Schultz D. Encyclopedia of the United States Constitution

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questions of libel. The opinion of the court, citing

the New York Times v. Sullivan case, said that the

Web site in question is entitled to heightened pro-

tection under the First Amendment.

For more information: Harrison, Maureen, and

Steve Gilbert. Freedom of Press Decisions of the

United States Supreme Court. San Diego, Calif.:

Excellent Books, 1996; Reves, Richard. What the

People Know: Freedom and the Press. Cambridge,

Mass.: Harvard University Press, 1998.

—Jim Jacobson

Fuller Court

Chief Justice Melville W. Fuller presided over

the Supreme Court during a pivotal era of Ameri-

can history, from 1888 to 1910. The Fuller Court

confronted a variety of issues emanating from the

sweeping economic and social changes that trans-

formed American society at the end of the 19th

century.

The Court under Fuller’s leadership fashioned

a constitutional jurisprudence grounded on prin-

ciples of limited national government, state auton-

omy, and high regard for the rights of property

owners. Adhering to the views of the framers of

the Constitution, members of the Fuller Court

believed that liberty and property were indissolu-

bly linked. Liberty, deﬁ ned largely in economic

terms, was the guiding spirit of the Fuller Court.

Protection of private property and contractual

freedom was deemed necessary to restrain the

reach of government and thus safeguard individ-

ual liberty.

Although the Court under Fuller gave height-

ened protection to the rights of property owners,

it is important to keep the work of the Court in

historical perspective. Rather than making a

sharp break with the past, the Fuller Court built

upon time-honored constitutional themes. More-

over, the Court functioned broadly within the

contours of public opinion. Fuller and his col-

leagues spoke for the conservative political coali-

tion that dominated American public life at the

end of the 19th century. Lastly, for all its dedica-

tion to property rights, the Fuller Court upheld

most economic regulations and allowed room for

moderate reform.

In its efforts to vindicate property rights, the

Fuller Court rendered a number of important

decisions and embraced a broad reading of consti-

tutional guarantees. For example, the Fuller Court

construed the due process clause of the Four-

teenth Amendment as a check on state legisla-

tive authority. The Court struck down regulations

found to constitute an unreasonable or arbitrary

interference with property rights as a violation

of due process. In a line of decisions, Fuller and

his colleagues limited the power of the states to

impose rates on railroads and turnpikes, asserting

a judicial role to inquire into the reasonableness

of charges set by states. This trend culminated

in Smyth v. Ames, 169 U.S. 466 (1898), in which

the Fuller Court insisted that railroads were con-

stitutionally entitled to a “fair return” upon the

“fair value” of their property. Designed to protect

investors and regulated industries against unrea-

sonably low or conﬁ scatory rates, the Smyth rule

made federal courts the ﬁ nal arbiter of the reason-

ableness of imposed rates.

In addition, the Fuller Court interpreted the

liberty component of the due process clause to

encompass freedom of contract. The Court in All-

geyer v. Louisiana, 165 U.S. 578 (1997), deﬁ ned

liberty as more than just freedom from physical

restraint and as embracing the right to pursue any

lawful calling and to enter contracts for that pur-

pose. To be sure, the Fuller Court never took the

position that contractual freedom was absolute.

Still, the justices treated contractual freedom as

a constitutional baseline and expected states to

demonstrate a good reason, such as safeguarding

public health, safety, or morals, for laws that lim-

ited this right. In Holden v. Hardy, 169 U.S. 366

(1898), for instance, the Fuller Court sustained

a state law that restricted the hours of work in

underground mines as a health measure. On the

other hand, in the famous case of L

OCHNER V. NEW

YORK, 198 U.S. 45 (1905), the Court, by a 5-4 vote,

struck down a New York law limiting hours of

work in bakeries as an abridgment of the liberty

of contract. The majority was not persuaded

that the baking trade was unhealthy and could

302 Fuller Court

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ﬁ nd no direct relationship between hours of work

and the health of bakers. In the same vein, the

Fuller Court in Adair v. United States, 208 U.S.

161 (1908), struck down a congressional statute

that outlawed so-called yellow dog contracts in

the rail industry. It reasoned that the measure was

an arbitrary interference with the right of employ-

ers and employees to bargain over the terms of

employment.

The Fuller Court, however, was prepared to

sustain workplace regulations to safeguard persons

seen as vulnerable in the workplace. In Muller v.

