Schultz D. Encyclopedia of the United States Constitution

Подождите немного. Документ загружается.

For more information: Novkov, Julie. “Our Tow-

ering Superstructure Rests on a Rotten Founda-

tion: Hammer v. Dagenhart (1918).” In Creating

Constitutional Change: Clashes Over Power and

Liberty in the Supreme Court, edited by Gregg

Ivers and Kevin T. McGuire, 119–133. Charlottes-

ville: University of Virginia, 2004.

—John Fliter

Hand, Learned (1872–1961) federal judge

Judge Billings Learned Hand (born January 27,

1872, and died August 18, 1961) was arguably the

most distinguished American judge to never be

appointed to the United States Supreme Court.

Learned Hand, whose seemingly prophetic

name is a compilation of family surnames, was born

and grew up in Albany, New York. Samuel Hand,

Learned’s father, was an Albany attorney and judge

of some distinction. Samuel Hand passed away when

Learned was 14 years old, leaving a deep impres-

sion on young Learned. After his father’s death, he

would continue to be be strongly inﬂ uenced by his

mother, Lydia Coit Learned Hand, a Calvinist Con-

gregationalist. Learned Hand would continue to

struggle, however, with religious and self-doubts.

Studying both philosophy and law at Harvard

University, Hand studied under several noted phi-

losophers, including George Santayana. He began

the private practice of law, ﬁ rst in Albany in 1897,

and then in New York City in 1902. At the age of

30, Hand married Bryn Mawr College graduate

Frances Fincke. They would go on to have three

daughters and a complicated 59-year marriage.

Ascending to his ﬁ rst federal judgeship as judge

of the U.S. District Court, Southern District of

New York in 1909, he was nominated by Presi-

dent William H. Taft. After his conﬁ rmation, he

remained in this position until he was appointed to

a higher federal court as judge for the U.S. Court

of Appeals for the Second Circuit. President Calvin

Coolidge made this nomination in 1924, and Judge

Learned Hand was conﬁ rmed the same year. He

was to remain on this court until his death in 1961.

During this judgeship he would be chief judge

from 1948–51. His remarkable 52-year tenure as

a federal judge was the longest one in history in

1961. It was marked by his abiding belief in judicial

restraint and largely by a lack of partisanship. Hand

said of himself that he was “a conservative among

liberals, and a liberal among conservatives.”

Judge Hand heard many landmark cases and

was particularly noted for his abilities with tort

law, contract law, antitrust law, income tax law,

federal criminal law, and free-speech issues. He

delivered a particularly famous opinion in the case

of Masses Publishing Co. v. Patten, 244 F. 535

(1917), where Judge Hand urged the use of the

“incitement test” which would later be adopted by

the U.S. Supreme Court.

Judge Hand was never appointed to the U.S.

Supreme Court because of various political rea-

sons. One signiﬁ cant one was his support of Theo-

dore Roosevelt after Roosevelt’s split with the

Republican Party in 1912. This greatly displeased

William H. Taft and the Republicans, guarantee-

ing that Hand would not get a nomination to the

Supreme Court for many years to come. When

President Franklin Delano Roosevelt took ofﬁ ce,

he was encouraged to nominate Judge Hand to the

U.S. Supreme Court. He decided that Hand was

too old at the age of 70. Of course, Judge Hand

remained on the federal bench another 19 years

after this, doing some of his ﬁ nest judicial work.

In perhaps his most famous speech, which was

delivered in New York City’s Central Park in 1944

at the “I Am an American Day” ceremony, he

famously said, “The spirit of liberty is the spirit

which is not too sure that it is right.” Perhaps this

begins to guide us toward the spirit of Hand’s

career as the notedly impartial jurist who leaves

a legacy of important federal decisions spanning

more than ﬁ ve decades.

For more information: Gunther, Gerald.

Learned Hand: The Man and the Judge. New

York: Knopf, 1994.

—Maria Collins Warren

Harlan, John (John Marshall Harlan) (1833–

1911)

Supreme Court justice

John Marshall Harlan, in his 34 years on the

Supreme Court (1877–1911), was the third most

342 Hand, Learned

xviii+446_EofUSConsti-v1.indd 342 3/12/09 3:05:26 PM

frequent dissenter in the history of the Court,

authoring 376 dissents among his 1,161 opinions.

Prior to Oliver Wendell Holmes, Jr., he had

been the sole consistent dissenter in the economic

substantive due process era. He believed in

judicial self-restraint regarding legislative eco-

nomic-proprietarian enactments.

Harlan was born in Kentucky. He attended

Centre College and Transylvania University. His

father, a close friend of Henry Clay, had been a

member of Congress and state attorney general

and secretary of state. Harlan, a slaveowner,

became a member of the Know-Nothing Party.

He served as a county judge in 1858. Harlan was

in the Union army during the Civil War, though

he supported the property rights of slave owners

and opposed the Thirteenth Amendment.

