Schultz D. Encyclopedia of the United States Constitution

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to same-sex sexuality. Indeed, Justice Kennedy’s

opinion was a sweeping repudiation of Bowers.

“Bowers was not correct when it was decided, and

it is not correct today,” Kennedy asserted. Largely

relying on the arguments of gay rights and history

scholars who submitted amicus curiae briefs, Ken-

nedy rejected the notion that homosexuality was so

historically disfavored that it could not be included

in the right to privacy. The decision also included

potentially sweeping language that was quite afﬁ r-

mative of gays and lesbians and their relationships.

As in Romer, this triggered a strong dissent from

Justice Scalia, who claimed that the decision had

broader implications than the issue of sodomy laws.

In particular, he argued that the opinion appeared

to open the door to the eventual sanction of same-

sex marriage by the Court.

The issue of same-sex marriage was certainly

implicated by the Lawrence decision, but most

change on the issue has come from state courts

invoking state constitutional provisions concern-

ing equal protection and due process/privacy

(Goodridge v. Dept. of Public Health, 798 N.E.

2d 941 [Mass. 2003]). For gay and lesbian rights to

include same-sex marriage nationally, the Supreme

Court would likely need to invalidate the Defense

of Marriage Act (1 U.S.C. § 7, 28 U.S.C. § 1738[c]),

which prohibits the recognition of same-sex mar-

riages for federal purposes.

For more information: Gerstmann, Evan. The

Constitutional Underclass: Gays, Lesbians, and

the Failure of Class-Based Equal Protection. Chi-

cago: University of Chicago Press, 1999; Murdoch,

Joyce, and Deb Price. Courting Justice: Gays and

Lesbians v. the Supreme Court. New York: Basic

Books, 2001; Pierceson, Jason. Courts, Liberal-

ism, and Rights: Gay Law and Politics in the U.S.

and Canada. Philadelphia, Pa.: Temple University

Press, 2005.

—Jason Pierceson

Gibbons v. Ogden 22 U.S. 1 (1824)

In Gibbons v. Ogden, the Supreme Court ruled

that the federal government’s power to regulate

interstate commerce involved not only the

buying and selling of goods between states, but

also the navigation involved in delivering them.

The court’s broad interpretation of the commerce

clause expanded the federal government’s power

in this area and was a signiﬁ cant factor in the devel-

opment of federalism in the United States.

In 1808, the state legislature of New York

awarded Robert Fulton and Robert Livingston a

steamboat monopoly that included commerce on

interstate waterways. Aaron Ogden was given a

sub-license under this agreement for all ferry busi-

ness on the waterways between Elizabethtown,

New Jersey, and New York City, New York. Ogden

was frustrated to ﬁ nd Thomas Gibbons operating

steamboat ferries on the same waters—waters he

believed to be exclusively licensed to him through

the state of New York. Gibbons refused to cease

operation of his steamboats, declaring he held a

federal coasting license granted to him by the U.S.

Congress in February of 1793.

Ogden’s lawyers took issue with Gibbons’s fed-

eral license. While Congress had the ability to

regulate sales of goods between states, Ogden’s

lawyers claimed it did not have the ability to

regulate issues regarding navigation, in effect,

maintaining a narrow definition of commerce.

Navigation, they contended, is regulated by states,

not the federal government. Therefore, the New

York monopoly was constitutional and Gibbons’s

federal coasting license was not. Gibbons lost his

case in the New York state court and eventually

appealed to the U.S. Supreme Court.

At issue in Gibbons v. Ogden was not just the

deﬁ nition of commerce but the power of the fed-

eral government over state affairs. By 1824, it was

still somewhat unclear where the state govern-

ments’ powers ended and where the federal gov-

ernment’s powers began. The Tenth Amendment

to the U.S. Constitution states that all powers not

speciﬁ cally stated in the Constitution as belong-

ing to the federal government or denied to the

states are reserved for the states or to the people.

Gibbons v. Ogden was essentially a disagreement

over how the Tenth Amendment and the nature of

federalism in the United States should be inter-

preted. This general issue of commerce was simply

an element of that debate.

312 Gibbons v. Ogden

xviii+446_EofUSConsti-v1.indd 312 3/12/09 3:05:15 PM

In 1824, Chief Justice John Marshall deliv-

ered the court’s opinion. In it he writes, “Few

things were better known, than the immediate

causes which led to the adoption of the present

constitution. . . . the prevailing motive was to regu-

late commerce; to rescue it from the embarrassing

and destructive consequences, resulting from the

legislation of so many different States, and to place

it under the protection of a uniform law.” Using

a broad interpretation of the term “commerce,”

Marshall noted that it is the interstate commerce

clause in Article 1, Section 8 of the Constitution

as well as the supremacy clause that gives the

federal government the greater power in this mat-

ter, regardless of what is being transported or how

it is being carried.