Oregon, 208 U.S. 412 (1908), the justices upheld

a state law restricting working hours for women in

factories and laundries to 10 hours a day. Empha-

sizing the health needs and maternal function of

women, they found that the statute was a reason-

able exercise of police power, which trumped

the freedom of contract. In Muller, the Fuller

Court mirrored prevailing societal attitudes about

the appropriate function of women.

Besides a broad reading of the due process norm,

Fuller and his colleagues did much to strengthen

the takings clause of the Fifth Amendment as

a shield for individual property rights. In Monon-

gahela Navigation Co. v. United States, 148 U.S.

312 (1893), the Fuller Court insisted that the

determination of just compensation when pri-

vate property was appropriated by government

was a judicial function. The Court defined just

compensation in terms of market value. Moreover,

in Chicago, Burlington, and Quincy Railroad Co.

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

that payment of just compensation when private

property was taken for public use was an essential

element of due process guaranteed by the Four-

teenth Amendment against state abridgment.

This decision marked the ﬁ rst acceptance by the

Supreme Court of the view that the due process

clause made certain fundamental provisions of the

Bill of Rights applicable to the states. Fuller and

his colleagues even grappled with the question of

whether a regulation could so reduce the value of

land as to be tantamount to a taking.

Despite these steps to fashion a muscular tak-

ings jurisprudence, the Fuller Court allowed the

states latitude in exercising the power of eminent

domain and imposing land use regulations. The

Court repeatedly insisted that private property

could be taken by eminent domain only for a pub-

lic use and not for the private beneﬁ t of another.

Yet the Fuller Court frequently deferred to state

legislative declarations of what amounted to pub-

lic use, recognizing that there was a wide variety

of local conditions across the nation. In addition,

the Court allowed localities to impose some land

use regulations. For example, in Welch v. Swasey,

214 U.S. 91 (1909), the Court upheld a restriction

on the height of buildings in sections of Boston

as a valid exercise of the police power to protect

public safety against ﬁ re.

The Fuller Court’s respect for private property

and the role of the states in the federal union also

found forceful expression in P

OLLOCK V. FARMERS’

LOAN AND TRUST COMPANY, 157 U.S. 429, 158 U.S.

601 (1895). At issue was the constitutionality of

the 1894 income tax, the ﬁ rst peacetime levy on

incomes. In two opinions, the Court invalidated

the levy as a “direct tax” which, according to the

Constitution, had to be apportioned among the

states according to population. The Court pictured

the direct tax clauses as provisions crafted to pro-

tect both state autonomy and owners of property

by curtailing congressional taxing power. It bears

emphasis that the Fuller Court made no system-

atic attempt to prevent the taxation of wealth. The

Court upheld both federal and state inheritance

taxes, as well as the authority of states to tax busi-

ness corporations.

Fuller and his colleagues steadfastly champi-

oned free trade among the states. They vigorously

wielded the dormant commerce power to elimi-

nate state-imposed barriers to the ﬂ ow of goods

in the national market. Thus, the Fuller Court

repeatedly held that states could not bar interstate

shipments of liquor despite local prohibition laws,

nor impede the import of food products from

other jurisdictions.

Still, the Fuller Court sought to preserve a role

for the states in governing the economy. This was

made clear by United States v. E.C. Knight Com-

pany, 156 U.S. 1 (1895), in which the Court limited

the reach of the Sherman Anti-Trust Act and dis-

tinguished between commerce and manufacturing.

Fuller Court 303

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Congress was conﬁ ned to regulating trade among

the states. Fuller and his colleagues were con-

cerned that permitting congressional power over

interstate commerce to encompass all eco-

nomic activity would be inconsistent with the basic

idea of a national government of enumerated pow-

ers. On the other hand, the Fuller Court enforced

the anti-trust laws where the authority of Congress

was clear, such as interstate railroading.

By and large, the line between production and

commerce articulated in E.C. Knight governed

commerce clause jurisprudence until the New

Deal era. The Fuller Court, however, was surpris-

ingly receptive to the use of the commerce clause

by Congress to indirectly control public health

and morals, matters traditionally reserved for the

states. In Champion v. Ames, 188 U.S. 321 (1903),

the Court determined that Congress could ban

the transportation of lottery tickets from state to

state. The practical effect of this decision was to

sanction a federal police power based on the claim

of regulating interstate commerce.

The Fuller Court was not supportive of the

ﬂ edging movement to organize labor unions.

