Schultz D. Encyclopedia of the United States Constitution

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the admissions policy was not narrowly tailored

but was a veiled attempt to achieve racial bal-

ancing. He concluded that, since the numbers

of admissions of various minorities differed from

one another and were close to the proportion of

minorities in the applicant pool, they must have

been based on race and ethnicity rather than upon

some notion of critical mass.

In a companion case, G

RATZ V. BOLLINGER,

involving the undergraduate College of Literature,

Science, and the Arts, a 6-3 Court invalidated an

admissions procedure that automatically gave a

20-point bonus out of a 100-point total to each

African-American, Hispanic, and Native-Ameri-

can applicant. Chief Justice Rehnquist, who wrote

for the majority, called the policy a functional

equivalent of a quota and said it offended Bakke,

since it was not narrowly tailored to achieve a

compelling interest.

For more information: Devins, Neal. “Explain-

ing Grutter v. Bollinger.” University of Pennsyl-

vania Law Review 152, no. 1 (2003): 347–383;

Guinier, Lani. “Admissions Rituals as Political

Acts: Guardians at the Gates of Our Democratic

Ideals.” Harvard Law Review 117, no. 1 (2003):

113–225.

—JeDon Emenhiser

guarantee clause (U.S. Constitution Article

IV, Section 4)

The Constitution’s guarantee clause directs the

federal government to “guarantee to every State in

this Union a Republican Form of Government”—

not a government run by a particular political

party, but a government run by representatives of

the people.

The clause represents an important allocation

of power within the federal structure, but the

text neither deﬁ nes a “republican” form of gov-

ernment nor clariﬁ es what federal ofﬁ cials should

do to effect the guarantee. It was designed in part

to reassure states that the new national govern-

ment would commit to protect each state against

attempts to topple its government. Various com-

mentators have since suggested that, absent this

sort of insurrection, the clause should be inter-

preted to protect or forbid different ways in which

representatives are elected, representative power

is apportioned, or the legislative process is car-

ried out.

There is, however, no deﬁ nitive interpretation

of the scope of the guarantee clause, because the

judicial branch—the usual final arbiter of legal

meaning—has largely tied its own hands. In the

last 150 years, the Supreme Court has generally

said that Congress and the president, not the

courts, should decide whether a particular prac-

tice violates the guarantee. In other words, the

Supreme Court has usually said that the rights

granted by the clause are “nonjusticiable.”

This approach began with L

UTHER V. BORDEN,

48 U.S. (7 How.) 1 (1849). By 1841, Rhode Island

was the only state where real estate ownership was

still required to vote. With support from some of

the state’s propertied voters, disenfranchised and

disaffected citizens established their own constitu-

tion and government; the dispute then turned vio-

lent, in what became known as Dorr’s Rebellion.

A state ofﬁ cial named Borden arrested one of the

rebelling citizens, named Luther, and allegedly

damaged his property. When Luther sued, the

dispute turned in part on which government was

legitimate. The Supreme Court refused to decide

the question, saying that under the guarantee

clause, Congress alone—and not the courts—had

the right to choose between two ostensibly legiti-

mate governments.

Over the next century, this line of reasoning

expanded: the political branches alone had the

right to decide whether the guarantee of a repub-

lican government prohibited a state from legislat-

ing by popular initiative (Paciﬁ c States Telephone

& Telegraph Co. v. Oregon, 223 U.S. 118 [1912]);

prohibited a legislature from delegating decisions

to a probate judge (Ohio ex rel. Bryant v. Akron

Metropolitan Park Dist., 281 U.S. 74 [1930]); or

prohibited the federal government from demand-

ing that states seek federal approval for certain

legislation (City of Rome v. United States, 446

U.S. 156 [1980]).

The Supreme Court’s refusal to decide cases

under the guarantee clause was not absolute. On

332 guarantee clause

xviii+446_EofUSConsti-v1.indd 332 3/12/09 3:05:22 PM

occasion, it has decided that certain practices

do not unduly detract from a state’s republican

governmental structure. A state still maintains

its republican form of government, for example,

when a state court and not the legislature changes

municipal boundaries (Forsyth v. Hammond, 166

U.S. 506 [1897]); when a state commission and not

the legislature regulates milk prices, (Highland

Farms Dairy v. Agnew, 300 U.S. 608 [1937]); and

when a federal statute provides monetary incen-

tives for states to act in certain ways (New York v.

United States, 505 U.S. 144 [1992]).