Harlan was Kentucky attorney general from

1863 to 1867. He was an unsuccessful candidate

for governor in 1871 and 1875. He was appointed

to the Supreme Court by Rutherford Hayes. By

that time, Harlan had become a Republican and a

moderate on the rights of blacks. He was the only

dissenter in the C

IVIL RIGHTS CASES, 109 U.S. 3

(1883), a decision declaring the Act of 1875 uncon-

stitutional on the grounds that the Fourteenth

Amendment applied to state action only and not

to discrimination by private individuals.

Harlan opposed the Court’s tendency to declare

governmental regulation of business unconstitu-

tional, for example, in his solitary dissent in the

1895 case of U

NITED STATES V. E. C. KNIGHT CO.,

156 U.S. 1, where the Court pulled the teeth from

the Sherman Antitrust Act, saying it did not apply

to manufacturing.

In L

OCHNER V. NEW YORK, 198 U.S. 45 (1905), he

dissented against the majority’s declaring a New

York State maximum hour law unconstitutional as

in violation of the Fourteenth Amendment.

Harlan’s most familiar dissent was in P

LESSY V.

ERGUSON, 163 U.S. 537 (1896), where the majority

interpreted the Fourteenth Amendment as allow-

ing separate but equal treatment of the races.

Harlan disagreed that it was only in the minds of

colored people that the statute requiring separate

facilities in public accommodations stamped

blacks with a badge of inferiority.

He was the ﬁ rst justice to advocate the total

applicability of the federal Bill of Rights to

the states in Hurtado v. California, 110 U.S. 516

(1884); Maxwell v. Dow, 176 U.S. 581 (1900); and

WINING V. NEW JERSEY, 211 U.S. 78 (1908).

For more information: Latham, Frank B. The

Great Dissenter. New York: Cowles, 1970.

—Martin Gruberg

Harlan, John Marshall (1899–1971) Supreme

Court justice

John Marshall Harlan was the grandson of the

earlier Justice John Harlan. His father was a

reform-minded Chicago mayor. Harlan was born

in Chicago and went to Princeton, Oxford (as a

Rhodes Scholar), and New York Law School. He

was an air force colonel during World War II. He

was named by President Eisenhower to the U.S.

Court of Appeals (1954) and then to the U.S.

Supreme Court (1955–71).

Harlan’s opinions were models of judicial

craftsmanship. He was a disciple of Felix Frank-

furter, arguing that the courts should stay out

of the “political thicket.” He dissented in B

AKER

V. CARR, 369 U.S. 186 (1962) in a case regarding

malapportionment of legislative districts and in

Wesberry v. Sanders, 376 U.S. 1 (1964), and R

EYN-

OLDS V. SIMS, 377 U.S. 533 (1964), two other cases

involving equitable representation.

Unlike his grandfather, he opposed the

nationalization of the Fifth Amendment in Mal-

loy v. Hogan, 378 U.S. 1 (1964), and Pointer v.

Texas 380 U.S. 400 (1965). Harlan opposed “sti-

ﬂ i n g ﬂ exibility in the States,” in departing from

due process standards in the Bill of Rights.

He preferred a case-by-case approach. Harlan

dissented from M

IRANDA V. ARIZONA, 384 U.S.

436 (1966), expanding the rights of defendants

in criminal cases. Harlan also followed a case-

by-case pattern in cases involving Communist

defendants (S

CALES V. UNITED STATES, 367 U.S.

203 [1961]); Noto v. United States, 367 U.S. 290

[1961]) and allegedly obscene literature (R

OTH

V. UNITED STATES and Alberts v. California, 354

U.S. 476 [1957]).

Harlan, John Marshall 343

xviii+446_EofUSConsti-v1.indd 343 3/12/09 3:05:26 PM

With failing health and eyesight, Harlan retired

from the Supreme Court in September, 1971, and

died two months later.

For more information: Shapiro, David L., ed.

The Evolution of a Judicial Philosophy: Selected

Opinions and Papers of Justice John M. Harlan.

Cambridge, Mass.: Harvard University Press,

1969; Yarborough, Tinsley E. John Marshall Har-

lan: Great Dissenter of the Warren Court. New

York: Oxford University Press, 1992.

—Martin Gruberg

harmless error

The harmless error doctrine is a principle of

constitutional law that is implicated whenever

a criminal defendant’s constitutional rights are

violated. Under the harmless error doctrine,

courts are required to evaluate the actual effect

of a constitutional error on a defendant’s trial

before granting a new trial. The question in this

evaluation is whether the court can conclude

beyond a reasonable doubt that the error did

not contribute to the defendant’s conviction in

light of the nature and extent of the proof of the

defendant’s guilt.

The harmless error doctrine was ﬁ rst applied

by the U.S. Supreme Court to a constitutional

error in the landmark case of Chapman v. Cali-

fornia, 386 U.S. 18 (1967). In Chapman, the

defendants exercised their rights not to testify

under the Fifth Amendment to the U.S. Con-

stitution. In response, the prosecutor exercised

his right under the state constitution to draw an

inference of guilt from the defendants’ silence.

