Schultz D. Encyclopedia of the United States Constitution

Подождите немного. Документ загружается.

cial action was “reasonably related to legitimate

pedagogical concerns.” This new standard would

make it much easier for ofﬁ cials to control student

speech.

Justice William J. Brennan, Jr., wrote a

strong dissent that was joined by Justices Thur-

good Marshall and Harry Blackmun. The dissent

faulted the majority for citing the Tinker case,

saying the Court “denudes high school students

of much of the First Amendment protection that

Tinker itself prescribed.”

For more information: Goodman, Mark. “From

Consistency to Confusion: The Legacy of Hazel-

wood School District v. Kuhlmeier.” Commu-

nications Lawyer 10, no. 1 (1993): 1–20; Hafen,

Bruce C., and Jonathan O. Hafen. “The Hazel-

wood Progeny: Autonomy and Student Expression

in the 1990’s.” St. John’s Law Review 69 (1995):

379–419.

—Stephen Wermiel

Heart of Atlanta Motel v. United States 379

U.S. 241

(1964)

In Heart of Atlanta Motel v. United States, the

Supreme Court upheld Title II of the Civil

Rights Act of 1964. Title II of the Civil Rights

Act of 1964 prohibited racial discrimination in

places of public accommodation, such as hotels

and motels. The question this case presented was

whether the U.S. Congress had exceeded their

constitutional powers and violated the commerce

clause by prohibiting businesses from choosing

their customers. Ultimately, the decision of the

U.S. Supreme Court upheld the Civil Rights Act

of 1964.

Before 1964, the United States was a very seg-

regated country, and the major concept that domi-

nated the Supreme Court when it came to race

relations was “separate but equal,” dating back to

LESSY V. FERGUSON, 163 U.S. 537 (1896). This con-

cept was not a reality, and while black people and

white people were separate, they were not equal.

However, the precedents from the Supreme Court

began changing with cases such as Powell v. Ala-

bama, 287 U.S. 45 (1932); Smith v. Allwright, 321

U.S. 649 (1944); Sweatt v. Painter, 339 U.S. 629

(1950); McLaurin v. Oklahoma State Regent, 339

U.S. 637 (1950); BROWN V. BOARD OF EDUCATION OF

OPEKA, 347 U.S. 483 (1954); NAACP v. Alabama,

357 U.S. 449 (1958); and Boynton v. Virginia, 364

U.S. 454 (1960).

Despite these precedents from the Court, seg-

regation still prevailed, especially in the South.

Congress, relying on constitutional powers granted

to them controlling interstate commerce,

acted to ease the plight of blacks in a segregated

society by passing the Civil Rights Act on July 2,

1964, which banned racial discrimination in pub-

lic places.

A large motel in Atlanta, Georgia, called the

Heart of Atlanta, refused to rent rooms to black

customers even following the Civil Rights Act of

1964. Refusing to comply with the act, the owner,

an attorney, ﬁ led suit in a federal court with the

contention that the Civil Rights Act went beyond

the powers granted in the Constitution to Con-

gress to regulate interstate commerce. The owner

further argued that the act violated his Fifth

Amendment rights because it placed controls over

his property without due process of the law and

violated his Thirteenth Amendment rights by

forcing him into the servitude of blacks by forc-

ing him to rent rooms to them. The United States

countered these arguments by showing accom-

modation restrictions on blacks interfered with

interstate travel and that the other claims were

outside of the scope of the Fifth and Thirteenth

Amendments. The federal district court agreed

with the United States and the owner appealed to

the Supreme Court.

Justice Tom Clark delivered the opinion of the

Supreme Court, with Justice Arthur Goldberg,

Justice Hugo Black, and Justice William O.

Douglas concurring on December 14, 1964.

The Court upheld the Civil Rights Act deter-

mining that Congress did act within the jurisdic-

tion granted to them in the interstate commerce

clause. Since the hotel received most of its cus-

tomers from other states, it did participate in

interstate commerce. The Court found no merits

in the arguments of the violation of the owner’s

Fifth and Thirteenth Amendment rights. The

352 Heart of Atlanta Motel v. United States

xviii+446_EofUSConsti-v1.indd 352 3/12/09 3:05:29 PM

Civil Rights Act of 1964, passed by Congress,

received the support of the judiciary with this

Supreme Court decision.

For more information: Cortner, Richard. Civil

Rights and Public Accommodations: The Heart

of Atlanta Motel and McClung Cases. Lawrence:

University Press of Kansas, 2001; Mayer, Rob-

ert, ed. The Civil Rights Act of 1964. San Diego,

Calif.: Greenhaven Press, 2004.

—Carol Walker

high crimes and misdemeanors

High crimes and misdemeanors are the classes of

offenses to which Congress’s power of impeach-

ment extends under Article II, Section 4 of the

federal Constitution. From the Constitution’s ear-

liest days, this clause’s exact meaning has been the

chief issue of dispute in virtually every signiﬁ cant

impeachment procedure in the House of Rep-

resentatives and trial in the Senate.