Thus, when rights under the guarantee clause

are asserted, courts sometimes decide not to

decide, and sometimes they decide that the prac-

tice in question does not deprive the state of a

republican form of government. Very few courts to

date have decided that a particular policy offends

the guarantee clause and must be overturned.

Congress has also exercised that power only

in the rarest of cases. After the Civil War, for

example, Congress agreed to admit or readmit

states into the Union only as they agreed to extend

the franchise to African Americans. In several of

these instances, Congress declared explicitly that

its power to exact these conditions arose under

the guarantee clause. As Senator Charles Sumner

recognized, this exceedingly rare but exceedingly

powerful exercise of authority rendered the clause

a “sleeping giant.”

Since the 1860s, with few exceptions, neither

Congress nor the courts have done much to artic-

ulate the contours of the rights guaranteed by

the guarantee clause. Yet this does not mean that

the clause is entirely a dead letter. In 1992, the

Supreme Court signaled that a case might one day

again present claims under the guarantee clause

that federal courts are competent to resolve.

Until then, the clause will likely remain patiently

“sleeping.”

For more information: Ely, John Hart. Democ-

racy and Distrust: A Theory of Judicial Review.

Cambridge, Mass.: Harvard University Press,

1980; Merritt, Deborah Jones. “The Guarantee

Clause and State Autonomy: Federalism for a

Third Century.” Columbia Law Review 88 (1988):

1–78; Wiecek, William. The Guarantee Clause of

the U.S. Constitution. Ithaca, N.Y.: Cornell Uni-

versity Press, 1972.

—Justin Levitt

gun control

See right to bear arms; PRINTZ V. UNITED STATES;

UNITED STATES V. LOPEZ

gun control 333

xviii+446_EofUSConsti-v1.indd 333 3/12/09 3:05:23 PM

334

ﱶﱷﱸ

habeas corpus

Habeas corpus is a legal proceeding in which a

prisoner asks a court to evaluate the legality of his

or her detention. After the prisoner ﬁ les a petition

with the court, the court orders the governmen-

tal ofﬁ cial with custody of the prisoner to appear

in court, with the prisoner, and explain the legal

justiﬁ cation for the detention. If the court deter-

mines that the detention is unlawful, the court

has the authority to order the prisoner immedi-

ately released. For this reason, the writ of habeas

corpus, often referred to as the “Great Writ,” has

always been considered an important means for

protecting personal freedom from unlawful and

arbitrary government action. The overriding pur-

pose of habeas corpus is to keep the executive

departments of government accountable to the

judiciary.

The term habeas corpus comes from the

Latin phrase habeas corpus ad subjiciendum,

which means have the body to submit to the

authority of the court. The writ of habeas cor-

pus originated in the common law and traces its

roots to the Habeas Corpus Act of 1679 enacted

by the British Parliament. It was later included

in the Constitution of the United States. Article

1, Section 9 states: “The Privilege of the Writ of

Habeas Corpus shall not be suspended, unless

when in Cases of Rebellion or Invasion the public

Safety may require it.”

Originally, habeas corpus was a procedure

for the federal judiciary to evaluate the legality

of the federal government’s authority as a purely

jurisdictional matter. In other words, it was a pro-

ceeding in which the courts sought to answer the

question of whether the prisoner’s detention was

a legitimate exercise of the federal government’s

authority. In those cases, the government offi-

cial could justify the legality of the detention of

a prisoner by showing the court documents, such

as a warrant or a judgment of conviction, which

ordered the official to imprison the individual.

Over the years, however, both the availability of

the Great Writ and the nature of claims that could

be considered have been expanded signiﬁ cantly.

First, in 1867, the U.S. Congress enacted a habeas

corpus statute that extended the writ to include

consideration of whether a state prisoner’s deten-

tion violated of any of the rights protected by the

U.S. Constitution. Then, following the ratiﬁ cation

of the Fourteenth Amendment as the Bill

of Rights was applied to the states, the types of

claims that could be asserted against state ofﬁ cials

as constitutional violations grew substantially.

By the 1970s, habeas corpus was viewed as a

means for asserting any provision of the national

constitution as a challenge to the legality of any

detention imposed by any government. This

included challenges to incarceration following a

criminal conviction, detention immediately fol-

lowing arrest, and commitment to a mental insti-

tution. It also included challenges to the nature of

the detention.