After the defendants were convicted, in an unre-

lated case, the inference of guilt relied upon by

the prosecution was found to be a violation of the

Fifth Amendment. Thus, in Chapman, the issues

were whether a constitutional error could be

harmless and whether the violation of the defen-

dants’ Fifth Amendment rights was harmless or

automatically required a new trial. The Supreme

Court rejected the automatic-reversal argument

and concluded that a constitutional error may

be deemed harmless if the reviewing court can

conclude that the violation was harmless beyond

a reasonable doubt.

Subsequently, in Arizona v. Fulminante, 111

S.Ct. 1246 (1991), the Supreme Court explained

how the harmless error rule should be applied,

drawing a distinction between structural errors

and process errors. Structural errors undermine

the constitutional framework for criminal pros-

ecutions. For example, structural errors include

violations of the right to counsel, to a public

trial, or to a trial by jury. In contrast, process errors

occur within the framework during the presenta-

tion of the case to the jury. Process errors include

errors in the admission of evidence acquired in

violation of the constitution, such as coerced con-

fessions, illegally seized evidence, and tainted wit-

ness identiﬁ cations, erroneous jury instructions,

and restrictions on the defendant’s right to cross-

examine witnesses. The difference between these

two types of errors is that the effect of process

errors may be evaluated to determine any direct

effect on the outcome of the trial. Structural

errors, however, affect the intangible beneﬁ ts of

the justice system’s core fabric. For that reason,

structural errors cannot be evaluated in light of

the evidence.

The harmless error doctrine recognizes that,

under the facts and circumstances of a particu-

lar case, a constitutional error may be so insig-

nificant and inconsequential that it could not

have affected the result of the trial. Typically,

in a case in which the prosecution’s proof of

the defendant’s guilt is overwhelming, constitu-

tional errors will be considered harmless and the

defendant will not be entitled to a new trial. On

the other hand, in cases that are more closely

contested and the prosecution’s proof is barely

sufﬁ cient, constitutional errors will not be harm-

less and the defendant will be entitled to a new

trial.

For more information: Bentele, Ursula, and

Eve Cary. Appellate Advocacy: Principles and

Practice. Cincinnati: Anderson Publishing, 1998;

Traynor, Roger J. The Riddle of Harmless Error.

Columbus: Ohio State University Press, 1970.

—Mark A. Fulks

344 harmless error

xviii+446_EofUSConsti-v1.indd 344 3/12/09 3:05:26 PM

Harris v. McRae 448 U.S. 297 (1980)

In Harris v. McRae, the Supreme Court held that

the government may refuse to provide funds for

abortions for poor women.

After abortion became legal in 1973, a number

of state governments reacted by limiting payments

for abortion expenses in their state medical assis-

tance (Medicaid) programs for indigent women.

Medicaid is a joint federal-state program adminis-

tered by the state. Most lower federal courts found

these funding regulations illegal. In June 1977,

the Supreme Court decided in Beal v. Doe, 432

U.S. 438 (1977), and Maher v. Roe, 432 U.S. 464

(1977), that states may interpret the Medicaid law

to restrict public funding of abortions. Maher, the

more important of the cases, was challenged on

constitutional grounds; the plaintiffs claimed that

the Connecticut regulation restricting Medicaid

funds violated the equal protection clause by

differentiating among women on the basis of their

wealth. Although the Court acknowledged that the

regulation made it less likely that women in poverty

would be able to obtain abortions, it held that the

state had not violated the Constitution because it

imposed no restrictions on their access to abortion.

The state was not responsible for their inability to

obtain abortions; their poverty was responsible.

Congress had entered the debate over federal

funding of abortions when it enacted the Hyde

Amendment in 1976. Sponsored by Representa-

tive Henry Hyde, Republican from Illinois, it

prohibited the federal government from funding

abortions through the Medicaid program unless

the woman’s life was threatened by the pregnancy.

Over the next several years, there were several

versions of the amendment that allowed Med-

icaid funding for abortions in speciﬁ ed circum-

stances, such as if the pregnancy resulted from

rape or incest or when physical and long lasting

health damage would result if the pregnancy were

continued.

The ﬁ rst attack on the Hyde Amendment came

when New York City’s Planned Parenthood ﬁ led

suit in a New York federal district court. On Janu-

ary 15, 1980, the court held that the Hyde Amend-

ment violated the First and Fifth Amendments

of the United States Constitution.

On appeal, in Harris v. McRae, Justice Potter

Stewart announced the opinion for the Supreme

Court. Relying on Maher, he stressed that the

Hyde Amendment did not interfere with a wom-

an’s constitutionally protected right to an abortion.

He explained that although the government can-

not restrict the woman’s choice to have an abor-

tion, it was not obligated to remove obstacles it did

not place there. Because a poor woman’s access to

abortion is restricted by her indigency, not by any

barrier placed there by the federal government,

Stewart rejected the argument that Congress was

discriminating against poor women by refusing to

pay their abortion expenses.