The Marshall Court not only conﬁ rmed the

validity of Gibbons’s federal coasting license, but

also, in deﬁ ning a broad role for the federal gov-

ernment in the regulation of interstate commerce,

extended the reach of the federal government’s

power further into state affairs. This decision laid

the groundwork for expanding federal powers into

a variety of commercial areas, far beyond the sim-

ple sale of hard goods across state borders.

It is worth noting, however, that more recent

Supreme Court decisions have exhibited more

skepticism toward congressional power in this

area. In particular, the Rehnquist Court’s 1995

decision in U

NITED STATES V. LOPEZ set broad lim-

its to what can realistically be deﬁ ned as a com-

merce-related activity. While generally supporting

the spirit of the Ogden decision, modern courts

have been cautious not to allow the commerce

clause to become a near-universal justiﬁ cation for

the expansion of federal power.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—Mark C. Milewicz

Gideon v. Wainwright 372 U.S. 335 (1963)

In this case, the Supreme Court ruled that the

Sixth Amendment requires the state to provide

counsel for the defendants in criminal matters so

as to assure their ability to receive a fair trial with

proper representation.

In this case, the state failed to provide coun-

sel for the defendant. There was a judicial ques-

tion of whether or not Gideon received a fair trial,

thereby violating the dual rights ascribed within

the due process clause as protected by the Sixth

and Fourteenth Amendments. The ability of

the indigent to retain counsel at all trials became

a modern practice irrespective of the absence of

speciﬁ c language within the Sixth Amendment.

With the Gideon case, it became clear that the

right to a fair trial should not be a function of

income or standing in the community. Gideon had

committed a break-in and entering of the prem-

ises of a pool hall with the intent to complete a

theft and subsequently appeared in court with an

appearance of being too poor to afford a lawyer.

When Justice Hugo Black delivered the opin-

ion of the court, it was clearly understood that the

defendant could not afford counsel for his break-

ing and entering felony arrest. The defendant

could not afford counsel and the courts refused to

grant him counsel in the lower level case.

In addition, the defendant defended himself

and was believed to have done remarkably well but

was convicted anyway. The complete decision by

the high Court afﬁ rmed that the B

ETTS V. BRADY

precedence was no longer good law and that the

Sixth Amendment does provide for assistance to

counsel unless the refusal of counsel is done by a

reasonable and mentally unimpaired person who

would otherwise need counsel. Twenty-two states

ﬁ led amicus curiae briefs suggesting that the Betts

case should be removed and that the Gideon case

should be the corrective case which would reverse

the law on the subject. The Florida courts detailed

that only a capital offense in the state of Florida

could be assigned counsel, which was how the

previous interpretations of the right to coun-

sel had been viewed by some states. The belief

by the state of Florida that the responsibility for

the lower levels of justice was in the hands of a

smooth working system was quickly dissipating, as

the amount of crime and criminal cases for mis-

demeanor offenses increased rapidly during the

time period of the case discussion and decision.

Gideon v. Wainwright 313

xviii+446_EofUSConsti-v1.indd 313 3/12/09 3:05:16 PM

Ultimately, the need to have counsel to assist the

person in a criminal trial became commonplace in

all states at every level, whether capital or minor

in offense.

For more information: Gideon v. Wainwright,

372 U.S. 335 (1963); Graham, Fred P. The Due

Process Revolution: The Warren Court’s Impact

on Criminal Law. Rochelle Park, N.J.: Hayden

Book Co., 1971; Lewis, Anthony. Gideon’s Trum-

pet. New York: Random House/Vintage, 1966;

Kamisar, Yale, Fred Edward Inbau, Thurman

Wesley Arnold, and A. E. Dick Howard. Criminal

Justice in Our Time. Charlottesville: Published for

the Magna Carta Commission of Virginia [by] the

University Press of Virginia, 1965.

—Ernest Gomez

Gitlow v. People of the State of New York

268 U.S. 652 (1925)

In Gitlow v. New York, the United States Supreme

Court ruled that the First Amendment applied

to states by way of the due process clause of

the Fourteenth Amendment. By incorporat-

ing that amendment, the Supreme Court in this

case protected those rights from infringement by

state governments. The case is also an important

continuation of the debate on the Court between

those who advocated the bad tendency test in free

speech cases and those who preferred the clear

and present danger test.

In November 1919, Benjamin Gitlow, a well-

known leader of the left wing of the Socialist Party

and a member of the New York State Legislature,

was arrested. His arrest was part of the Red scare

that occurred following the Russian revolution.

Gitlow’s crime was the publication and distribu-

tion of 16 thousand copies of a pamphlet, The Left

Wing Manifesto. This document, modeled on the

Communist Manifesto, called for an immediate

and violent uprising of the proletariat to overthrow

the system of capitalism and the government in

the United States.

New York prosecuted Gitlow under its criminal

anarchy law, which prohibited advocating the vio-

lent overthrow of the government. Gitlow and his

attorney, Clarence Darrow, argued that the New

York statute was an unconstitutional infringement

on free speech. Despite the fact that the mani-

festo itself produced no revolution or any other

unlawful action, Gitlow was convicted by a jury

and sentenced the maximum term of five to 10

years in prison.