However, it was most often used by state

inmates as a means of post-conviction review of

their criminal convictions in state court under the

U.S. Constitution in federal court. The expansion

of the procedure to include allegations of constitu-

tional violations that occurred at trial led to com-

prehensive review of state court criminal trials

in the federal courts. Most notably, state inmates

were afforded a forum to allege that they were

denied the right to counsel under the Sixth

Amendment. Such claims constitute the bulk of

xviii+446_EofUSConsti-v1.indd 334 3/12/09 3:05:23 PM

the claims reviewed by federal courts in habeas

corpus proceedings.

Eventually, the broad review exercised by the

federal courts became the subject of great con-

troversy. The federal courts increasingly disliked

the remarkable increase in their caseloads caused

by habeas corpus petitions ﬁ led by state inmates.

Meanwhile, the general public began to criticize

the federal courts because of the delays caused by

habeas corpus litigation and what seemed to be

unending abuse of the justice system by inmates.

The courts responded by placing limits on the ﬁ l-

ing of habeas corpus petitions and the claims that

could be raised, including: the requirement that

claims first be raised at every level of the state

courts; the preclusion of claims seeking retroac-

tive application of new rules of constitutional law;

the application of a lower standard of the harm-

less error doctrine; and an absolute preclu-

sion of claims under the Fourth Amendment’s

search and seizure clause.

The public backlash against habeas corpus

review in federal courts led to the enactment of

the Anti-Terrorism and Effective Death Penalty

Act of 1996 (AEDPA). This statute created new

prerequisites for habeas corpus review, codiﬁ ed

some of the judicially created limitations, and

created special procedures for death penalty

cases. Notably, the AEDPA imposed a one-year

time period for seeking habeas corpus review,

required all state court procedures to be pursued

before seeking habeas corpus review, and prohib-

ited the ﬁ ling of multiple petitions. More impor-

tantly, the AEDPA imposed a requirement that

federal courts defer to the judgment of the state

courts unless that judgment was unreasonable

and placed a substantial limitation on a prisoner’s

right to an evidentiary hearing in federal court.

The unreasonableness standard and the prohibi-

tion of hearings substantially limited the avail-

ability of habeas corpus relief for state prisoners.

Nevertheless, habeas corpus remains a very

important remedy for state prisoners. It is gener-

ally referred to as the third tier of review because

it follows the two tiers of review available in most

state court systems: trial and direct appeal, and

post-conviction review. In that context, the writ of

habeas corpus remains an important safeguard of

individual liberty. It provides a forum in federal

court through which violations of rights protected

by the U.S. Constitution may be corrected in cases

in which the state courts fail to do so.

The controversy surrounding the availability of

the writ and the nature of claims that can be raised

continues. The question is whether a state prisoner

may pursue a claim of innocence as part of a federal

habeas corpus proceeding. In the past, claims of

innocence have been precluded from habeas cor-

pus review because the determination of guilt has

been considered a factual question reserved for the

jury to resolve, rather than a legal question to be

resolved in federal court. State and federal courts

have long recognized that, under the U.S. Consti-

tution, an accused person is entitled to a fair trial,

not a perfect trial. Thus, there has been an implicit

recognition that even the procedural protections

afforded to an accused in the criminal justice sys-

tem may not preclude the accused from being con-

victed of a crime he or she did not commit.

However, if the accused received a fundamen-

tally fair trial, the Constitution will not have been

violated. Moreover, the procedural rules applied

to habeas corpus petitions have precluded claims

of innocence except as a means of setting aside the

procedural limitations to federal review. But as

DNA evidence becomes more sophisticated, ques-

tions are being raised concerning the availability

of habeas corpus review for claims of innocence

that cannot be raised in state courts. The resolu-

tion of that question could alter the nature and

scope of federal habeas corpus review and open

habeas corpus up to jury trials on the prisoner’s

claim of innocence.

The right of habeas corpus, including to whom

it applies and where, was raised in the context of

the war on terrorism following the terrorist attacks

against the United States on September 11, 2001.

After these attacks, President George W. Bush

created a facility at the U.S. Naval Station at Guan-

tánamo Bay, Cuba, to incarcerate individuals who

were suspected of being involved in the events of

9/11 or other acts of terrorism. These individuals

were declared by the president to be “enemy com-

batants,” not entitled to protections under interna-

habeas corpus 335

xviii+446_EofUSConsti-v1.indd 335 3/12/09 3:05:23 PM

tional law, such as the Geneva Convention Relative

to the Treatment of Prisoners of War, and were

ordered held without habeas corpus protection.

The president contended that since these individu-

als were either enemy combatants, noncitizens, or

were located at a faculty outside of United States’

sovereign control, habeas did not apply.