The Court afﬁ rmed the growing use of injunc-

tions against strikes in the case of I

N RE DEBS,

158 U.S. 564 (1895). Upholding the contempt con-

viction of union leader Eugene V. Debs for violat-

ing an injunction to cease interfering with trains

in interstate commerce, Fuller and his colleagues

broadly invoked federal authority to remove any

obstructions to interstate commerce and the

movement of mail. Similarly, in Loewe v. Lawlor,

208 U.S. 274 (1908), the Fuller Court applied the

Sherman Anti-Trust Act to labor union activities.

This decision raised the specter that secondary

boycotts or other union actions could be seen as

combinations in restraint of trade and thus render

unions liable for damages. Unions would not gain

greater legal protection until enactment of New

Deal labor legislations in the 1930s.

In contrast to its activist record championing

the rights of property owners, the Fuller Court

demonstrated little interest in the claims of racial

minorities, criminal defendants, and persons who

breached accepted codes of moral behavior. The

Court consistently maintained that the guar-

antees of the Bill of Rights, aside from the just

compensation requirement, did not apply to the

states. Hence, Fuller and his colleagues gener-

ally deferred to state governance of race relations,

criminal justice, and public morals.

The Fuller Court put its seal of approval on

the emerging system of racial segregation in the

southern states. In P

LESSY V. FERGUSON, 163 U.S.

537 (1896), the justices brushed aside challenges

to a Louisiana law requiring railroads to assign

white and black passengers to separate cars. Even

more striking was Berea College v. Kentucky,

211 U.S. 45 (1908), in which the Court ruled that

Kentucky could make it illegal for a private school

to teach white and black students together. Nor

did the Fuller Court resist the movement to dis-

enfranchise blacks and exclude blacks from jury

service in the South. Although the Fuller Court’s

record on civil rights was bleak by modern

standards, in fairness it should be noted that the

Court reﬂ ected the racial attitudes of the age.

Likewise, the Fuller Court allowed the states

wide autonomy over the administration of crimi-

nal justice. In T

WINING V. NEW JERSEY, 211 U.S. 78

(1908), for example, the Court held that the Fifth

Amendment’s privilege against self-incrimination

was not an essential element of liberty embedded

in the notion of due process and effective against

the states. Yet the decision also suggested that

some rights guaranteed by the Bill of Rights might

be safeguarded against state action because denial

of them would violate due process. The implica-

tions of this suggestion would not be realized until

long after the end of Fuller’s tenure. Unlike its

hands-off approach to state criminal proceedings,

the Fuller Courts generously construed the Bill of

Rights in federal prosecutions. In Hale v. Henkel,

201 U.S. 43 (1906), the Court ruled that business

corporations were protected under the Fourth

Amendment against unreasonable searches and

seizures, but that such entities were not entitled to

Fifth Amendment guarantees.

The acquisition of overseas territories by the

United States following the Spanish-American

War of 1898 raised contentious political and legal

issues. In a cluster of decisions known as the Insu-

lar Cases (1901–04), the Fuller Court grappled

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with the constitutional status of these territories.

Thus, in the leading case of Downes v. Bidwell,

182 U.S. 244 (1901), the Court concluded that the

Constitution did not automatically extend to the

overseas possessions and that the inhabitants were

subject to control by Congress. The upshot of the

Insular Cases was judicial support for the policy

of overseas expansion.

The triumph of the New Deal and liberal stat-

ism in the 1930s eclipsed much of the work of the

Fuller Court for decades. Only in recent years

has the Supreme Court again been receptive to

curtailing congressional power over economic life

and to defending the rights of individual property

owners. This development has triggered renewed

interest in the jurisprudence of the Fuller Court.

For more information: Ely, James W., Jr. The

Chief Justiceship of Melville W. Fuller, 1888–

1910. Columbia, S.C.: University of South Caro-

lina Press, 1995; Ely, James W., Jr. “The Fuller

Court and Takings Jurisprudence.” Journal of

Supreme Court History 2, no. 120 (1996); Fiss,

Owen M. Troubled Beginnings of the Modern

State, 1888–1910. New York: Macmillan Publish-

ing, 1993; Gillman, Howard. “More on the Origins

of the Fuller Court’s Jurisprudence: Reexamining

the Scope of Federal Power over Commerce and

Manufacturing in Nineteenth-century Constitu-

tional Law.” Political Science Quarterly 49, no. 2

(1996): 415 –437.