The full language of the constitutional text says,

“The President, Vice President, and all civil

Officers of the United States shall be removed

from Ofﬁ ce on Impeachment for, and Conviction

of, Treason, Bribery, or other high Crimes and

Misdemeanors.” The ﬁ rst impeachment, that of

District Judge John Pickering in 1804, established

a tradition of misapplying and/or omitting to rely

explicitly upon this language. Pickering was either

a drunkard, as his opponents held, or insane, as

his friends argued, and thus clearly in need of

removal from the bench; the problem was whether

drunkenness or insanity might be said to consti-

tute a “high crime” or “high misdemeanor.”

The Senate removed him without exactly

answering the question. As Raoul Berger demon-

strated, either of the characterizations of Picker-

ing would have justiﬁ ed the Senate in concluding

that he had committed a “high crime” or “high

misdemeanor,” if the Senate had looked to pre-

1788 English precedent for those terms’ deﬁ ni-

tions. Berger argues that here, as in other cases

(e.g., of “bribery” in the same clause), the Consti-

tution’s authors clearly intended for English usage

to determine their words’ meaning.

The Senate, however, has not been clear in rely-

ing on English precedent. Therefore, not only in

the Pickering case, but in those of Justice Samuel

Chase, President William Clinton, and numerous

others, defendants have argued that the impeach-

ment power extends only to indictable offenses.

Although their argument has often been rejected,

it has formed a leitmotif for the public political

defense that necessarily accompanies impeach-

ments of signiﬁ cant ofﬁ cers (if not of lower-court

judges). Most notably, this defense manifested

itself in the Clinton matter in the slogan “He only

lied about sex.”

To say that the Senate has been whipsawed by

this argument is not to deny that Congress has

occasionally been led in the opposition direction.

Thus, in moving the impeachment of Justice Wil-

liam O. Douglas in 1970, Representative Gerald

Ford argued that high crimes and misdemeanors

were whatever the House and Senate agreed them

to be at a given moment. In practical terms, as the

Pickering precedent shows, he was right—if per-

haps a bit too bold for comfort. In another, later

case, the Senate removed a judge from the bench

for bringing his office “into scandal and disre-

pute.” President Johnson’s impeachment centered

on his violation of an unconstitutional statute—

along with leading congressmen’s desire to remake

the Constitution along the British model by sub-

ordinating the presidency to the Congress. The

impeachment power is the mechanism by which

Congress can police the behavior of high elected

and appointed ofﬁ cers, and its awesomeness has

led political actors to favor desuetude to overuse.

For more information: Berger, Raoul. Impeach-

ment: The Constitutional Problems. Cambridge,

Mass.: Harvard University Press, 1973; McKitrick,

Eric. Andrew Johnson and Reconstruction. New

York: Oxford University Press, 1988.

—Kevin R. C. Gutzman

Hiibel v. Nevada 542 U.S. 177 (2004)

In Hiibel v. Nevada, the Supreme Court ruled

that individuals stopped by the police can be

required to identify themselves. The signiﬁ cance

Hiibel v. Nevada 353

xviii+446_EofUSConsti-v1.indd 353 3/12/09 3:05:29 PM

of this decision lies in rejection of arguments that

a state law requiring people to identify them-

selves to the police does not constitute either a

Fourth Amendment unreasonable search and

seizure or a violation of the Fifth Amendment’s

right against self-incrimination. More-

over, the Hiibel opinion addressed some legal

questions about identifying oneself to the police

that had not been previously addressed by the

Court.

In T

ERRY V. OHIO,, 392 U.S. 1 (1968), the

Supreme Court upheld the authority of police ofﬁ -

cers to brieﬂ y stop, question, and frisk individuals

whom they had a reasonable suspicion to believe

are engaged in criminal activity. Terry’s stop and

frisk rule is considered to be one of the excep-

tions to the Fourth Amendment’s requirement

that a warrant is required to undertake a search.

The Terry opinion can be considered a pro-police

ruling, giving them more leeway to investigate

crimes, but it has also been condemned as giv-

ing them too much power to randomly stop and

harass individuals. Critics of the ruling see Terry

as granting the police so much power to stop

and search people that it has led to, among other

things, racial profiling.

In the case of Larry Hiibel, he was stopped by

Nevada police in the context of a county sheriff’s

investigating an assault. When asked to identify

himself he refused and was then charged with a

violation of a state law that required individuals

to identify themselves when they are stopped by

police and are being questioned about a crime. At

his court appearance, Hiibel argued that the state

law requiring him to identify himself violated

both his Fourth and Fifth Amendment rights.

The Court rejected his arguments and convicted

him for violating the law. Hiibel appealed his case

through to the Nevada Supreme Court, and his

arguments were rejected each time. In reviewing

the decision of the Nevada Supreme Court, the

U.S. Supreme Court also rejected his claims.

Writing for the majority, Justice Anthony M.

Kennedy ﬁ rst noted that stop and identify stat-

utes had a long history in American and English

law, serving their purpose to prevent vagrancy.