Gitlow, with the assistance of the Ameri-

can Civil Liberties Union, appealed to the

Supreme Court. The question before the Court

was whether the New York law was a constitutional

exercise of power or whether it unconstitutionally

infringed on free speech rights. The decision was

a 7-2 majority, with the Court upholding Gitlow’s

conviction. The majority, utilizing the bad ten-

dency test, argued that incitement to violence was

not protected speech. Justice Edward T. Sanford

wrote that “a single revolutionary spark may kin-

dle a ﬁ re” and that “every presumption is to be

indulged in favor of the validity of the statute.”

The majority believed that no explicit danger need

exist before government may limit speech.

Justices Oliver Wendell Holmes, Jr., and

Louis D. Brandeis dissented and advocated for

the clear and present danger test. Under that test,

Gitlow had done nothing that produced a dan-

ger sufﬁ ciently real to warrant his rights to free

speech being infringed. These justices challenged

the majority’s notion that speech can be regulated

because of possible, intangible negative effects. In

their view, the danger posed by Gitlow’s pamphlet

was simply too insubstantial to warrant govern-

ment action. Holmes argued, “Every idea is an

inducement to someone.”

Ultimately, Benjamin Gitlow served less than

two years of his sentence. He was eventually par-

doned by New York Governor Alfred Smith, and

he spent the remainder of his life active in the

American Communist movement.

The most lasting outcome of this case was the

incorporation of the First Amendment into the

Fourteenth Amendment. In the majority opin-

ion, the Court wrote that “freedom of speech

and of the press—which are protected by the

First Amendment—are among the fundamental

personal rights and ‘liberties’ protected by the

Fourteenth Amendment from impairment by the

314 Gitlow v. People of the State of New York

xviii+446_EofUSConsti-v1.indd 314 3/12/09 3:05:16 PM

states.” Thus, while the Court had allowed the law

in New York to remain in effect, it had prohibited

states from infringing on freedom of speech or of

the press. It would, however, take future cases to

fully deﬁ ne the limits of that right.

For more information: Gitlow, Benjamin. ‘I

Confess’: The Truth about American Communism.

Freeport, N.Y., Books for Libraries Press, 1972;

Irons, Peter. A People’s History of the Supreme

Court. New York: Penguin, 1999.

—David A. May

Goldberg v. Kelly 397 U.S. 254 (1970)

In Goldberg v. Kelly the Supreme Court extended

the protection of the due process clause of the

Fourteenth Amendment to welfare recipients

whose payments may be terminated. Prior to ces-

sation of aid, the Court held, the state agency must

provide advance notice and must also conduct an

evidentiary hearing allowing the recipients to sub-

mit evidence regarding their continuing eligibility

for the program. Essentially, Goldberg prohibits

the arbitrary termination of welfare beneﬁ ts.

New York State residents receiving public assis-

tance from the Aid to Families with Dependent

Children program (state-administered aid par-

tially funded by the federal government) ﬁ led suit

because their beneﬁ ts were terminated without

advance notice and without an opportunity to

demonstrate their continuing eligibility for the

program. The recipients argued that this practice

offended the due process clause of the Fourteenth

Amendment.

Writing for the Court, Justice William J.

Brennan, Jr., agreed with the welfare recipients.

Brennan concluded that although some govern-

ment beneﬁ ts may be terminated without hold-

ing an evidentiary hearing, welfare beneﬁ ts of the

kind at issue here are of an essential nature. These

beneﬁ ts assist low-income individuals in meeting

basic food, clothing, and shelter needs. Termina-

tion of such assistance abruptly and arbitrarily

undermines the subsistence of individuals with

very limited resources. Further, arbitrary termina-

tion of assistance might deprive eligible individu-

als of the only means by which to provide for their

basic subsistence needs. Therefore, the Court

concluded, recipients must be afforded advance

notification of proposed termination. Addition-

ally, a quasi-judicial administrative hearing on the

recipient’s continuing eligibility for the program

must be held prior to cessation of payments.

Despite administrative concerns as to the

expense mandatory pre-termination evidentiary

hearings may generate (in terms of resources

required to administer this process, as well as the

cost of paying welfare beneﬁ ts to individuals no

longer eligible for the program), administrative

efﬁ ciency and ﬁ scal stewardship cannot outweigh

the due process interest of welfare recipients. Ter-

mination of beneﬁ ts designed to meet basic sub-

sistence needs of the poor constitutes a potentially

serious governmental action. Therefore, individu-

als must be afforded the opportunity to challenge

the government’s evidence and to present docu-

mentation verifying their continuing eligibility

prior to cessation of welfare beneﬁ ts.

In fact, the Court opinion noted that afford-

ing welfare recipients an evidentiary hearing

advanced the government’s interest as well. Pub-

lic assistance, Justice Brennan surmised, is not

charity; rather, it promotes the general welfare of

America’s citizens and its careful administration

must be safeguarded. The due process protections

required here achieve this end.