In a series of decisions, the Supreme Court

rejected these arguments. In H

AMDI V. RUMSFELD,

542 U.S. 507 (2004), the Court ruled that a U.S.

citizen could not be held indeﬁ nitely on U.S. soil

without a right to habeas corpus review. In R

ASUL

V. BUSH, 545 U.S. 466 (2004), it ruled that aliens

being held in confinement at the U.S. military

base in Guantánamo Bay, Cuba, were entitled

to have a federal court hear challenges to their

detention under the federal habeas corpus statute.

In Hamdan v. Rumsfeld, 548 U.S. , 126 S.Ct. 2749

(2006), the Supreme Court ruled that a Yemeni

national held at Guantánamo Bay was entitled to

habeas review of his detention and trial before

a special military commission. The Court ruled

that the Detainee Treatment Act (DTA) of 2005,

which sought to deny habeas review to any alien

detained at this facility did not apply to persons

whose cases were in the courts at the time the act

was adopted. Congress then adopted the Military

Commissions Act (MCA) of 2006, which sought

to preclude courts from having habeas jurisdic-

tion over detained aliens determined to be enemy

combatants. Finally, in B

OUMEDIENE V. BUSH, ___

U.S. ___, 128 S.Ct. 2229 (2008), the Court ruled

that the MCA provided inadequate substitution

for habeas and that individuals detained at Guan-

tánamo Bay were entitled to have civil courts

review their detentions.

Overall, these recent decisions reaffirm the

broad scope of the right of habeas corpus to indi-

viduals detained by the United States government

in areas under its control.

For more information: Freedman, Eric M.

Habeas Corpus: Rethinking the Great Writ of

Liberty. New York: New York University, 2003;

Neeley, Mark E., Jr. The Fate of Liberty: Abraham

Lincoln and Civil Liberties. Oxford: Oxford Uni-

versity Press, 1992; ; Schultz, David. “Democracy

on Trial: Terrorism, Crime, and National Security

Policy in a Post 9-11 World,” Golden Gate Law

Review 38 (2008): 195–248.

—Mark A. Fulks

Hague v. Committee for Industrial

Organizations

307 U.S. 496 (1939)

In Hague v. CIO, the Supreme Court voided a

municipal ordinance that required a permit for

public assembly in streets, parks, and other public

spaces. The decision overturned Davis v. Mas-

sachusetts, 167 U.S. 43 (1897), which had upheld

the right of the states to use their police pow-

ers to broadly regulate assembly in public spaces.

The effect of overturning Davis v. Massachusetts

was to shift the emphasis from state regulation

of speech itself to state regulation of the public

space. Mitchell (2003, 70) states, “By arguing that

the streets, parks, and public spaces constituted a

kind of public forum, the Court found a means

of regulating not speech itself but the space in

which the speech occurred.” This is reﬂ ected in

the subsequent cases of Thornhill v. Alabama, 310

U.S. 88 (1940), and Carlson v. California, 310 U.S.

106 (1940), in which the Supreme Court upheld

picketing as a form of public assembly.

Members of the Committee for Industrial

Organization (CIO) were denied a permit to

assemble in a public space on the grounds that

their assembly would violate a Jersey City antilit-

tering ordinance. The intention of the CIO mem-

bers was to hand out ﬂ yers purporting the beneﬁ ts

of the National Labor Relations Act of 1935. The

true intention of city ofﬁ cials was to prevent the

CIO from politically organizing in Jersey City.

Mayor Frank Hague believed the CIO’s presence

would undermine his efforts to attract industrial

investment. Some of the CIO members distrib-

uted leaﬂ ets and pamphlets in public spaces and

were subsequently searched, arrested, and trans-

ported to New York City. The CIO filed suit,

arguing that the ordinance was unconstitutional

on the grounds that it violated the privileges or

immunities clause of the Fourteenth Amend-

ment. The CIO argued that its members should

be afforded protection of their right to peaceful

336 Hague v. Committee for Industrial Organizations

xviii+446_EofUSConsti-v1.indd 336 3/12/09 3:05:24 PM

assembly, against arbitrary infringement by the

state, as citizens of the United States. The Dis-

trict Court and Circuit Court of Appeals ruled in

favor of the CIO. The City of Jersey City appealed

to the Supreme Court, citing Davis v. Massachu-

setts, in which the Supreme Court had ruled in

1897 that the broad use of police powers by the

state for purposes of promoting “the public con-

venience” was constitutional.