However, in cases such as Brown v. Texas, 443

U.S. 47 (1979), the Court had struck these gen-

eral types of law down as a violation of the Fourth

Amendment, because they permitted the police

to stop people even if they were not suspected of

doing anything wrong. However, the Nevada law,

unlike the earlier stop and identify or vagrancy

laws, did not authorize the police to stop and

compel identiﬁ cation except in the context of a

reasonable suspicion that the person had commit-

ted a crime.

Second, Kennedy noted that Terry had autho-

rized the stopping of individuals based upon

reasonable suspicion and that as part of routine

questioning, asking for identiﬁ cation is a typical

police activity. Asking a suspect for identiﬁ cation

serves several important governmental functions.

For example, it allows the police to determine if

they have the right suspect. Thus, asking for iden-

tification is a reasonable extension of the Terry

exception to the Fourth Amendment warrant

requirement.

The Court also rejected Hiibel’s Fifth Amend-

ment claim. Here they argued that the Fifth

Amendment permits one to refuse to provide

information that is self-incriminating. Merely pro-

viding one’s name, according to the Court, was not

self-incriminating.

In a lone dissent, Justice John Paul Ste-

vens contended that Hiibel’s Fifth Amendment

rights were violated. He argued that the Fifth

Amendment protection against self-incrimina-

tion applies outside of a criminal court setting and

that this right should require the police to have

probable cause and not merely reasonable suspi-

cion before they can require a person to provide

identiﬁ cation.

Hiibel thus extended the Terry exception to

upholding laws that require individuals to iden-

tify themselves in certain settings. It did not

authorize broad authority of the police simply to

randomly stop and ask people to identify them-

selves. However, in light of concerns about how

Terry v. Ohio had already allegedly led to the

practice of police stopping people based upon

their race, critics of Hiibel will see this opinion

as giving the government even more authority to

stop and question individuals.

354 Hiibel v. Nevada

xviii+446_EofUSConsti-v1.indd 354 3/12/09 3:05:30 PM

For more information: Heumann, Milton, and

Lance Cassak. Good Cop, Bad Cop: Racial Proﬁ l-

ing and Competing Views of Justice. New York:

Peter Lang Publishing, 2003.

—David Schultz

Hodgson v. Minnesota 497 U.S. 417 (1990)

In Hodgson v. Minnesota, the Supreme Court

upheld a parental notification law for minors

seeking abortions, although in this case a law

requiring both parents to consent was declared

unconstitutional.

During the 1980s, an increasing number of

state legislatures enacted parental involvement

laws, requiring parental consent for minors seek-

ing abortions or mandating that doctors notify

parents before performing an abortion on a minor.

Proponents of such laws argue that parents should

be involved in their daughter’s decision to have

an abortion. Opponents claim most pregnant

teenagers inform their parents anyway, and it is

unrealistic and harmful to assume that parental

involvement beneﬁ ts every teen.

On June 26, 1990, the Supreme Court addressed

the issue of a two-parent notiﬁ cation requirement

in a Minnesota case. The law was passed in 1981 as

an amendment to the Minors’ Consent to Health

Services Act. Subdivision Two of the amendment

required a physician to notify both parents of an

unemancipated minor before performing an abor-

tion. Minors living with divorced or separated par-

ents were not exempted from the law, nor were

those whose parent deserted the family. The law

allowed notiﬁ cation of only one parent if the other

one were dead or could not be found after “reason-

ably diligent effort.” There was also an exemption

to the notice requirement in cases of emergency,

or when both parents consented in writing to the

abortion, or if the minor had previously been cer-

tified to the authorities as a victim of sexual or

physical abuse. Finally, physicians were required

to wait 48 hours after the notiﬁ cation before per-

forming the abortion.

Subdivision Six of the law speciﬁ ed that a judi-

cial bypass procedure would take effect if Sub-

division Two were declared unconstitutional by

a court. The bypass allowed the pregnant minor

to attempt to convince a judge that she was sufﬁ -

ciently mature to make the abortion decision her-

self or that an abortion without notice would be in

her best interests.

The lower courts were divided on the consti-

tutionality of the law and, on appeal, ﬁ ve justices

found Subdivision Two unconstitutional because

it was not reasonably related to a legitimate state

interest. A different ﬁ ve-justice majority sustained

Subdivision Six; four justices would have found

the law constitutional with or without the bypass

provision.

Speaking for the Court on Subdivision Two,

Justice John Paul Stevens echoed the lower

court’s ﬁ ndings that only about half the minors

in Minnesota lived with both biological parents

and that the effect of notifying the absent par-

ent was potentially harmful to the teenager. Even

with both parents present, Stevens said, criminal

reports show there is a realistic danger of violence

against the teen. Additionally, he noted that even

though most petitions were granted, the bypass

procedure was often traumatic for the teenager.

Stevens rejected the state’s argument that

the two-parent notice furthered its interests in

the teenager, the parent, or the family because

the state can fulﬁ ll its obligation to the minor by

notifying one parent and permitting that parent

to decide whether to notify the other or whether

the notice would be detrimental to the teenager.