For more information: Miller, Arthur S. Poli-

tics, Democracy, and the Supreme Court: Essays

on the Frontier of Constitutional Theory. West-

port, Conn.: Greenwood Press, 1985.

—Melanie K. Morris

Goldwater v. Carter 444 U.S. 996 (1979)

In Goldwater v. Carter, 444 U.S. 996 (1979), the

Supreme Court rejected a challenge to the presi-

dent’s authority to unilaterally terminate a United

States treaty, but a split majority provided no

clear rationale for the Court’s ruling. Four mem-

bers of the Court felt the case presented a non-

justiciable “political question.” Another justice

argued for dismissal because the case was not ripe

Goldwater v. Carter 315

xviii+446_EofUSConsti-v1.indd 315 3/12/09 3:05:16 PM

for judicial review, while yet another member

of the Court favored dismissal without explaining

his reasoning.

President Jimmy Carter gave notice of termina-

tion of the Mutual Defense Treaty with Taiwan in

December 1978, as part of the process of normal-

izing relations with the government of China. Fol-

lowing President Carter’s action, several members

of Congress (including Senator Barry Goldwater

of Arizona) ﬁ led suit claiming injury to their “leg-

islative right to be consulted and to vote on the

termination of the 1954 Mutual Defense Treaty.”

The District Court for the District of Colum-

bia ruled that because the Mutual Defense

Treaty was part of the “law of the land” under the

supremacy clause of the Constitution, termina-

tion required ratiﬁ cation by two-thirds of the Sen-

ate or a majority of both chambers of Congress. A

split panel of the Court of Appeals for the District

of Columbia Circuit reversed that decision, ruling

that President Carter did not exceed his authority

by taking action to withdraw from the treaty.

The Supreme Court reversed the Court of

Appeals’ decision and remanded the case with

instructions to dismiss the complaint. Justice

William Hubbs Rehnquist’s plurality opinion

argued the case presented a nonjusticiable “politi-

cal question” because it involved the interaction

between the president’s power over foreign rela-

tions and Congress’s power to negate presidential

action. Notably, while favoring dismissal based on

the political question doctrine, Justice Rehnquist

did not refer to the leading case of B

AKER V. CARR,

369 U.S. 186 (1962). Justice Lewis Franklin

Powell, Jr., concurred in the judgment but

viewed the case as not ripe for judicial review

because Congress and the president had not yet

reached a “constitutional impasse.”

Powell noted that the political question doc-

trine, as set forth in Baker, involved three ques-

tions: 1) whether the issue involved “resolution of

questions committed by the text of the Constitu-

tion to a coordinate branch of Government,” 2)

whether resolution of the case required the Court

to “move beyond areas of judicial expertise,” and

3) whether “prudential considerations counsel

against judicial intervention.” After reviewing

these factors, Powell concluded that if the case

had been ripe for review, it would not present a

political question but rather a basic issue of con-

stitutional interpretation. Justices Harry

Blackmun and Byron White argued the case

should be given full brieﬁ ng and oral argument

on the issues, rather than dismissing on justicia-

bility grounds. Justice William J. Brennan,

Jr., writing in dissent, was the only member of

the Court to reach the underlying question and

concluded that the President had the power to

unilaterally terminate the treaty arising from his

authority to recognize and withdraw recognition

of foreign governments. The outcome of Goldwa-

ter effectively recognized broad executive power

over foreign affairs but created additional confu-

sion regarding the Court’s application of the polit-

ical question doctrine.

For more information: O’Donnell, Joshua P.

“The Anti-Ballistic Missile Treaty Debate: Time

for Some Clariﬁ cation of the President’s Author-

ity to Terminate a Treaty.” Vanderbilt Journal

of Transnational Law 35 (2002): 1,601–1,636;

Restatement (Third) of the Foreign Relations Law

of the United States § 339.

—Joshua A. Kimsey

Gomillion et al. v. Lightfoot, Mayor of

Tuskegee, et al.

364 U.S. 339 (1960)

In Gomillion v. Lightfoot, the Supreme Court

ruled that the broad powers of a state to ﬁ x the

political boundaries of its municipalities is limited

by the Fifteenth Amendment since it forbids

states from depriving any citizen of the right to

vote on account of their race. So a state statute

which had the effect of depriving African Ameri-

cans of their right to vote in Tuskegee, Alabama,

because of their race was not immune to attack

simply because the mechanism employed by the

legislature was a “political” redeﬁ nition of munici-

pal boundaries.

In 1957, the Alabama state legislature passed

an act to redeﬁ ne the political boundaries of the

city of Tuskegee, replacing what had been a region

with a square shape covering the entire urban

316 Gomillion et al. v. Lightfoot, Mayor of Tuskegee, et al.

xviii+446_EofUSConsti-v1.indd 316 3/12/09 3:05:17 PM

area with a 28-sided ﬁ gure. In so doing, the leg-

islature excluded all but four or ﬁ ve black voters

from the city limits of Tuskegee and placed them

in a district with no whites. Consequently, the leg-

islative act deprived blacks of their right to vote in

Tuskegee elections on account of their race. The

so-called Act No. 140 transformed the city from

one whose municipal limits formed a square to one

which Justice Frankfurter described as “uncouth

and strangely irregular.”