Justice John G. Roberts, Jr. wrote the plural-

ity opinion with Justice Hugo Black and Chief

Justice Charles Evans Hughes concurring. Jus-

tice Roberts negates the decision made in Davis

v. Massachusetts that the “City’s ownership of

streets and parks is as absolute as one’s ownership

of his home . . . though the city holds the streets in

trust for public use, the absolute denial of their use

to the respondents is a valid exercise of the police

power.” Roberts differentiates Davis v. Massachu-

setts from Hague v. CIO by noting a difference

between measures to promote the public conve-

nience and “the exercise of the right of assembly

for the purpose of communicating views enter-

tained by speakers.” Justice Roberts then provides

a historical antecedent for the protection of the

right of assembly in public spaces by arguing that

the use of the streets for assembly, from ancient

times, has been part of the privileges, immunities,

rights, and liberties of citizens.

Hague v. CIO is an important case because it

legitimized the use of public space for purposes of

peaceful political assembly. The Supreme Court

was careful, however, not to refute the power of

states to discern their own use of police powers

in order to promote order and convenience. The

general rule that developed from Hague v. CIO

was that the use of public space can be regulated

through content-neutral, time, manner, and place

regulations, but that expression itself can not. Public

ofﬁ cials may not act under cover of law to regulate

public assembly and expression when the intent is

to discriminate against organizations with views or

opinions that may be counter to the interests of the

government’s leadership. The expression of politi-

cal ideas, promoted via public assembly, is a right

protected under the Fourteenth Amendment’s

privileges or immunities clause. In later cases, for

which Hague v. CIO set a precedent, there would

be a shift from the use of the Fourteenth Amend-

ment’s privileges or immunities clause to the Four-

teenth Amendment’s due process clause.

For more information: Mitchell, Don. The Right

to the City: Social Justice and the Fight for Public

Space. New York: Guilford Press, 2003.

—J. David Granger

Haig v. Agee 453 U.S. 280 (1981)

In a 7-2 decision, the Supreme Court held in Haig

v. Agee that the secretary of state had acted within

his constitutional and statutory authority in revok-

ing the passport of Philip Agee, a former CIA

operative who was engaged in a campaign to reveal

the identities of American covert intelligence

operatives worldwide. The decision established

that citizens do not have an absolute right to hold a

passport and that one could be denied or revoked

on the basis of national security concerns.

Philip Agee was a covert operative for the Cen-

tral Intelligence Agency from 1957 until 1968.

Agee left the agency disenchanted with American

foreign policy and abuses by the CIA. In 1974,

Agee announced a “campaign to ﬁ ght the United

States CIA wherever it is operating” (283). This

campaign primarily involved revealing the iden-

tities of CIA operatives and sources, particularly

those operating under diplomatic cover. His 1975

book, Inside the Company, included a 23-page

appendix listing individuals and organizations that

had assisted the CIA. In 1978, Agee founded the

Covert Action Information Bulletin, best known

for its “Naming Names” column, which was dedi-

cated to blowing the cover of intelligence agents.

Agee’s actions helped inspire the passage of the

1982 Intelligence Identities Protection Act (50

U.S.C. Section 422).

In 1979, the secretary of state revoked Agee’s

passport on the grounds that Agee’s activities were

causing significant harm to American national

security. Agee ﬁ led suit, claiming the revocation

amounted to an infringement on his right to travel

under the Fifth Amendment, as well as his First

Amendment right to criticize the government.

Haig v. Agee 337

xviii+446_EofUSConsti-v1.indd 337 3/12/09 3:05:24 PM

The district court supported Agee’s position, as

did the Court of Appeals for the District of

Columbia. The Supreme Court agreed to hear

the case, holding oral arguments on January 14,

1981, and delivering its decision on June 29, 1981.

In addition to his claim that the revocation

of his passport violated his constitutional rights,

Agee argued that the secretary of state had

overstepped his statutory authority, as the 1926

Passport Act (22 U.S.C. Section 211a) made no

provision for the revocation of passports. The

government’s position was that the secretary of

state had sufficient authority to revoke Agee’s

passport and that its revocation was not an

infringement on Agee’s constitutional rights. The

Court agreed and in a 7-2 decision overturned

this circuit court’s ruling, allowing the revoca-

tion of Agee’s passport to stand.

Chief Justice Warren Burger wrote for the

majority and was joined by Justices Potter Stewart,

Byron White, Harry Blackmun, Lewis Frank-

lin Powell, Jr., William Hubbs Rehnquist,

and John Paul Stevens. Justice Blackmun also

ﬁ led a concurring opinion, and Justice William

J. Brennan, Jr., ﬁ led a dissent, which was joined

by Justice Thurgood Marshall.