He dismissed the state’s position that the family

functions best if both parents are involved in a

teenager’s abortion decision, saying that the state

cannot attempt to mold the family into its ideal-

ized image.

Speaking for the new majority of ﬁ ve, Justice

Sandra Day O’Connor agreed that Subdivision

Two was unconstitutional. But she concluded that

Subdivision Six was constitutional because the

danger threatened by the two-parent notiﬁ cation

requirement is removed when the teenager can

avoid notifying one or both parents by applying to

the courts for a bypass.

Thus, the Court upheld Minnesota’s two-par-

ent notiﬁ cation law as long as it contained a judi-

cial bypass provision.

Hodgson v. Minnesota 355

xviii+446_EofUSConsti-v1.indd 355 3/12/09 3:05:30 PM

For more information: Bowers, James R. Pro-

Choice and Anti-Abortion. Westport, Conn.:

Praeger Publishers, 1994; Mezey, Susan Gluck.

Elusive Equality: Women’s Rights, Public Policy,

and the Law. Boulder, Colo.: Lynne Rienner Pub-

lishers, 2003.

—Susan Gluck Mezey

Holmes, Oliver Wendell, Jr. (1841–1935)

Supreme Court justice

Oliver Wendell Holmes, Jr., was a distinguished

poet, historian, philosopher of law, Massachusetts

judge, and an associate justice of the U.S. Supreme

Court. He was born March 8, 1841, in Boston,

Massachusetts, the eldest child of the famous

writer and physician for whom he was named.

Holmes graduated from Harvard in 1861 and

was shortly afterward commissioned a ﬁ rst lieu-

tenant in the 20th Massachusetts Regiment of Vol-

unteers. He was seriously wounded in the battles

of Ball’s Bluff, Antietam, and Chancellorsville.

Holmes was both proud and humble about

his war service. At Memorial Day ceremonies he

gave addresses (“In Our Youth Our Hearts Were

Touched with Fire,” and “The Soldiers’ Faith,”

1895) to fellow veterans that gloriﬁ ed in part the

sacrifices of those who had fought and died. In

1864, brevet Colonel Holmes resigned his com-

mission and returned to Boston where he entered

Harvard Law School. He did not like the tradi-

tional curriculum and was to urge that changes be

made. In 1866, he graduated with a law degree

and traveled in Europe. Holmes was admitted to

the Massachusetts bar in 1867. From 1867 until

1882 he practiced law, was the editor of the Amer-

ican Law Review (1870–73), edited the 12th edi-

tion of Chancellor James Kent’s Commentaries

on American Law (1873), and lectured at Harvard

on law.

In 1881, Holmes’ Lowell Institute lectures were

published as The Common Law. Holmes argued

that the common law was the result of human

experience, rather than the product of deduction

from abstract principles. In December of 1882,

Holmes was appointed to the Supreme Judicial

Court of the State of Massachusetts. In 1899, he

became its chief justice. While on the Massachu-

setts Court, Holmes wrote over 1,000 opinions.

His writings on constitutional issues were to be

decisions that had lasting impact.

In 1902, President Theodore Roosevelt

appointed Holmes to the U.S. Supreme Court. He

remained there 30 years, resigning his seat on Jan-

uary 12, 1932, having served with four chief jus-

tices. He died in Washington, D.C., March 6, 1935,

and was buried in Arlington Cemetery. Holmes

wrote 873 opinions while serving on the Supreme

Court. The most proliﬁ c justice in the Court’s his-

tory, he gained a reputation as a progressive and as

the “Great Dissenter” in cases such as L

OCHNER V.

NEW YORK (1905) and ADKINS V. CHILDREN’S HOSPI-

TAL (1923). Holmes believed that unless a law was

egregiously bad, judges should practice “judicial

restraint.” His dissents gave guidance to attorneys

on how to bring and win similar cases.

Holmes believed in freedom of speech. In

Schenk v. United States (1919), his opinion

favored limiting the power of government to regu-

late speech even in a time of war. He wrote that

unless there was a “clear and present danger” that

a speech would cause some violent harm, it should

not be stopped. To prevent even odious ideas from

being expressed was in his view to inhibit the free

“marketplace of ideas.”

The next year, in M

ISSOURI V. HOLLAND (1920),

Holmes upheld the government’s right to engage

in regulating the hunting of migratory waterfowl.

His opinion stated the Court’s view of inherent

powers of the president and the Congress to make

laws in the area of international conservation.

At times, Holmes seemed to side with liber-

tarians. During World War I, Holmes disagreed

with the Court’s majority when it refused to grant

citizenship to a Hungarian, Rosika Schwimmer,

because she was a paciﬁ st. In Frank v. Mangum

(1915), he dissented, and in Moore v. Dempsey

(1923) he wrote the majority opinion. Holmes con-

fronted the problem of lynching.