The petitioners in Gomillion v. Lightfoot were

all African Americans who once were the 400

black residents of the city of Tuskegee before

the legislative redistricting. Unencumbered

by the Colegrove v. Green (1946) ruling pre-

suming the court’s unwillingness to “enter the

political thicket,” C. G. Gomillion and other dis-

enfranchised black citizens of Tuskegee ﬁ led an

injunctive action against the enforcement of the

Alabama statute at the Federal District Court in

Alabama. They sought a declaratory judgment to

set aside the state action that created the bound-

aries as an unconstitutional violation of the Fif-

teenth Amendment, denying their right to vote

on account of race. More speciﬁ cally, they argued

that (a) the act altered the shape of Tuskegee from

a square to an irregular 28-sided ﬁ gure; (b) that it

would eliminate from the city all but four or ﬁ ve

of its 400 black voters without eliminating any

white voter; and (c) that the effect of the law was

to deprive blacks of their right to vote in Tuske-

gee elections on account of their race. The district

court responded by dismissing the complaint for

lack of judicial authority to declare the act invalid

and to change boundaries of municipal corpora-

tions ﬁ xed by a state legislature.

While on appeal the Fifth Circuit upheld that

decision, on certiorari the U.S. Supreme Court was

confronted with the following questions: 1) whether

the Alabama state action (redrawing electoral dis-

trict boundaries) was reviewable by the courts, and

2) whether the state’s action that effectively disen-

franchised blacks from the city of Tuskegee tram-

meled on their constitutional rights in violation

of the Fifteenth Amendment of the U.S. Consti-

tution. Reversing the district court in unanimous

opinion, Justice Felix Frankfurter observed that

the issue was not whether the petitioners could

prove that Alabama’s Act 140 was meant to disen-

franchise the African-American voters but rather

whether the act did in fact disenfranchise African-

American voters of their constitutional rights. Rul-

ing on the review powers of the court to review

redistricting questions, the Supreme Court held

that while states may be insulated from judicial

review when they exercise powers wholly within

the domain of state interest, such insulation is not

carried over when state powers are used as instru-

ments to circumvent federally protected rights.

The Alabama legislature, Justice Frankfurter

observed, was unable to identify “any counter-

vailing municipal function” which the act was

designed to serve. Although a state’s power “to

establish, destroy, or reorganize by expansion or

contraction of its cities, counties, and other local

unities” is a broad power, Justice Frankfurter noted

the exercise of that power is nonetheless subject to

the restrictions of the Fifteenth Amendment and

therefore judicially reviewable. Citing Hunter v.

Pittsburgh (1907), the Supreme Court held that

states’ powers over their municipal corporations

must abide by the standards set in the U.S. Consti-

tution and may not use their constitutional powers

to achieve unconstitutional ends.

Distinguishing further Gomillion from

OLEGROVE V. GREEN, a case in which the Court

ruled that issues of redistricting were political

and therefore not reviewable by courts, Justice

Frankfurter noted that the decisive facts in this

case, taken as proved, are wholly different from

the considerations found controlling in Cole-

grove. The Colegrove case, he observed, involved

a complaint of discriminatory apportionment of

congressional districts where appellants com-

plained only of a dilution of the strength of their

votes as a result of legislative inaction over a

course of many years. However, the petitioners

in Gomillion in the Court’s view complained that

an afﬁ rmative legislative action deprived them of

their votes and the consequent advantages that

the ballot affords. Speciﬁ cally, the court noted, in

Gomillion the legislature did not merely redraw

the Tuskegee city limits with incidental incon-

venience to the petitioners, it deprived them of

Gomillion et al. v. Lightfoot, Mayor of Tuskegee, et al. 317

xviii+446_EofUSConsti-v1.indd 317 3/12/09 3:05:17 PM

the municipal franchise, a consequent right, and

changed the city’s boundaries to deny the exer-

cise of their right to vote under the Fifteenth

Amendment. While in form this may be a mere

act of redeﬁ ning metes and bounds, according

to the Court the inescapable human effect was

to despoil colored citizens, and only colored citi-

zens, of their enjoyed voting rights. Therefore,

when a legislature singles out a readily isolated

segment of a racial minority for special dis-

criminatory treatment, it violates the Fifteenth

Amendment.

While ruling that petitioners were entitled to

prove their allegations at trial, the Supreme Court

held that a constitutional power cannot be used

as a means to attain an unconstitutional result—

that is, “acts generally lawful may become unlaw-

ful when done to accomplish an unlawful end.”