The dissenting justices argued that the Hyde

Amendment imposed a moral code on poor women

only and denied their ability to exercise their right

to privacy just as effectively as the laws had done

when it was illegal before 1973. Justice Thurgood

Marshall predicted that as a result of this deci-

sion, women seeking abortions would be forced to

resort to dangerous methods to secure them.

For more information: Dickinson, Thomas. “Lim-

iting Public Funds for Abortions: State Response

to Congressional Action.” Suffolk University Law

Review 13 (1979): 923–959; Perry, Michael. “The

Abortion Funding Cases: A Comment on the

Supreme Court’s Role in American Government.”

Georgetown Law Journal 66 (1978): 1,191–1,245;

Tolchin, Susan. “The Impact of the Hyde Amend-

ment on Congress: Effects of Single Issue Politics

on Legislative Dysfunction, June 1977–June 1978.”

Women and Politics 5 (1985): 91–106.

—Susan Gluck Mezey

Harris v. New York 401 U.S. 222 (1971)

In Harris v. New York, the United States Supreme

Court held that although a defendant’s statements

obtained by the police in violation of the rule in

IRANDA V. ARIZONA, 384 U.S. 436 (1966), could

not be used against the defendant during the

prosecutor’s case for purposes of proving guilt,

they could be used by the prosecutor during the

defendant’s case for purposes of attacking the

defendant’s credibility.

Harris v. New York 345

xviii+446_EofUSConsti-v1.indd 345 3/12/09 3:05:27 PM

The police obtained statements from the defen-

dant without properly warning him of his right

to counsel as required by the Miranda rule.

Even though the statements were not coerced

or involuntary, the exclusionary rule barred

them from the prosecutor’s case (referred to as

the case in chief). The prosecutor made no use of

the statements in his case in chief, but when the

defendant testiﬁ ed in his own behalf, the prosecu-

tor introduced the statements (which conﬂ icted

with the defendant’s testimony) for the purpose

of attacking the defendant’s credibility (referred

to as impeachment). After the defendant was

convicted and after an unsuccessful appeal to

the state’s high court, he appealed to the U.S.

Supreme Court.

The Court stated that even though the Miranda

rule prohibits using the statements against the

defendant in the prosecutor’s case in chief, it does

not follow that the statements should be prohibited

for all other collateral purposes. To the extent that

the rule is necessary to deter police misconduct,

the majority was satisﬁ ed that such conduct would

be sufficiently deterred by barring improperly

obtained statements from the prosecutor’s case

in chief. Moreover, the Court suggested that the

impeachment process was valuable for the jury in

assessing the defendant’s credibility and barring

the statements from the trial would unnecessarily

undermine that process.

Finally, the Court noted that the defendant

was not required to testify, but once he chose to

do so the protection provided by the Miranda rule

should not enable the defendant to commit per-

jury without the risk of being confronted by his

prior conﬂ icting statements. The Court concluded

that the statements, although obtained in violation

of the Miranda rule, could be used to impeach the

defendant.

During the years since the decision in Harris

v. New York, the Court has permitted improp-

erly obtained evidence to be used for other

collateral purposes, speciﬁ cally grand jury pro-

ceedings (United States v. Calandra, 414 U.S.

338 [1974]), parole revocation hearings (Pennsyl-

vania Board of Pardons and Parole v. Scott, 524

U.S. 357 [1998]), and immigration deportation

hearings (Immigration and Naturalization Ser-

vice v. Lopez-Mendoza, 468 U.S. 1032 [1984]).

For more information: Clymer, Steven D. “Are

Police Free to Discard Miranda?” Yale Law Jour-

nal 112 (2002): 447–552; LaFave, Wayne R., Jerold

H. Israel, and Nancy J. King. Criminal Procedure.

4th ed. St. Paul, Minn.: Thomson/West, 2004.

—Steven B. Dow

Hatch Act of 1939 (amended 1940 & 1993)

The Hatch Act of 1939, amended in 1993, is a fed-

eral law designed to prohibit federal employees

and other government employees who are paid pri-

marily by federal funds from engaging in partisan

political activity. The act was named after Senator

Carl Hatch of New Mexico. Its ofﬁ cial name is “An

Act to Prevent Pernicious Political Activities.”

Though access to public employment in return

for political favors certainly ante-dates the presi-

dency of Andrew Jackson (1829–37), the “spoils

system” became pervasive during Jackson’s term

of ofﬁ ce and continued mostly unchallenged until

civil service reformers were able to get the Pend-

leton Act (1883) passed into law. Fundamentally,

the Pendleton Act began to set criteria for public

employment that called for qualiﬁ ed individuals to

ﬁ ll government jobs. This was in contravention to

the spoils system, whereby government jobs were

often given to individuals on the basis of their

political allegiance. Implicit in the reform of civil

service at the time of the Pendleton Act was the

idea of a politically neutral public administration.

Under the spoils system, not only was government

employment given to individuals for political alle-

giance but the very jobs they occupied and their

associated public organizations were often used to

ensure a benefactor’s reelection.