The Court held that despite the absence of

explicit language providing for the revocation of

passports under the 1926 Passport Act, the secre-

tary still possessed sufﬁ cient authority to revoke

Agee’s passport. The Court also rejected Agee’s

First and Fifth Amendment claims, holding that

the revocation decision was predicated not on

Agee’s words per se, but upon actions that caused

harm to American national security.

For more information: Agee, Philip. Inside the

Company: CIA Diary. New York: Stonehill Pub-

lishing Co., 1975; Leigh, Monroe. “Judicial Deci-

sions: Haig v. Agee. 101 S.Ct. 2766.” The American

Journal of International Law 75 (1981): 962–963.

—Thomas C. Ellington

Hamdi v. Rumsfeld 542 U.S. 507 (2004)

In Hamdi v. Rumsfeld, the Supreme Court ruled

that an American citizen could not be held indeﬁ -

nitely on American soil without a right to habeas

corpus review. The significance of the Hamdi

decision was that it limited the ability of the presi-

dent to detain American citizens in the war on ter-

rorism after September 11, 2001, and it reafﬁ rmed

the basic right of Americans to have a judge deter-

mine whether they have been illegally detained.

On September 11, 2001, Al Qaeda terrorists

hijacked four commercial airplanes and used

them in several attacks against the United States.

Subsequently, Congress authorized the presi-

dent to use all “necessary and appropriate force”

against any persons, organizations, and nations

that aided or supported these acts of terrorism.

The president then used this authorization to

send troops to Afghanistan against al-Qaeda and

the Taliban regime that had supported them.

Yaser Hamdi, an American citizen, was cap-

tured in Afghanistan, and he was classiﬁ ed as an

“enemy combatant” because he had supposedly

taken up arms against the United States. Hamdi

was placed in indeﬁ nite detention in a naval brig

in South Carolina and denied access to legal

counsel. Hamdi’s father sought habeas corpus

review for his son in federal court, claiming that

the incarceration violated the Fifth and Four-

teenth Amendments. The district court ruled

in favor of Hamdi, ordering him released, and the

Fourth Circuit Court of Appeals reversed. The

Supreme Court reversed, holding that Hamdi

was entitled to a hearing to determine the factual

basis for why he was being held.

Justice Sandra Day O’Connor wrote for a

four-person plurality that also included Chief Jus-

tice William Hubbs Rehnquist and Justices

Anthony M. Kennedy and Stephen G. Breyer.

In this opinion, O’Connor argues that while Con-

gress had authorized the detention of enemy com-

batants, Congress could not do so indefinitely.

Moreover, even recognizing the power of Congress

to fight the war on terrorism and authorize the

detention of those considered to be enemy com-

batants, the basic principles of the federal habeas

corpus law grant American citizens—even though

captured on foreign soil during combat—being

detained on American soil some right to contest the

factual basis for why they are being incarcerated.

338 Hamdi v. Rumsfeld

xviii+446_EofUSConsti-v1.indd 338 3/12/09 3:05:24 PM

Justice O’Connor also addressed a second

claim that the courts should not second-guess

the president when it comes to decisions made

regarding military matters. While acknowledging

the important separation of powers argument here

and the respect that the courts ought to afford the

president when it comes to sensitive foreign policy

and military matters, O’Connor argued that the

interest Hamdi had in the protection of his rights

outweighed the interest the government had

in detaining him without granting access to the

courts. In short, O’Connor and the four-person

plurality opinion did not see judicial review of

Hamdi’s detention as posing a major threat or hav-

ing a “dire impact” upon the government’s war-

making functions.

In a separate concurrence, Justices David

H. Souter and Ruth Bader Ginsburg generally

agreed with the O’Connor opinion, but they also

questioned whether the congressional resolution

authorized Hamdi’s detention. Speciﬁ cally, they

cited the Non-Detention Act (18 U.S.C. Section

4001[a]), which places limits upon the ability of

Congress to authorize the detention of Ameri-

can citizens. This act, passed in response to the

internment of Japanese Americans during World

War II, required very clear and manifest author-

ity by Congress before the president could detain

American citizens. In this case, Souter and Gins-

burg did not see that clear authority.