Concurring with the decision of the Court more

generally, Justice Charles Evans Whittaker dis-

agreed with the reasoning. He argued instead that

since the petitioners’ may still vote, just not in the

reformed Tuskegee district, the decision should

be based on the equal protection clause of

the Fourteenth Amendment rather than the

Fifteenth Amendment. To Whittaker, because the

equal protection clause of the Fourteenth Amend-

ment prohibits the unlawful segregation of citizens

by race, the state action was unconstitutional and

must be reversed.

Two aspects of the Gomillion decision are

noteworthy. First, the relief granted by the Court

was not premised upon the petitioner’s showing of

intent or a malevolent purpose on the part of the

state of Alabama. The Court assumed instead that

there were no rightful aims in the legislative mind

when it so radically altered the boundaries of

Tuskegee, one of the few areas in the state where

blacks—many of them associated with Tuskegee

College and the federal hospital there—were

beginning to vote in substantial numbers.

Second, the relief could have been granted

without limiting the power of the state to alter

or enlarge municipal boundaries for legitimate

reasons, since no whites would have lost either

their vote or proper power to vote by a court order

requiring that Tuskegee retain its original bound-

aries. While the most important aspect of this case

is the ruling that courts would hence correct state

efforts to deny blacks the right to vote on account

of their race or color, it has proven to be of little

precedential value in subsequent gerrymandering

or vote-dilution challenges even in cases where

the impact on black voting power is at issue.

Judicial commitment to the eradication of dis-

crimination in the electoral process has often fal-

tered when confronted with challenged actions

that appear normal but for their effect on the black

vote, especially where the relief requested would

undermine white voting power. The Court seems

to have forgotten that the case was decided under

the broad mandate of the Fifteenth Amendment

and not under the much more nebulous standard

of the Fourteenth Amendment’s equal protec-

tion clause suggested by Justice Whittaker in his

concurring opinion in Gomillion. In most voting

right cases, the Court has shifted the standard

for review from the Fifteenth to the Fourteenth

Amendment. In Whitcomb v. Chivas (1971), for

example, the Court not only used the Fourteenth

Amendment as the standard for review, but also

cited Gomillion as if the case had been decided on

Fourteenth Amendment grounds.

In the end, while the shift in the Court’s approach

makes Gomillion v. Lightfoot of little precedential

value, it nevertheless represents the ﬁ rst case the

Court entered into the “political thicket” of redis-

tricting that opened the ﬂ ood gates for the Court

ruling on apportionment and redistricting as justi-

ciable issues in federal courts (as in B

AKER V. CARR

[19 62], Gray v. Sanders [19 63], Westbury v. Sand-

ers [1964], and R

EYNOLDS V. SIMS [1964]).

For more information: Ryden, David K. The

U.S. Supreme Court and the Electoral Process.

Washington, D.C.: Georgetown University Press,

2002.

—Marc G. Pufong

Gonzales, Attorney General v. Carhart

05-380 (2007)

In a 5-4 decision, the Supreme Court upheld the

federal Partial Birth Abortion Ban Act of 2003.

318 Gonzales, Attorney General v. Carhart

xviii+446_EofUSConsti-v1.indd 318 3/12/09 3:05:17 PM

Although in 2000 the Court had found an almost

identical Nebraska law unconstitutional in Sten-

berg v. Carhart, 530 U.S. 914, seven years later

the justices held that the federal act avoided the

defects of the Nebraska law. They ruled that it did

not impose an undue burden on a woman’s right to

abortion and that the lack of an exception for the

mother’s health was not unconstitutional.

Based on rulings in R

OE V. WADE, 410 U.S. 113

(1973), and Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992), until

Gonzales v. Carhart, the Court had afﬁ rmed three

principles: a woman’s right to terminate a preg-

nancy before viability with minimal interference

from the government; a state’s interest in restrict-

ing abortions after viability while allowing excep-

tions for pregnancies where the mother’s life or

health was in danger; and that from the outset the

state has an interest in both the mother’s health

and in the life of the fetus “that may become a

child.”

Justice Anthony M. Kennedy wrote the

opinion for the Court in Gonzales v. Carhart. It

emphasized the government’s legitimate interest

in preserving and promoting fetal life and argued

that the law was only a structural mechanism

which did not present a substantial obstacle to a

woman’s right to terminate her pregnancy. Much

of the text of the opinion described the banned

procedure, which the medical profession calls

intact dilation and evacuation (intact D&E). These

details were used as evidence that the law clearly

prohibited only one speciﬁ c method of abortion,

that its scope was not vague or overbroad, and

that physicians had other alternatives for termi-

nating second-term pregnancies. Kennedy cited

disagreements among doctors about whether the

procedure was ever necessary as proof of “medical

uncertainty” that it might be required to protect a

woman’s health. For all of those reasons, the Court

majority found no need for a health exception.

Kennedy’s opinion, in which he was joined by

Chief Justice John G. Roberts, Jr., and Jus-

tices Antonin Gregory Scalia, Clarence

Thomas, and Samuel Alito, was controver-

sial for its use of provocative language. It used

terms such as “unborn child” and “baby” rather

than fetus. It referred to physicians as “abortion

doctors,” and quoted verbatim congressional tes-

timony from a nurse who described “the baby’s

little ﬁ ngers and feet.” The opinion also advanced

the theory that women would “come to regret

their choice to abort the infant life they once cre-

ated and sustained” and cited ethical and moral,

rather than constitutional concerns, as a basis for

the law.