With the Pendleton Act as the initial salvo in

the attack on patronage, the succeeding years con-

tinued to see the rise of civil service reform while

patronage slowly declined. In 1938, it was reported

that Democratic Party politicians had misused

Works Progress Administration (WPA) funds and

staff in order to inﬂ uence the 1938 congressional

elections. Upon investigation, it was disclosed that

346 Hatch Act of 1939

xviii+446_EofUSConsti-v1.indd 346 3/12/09 3:05:27 PM

WPA employees had indeed used their positions to

win votes for the Democratic Party. Senator Carl

Hatch of New Mexico, a Democrat, sponsored

legislation that received widespread support that

would deal with future abuses of public employ-

ment for partisan advantage. Hence, the Hatch

Act was passed on August 2, 1939, with a revision

passed on July 19, 1940, that extended the act to

state and local employees whose pay included any

federal funds.

The Hatch Act restricted political campaign

activities by all federal employees below the poli-

cymaking level. In fact, the act states that fed-

eral employees must not take “any active part” in

political campaigns. Further, public ofﬁ cials were

forbidden from using promises of jobs, promotion,

ﬁ nancial assistance, contracts, or any other beneﬁ t

in order to force campaign contributions or to get

political support.

The Hatch Act was not without its opponents.

While the act sought to remove the spoils system

by maintaining a politically neutral public admin-

istration, those public employees impacted by the

act saw it as an infringement upon their First

Amendment rights as American citizens. The

Supreme Court heard cases challenging the con-

stitutionality of the Hatch Act upon free speech

and freedom of association grounds in both 1947

and 1974. In both instances, the Supreme Court

upheld the constitutionality of the act. In each

case, the Court ruled that the violation of an indi-

vidual’s right to free speech and association was

outweighed by the public’s need to have a gov-

ernment system free of patronage. Government

employment was also reasoned to be a voluntary

association that public employees freely choose

to pursue. Therefore, the acceptance of limita-

tions is a prerequisite to the acceptance of public

employment.

With public employees becoming more numer-

ous and well educated, the pressure to reform the

Hatch Act became more intense. On October 6,

1993, President Bill Clinton signed legislation to

reform the Hatch Act. Under the new provisions

of the act, federal employees gained the right to

take an active role in political campaigns. Now

federal employees on their own time and with

their own private resources may run for elective

ofﬁ ce where no candidate represents a political

party (nonpartisan election), assist in voter regis-

tration drives, express opinions about candidates

and issues, volunteer in a campaign, contribute to

a political campaign, display campaign parapher-

nalia, and participate (even as candidates) in local

or state political parties.

However, federal employees may not be candi-

dates for elective ofﬁ ce where any candidate rep-

resents a political party (partisan election), raise

funds for a partisan political campaign, allow their

names to be used in fund-raising for a partisan

political campaign, or participate in a telephone

bank to raise money for a partisan campaign or to

raise money for their union’s political action com-

mittee from anyone other than union members.

While the Hatch Act has evolved from being

very restrictive to federal employees’ political

involvement to recognizing some off-duty political

involvement, the act still restricts federal employ-

ees and those state and local employees paid with

even some federal funds from being completely

free in their political activities even on their own

time. The Hatch Act aims to achieve a public

bureaucracy that is not touched directly by parti-

san politics in its day-to-day operation.

For more information: Ofﬁ ce of Special Coun-

sel (U.S.). The Hatch Act and Federal Employees:

Permitted and Prohibited Activities for Employ-

ees Who May Engage in Partisan Activity. 2006.

—William Lester

hate crimes

A hate crime is a crime that is committed because

of the victim’s characteristics, such as his or her

race, gender, ethnicity, religion, sexual orienta-

tion, or disability. While one may ask, are not all

crimes based on hate, hate here represents hatred

of a person’s characteristics and the group that he

or she identiﬁ es with. Hate crimes, while primar-

ily associated with white supremacist groups, can

be committed by anyone.

Hate crimes have an effect not only on the

individual targeted, but the group targeted as

hate crimes 347

xviii+446_EofUSConsti-v1.indd 347 3/12/09 3:05:27 PM

well. For this reason, many regard hate crimes as

a greater crime against society. Additionally, psy-

chologists have stated that the fear that resonates

in a particular community after a hate crime is

very real and measurable. Because this type of

crime has additional effects that a regular crime

does not, both the federal and state governments

have found it appropriate to enact laws imposing

additional penalties for this behavior.

For instance, if an individual commits assault

because of a person’s race, for instance, he or she

will face an additional charge and an increased

penalty due to the hate crime. All states but one

(Wyoming) have some type of hate crime provi-

sion in effect. Further, all but three states (Wyo-

ming, Indiana, and South Carolina) have hate

crime penalties for bias-motivated violence and

intimidation. In addition, numerous states have

laws creating increased penalties for hate-based

vandalism of religious institutions.