One of Holmes’s most notorious cases was B

UCK

V. BELL (1927). The case involved a Virginia law

requiring the sterilization of epileptics and the

mentally ill. Buck was a female with a feeble mind.

Holmes agreed with Virginia’s decision to compel

356 Holmes, Oliver Wendell, Jr.

xviii+446_EofUSConsti-v1.indd 356 3/12/09 3:05:30 PM

her sterilization, declaring that three generations

of imbeciles was enough. Holmes supported Social

Darwinism and pragmatism. He rejected the doc-

trine of natural rights. He opposed legal formal-

ism and substantive due process, contributing

instead to the development of legal realism.

For more information: Bowen, Catherine

Drinker. Yankee from Olympus: Justice Holmes

and His Family. Boston: Houghton Mifﬂ in Com-

pany, 1962; Frankfurter, Felix. Mr. Justice Hol-

mes and the Supreme Court. 2nd ed. Cambridge,

Mass.: Harvard University Press, 1961; Howe,

Mark DeWolfe. Justice Oliver Wendell Holmes.

Cambridge, Mass.: Harvard University Press,

1957–63; Novick, Sheldon M. Honorable Justice:

The Life of Oliver Wendell Holmes. Boston: Little,

Brown, 1989.

—Andrew J. Waskey

Home Building and Loan Association v.

Blaisdell

290 U.S. 398 (1934)

In Home Building and Loan Association v.

Blaisdell, the Supreme Court upheld Minne-

sota’s moratorium on home foreclosures during

the Great Depression. The Court reasoned that

the economic emergency justiﬁ ed the alteration

of private agreements and that state action vio-

lated neither the U.S. Constitution’s contract

clause (Article I, Section 10) nor the Four-

teenth Amendment’s equal protection or due

process clauses.

In the throes of the Great Depression, many

Minnesotans became unemployed and lost their

homes due to the inability to make mortgage pay-

ments. In 1933, the Minnesota state legislature

declared an emergency and imposed a morato-

rium on home foreclosures. Chapter 339 of the act

permitted qualiﬁ ed debtors to make reasonable

monthly payments and prohibited creditors from

foreclosing for two years. The law did not wipe

out the homebuyers’ debts; it merely permitted

them to adjust their payment schedules to stave

off foreclosures.

In 1928, John and Rosella Blaisdell secured a

$4,056.39 loan from the Home Building and Loan

Association to purchase a large, two-story, 14-room

home in Minneapolis, Minnesota. The couple

lived in just three rooms and rented the remain-

ing rooms to help make the monthly mortgage

payments. In 1933, the couple fell on hard times

and encountered difﬁ culty renting their rooms.

Using Chapter 339, the Blaisdells secured a state

court judgment to adjust and extend their monthly

payments on the remaining balance of their mort-

gage. The lender ﬁ led suit in state court alleging

the moratorium violated a) the U.S. Constitution’s

contract clause, which bans states from “impair-

ing the obligation of contracts,” b) the Fourteenth

Amendment’s ban on states’ taking property with-

out due process, and c) the Fourteenth Amend-

ment’s mandate that the states grant all citizens,

including lenders, equal protection of the law.

The state courts ruled for the Blaisdells, and the

Home Building and Loan Association appealed to

the U.S. Supreme Court.

Chief Justice Charles E. Hughes delivered

the opinion of the Court in which Justices Louis

Brandeis, Harlan Fiske Stone, Owen Roberts, and

Benjamin Cardozo joined. The central focus of the

majority opinion was striking a balance between

the contract clause and the state’s police pow-

ers. After tracing the origins and development of

the contract clause, Chief Justice Hughes surmised

that contracts, while sacred, are not absolute and,

that in this instance, the State of Minnesota had

legitimately used its police powers under the Tenth

Amendment to promote the public good during an

actual emergency. Moreover, the Court believed

that the law in question did not actually obliterate

private contracts, but temporarily modiﬁ ed them

to prevent widespread foreclosures and certain

economic calamity. Thus, the Court afﬁ rmed the

lower court decision.

A strong dissent was offered by Justice George

Sutherland and supported by Justices Willis Van

Devanter, James McReynolds and Pierce Butler.

Sutherland believed the majority misinterpreted

the framers’ intent and that the state moratorium

clearly ran afoul of the contract clause. Wrote

Sutherland, “If the provisions of the Constitution

cannot be upheld when they pinch as well as when

they comfort, they may as well be abandoned.”

Home Building and Loan Association v. Blaisdell 357

xviii+446_EofUSConsti-v1.indd 357 3/12/09 3:05:31 PM

This case is illustrative of the growing rift on

the Supreme Court between the conservative

and liberal justices during the early days of the

New Deal. The conservative block, consisting of

Justices Sutherland, McReynolds, Van Devanter,

and Butler, believed that the Court should exer-

cise restraint in interpreting the Constitution and

frequently voted against ever-increasing govern-

ment regulation of the free market. The liberal

coalition, comprised of Brandeis, Stone, Cardozo,

and to varying degrees Hughes and Roberts, fre-

quently supported the government’s initiatives

to ameliorate the social and economic problems

associated with the Great Depression.