—James W. Ely, Jr.

Fullilove v. Klutznick 448 U.S. 448 (1980)

In Fullilove v. Klutznick, the Supreme Court

extended its confused jurisprudence on the ques-

tion of what constitutional standard should apply

to remedial race-based governmental action. Fif-

teen years before A

DARAND CONSTRUCTORS, INC. V.

EÑA established that all governmentally imposed

racial classiﬁ cations should be analyzed under a

strict scrutiny standard, the Court in Fulli-

love held that a minority business enterprise set-

aside was constitutional, but the plurality decision

failed to conclusively establish the proper level of

constitutional analysis.

Petitioners in Fullilove included associations

of construction contractors and subcontractors

who sought to enjoin enforcement of the minor-

ity business enterprise (MBE) provision of the

Public Works Employment Act of 1977. The

provision required that, absent an administra-

tive waiver, at least 10 percent of federal funds

granted for local public works projects had to be

used by the state or local grantees to procure ser-

vices or supplies from businesses owned by U.S.

citizens who were “Negroes, Spanish-speaking,

Orientals, Indians, Eskimos, [or] Aleuts.” Thus,

contracts were awarded to MBEs even when they

were not the lowest bidders. Both the district

court and the Second Circuit upheld the validity

of the program.

Chief Justice Warren Burger, writing an

opinion in which Justices Lewis Franklin

Powell, Jr., and Byron White joined, held that

the objectives of the MBE provision were to

ensure, without hard and fast quotas, that grant-

ees would not employ procurement practices that

Congress had concluded might result in perpetu-

ation of the effects of prior discrimination which

had limited or foreclosed access by minority

businesses to public contracting opportunities.

The objectives of the MBE program were well

within Congress’s spending power, and in fact,

could have been justiﬁ ed under the commerce

clause or the Fourteenth Amendment as

well. Furthermore, the MBE program was not

constitutionally defective merely because of the

disappointed expectations of nonminority ﬁ rms

who had not themselves engaged in discrimina-

tion; when effectuating a limited and properly

tailored remedy to cure the effects of prior dis-

crimination, a “sharing of the burden” by inno-

cent parties was not impermissible. The program

was not under inclusive (in that the beneﬁ t was

limited to specific minority groups) because

there was no evidence that Congress had inad-

vertently excluded an identiﬁ able disadvantaged

group, nor was the program over inclusive (in

that some minority businesses might unjustly

beneﬁ t). The administrative program speciﬁ cally

provided a waiver and exemption procedure to

identify and eliminate from participation MBEs

Fullilove v. Klutznick 305

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who were not bona ﬁ de or attempted to exploit

the remedial aspects of the program by charging

unreasonable prices not attributable to the pres-

ent effects of past discrimination. In addition,

the pilot program nature of the MBE provision

meant that its limited extent and duration, as

well as Congressional reassessment prior to any

extension, provided additional safeguards.

Justices Thurgood Marshall, William J.

Brennan, Jr., and Harry Blackmun concurred in

the judgment but asserted more deﬁ nitively that

the proper inquiry for determining the constitu-

tionality of racial classiﬁ cations that provide ben-

eﬁ ts to minorities for the purposes of remedying

the present effects of past racial discrimination

should be whether the classiﬁ cations serve impor-

tant governmental objectives and are substantially

related to the achievement of those objectives.

Hence, where the race-based governmental action

was remedial in nature, the level of constitutional

inquiry should be more than the rational basis

test but less than a strict scrutiny analysis used

for non-remedial racial classiﬁ cations.

Justices Potter Stewart and William Hubbs

Rehnquist dissented, asserting that all govern-

mental racial distinctions were equally invidious

and that “the rule cannot be any different when

the persons injured by a racially biased law are not

members of a racial minority.” Justice John Paul

Stevens also dissented, going so far as to suggest

that the regulation was “slapdash” and imprecise

and that if the government was going to make “a

serious effort to deﬁ ne racial classes by criteria

that can be administered objectively,” it should

consult the laws from the Nazi regime.

The emotionally charged rhetoric and consti-

tutional confusion over affirmative action

which had begun with R

EGENTS OF THE UNIVER-

SITY OF CALIFORNIA V. BAKKE would continue over

the next decade and a half. However, the Court

in 1995 ﬁ nally eschewed any intermediate level

of scrutiny for remedial race-based governmen-

tal classiﬁ cations and afﬁ rmed that all such racial

distinctions would be evaluated under strict scru-

tiny. Thus, Fullilove was relegated to the position

of a jurisprudential stepping-stone on the path to

racial fungibility.