Overall, Hamdi was an important statement by

the court regarding the protection of individual

liberties and on the power of the president in

emergencies. In many ways, it stands in refuta-

tion to an earlier precedent, K

OREMATSU V. UNITED

STATES, 323 U.S. 214 (1944), which had upheld

the forced relocation of over 120,000 Japanese

Americans during World War II, without offer-

ing any evidence that these individuals were

security threats to the country. The Hamdi opin-

ion was issued the same day that R

ASUL V. BUSH

was decided. In Rasul, the U.S. Supreme Court

ruled that aliens being held in confinement at

the American military base in Guantánamo Bay,

Cuba, were entitled to have a federal court hear

challenges to their detention under the federal

habeas corpus statute. Taken together, the Hamdi

and Rasul opinions will now require the president

to justify before a court the detaining of individu-

als on American soil who are suspected of being

terrorists.

For more information: Adler, David Gray, and

Robert George, eds. The Constitution and the

Conduct of American Foreign Policy. Lawrence:

University Press of Kansas, 1996; Henkin, Louis.

Constitutionalism, Democracy, and Foreign

Affairs. New York: Columbia University Press,

1990; Henkin, Louis. Foreign Affairs and the

United States Constitution. Oxford: Clarendon

Press, 1996.

—David Schultz

Hamilton, Alexander (ca. 1755–1804) U.S.

Constitution framer, federalist leader, ﬁ rst

secretary of the treasury

Alexander Hamilton, lawyer, statesman, signer

of the Constitution, coauthor of T

HE FEDERALIST

APERS, founder of the Federalist Party, the ﬁ rst

Secretary of the Treasury, and arguably the most

inﬂ uential Founder never to become President,

was born on January 11, 1755 or 1757, in the Brit-

ish West Indies, and died on July 12, 1804, after

being wounded in a duel with Aaron Burr. He

came to the American colonies in 1773 and stud-

ied at King’s College. During the Revolutionary

War, he fought in a volunteer company, served

as George Washington’s aide-de-camp, and rep-

resented New York in the Continental Congress.

After the war, Hamilton practiced law in New York

and defended many British loyalists from vindic-

tive patriots. He was instrumental in establishing

the Bank of New York in 1784.

In 1786, spurred by increasingly frequent com-

mercial disputes among the states, delegates from

the states—Hamilton among them—gathered at

Annapolis, Maryland. The result of the Annapolis

Convention was a resolution, drafted by Hamilton,

calling for another convention in 1787 to consider

amendments to the Articles of Confederation.

Hamilton had long found fault with the Articles.

A persistent critic of the fractious state govern-

ments and a zealous supporter of a strong, cen-

Hamilton, Alexander 339

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tralized federal government, he was frustrated by

the impotence of the federal authority established

under the Articles. In the years immediately fol-

lowing independence, that government had been

unable to deal with the former colonies’ ﬁ nancial

woes, regulate commerce, or respond to alarming

episodes of domestic turmoil. Hamilton hoped

that the delegates to the convention would do

more than merely amend the Articles of Confed-

eration. He envisioned a new constitution and a

new government.

Hamilton was appointed by New York to the

Constitutional Convention. However,

because the two other delegates from New York

opposed his ideas, his state and its one vote always

sided against him. Consequently, Hamilton’s inﬂ u-

ence at the Convention was limited. He said very

little of importance in debate; in his most notable

remarks, he apparently argued for the abolition of

the state governments and for an elected “mon-

arch” who, once elected, would serve a life term.

In addition, at the Convention he was a ﬁ rm advo-

cate of a powerful president or executive, espe-

cially in the areas of foreign policy and defense.

The record of the Convention also suggests that

Hamilton had serious misgivings about the new

constitution, as it took shape. He put aside his

doubts once the Convention’s work was complete,

however. He served on the Committee of Style and

Arrangement, which, in a mere four days, crafted

the Constitution in its ﬁ nal form. He was the only

New York delegate to sign the document.

Hamilton made his greatest contribution to

the Constitution, and to constitutional law, after

the Convention. From 1787 to 1788, as the states

debated ratiﬁ cation, Hamilton, James Madison,

and John Jay defended the new Constitution in a

series of 85 essays titled The Federalist. Of those

85, Hamilton wrote 51. He authored all the essays

on the executive and judicial branches (numbers

67–77 and 78–83, respectively); he also wrote on

the Senate, military affairs, and taxation. Law-

yers, judges, and constitutional scholars regard the

collected Federalist essays as the most authoritative

contemporary commentary on the Constitution.

In 1789, Hamilton was appointed by President

Washington as the ﬁ rst secretary of the treasury.