Justice Ruth Bader Ginsburg wrote a strong

dissent, joined by Justices John Paul Stevens,

David H. Souter, and Stephen G. Breyer. The

dissenters claimed that the lack of a health excep-

tion was a signiﬁ cant departure from the Court’s

earlier decisions. They noted that a consensus did

exist among professional medical associations that

the intact D&E procedure was sometimes neces-

sary for some women. Ginsburg’s opinion also sug-

gested that allowing ethical and moral concerns

“untethered” to any speciﬁ c government interest

to override fundamental rights set a danger-

ous precedent. The dissent found the assumptions

about women’s fragile emotional state an “anti-

abortion shibboleth.” They expressed concern that

because the Court was “differently composed,”

the justices allowed Congress to override their

decision in Stenberg v. Carhart. Ultimately the

dissenters were skeptical that the majority really

intended to afﬁ rm the essential holdings of Roe

and Casey.

For more information: Reagan, Leslie J. When

Abortion Was a Crime: Women, Medicine, and

Law in the United States, 1867–1973. Berkeley:

University of California Press, 1997.

—Mary Welek Atwell

Gonzales v. Oregon 546 U.S. 243 (2006)

Gonzales v. Oregon is a U.S. Supreme Court deci-

sion upholding Oregon’s Death with Dignity Act

(ODWDA). While decided as a matter of statutory

interpretation, Gonzales also pertains to feder-

alism. Furthermore, although the Court did not

address the question of physician-assisted suicide,

Gonzales added fuel to the fires of controversy

surrounding the practice.

Gonzales v. Oregon 319

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Oregon voters narrowly approved Ballot Mea-

sure 16 in 1994. This initiative established speciﬁ c

procedures under which a patient diagnosed as ter-

minally ill could obtain a prescription for a lethal

dose of drugs with which they could end their life.

The Oregon Legislative Assembly tried to repeal

ODWDA by referring Ballot Measure 51 to voters

in 1997. This attempt failed by a greater margin

than the original initiative had passed. The Bush

administration weighed in against ODWDA in

2001. On November 9 of that year, Attorney Gen-

eral John D. Ashcroft issued an interpretative rule

under the federal Controlled Substances Act (CSA),

the statute regulating use of the drugs physicians

prescribed under ODWDA. Ashcroft’s interpreta-

tive rule declared physician-assisted suicide “not a

‘legitimate medical purpose’ ” under the CSA, say-

ing that “prescribing, dispensing, or administering

federally controlled substances to assist suicide vio-

lates” the CSA, and that “[s]uch conduct by a physi-

cian . . . may ‘render his registration . . . inconsistent

with the public interest’ and therefore subject to

possible suspension or revocation.”

Speaking through Justice Anthony M. Ken-

nedy, the Supreme Court invalidated this inter-

pretation, 6-3. The Court described Ashcroft’s

claim of executive authority as “extraordinary,”

characterizing it as “unrestrained.” “If the Attor-

ney General’s argument were correct,” wrote Ken-

nedy, “his power to deregister necessarily would

include the greater power to criminalize even the

actions of registered physicians, whenever they

engage in conduct he deems illegitimate.” “The

structure of the CSA,” the Court held, “conveys

unwillingness to cede medical judgments to an

Executive ofﬁ cial who lacks medical expertise.”

Having disposed of the particular question of

the Attorney General’s authority, the Court dis-

cussed the dispute’s signiﬁ cance for federalism.

“The structure and operation of the CSA,” Ken-

nedy noted, “presume and rely upon a function-

ing medical profession regulated under the States’

police powers. . . . Oregon’s regime is an exam-

ple of the state regulation of medical practice that

the CSA presupposes.” By contrast, Ashcroft’s

position would “effect a radical shift of author-

ity from the States to the Federal Government to

define general standards of medical practice in

every locality.”

Gonzalez hardly settled the question of physi-

cian-assisted suicide. The intensity of disagreement

over social issues like ODWDA is suggested in the

two dissents. Justice Antonin Gregory Sca-

lia, arguing that Ashcroft had authority to issue

his interpretative rule, observed: “Virtually every

relevant source of authoritative meaning conﬁ rms

that the phrase ‘legitimate medical purpose’ does

not include intentionally assisting suicide.” Jus-

tice Clarence Thomas chided the majority for

inconsistently beating a “hasty retreat” from its

own year-old precedent in G

ONZALES V. RAICH, 545

U.S. 1 (2005), where it upheld Congress’s author-

ity under the commerce clause to prohibit the

local cultivation and use of marijuana in compli-

ance with California law.

For more information: Behuniak, Susan M.,

and Arthur G. Svenson. Physician-Assisted Sui-

cide: The Anatomy of a Constitutional Law Issue.