For more information: Spann, Girardeau. 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

fundamental rights

Fundamental rights are those rights that are

explicitly or implicitly protected by the United

States Constitution and Bill of Rights and given

their importance, are accorded special status by

the judiciary. These rights include the right to

privacy, to vote, to procreate, free speech, and

freedom of religion.

Historically, fundamental rights coincide

with the natural rights assigned to every human

being and with those rights listed in the U.S. Bill

of Rights. They prescribe the limits of interven-

tion and interference of the central government

in citizens’ lives and can only be partially and

transitorily restricted under a state of exception;

for instance, in case of national emergencies like

a war, a spate of terrorist attacks, or civil unrest,

when security concerns prevail over certain civil

liberties and personal entitlements. However,

even a partial suspension or infringement of these

rights must be strictly scrutinized by the Supreme

Court.

The origin of the concept of fundamental rights

grows out of a series of eugenics laws that were ﬁ rst

adopted in the early part of the 20th century. By

1914, marriage restriction laws targeting “feeble-

minded” citizens had been enacted in more than

half the states, and by 1917, 15 states had passed

sterilization laws. But “only” a few thousand ster-

ilizations had been actually performed, mainly

because nearly half of such laws had been struck

down on the ground that they violated due pro-

cess, freedom from cruel and unusual pun-

ishment, and the equal protection clause. A

second wave of eugenics laws coincided with the

Immigration Restriction Act (1924) and Virginia’s

Act to Preserve Racial Integrity (1924). In 1924,

Virginia also passed a law authorizing the invol-

untary sterilization of alleged mental defectives.

This law was upheld 8–1 by the Supreme Court

306 fundamental rights

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in BUCK V. BELL, 274 U.S. 200 (1927). Justice Oli-

ver Wendell Holmes, Jr., who was joined

by Louis D. Brandeis and William Howard Taft,

inﬂ uenced by a crude scientiﬁ c naturalism, a pes-

simistic anthropology, and a corrosive skepticism,

wrote in the now infamous opinion for the Court

that “the principle that sustains compulsory vac-

cination is broad enough to cover cutting the Fal-

lopian tubes. . . . Three generations of imbeciles

are enough.”

As a result of this decision, nearly half the U.S.

states passed eugenics laws authorizing compul-

sory and nonvoluntary sterilization. Sterilization

rates dramatically increased, especially during

the Depression, when few families were prepared

to put up with the social protection of what was

perceived to be a disproportionate number of

dependent people and did not protest against the

systematic infringement of their fundamental

rights. Buck v. Bell was effectively overturned by

the Supreme Court in S

KINNER V. OKLAHOMA, 316

U.S. 535 (1942), which deﬁ ned procreation “one

of the basic civil rights of man” and steriliza-

tion an invasion of fundamental interests which,

according to Justice William O. Douglas,

“in evil or reckless hands” could have genocidal

consequences.

In P

ALKO V. CONNECTICUT, 302 U.S. 319 (1937),

Justice Benjamin Cardozo described fundamental

rights as those “implicit in the concept of ordered

liberty” and which represent “fundamental prin-

ciples of liberty and justice which lie at the base of

all our civil and political institutions.” While Car-

dozo articulated the concept of fundamental rights

to determine which Bill of Rights protections are

incorporated through the Fourteenth Amend-

ment to apply to the states, his concept of funda-

mental rights was applied in Skinner v. Oklahoma

when it came to the right to procreate, and it has

also come to be applied to most if not all Bill of

Rights protections. It also applies to the right to

vote, to marry, and to privacy. Through the early

1970s, the Supreme Court seemed willing to ﬁ nd

new fundamental rights in the Constitution. Except

for the right to die in C

RUZAN V. MISSOURI, 497

U.S. 261 (1990), the Court of late seems unwilling

to add or create more fundamental rights.

In order for the government to restrict a funda-

mental right it must demonstrate and pass a com-

pelling governmental interest test. Such a

test poses a high burden and it is thus not easy to

restrict a fundamental right.

For more information: Morone, James A. Hell-

ﬁ re Nation: The Politics of Sin in American His-

tory. New Haven, Conn.: Yale University Press,

2003; Nieman, Donald G., ed. The Constitution,

Law, and American Life: Critical Aspects of the

Nineteenth-Century Experience. Athens: The

University of Georgia Press, 1992; Reilly, Philip R.