Among the states, however, there is a vast dis-

agreement over what constitutes a characteris-

tic or group for purposes of determining a hate

crime. California and the District of Colum-

bia, for example, have laws stating that if a crime

is committed because of one’s race, religion, eth-

nicity, sexual orientation, gender, disability, politi-

cal afﬁ liation, age, or transgender/gender identity

it should be classiﬁ ed as a hate crime. These two

jurisdictions are of the most inclusive. On the

other hand, Montana includes only race, religion,

and ethnicity in its deﬁ nition.

The increased penalty component of state

hate crimes laws was challenged in Wisconsin

v. Mitchell, 508 U.S. 476 (1993). In Wiscon-

sin v. Mitchell, the Supreme Court ruled that

a defendant’s First Amendment rights were

not violated because of the increased penalty. A

unanimous Supreme Court rejected the idea that

a state could not punish an individual based on

the defendant’s motive. The Court further dis-

tinguished a hate crime from hate speech and

hateful thoughts. Yet, even with the Court’s rul-

ing, many today believe that hate crime laws vio-

late the First Amendment.

The federal government has also enacted hate

crime laws, but in their current form the statutes

are limited in their applicability. Currently, fed-

eral hate crime penalties can be attached only to

actions already illegal under federal law (called

the base crime). Over the past few years, however,

there has been a push in Congress to expand and

pass new federal hate crime legislation. This new

legislation would penalize an individual who com-

mits a crime because of the victim’s characteristics

(as described above), regardless of whether the

base crime (e.g., assault or murder) is prohibited

under federal law.

Those that argue for federal hate crime leg-

islation believe that hate crimes are crimes that

know no state borders and that they impact the

country as a whole. It is also believed that fed-

eral hate crime legislation can be constitutionally

rationalized under both the commerce clause

and the Thirteenth Amendment. Those

that argue against such legislation believe that

criminal penalties are best left to the states and

that the federal government does not have suf-

ﬁ cient ability to legislate under the principles of

federalism.

Cross burning is a unique hate crime, and

penalizing such activity was recently addressed by

the Supreme Court in Virginia v. Black, 538 U.S.

343 (2003). In Virginia v. Black, a very fractured

Court held that a state can criminalize cross burn-

ing only when there is an intent to intimidate and

not when the cross burning was done for purely

political purposes. The Court clariﬁ ed its previ-

ous holding in R.A.V. v. City of St. Paul, 505 U.S.

377 (1992), which struck down a Minnesota cross

burning statute. In sum, the Court has stated

that when a statute criminalizes cross burning

when done so with an intent to intimidate for any

reason, it will pass constitutional scrutiny.

For more information: Abel, Jason. “Americans

Under Attack: The Need for Federal Hate Crime

Legislation in Light of Post-September 11 Attacks

on Arab Americans and Muslims.” Asian Law

Journal 12 (2005): 41–65; Abel, Jason. “Balanc-

ing a Burning Cross: The Court and Virginia v.

Black.” John Marshall Law Review 38 (2005):

1,205–1,226.

—Jason Abel

348 hate crimes

xviii+446_EofUSConsti-v1.indd 348 3/12/09 3:05:28 PM

hate speech

Hate speech targets members of social groups on

the basis of their identity. While the earliest vic-

tims of hate speech were members of racial and

religious minorities, the victims of hate speech

have also included women, gays and lesbians, and

immigrants. Hate speech can take a variety of

forms, ranging from one- and two-word slurs to

book length attacks, such as the Protocols of the

Elders of Zion, which claims the world is run by

a Jewish conspiracy. The motives of the purvey-

ors of hate speech vary—some appear motivated

almost entirely by hatred of their victim, while

others use hate speech to attract followers to their

cause. Victims of hate speech experience it as

disempowering, which has led some critical race

theorists to consider hate speech as a restriction

on the victim’s First Amendment rights.

The rise of the Nazis led several European

countries and American states to enact hate

speech laws. In State v. Klapprott, 22 A.2d 877

(1941), the New Jersey Supreme Court upheld a

New Jersey hate speech law. Revulsion at racial

policies of the Nazis increased support for hate

speech laws. During the 1950s, 1960s, and early

1970s, many European countries strengthened

their hate speech laws. Developments in the

United States initially followed a similar path, as

demonstrated by the Supreme Court in B

EAUHAR-

NAIS V. ILLINOIS, 343 U.S. 250 (1952), which upheld

an Illinois group libel law.

But support for hate speech laws soon evapo-

rated. In part this was a reaction to the excesses of

McCarthyism. It also reﬂ ected a fear that restric-

tions of speech would be used against opponents

of the Civil Rights movement, a possibility Jus-

tices Hugo Black and William O. Douglas

already suggested in their dissenting opinions in

Beauharnais and which came to fruition in cases

such as NAACP v. Alabama, 357 U.S. 449 (1958),

and N

EW YORK TIMES V. SULLIVAN, 376 U.S. 254

(1964), both of which pitted the free speech rights

of civil rights protesters against southern seg-

regationists. The Vietnam War era saw a similar

pattern—in cases such as T

INKER V. DES MOINES

CHOOL DISTRICT, 303 U.S. 503 (1969), and COHEN

V. CALIFORNIA, 403 U.S. 15 (1971), protesters relied

on freedom of speech to protect their right to

oppose the war.

