seeking out the news, freedom of the

press could be eviscerated.”

The reporters in the case had argued that with-

out being able to keep information and sources

confidential they would have a difficult time

convincing people to talk to them and give them

the information necessary to keep the public

informed. Despite the Court’s rejection of their

argument, White’s opinion also noted that grand

juries were prevented from using their powers

to drive a wedge between journalists and their

sources. “Ofﬁ cial harassment of the press under-

taken not for the purposes of law enforcement but

to disrupt a reporter’s relationship with his news

sources would have no justiﬁ cation.” Although the

First Amendment may not provide all the protec-

tion that journalists would like, many states have

adopted so-called “shield laws” that permit report-

ers to protect their sources when subpoenaed to

testify in court.

Meanwhile, the Supreme Court has often sided

with journalists when it comes to gaining access to

court proceedings. For the most part, the question

of the ability of the press to attend criminal trials

has been settled since the Supreme Court ruled in

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555 (1980). Chief Justice Warren Earl Burger

wrote that the right to attend trials is implied in

the First Amendment. He opined that “people

in an open society do not demand infallibility

from their institutions but it is difﬁ cult for them

to accept what they are prohibited from observ-

ing.” The press stands in for those people unable

to attend important trials. Again, as with so many

rights guaranteed by the First Amendment, the

right to attend trials is not absolute. Globe News-

paper Co. v. Superior Court, 457 U.S. 596 (1982),

clariﬁ ed the Richmond opinion by explaining that

“where the State attempts to deny the right of

access in order to inhibit the disclosure of sensi-

tive information [in a trial], it must be shown that

the denial is necessitated by a compelling gov-

ernmental interest and is narrowly tailored

to serve that interest.” In other words, under some

circumstances, trials may be closed.

Today, as the press migrates from traditional

media, like newspapers and television, to new

forms of news-gathering and dissemination on the

Internet, questions about the application of the

First Amendment’s guarantees of press freedom to

these new technologies continue to arise. Already

the Supreme Court has ruled that the strictest

level of scrutiny must be applied when evaluat-

ing a government regulation that implicates First

Amendment freedoms as it relates to the Inter-

net (for example, in Reno v. ACLU, 521 U.S. 844

[1997]). And a court in New York ruled in 2001

that an online news organization had the same

rights as a traditional media outlet when it came to

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