The Surgical Solution. A History of Involuntary

Sterilization in the United States. Baltimore, Md.:

Johns Hopkins University Press, 1991.

—Stefano Fait and David Schultz

Furman v. Georgia 408 U.S. 238 (1972)

In Furman v. Georgia, the United States Supreme

Court determined that the then current proce-

dures in place for implementation of the death

penalty violated the cruel and unusual clauses of

the Eighth and Fourteenth Amendments of

the Constitution. The Court issued its decision in

Furman v. Georgia per curiam, meaning that the

decision itself was issued in the name of the Court

rather than in the name of one justice. The deci-

sion was 5–4 that “the imposition and carrying

out of the death penalty in these cases constitute

cruel and unusual punishment in violation

of the Eighth and Fourteenth Amendments.”

The cases were remanded to the lower courts for

further proceedings. Although the decision was

issued per curiam, all of the justices in the major-

ity chose to ﬁ le separate concurring opinions. The

fact that all ﬁ ve of the justices chose to ﬁ le sepa-

rate opinions is an indication of the signiﬁ cance

of the case.

Although the decision was named for the Fur-

man case, the Court addressed three different

cases in its decision. In each of these cases, the

death penalty was imposed: in one case for mur-

der and in two cases for rape. Only two of the jus-

tices (William J. Brennan, Jr., and Thurgood

Marshall) believed that the death penalty was

Furman v. Georgia 307

xviii+446_EofUSConsti-v1.indd 307 3/12/09 3:05:14 PM

unconstitutional in all situations. The remain-

ing three justices in the majority focused on the

constitutionality of the death penalty with regard

to its implementation. The concurring opinions

expressed concern with regard to the arbitrary

nature of the implementation of the death pen-

alty, the frequency of its imposition, and its impo-

sition with regard to a select group of minorities as

opposed to the population as a whole.

In his concurring opinion, Justice William O.

Douglas stated that it was unconstitutional to

implement a penalty that society would not apply to

the general population but only to a speciﬁ c group.

Justices Potter Stewart and Byron White wrote that

the sentences were cruel in the sense that they went

beyond what the state legislatures had determined

to be the appropriate punishment for the crime

and were unusual in that the death penalty is not

usually imposed for murder and rarely imposed for

rape. In all of the concurring opinions, the justices

refer to how often the death penalty is imposed.

It was apparent that one of the considerations the

Court was concerned with was the standard by

which society judges a punishment.

The decision in Furman v. Georgia did not

conclude that the death penalty itself was uncon-

stitutional. Rather, the Court determined that the

current procedures in place for implementation of

the death penalty violated the cruel and unusual

clauses of the Eighth and Fourteenth Amend-

ments of the Constitution. This decision made it

possible for the states to rewrite their laws in order

to reinstate the death penalty. A case (G

REGG V.

GEORGIA) would come before the Court in 1976

that successfully rewrote the procedures allowing

the reinstatement of the death penalty in those

states that had previously had it. Furman is sig-

niﬁ cant because it was the ﬁ rst time the Supreme

Court held that the death penalty was unconstitu-

tional. This holding applied only to how the pen-

alty was carried out, however, and did not mean

there were not circumstances in which the death

penalty was appropriate.

For more information: Furman v. Georgia, 408

U.S. 238 (1972); Jolly, Robert W., Jr., and Edward

Sagarin. “The First Eight After Furman: Who Was

Executed With The Return of The Death Pen-

alty?” Crime and Delinquency 30, no. 4 (1984):

610–629; Keil, Thomas J., and Vito, Gennaro F.

“The Effects of the Furman and Gregg Decisions

on Black-White Execution Ratios in the South.”

Journal of Criminal Justice 20, no. 3 (1992): 217–

245; Wells, Diane. “Federal Habeas Corpus and

the Death Penalty: A Need for a Return to the

Principles of Furman.” Journal of Criminal Law

and Criminology 80, no. 2 (1989): 427–484.

—Valerie Bell

308 Furman v. Georgia

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309

ﱶﱷﱸ

Garcia v. San Antonio Metropolitan Transit

Authority

469 U.S. 528, 105 S.Ct. 1005

(1985)

In Garcia v. San Antonio Metropolitan Transit

Authority, the Supreme Court held that the Tenth

Amendment to the Constitution that recognizes

powers reserved to the states places no limitations

on Congress’s interstate commerce pow-

ers and, consequently, Congress does have the

authority to apply the Fair Labor Standards Act

(first enacted in 1938 and amended in 1974) to

states and municipalities.