For more information: Leuchtenburg, William

E. The Supreme Court Reborn: The Constitu-

tional Revolution in the Age of Roosevelt. New

York: Oxford University Press, 1995; McConnell,

Grant. Private Power and American Democracy.

New York: Knopf, 1966; White, G. Edward. The

Constitution and the New Deal. Boston: Harvard

University Press, 2000.

—Richard J. Hardy

House of Representatives

Article I of the U.S. Constitution deﬁ nes

the legislative branch of the national government

to consist of the U.S. House of Representatives

along with the Senate. Together, the two houses

are known as the Congress. Of the two houses of

Congress, the U.S. House of Representatives was

designed to be the most democratic. At the found-

ing, House seats were the only directly elected

federal positions. They were also designed to be

closer to the people by serving a shorter term.

Article I of the Constitution details the struc-

ture and the power of the House and the Sen-

ate. For the House, the article states that it will

share legislative power with the Senate, and the

two together will have all legislative power for

the federal government. Representatives were to

be elected every two years, and this was designed

to make the House a more responsive body. One

must be at least 25 to serve in the House, and one

must have been a citizen of the United States for

seven years and be a resident of the state one is

elected from as well.

House seats are divided among the states by

population, with each state being given at least

one representative. By statute, the current num-

ber of members is capped at 435, but this is not

a constitutional requirement. Before the aboli-

tion of slavery, the population was considered the

whole of all free persons and “three-ﬁ fths of all

others.” Now it is all persons counted by the cen-

sus. The seats must be apportioned according to

the one person, one vote principle that means

that each House district must be approximately

the same size in terms of population, especially

among districts within each state. The ofﬁ ce of

the speaker of the House is created in Article I,

and it is said that the House may select that person

and other ofﬁ cers. These other ofﬁ cers have been

created over the years and include majority and

minority leaders, majority and minority whips,

and various other positions such as the clerk of

the House, the parliamentarian, and others.

The House has a number of formal powers, laid

out in the Constitution. One of the major formal

powers of the House is the ability to make laws.

Lawmaking is not a simple process, and it may be

checked by a number of processes. Both houses of

Congress must pass identical legislation, and the

president may veto any piece of legislation that

passes both Houses. A veto may be overridden

only by a two-thirds majority of each house. Leg-

islation may also fail to pass constitutional muster

and be struck down by the court system.

The House has the power to impeach the presi-

dent or other executive or judicial ofﬁ cials accord-

ing to Article I, and the Senate may then vote to

convict or acquit the subject of the impeach-

ment. The House is required to originate any

finance bills, including taxation and spending.

Such bills still require passage in both houses.

There are a number of other powers granted to

the House, such as the establishment of the post

ofﬁ ce, the regulation of commerce (which leads

to an important implied power), and the ability to

raise armies and declare war. Finally, in the event

358 House of Representatives

xviii+446_EofUSConsti-v1.indd 358 3/12/09 3:05:31 PM

that no presidential ticket receives enough elec-

toral votes to win, the House selects the president

of the United States. They did that twice: once in

1800 when they selected Thomas Jefferson to

become president and then in 1824 when they

picked John Quincy Adams for that position.

The House also has a number of restrictions

placed on it. It is forbidden from granting pat-

ents of nobility, for example, from passing bills of

attainder (which would convict a person of a crime

without a court process), from making ex post facto

laws (laws that would take effect retroactively), or

from suspension of the writ of habeas corpus,

which demands that the state produce a prisoner

and show cause as to why he or she is being held.

The House has a number of implied powers.

These are powers not expressly mentioned in the

Constitution, but which have been found neces-

sary to support a constitutional function of the

House. The classic example of an implied power is

the creation of a national bank. In M

CCULLOCH V.

ARYLAND, 17 U.S. (4 Wheat) 316 (1819), the Court

ruled that the creation of a bank was appropriate

to support the powers of the Congress to appro-

priate and to maintain an army. A relative to the

implied powers of the House is the commerce

clause. The ability of the House to regulate vari-

ous forms of commerce, and in particular inter-

state commerce, has allowed greatly expanded

powers for the federal government. This power

was conﬁ rmed and expanded in W

ICKARD V. FIL-

BURN, 317 U.S. 111 (1942), and in KATZENBACH V.

CCLUNG, 379 U.S. 294 (1964). Almost anything

that affects any commerce is now considered to

affect interstate commerce, and this has allowed

for a great deal of expansion in bureaucratic reg-

ulation, civil rights, and other issues (Spaeth

and Smith, 1991, 85).

The House of Representatives is an integral

part of American government, and is covered

extensively in the Constitution. It provides a cor-

nerstone of American democracy by giving the

people a voice in the creation of their laws.

For more information: Dodd, Lawrence C., and

Bruce Oppenheimer. Congress Reconsidered. 8th

ed. Washington, D.C.: CQ Press, 2005; Mason,

Alpheus Thomas, and Donald Grier Stephenson,

Jr. American Constitutional Law. 12th ed. Upper

Saddle River, N.J.: Prentice Hall, 1999.