Meanwhile, the restrictions of speech from

the McCarthy era were gradually rolled back. In

RANDENBURG V. OHIO, 395 U.S. 444 (1969), the

Supreme Court held that restrictions on speech

were permissible only to stop direct incitement to

immediate lawless action. As a result, during the

Skokie controversy, the Seventh Circuit in Collin

v. Smith, 578 F.2d 1197 (7th Cir, 1978) had little

trouble upholding the right of Nazis to march in a

community with a large proportion of Holocaust

survivors. While many people resigned from the

ACLU in protest, the affair was seen by others as

an important vindication of freedom of speech.

During the 1980s, the broad opposition to hate

speech laws began to crack. Inspired by a new

generation of legal scholars—the critical race the-

orists—colleges and universities enacted speech

codes. While some of these codes, including those

at the Universities of Michigan and Wisconsin,

were found unconstitutional by lower courts, the

momentum for restrictions on hate speech laws

grew as municipalities passed laws banning hate

speech and adding prison time to those convicted

of bias-motivated crimes.

In R.A.V.

V. ST. PAUL, 505 U.S. 377 (1992), the

Supreme Court held that a city could not ban only

those “ﬁ ghting words” (a category of speech the

Court held in CHAPLINSKY V. NEW HAMPSHIRE, 315

U.S. 568 [1942], was undeserving of First Amend-

ment protection) based on racial or religious

hatred. R.A.V. suggested that those speech codes

that singled out speciﬁ c types of hate speech were

unconstitutional. Furthermore, because R.A.V.

involved a cross burning, many lower courts

concluded that the case made laws banning cross

burning unconstitutional.

Two later rulings substantially narrowed the

potential scope of R.A.V. First, in Wisconsin v.

Mitchell, 508 U.S. 476 (1993), the Court upheld the

constitutionality of sentence enhancement laws.

This allowed communities to register their condem-

nation of bias crimes without running afoul of the

First Amendment. A second narrowing came with

Virginia v. Black, 538 U.S. 343 (2003), where the

Court upheld a Virginia law banning cross burning

hate speech 349

xviii+446_EofUSConsti-v1.indd 349 3/12/09 3:05:28 PM

when done with the intent to intimidate. Discussing

the history of cross burning and the Ku Klux Klan

at great length, the Court held that racial intimida-

tion is a “true threat” which the state has the power

to prevent. The impact of the “true threat” language

on hate speech laws remains to be seen.

For more information: Delgado, Richard, and

Jean Stefancic. Must We Defend Nazis?: Hate

Speech, Pornography, and the New First Amend-

ment. New York: New York University Press, 1997;

Downs, Donald Alexander. Nazis in Skokie: Free-

dom, Community, and the First Amendment.

Notre Dame, Ind.: University of Notre Dame

Press, 1985; Kahn, Robert A. “Cross-Burning,

Holocaust Denial, and the Development of Hate

Speech Law in the United States and Germany,”

University of Detroit Mercy Law Review 83

(2006): 163–194; Walker, Samuel. Hate Speech:

The History of an American Controversy. Lin-

coln, Nebr.: University of Nebraska Press, 1994.

—Robert A. Kahn

Hawaii Housing Authority v. Midkiff 467

U.S. 229

(1984)

The Hawaii Housing Authority v. Midkiff case

dealt with creation of state legislation to redistrib-

ute land from a small number of private landown-

ers to the larger population. This question about

land redistribution in Hawaii came about fol-

lowing extensive hearings held in the mid-1960s,

where the state legislature discovered that land

was distributed into the hands of a small minority

within the state.

From its investigations, the legislature found

that the federal and state governments owned

nearly 49 percent of the land in Hawaii, but

another 47 percent was owned by only 72 pri-

vate landowners—demonstrating a severe con-

centration of landownership that the legislature

felt needed to be combated for the betterment

of all within the State of Hawaii. To this end,

the Land Reform Act was passed in 1967 by the

Hawaii State Legislature to forward the idea of

land redistribution. The act adopted a method of

redistribution that would transfer property from

lessors (landowners) to lessees. This was done

through having the land condemned, so as not to

be disadvantageous to landowners with regard to

taxes paid for money gained from the sale of land.

However, the act was challenged by a land-

holder, Frank E. Midkiff. The case presented the

question of whether the Land Reform Act of 1967

passed by the Hawaii state legislature violated the

public use clause of the Fifth Amendment and

was brought eventually to the U.S. Supreme Court

for adjudication. The Court’s decision contrasted

Midkiff to a previous landmark case that used emi-

nent domain power to condemn lands for private

interest. Berman v. Parker, 348 U.S. 26 (1954), was

a landmark decision made by the U.S. Supreme

Court which reﬁ ned the public use clause and use

of private property with just compensation. The

case opened the way for successive cases whereby

property could be condemned based on economic

considerations that pertain to a public purpose and

would therefore be considered constitutional.