The Court’s decision in Garcia overturned its

holding of less than a decade earlier in N

ATIONAL

LEAGUE OF CITIES V. USERY, 426 U.S. 833 (1976), in

which it had argued that essential state functions

are beyond the authority of Congress to regulate.

The Court reasoned in Garcia that there was no

clear line to be drawn between “essential” and

“nonessential” state functions and, thus, its pre-

vious decision in National League of Cities had

established an unworkable standard that should be

abandoned. Further, the Court argued that courts

should not be the ones to determine what func-

tions should be or should not be performed by the

states; that is, what is or is not an essential func-

tion. That question, the Court argues here, should

be left to the people through their representa-

tives. In the Garcia doctrine, the Court reasons

that the appropriate arena for deciding what func-

tions the states should perform is the democratic

process and not the courts because, absent a clear

constitutional standard to measure what is and is

not an essential state function, court line-drawing

would amount to an unprincipled supplanting of

the policy judgment of elected bodies for that of

unelected courts. The Court argues that because

the people in the states and, thus, the states them-

selves also influence congressional action, the

democratic process can limit over-reaching by

Congress in its exercise of its interstate commerce

powers. Or put differently, the appropriate check

on Congress’s power is the people exercising the

electoral franchise, not the courts exercising pol-

icy preferences.

Garcia overturned the 1976 decision in National

League of Cities with the same narrow 5-4 major-

ity. Justice Harry Blackmun was in the majority in

both cases, reversing course and providing the nec-

essary ﬁ fth vote, making a new majority in Garcia

and returning interstate commerce clause doc-

trine to that which had been established in 1937

that recognized a broad authority of Congress to

use its own judgment in the regulation of interstate

commerce. National League of Cities had broken

with past doctrine to limit Congress’s authority

under the interstate commerce clause in favor of

strengthening the states’ authority under the Tenth

Amendment. These two cases bracket alternative

views of the principle of federalism that under-

girds the American constitutional order. Federal-

ism is the principle that both the national and state

governments derive their authority directly from

the people and each retains powers not given to

the other and as well exercises overlapping and

shared powers.

The National League of Cities Court under-

stands federalism as state sovereignty with

reserved powers that operate as limits on the

national government. In this view, the national

power is understood as that remaining after

carving out authority for the states. Conversely,

the Garcia Court understands federalism as the

national government’s having supreme power in

xviii+446_EofUSConsti-v1.indd 309 3/12/09 3:05:14 PM

all areas where the Constitution gives it author-

ity. Under Garcia, the states’ power is residual

to national power, not the reverse. Although the

Supreme Court continues to vacillate between

these opposing views, the judgment handed down

in Garcia favoring the national power over that of

the states remains current doctrine.

For more information: Kahn, Ronald, and Ken-

neth Ira Kersch. The Supreme Court and Ameri-

can Political Development. Lawrence: University

Press of Kansas, 2006; Tushnet, Mark V. A Court

Divided: The Rehnquist Court and the Future of

Constitutional Law. New York: W.W. Norton Co.,

2005.

—Julian M. Davis and Phyllis Farley Rippey

gay and lesbian rights

The Supreme Court’s serious attention to, and

support for, gay and lesbian rights has been a rela-

tively recent development. Before the 1990s, the

Court’s approach was one of either complete lack

of concern or outright hostility. Even when giving

these rights its fullest consideration, the Court has

declined to apply the same level of protection for

sexuality as for race and gender.

One of the Court’s earliest gay and lesbian

rights cases, ONE v. Olesen, 355 U.S. 772 (1958),

helped to create the modern gay rights movement

in the United States by applying First Amend-

ment-protective obscenity standards, as stated

in R

OTH V. U.S., 354 U.S. 476 (1957), to gay and

lesbian periodicals. This lessened censorship and

allowed the mail system to be a mechanism for

social and political organizing. At the same time,

however, the Court let stand the federal govern-

ment’s classiﬁ cation of sexual minorities as possess-

ing “psychopathic” personalities for immigration

purposes (Boutilier v. INS, 387 U.S. 118 [1967]).