—Matthew W. Barber

housing and the Constitution

The U.S. Constitution does not recognize a right

to housing. However, the Supreme Court and pol-

icymakers have used constitutional inter-

pretation to directly and indirectly shape fair

housing initiatives.

Housing discrimination on the basis of race,

color, religion, sex, handicap, familial status and

national origin is currently (and primarily) pro-

hibited by the Fair Housing Act of 1968 and its

amendments and Title VI of the Civil Rights

Act of 1964. In early housing discrimination

cases, the equal protection clause had been

used primarily to eliminate housing discrimina-

tion by government entities. In B

UCHANAN V. WAR-

LEY, 245 U.S. 60 (1917), the Court argued that

racially-based zoning laws constituted due pro-

cess violations.

In S

HELLEY V. KRAEMER, 334 U.S. 1 (1948),

the Court ruled that racially-biased restrictive

covenants, although private, could be consid-

ered equal protection violations if state courts

enforced them. In this case, a white family

received state court support in their efforts to

uphold their neighborhood’s private agreement

to prevent African Americans from purchas-

ing homes in the community. While the private

agreement or restrictive covenant, on its own,

did not violate the equal protection clause, state

court enforcement of the agreement should be

considered sufﬁ cient government involvement

as to constitute an equal protection clause vio-

lation. Recent decisions suggest that private

individuals may be held in violation of the equal

protection clause if they are working in concert

with public entities.

The Court has also established a standard of

intent for housing cases involving potential equal

protection clause violations. In Village of Arling-

housing and the Constitution 359

xviii+446_EofUSConsti-v1.indd 359 3/12/09 3:05:32 PM

ton Heights. v. Metropolitan Housing Develop-

ment Corp., 429 U.S. 252 (1977), the Court stated

that plaintiffs are required to demonstrate “proof

of racially discriminatory intent or purpose . . . to

show a violation of the Equal Protection Clause.”

The Thirteenth Amendment has been cited

less frequently in the Court’s fair housing doc-

trine but has played a critical role in legitimating

fair housing legislation. For example, in Jones v.

Mayer, 392 U.S. 409 (1968), the Court argued

that the enforcement sections of the Thirteenth

Amendment granted Congress the authority to

impose restrictions on the sale or rental of private

property in order to eliminate barriers preventing

racial minorities from procuring properties.

Constitutional rulings in non-housing civil

rights cases have paved the road for fair hous-

ing doctrine. In many respects, the Court’s rul-

ing in B

ROWN V. BOARD OF EDUCATION, 347 U.S.

483 (1954), which ended the “separate but equal”

doctrine established in P

LESSY V. FERGUSON, 163

U.S. 537 (1896), opened the door for all instances

of racial segregation, both public and private, to

be considered suspect. Housing advocates have

used the Court’s decision in H

EART OF ATLANTA V.

U.S., 379 U.S. 241 (1964), to thwart arguments

that housing policies, such as programs requiring

landlords to accept tenants with federal vouchers

that offset the cost of housing, violate the land-

lord’s constitutionally guaranteed right to freedom

of contract. In this case, the Court argued that a

business did not have the “right” to establish its

own grounds for serving customers, free from gov-

ernment intrusion.

For more information: Massey, Douglas, and

Nancy Denton. American Apartheid: Segregation

and the Making of the Underclass. Cambridge,

Mass: Harvard University Press, 1993; National

Low-Income Housing Coalition. “Fifty Years

Later: Brown v. Board of Education and Hous-

ing Opportunity” (2004). Available online. URL:

www.nlihc.org. Accessed May 12, 2008; Yinger,

John. Closed Doors, Opportunities Lost: The

Continuing Costs of Housing Discrimination.

New York: Russell Sage Foundation, 1995.

—Alison Gash

H. P. Hood & Sons, Inc. v. Du Mond 336

U.S. 525

(1949)

Hood & Sons v. Du Mond was a Supreme Court

decision striking down New York’s decision to deny

a license to a Massachusetts-based milk distribu-

tor to operate a facility to collect and deliver milk

in interstate commerce. The majority opin-

ion, written by Justice Robert H. Jackson and sup-

ported by a bare ﬁ ve-justice majority, articulated

a strong presumption in favor of free trade among

the states and against state efforts to impede the

ﬂ ow of interstate commerce. Justice Hugo Black,

joined by Justice Frank Murphy, and Justice Felix

Frankfurter, joined by Justice Wiley B. Rutledge,

wrote dissenting opinions.