Based on this precedent, the Supreme Court

concluded in a unanimous decision of 8 to 0 that

the Hawaii Land Reform Act of 1967 was consti-

tutional, as it served the public purpose of regulat-

ing the current land distribution that was a legacy

of the ancient oligopoly of Hawaii. In delivering

the opinion of the Court, Justice Sandra Day

O’Connor stated that

The Fifth Amendment of the United States Con-

stitution provides, in pertinent part, that “pri-

vate property [shall not] be taken for public use,

without just compensation.” These cases present

the question whether the Public use Clause of

the Amendment, made applicable to the States

through the Fourteenth Amendment, pro-

hibits the State of Hawaii from taking, with just

compensation, title in real property from [467

U.S. 229, 232] lessors and transferring it to les-

sees in order to reduce the concentration of own-

ership of fees simple in the State. We conclude

that it does not.

The Court noted that the Land Reform Act was

rationally related to a conceivable public pur-

pose and that the debates relating to the forced

350 Hawaii Housing Authority v. Midkiff

xviii+446_EofUSConsti-v1.indd 350 3/12/09 3:05:28 PM

redistribution of land should be handled by leg-

islatures rather than the federal courts. The deci-

sion favored the State of Hawaii, as it was felt that

the act was a classic exercise of the state’s police

powers for correcting a situation within the pub-

lic interest and that this satisﬁ ed the public use

doctrine provided for by Berman v. Parker. The

Court also added that it felt that property taken by

eminent domain and transferred to private ben-

eﬁ ciaries did not condemn the law (Land Reform

Act of 1967) to having a solely private purpose,

and therefore it did not contradict the Fifth

Amendment’s public use clause.

This case is of signiﬁ cance as it highlights the

issue of judicial deference to legislative decisions

taken in the public’s interest. In Midkiff, the Court

acknowledges that state legislatures are as capable

as Congress in determining exercise of power in

their speciﬁ c spheres of authority for making judg-

ments involving public interests and purposes.

Therefore this case establishes that if a state or

the federal legislature determines that there exist

substantial reasons for extension of its authority to

serve a public use or interest, then the courts must

defer to the legislature’s decision, as it can better

assess public interests.

For more information: Allen, Tom. The Right

to Property in Commonwealth Constitutions.

Cambridge: Cambridge University Press, 2000;

Mercuro, Nicholas, and Warren J. Samuels, eds.

The Fundamental Interrelationships Between

Government and Property. Stamford, Conn.: JAI

Press, 1999.

—Dale Mineshima-Lowe

Hazelwood School District v. Kuhlmeier

484 U.S. 260 (1988)

In Hazelwood School District v. Kuhlmeier, the

U.S. Supreme Court upheld the authority of a

public school principal to censor the content of a

school newspaper when there is a legitimate edu-

cational justiﬁ cation and when the paper is part of

the curriculum.

The ruling has broader impact than just school

newspapers, applying to yearbooks, school plays,

Web sites, and any situation in which student

speech may be perceived as bearing the impri-

matur of the school. Moreover, the reasoning

in Hazelwood has been applied by some federal

courts to allow college ofﬁ cials to restrict student

speech and student publications at public colleges

and universities.

The case originated in a school district in St.

Louis, Missouri. Editors of the Hazelwood East

High School student newspaper, the Spectrum,

prepared articles in May, 1983, on teenage preg-

nancy and on the impact of divorce on students.

The pregnancy article recounted the experiences

of three students whose names were changed in

the story. The high school principal believed the

three might still be identiﬁ ed by some readers. The

divorce article, as shown to the school principal,

used some real names and did not give the parents

a chance to respond (apparently the real names

were deleted in a version that was not shown to

the principal). The principal believed there was

no time to change the stories and so killed two

pages of the paper, leaving a four-page publication

instead of the six that were planned.

The editors sued in federal court, believing the

principal’s action violated their First Amend-

ment rights. A federal judge ruled against the

students, but the U.S. Court of Appeals for the

Eighth Circuit reversed and found a First Amend-

ment violation. The appeals court said the articles

could not be censored because they posed no risk

of “material and substantial” disruption, the legal

standard from the leading student rights case

of T

INKER V. DES MOINES INDEPENDENT COMMUNITY

CHOOL DISTRICT, 393 U.S. 503 (1969).

In a 5-3 ruling written by Justice Byron R.

White, the Supreme Court changed the standard

and ruled in favor of school ofﬁ cials. The news-

paper was produced by the journalism class, the

Court noted. The Court said that Tinker dealt

with independent student speech which presented

different issues than speech that was part of ofﬁ -

cial school activities or the curriculum and that

would be perceived as having the imprimatur of

the school. The Court said that school officials

could control the content of speech that might be

seen as the school’s message as long as the ofﬁ -

Hazelwood School District v. Kuhlmeier 351

xviii+446_EofUSConsti-v1.indd 351 3/12/09 3:05:29 PM