Most of the justices did nothing to challenge the

anti-gay climate of the 1950s and 1960s and likely

exacerbated the situation by utilizing morally con-

demnatory language typical of the times. Not all

legal elites viewed gay and lesbian rights in the

same manner, however. In 1955, The American

Law Institute recommended, as a part of its Model

Penal Code, the decriminalization of consensual

sex acts between persons of the same gender.

The decades of the 1970s and 1980s saw little

movement in a positive direction for gay and les-

bian rights from the Supreme Court. Indeed, U.S.

courts were generally unsympathetic to gay rights

claims even after the start of the gay rights political

movement after the Stonewall Riots in 1969. Legal

calls for same-sex marriage in the early 1970s

were quickly rejected by state courts (Singer v.

Hara, 522 P. 2d 1187 [Wash. 1974]). The Supreme

Court rebuffed a sodomy law challenge in Doe v.

Commonwealth’s Attorney, 425 U.S. 901 (1976).

The high point for Supreme Court resistance

to gay and lesbian rights claims was the case of

OWERS V. HARDWICK, 578 U.S. 186 (1986). In that

case, a narrow 5–4 majority upheld Georgia’s anti-

sodomy law. The Court refused to apply evolving

privacy standards, because, the majority rea-

soned, homosexuality had long been disfavored by

society and the law. In a concurring opinion, Chief

Justice Warren Burger described homosexual-

ity by quoting William Blackstone in describ-

ing sodomy as a “malignity worse than rape.”

In a vigorous dissent, Justice Harry Blackmun

saw this issue as one of privacy rights and would

have invalidated the Georgia law. The case was

almost decided the other way, with Justice Lewis

Franklin Powell, Jr., changing his vote, origi-

nally asserting in conference discussions that the

anti-sodomy law violated the Eighth Amendment’s

ban on “cruel and unusual” punishment, particu-

larly for its status as a felony. The decision was a

blow to the gay and lesbian rights movement and

shifted the litigation focus of the movement away

from federal courts to state courts. Many state

courts invalidated sodomy laws under state con-

stitutional jurisprudence and some readdressed

and validated arguments for same-sex marriage

and relationship equality. However, the continued

constitutionality of sodomy laws continued to be

an obstacle for the movement, because, while sel-

dom enforced, they were often cited to deny rights,

such as employment, child custody and visitation,

and military service for gays and lesbians.

The Court significantly shifted its approach

to gay and lesbian rights in R

OMER V. EVANS, 517

310 gay and lesbian rights

xviii+446_EofUSConsti-v1.indd 310 3/12/09 3:05:15 PM

U.S. 620 (1996). Here the Court struck down

Colorado’s Amendment 2, which invalidated all

local laws outlawing sexual orientation discrimi-

nation. Justice Anthony M. Kennedy did not

break new constitutional ground with his decision,

in that he did not claim that sexuality was similar

to race or gender under the equal protection

clause, but he applied a vigorous rational basis

test to conclude that the Colorado amendment

was without any legitimate purpose other than

animus toward gays and lesbians. Justice Anto-

nin Gregory Scalia vigorously dissented, argu-

ing that the Colorado enactment was a legitimate

exercise of the moral sentiments of the citizens

of the state and that the majority had “mistaken a

Kulturkampf for a ﬁ t of spite.”

Despite this seeming turn for the Court, gays

and lesbians did not fare well when groups wished

to exclude them from participation in activities

and organizations. Generally, freedom of speech

and association were seen to trump equality con-

cerns. In H

URLEY V. IRISH-AMERICAN GAY, LESBIAN,

AND BISEXUAL GROUP OF BOSTON, the Court unani-

mously decided that organizers of South Boston’s

St. Patrick’s Day parade could exclude gays,

despite the presence of a sexual orientation-inclu-

sive anti-discrimination law in Massachusetts. The

parade was “expressive association.” A divided

Court allowed the exclusion of gays from the Boy

Scouts in B

OY SCOUTS OF AMERICA V. DALE, 530 U.S.

640 (2000) on similar grounds.

Perhaps the biggest advance for gay and lesbian

rights came in L

AWRENCE V. TEXAS, 539 U.S. 558

(2003). In this 6-3 decision, the Court overruled

Bowers and held that sodomy laws violated the right

to privacy, thereby applying privacy jurisprudence

Gay protesters demonstrate outside Chicago’s City Hall to call attention to the issue of gay marriage. (Tim Boyle/

Getty Images)

gay and lesbian rights 311

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