The petitioner, Hood, operated two milk-receiv-

ing depots in New York State before the dispute

giving rise to this case and supplied milk to Bos-

ton. Hood applied for a license to operate a third

facility at Greenwich, New York, but the applica-

tion was rejected by the Commissioner of Agricul-

ture and Markets of New York (Du Mond), citing a

reduction in local supply of milk if the application

were accepted, an attendant increase in cost to

competing dealers, adequate markets for existing

producers, and a likelihood of destructive compe-

tition. Hood appealed to the state courts, raising

an objection under the commerce clause, but

the New York Court of Appeals upheld the state’s

denial. The U.S. Supreme Court accepted the

case under certiorari jurisdiction and reversed the

state court in Hood’s favor.

The Court’s decision struck down the New

York regulation denying Hood an extension of his

license because the grounds for doing so, protec-

tion of within-state economic interests, were inad-

equate to overcome the commitment to free trade

among the states represented in the Constitution

by the commerce clause. In the absence of con-

gressional legislation, the majority argued, the

Court was responsible for ensuring that states do

not restrain trade in interstate commerce in the

interest of local economic advantage.

Justice Jackson’s opinion does not deny that

state interests include protecting citizenry from

public health hazards or safety concerns, but

that economic protection cannot be the basis for

360 H. P. Hood & Sons, Inc. v. Du Mond

xviii+446_EofUSConsti-v1.indd 360 3/12/09 3:05:32 PM

restraining commerce among the states in the

absence of congressional support. In support of its

position, New York argued that its regulation was

consistent with the federal regulatory system for

milk, but the Court rejected this contention.

Justice Black, in his dissent, faults the Court for

abandoning previous approaches, which sought

to balance the interests of commerce with state

regulatory concerns so long as the state effect on

interstate commerce did not interfere with con-

gressional action. This position represents some-

thing of a compromise for Justice Black, who in

general disdained balancing approaches in con-

stitutional law but preferred the established judi-

cial efforts to balance national markets with local

needs to the majority’s position that even non-dis-

criminatory state regulations affecting interstate

commerce were presumptively unconstitutional

absent congressional approval. Justice Black, who

reads congressional inactivity as permission for

state regulation, rather than constitutional pro-

hibition of it, wrote that the Court’s position in

Hood potentially left substantial amounts of eco-

nomic activity free from all regulation, as Con-

gress could not possibly address all of the local

concerns in question and states were now prohib-

ited from doing so.

Justice Frankfurter would have sent the case

back to the state court for further proceedings so

that the Court could better assess whether exten-

sion of Hood’s license would genuinely lead to

destructive competition. His dissent argues that

the Court inappropriately treats a question of

balancing competing interests as a question of

absolutes.

For more information: Furtado, Manuel L.

“Constitutional Law: State Regulation of Inter-

state Commerce.” California Law Review 37

(1949): 667–671; Mendelson, Wallace. “Recent

Developments in State Power to Regulate and Tax

Interstate Commerce.” University of Pennsylva-

nia Law Review 98 (1949): 57–68; Michel, Jack.

“Hood v. Dumond: A Study of the Supreme Court

and the Ideology of Capitalism.” University of

Pennsylvania Law Review 134 (1986): 657–701.

—Scott E. Graves

Humphrey’s Executor v. United States 295

U.S. 602

(1935)

In Humphrey’s Executor v. United States, the

Supreme Court ruled that the president does

not have the power to remove commissioners of

independent agencies that perform legislative and

judicial functions for policy purposes. This case is

signiﬁ cant because it guarantees regulatory agen-

cies independence from the president to perform

their duties in a non-partisan manner.

In 1931, President Herbert Hoover appointed

William Humphrey, a conservative, to serve as a

commissioner on the Federal Trade Commission

(FTC). According to the Federal Trade Commis-

sion Act, a commissioner could be removed by the

president only for “inefﬁ ciency, neglect of duty, or

malfeasance in ofﬁ ce.” However, in 1933, Presi-

dent Franklin D. Roosevelt asked Humphrey to

resign, because he opposed many New Deal pro-

grams that the FTC had jurisdiction over. Hum-

phrey refused, and President Roosevelt dismissed

him on policy grounds. Even though Humphrey

died shortly thereafter, the executor of his estate

ﬁ led suit to recover his salary. On certiﬁ cate from

the Court of Claims, the Supreme Court ruled for

Humphrey’s estate, holding that Congress has the

power to restrict the removal of certain ofﬁ cials

for one or more causes.

Writing for a unanimous court, Justice George

Sutherland distinguished between ofﬁ cials per-

forming executive functions and those per-

forming quasi-legislative and/or quasi-judicial

functions. In Myers v. United States, 272 U.S. 52

(1926), the Court held that the president could

remove officials who perform executive func-

tions for any cause. However, the Court claims

that Congress created the FTC to perform leg-

islative functions by investigating unfair meth-

ods of competition and suggesting remedies and

judicial functions by adjudicating unfair trade

practices cases. Thus, the FTC is not part of the

executive branch, because any executive power it

performs, it does so as an agency of the legisla-

tive or judicial branch.

Justice Sutherland also points out that the

authority of Congress to create these agencies to

act independently of the executive is undoubted

Humphrey’s Executor v. United States 361

xviii+446_EofUSConsti-v1.indd 361 3/12/09 3:05:32 PM