Lanham, Md.: Rowman & Littleﬁ eld, 2003; Dat-

lof, Steven B. “Beyond Washington v. Glucksberg:

Oregon’s Death with Dignity Act Analyzed from

Medical and Constitutional Perspectives.” Journal

of Law & Health 14 (1999/2000): 23–44; Young,

Ernest A. “Just Blowing Smoke? Politics, Doc-

trine, and the Federalist Revival after Gonzales

v. Raich.” Supreme Court Review 2005 (2005):

1–50.

—James C. Foster

Gonzales v. Raich 545 U.S. 1 (2005)

In Gonzales v. Raich, a six-member majority

ruled that Congress’s Article I, Section 8 power

“[t]o make all Laws which shall be Necessary and

Proper” under the commerce clause included

the ability to prohibit the intrastate and non-com-

mercial growing of marijuana for medicinal pur-

poses. Furthermore, the Court ruled Congress

had in fact done so in passing the Controlled

Substances Act of 1970 when it criminalized the

manufacture, sale, and possession of marijuana.

The decision struck down California’s 1996 law

that exempted from criminal prosecution physi-

320 Gonzales v. Raich

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cians recommending the medical use of marijuana

as well as patients and their caregivers possessing

marijuana to be used for medical purposes with a

prescription or recommendation from their doc-

tor. While the medical use of marijuana remains

controversial, proponents argue it provides relief

from nausea, vomiting, seizures, chronic pain, and

the lack of appetite caused by a number of diseases

and their treatment. Ten other states—Alaska,

Colorado, Hawaii, Maine, Maryland, Montana,

Nevada, Oregon, Vermont, and Washington—had

similar laws in place at the time of the Raich

decision. To be eligible, most states required that

patients register, and all states limited patients

and their caregivers to small amounts of the drug.

In 2005, enrollment in all states was estimated to

be over 100,000.

The decision came as something of a surprise

because the Court has handed down a series of

federalism decisions—most importantly U

NITED

TATES V. LOPEZ, 514 U.S. 549 (1995), and UNITED

STATES V. MORRISON, 529 U.S. 598 (2000)—in the

previous decade that limited federal government

power to regulate in areas that were tradition-

ally controlled by the states. In a majority opin-

ion written by Justice John Paul Stevens, the

Court found that Congress can regulate “purely

local activities that are part of an economic ‘class

of activities’ that have substantial effect on inter-

state commerce” (17), and that the Controlled

Substance Act “is squarely within Congress’s com-

merce power” (19). Stevens found that cultivating

marijuana, even when not intended for sale, has

an impact on the national supply and demand for

marijuana. Stevens also expressed sympathy for

the plaintiffs and “the troubling facts of this case”

(9), and he encouraged other institutions to ﬁ nd

a way for medical marijuana use to continue. He

noted that “the voices of voters . . . may one day

be heard in the halls of Congress” (33). Justices

Antonin Gregory Scalia and Anthony M.

Kennedy each sided with the federal government

in the medical marijuana case, in contrast to their

usual opposition to the expansion of federal gov-

ernment power.

Interestingly, in Justice Sandra Day

O’Connor’s dissent, she noted that she opposed

the program but believed that there were limits to

Congress’s power to regulate commerce; if non-

economic activity such as this can be regulated,

it “threatens to sweep all of productive human

activity into federal regulatory reach” (49). Simi-

larly, Justice Clarence Thomas noted in a sepa-

rate dissent that “our federalist system, properly

understood, allows California and a growing num-

ber of other states to decide for themselves how to

safeguard the health and welfare of its citizens.”

The Court’s decision did not end the debate,

however. Distribution of medical marijuana con-

tinued in several states, even as the federal Drug

Enforcement Administration began to pursue

violators. Lobbying efforts encouraging Con-

gress to pass legislation that will legalize medical

marijuana nationally or at least allow each state to

decide for itself are being pursued. The contro-

versy over medical marijuana is only one recent

example of the scope of federal government power

and the proper role of the nation and the states.

Environmental regulations and physician-

assisted suicide are other examples.

For more information: Young, Ernest A. “Just

Blowing Smoke? Politics, Doctrine, and the Fed-

eral Revival after Gonzales v. Raich.” Supreme

Court Review 2005 (2005): 1–50.

—William R. Wilkerson

good faith exception

The good faith exception to the exclusionary

rule allows courts to admit evidence seized by

police in violation of the Fourth Amendment

into trial. The exclusionary rule provides that evi-

dence obtained by police ofﬁ cers in violation of

the Fourth Amendment guarantee against unrea-

sonable searches and seizures is generally not

admissible in a criminal trial to prove guilt. The

rule was applied by the U.S. Supreme Court to

the states in Mapp v. Ohio, 367 U.S. 642 (1961).

The primary purpose of the exclusionary rule is to

deter police misconduct (Carmen, 2006).

The exclusionary rule is perhaps the most con-

troversial legal issue in criminal justice. Application

of the rule may lead to the exclusion of important

good faith exception 321

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