At Hamilton’s urging, the federal government

assumed the states’ war debts, funded the national

debt, imposed a tax on spirits, and, in 1791, cre-

ated a national bank. The establishment of the

national bank raised important constitutional

questions. Opponents argued that the federal

government lacked the power to create a bank,

because that power was not speciﬁ cally granted

by the Constitution. Hamilton, whose more ﬂ ex-

ible interpretation of the Constitution favored

active federal involvement in economic matters,

countered with his theory of implied powers. He

contended that the Constitution granted Congress

additional unenumerated powers related to those

that were speciﬁ ed, through the necessary and

proper clause. That clause, he argued, should

be interpreted ﬂ exibly, “to give a liberal latitude to

the exercise of speciﬁ ed powers.” In the landmark

Supreme Court case McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316 (1918), Justice J. Marshall

adopted Hamilton’s reasoning.

340 Hamilton, Alexander

Alexander Hamilton. Engraving (Library of Congress)

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Hamilton resigned his position as Treasury Sec-

retary in 1795, after his political foes uncovered

the fact that he had been involved in an affair.

He did not retire from public life, however. He

resumed his legal practice in New York and was

a strong force in the Federalist Party, which he

had founded in the early 1790s, until the party’s

collapse in 1800.

For more information: Chernow, Ron. Alexan-

der Hamilton. New York: Penguin Press, 2004.

—Nathan M. Ingebretson

Hammer v. Dagenhart 247 U.S. 251 (1918)

In Hammer v. Dagenhart, the Supreme Court

ruled that Congress does not have the power

under the commerce clause to regulate child

labor within the individual states. The decision

represented a narrow interpretation of congres-

sional power to regulate commerce, and it dealt a

temporary blow to national efforts to address the

problem of child labor.

During the Industrial Revolution, many busi-

ness owners and stockholders favored the use of

child workers because it resulted in greater prof-

its. By the 1910s, spurred by Progressive reform-

ers, a national consensus had developed in favor of

limiting children’s work, and many states passed

legislation regulating the practice. Despite this

consensus, exemptions in southern states and

lack of effective enforcement of state laws led to

efforts to pass national legislation to curb child

labor. The Constitution, however, does not give

Congress the enumerated power to regulate

hours and working conditions for labor within the

states. In an attempt to regulate child labor indi-

rectly, Congress passed the Keating-Owen Act of

1916 under its authority to regulate commerce

between the states. The law prohibited producers

and manufacturers from shipping in interstate

commerce any product made by children under

14 or merchandise that had been made in facto-

ries where children between 14 and 16 had been

permitted to work more than eight hours a day,

six days a week, or at night. Roland Dagenhart,

who worked in a cotton mill in Charlotte, North

Carolina, with his two sons, ages 13 and 15, chal-

lenged the law with the support of the Executive

Committee of Southern Cotton Manufacturers.

Justice William R. Day, writing for the major-

ity, was joined by Chief Justice Edward White

and Justices Mahlon Pitney, Willis Van Devanter,

and James McReynolds. Justice Day wrote that

Congress does not have the authority to regulate

commerce of goods manufactured by children and

therefore the Keating-Owen Act was unconstitu-

tional. Day distinguished previous cases where

the Court upheld federal attempts to control lot-

teries, prostitution, and liquor, by arguing that

the manufacture of cotton was not a moral evil.

According to Day, the regulation of child labor

within states is purely a state authority. He used

the Tenth Amendment to support his argument,

although he misquoted the provision with regard

to powers delegated to Congress. Day claimed that

there is no power vested in Congress to require

the states to exercise their police power so as

to prevent unfair competition. He warned that to

allow Congress such authority would end freedom

of commerce and the power of the states over

local matters and thus “our system of government

would be practically destroyed.”

In dissent, Justice Oliver Wendell Holmes,

Jr., joined by Justices Joseph McKenna, Louis D.

Brandeis, and John H. Clarke, argued that the law

did not preempt state authority to regulate child

labor within a state. States have discretion to regu-

late their internal affairs, but when “they seek to

send their products across state lines they are no

longer within their rights.” Congress can regulate

commerce that crosses state lines even though it

may have an indirect effect upon the activities of

the states. Holmes concluded that the public pol-

icy of the United States is shaped to beneﬁ t the

nation as a whole, and Congress may enforce its

policy by all means at its command.

The Hammer decision was eventually over-

turned in U

NITED STATES V. DARBY LUMBER, 312 U.S.

100 (1941). In Darby, the Court upheld the Fair

Labor Standards Act using many of the arguments

in Holmes’s dissent in Hammer. Congress now

has broad authority to regulate labor, wages, and

working conditions under the commerce clause.

Hammer v. Dagenhart 341

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