Schultz D. Encyclopedia of the United States Constitution

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and incident to this is the power to ﬁ x the term

of ofﬁ ce and condition of removal. Moreover, the

legislative language, legislative reports, and gen-

eral purpose of the legislation demonstrate con-

gressional intent to create a body of experts free

from political control.

Finally, the Court ruled that presidential

removal violates the separation of powers, because

the ability to remove makes the commissioner

dependent on the executive. Since the FTC per-

forms legislative and judicial functions, this would

mean that the president would exercise legisla-

tive and judicial power which the Constitution

forbids.

This decision has had a signiﬁ cant impact on

the administrative structure of government. The

independence granted regulatory agencies insures

impartial administration of the law and provides

stability, because a change in presidents will not

change the policies of the agency. However, many

believe this leads to ineffective and inefficient

policy, because independent agencies can pursue

policies that compete with and are contradictory

to policies pursued by other agencies and depart-

ments. This is especially troubling since the agen-

cies are not directly accountable to anyone.

For more information: James, Scott. Presidents,

Parties, and the State: A Party System Perspective

on Democratic Regulatory Choice, 1884–1936.

Cambridge: Cambridge University Press, 2001;

Stone, Alan. Economic Regulation and the Public

Interest: The Federal Trade Commission in The-

ory and Practice. Ithaca, N.Y.: Cornell University

Press, 1977.

—Sean Evans

Hunt v. Cromartie 532 U.S. 234 (2001)

In Hunt v. Cromartie, the U.S. Supreme Court

held that the district court made a mistake when it

found that the state of North Carolina violated the

equal protection clause in its 1997 redrawing

of its 12th Congressional District’s 1992 boundar-

ies and that it was based on “erroneous ﬁ ndings.”

In S

HAW V. RENO, 509 U.S. 630 (1993), the U.S.

Supreme Court, for the ﬁ rst time, acknowledged a

basis for which action could be brought by anyone

of any race to dispute redistricting plans. If the

plans were drawn unconstitutionally on the “uses

of race,” then anyone could challenge them. Under

the Fourteenth Amendment, race is considered

a “suspect category.” Therefore, legislative deci-

sions that are based on race are subject to strict

scrutiny.

The Shaw case involved a “bizarre”-shaped

Congressional district. It was drawn to satisfy

Department of Justice demands that the state cre-

ate another largely African-American district. It

was more than 160 miles long and very narrow in

width, a “snakelike shape.” It connected various,

unrelated sections of African-American voting

populations (47 percent). The Court found that if

a redistricting map is “so bizarre on its face that it

is ‘unexplainable on the grounds other than race,’ ”

it should be held to “strict scrutiny.”

In Shaw v. Hunt, 517 U.S. 899 (1996), the

Petitioners claimed that the state of North Caro-

lina violated the Fourteenth Amendment’s

equal protection clause. The Court ruled that the

redrawing of a North Carolina congressional dis-

trict to include a majority of African Americans

could not be justiﬁ ed because it did violate the

equal protection clause of the Fourteenth Amend-

ment to the U.S. Constitution.

Following the Supreme Court’s decision, that

the district had been unconstitutionally drawn,

the state made a new redistricting plan in 1997.

After the boundaries had been redrawn, Martin

Cromartie again disputed the boundaries of the

12th District, stating that it resulted in racial

gerrymandering.

Before there could be any review of the evi-

dence or what action should be taken, the district

court granted Cromartie a “summary judgment,”

stating the Court found that the new boundaries

had also been drawn with respect to race. Hunt

appealed to the U.S. Supreme Court, which in

turn agreed to hear the case, Hunt v. Cromartie,

526 U.S. 541 (1999).

The Court found that even though there was

strong evidence of racial gerrymandering, the

North Carolina General Assembly’s real inten-

tions were in question and there should be more

362 Hunt v. Cromartie

xviii+446_EofUSConsti-v1.indd 362 3/12/09 3:05:33 PM

of an investigation. Since racial gerrymandering

is of constitutional signiﬁ cance there should be

a strict evaluation. So the fact that the accusa-

tions were so lightly dismissed without a full trial

was “erroneous.” The Court reviewed the district

court’s ﬁ ndings only to see if there was error and

if the decision was based on accurate evidence.

Another reason for the review is that there was

no intermediate court review. The U.S. Supreme

Court reversed the district court’s decision, stat-

ing that the evidence was inadequate and “erro-

neous” to show an unconstitutional race-based

objective.

When the case was sent back, the district

court again found, after a three-day trial, that

the legislature’s decisive factor was “race driven”

in drawing the 1997 boundaries. The conclusion

was based on three factors; the district’s shape,

the splitting of towns and counties, and its heav-

ily African-American voting population, all of

which the Court deemed inappropriate with rela-

tion to the “summary judgment.” In the appeal,

the Court reviewed the district court’s ﬁ ndings,

and in a 5-4 opinion the Court reversed the dis-

trict court’s conclusion that the state violated

the equal protection clause when redrawing the

1997 boundaries. Also, the decision was based on

“erroneous ﬁ ndings.”

Justice Stephen G. Breyer delivered the

opinion of the Court, joined by Justice John P.

Stevens, Justice Sandra Day O’Connor, Jus-

tice David H. Souter, and Justice Ruth Bader

Ginsburg. He wrote for the Court that “the pri-

mary evidence upon which the District Court

relied for its ‘race, not politics,’ conclusion is evi-

dence of voting registration, not voting behavior.”

In opposition to the ruling were Justice Clar-

ence Thomas, Chief Justice William Hubbs

Rehnquist, Justice Antonin Gregory Scalia,

and Justice Anthony M. Kennedy. The oppos-

ing justices cited that they did not believe that the

district court committed “clear error.” The Vot-

ing Rights Act requires authorities to consider

issues of race when drawing district lines. The

Shaw case states that one should not make deci-

sions based on race. A governmental entity must

consider two different legal requirements when

drawing redistricting lines; the Voting Rights Act

and the requirements of Shaw.

For more information: Ryden, David K. The

U.S. Supreme Court and the Electoral Process.

Washington, D.C.: Georgetown University Press,

2002.

—Thomas Caiazzo

Hurley v. Irish-American Gay, Lesbian &

Bisexual Group of Boston

515 U.S. 557

(1995)

In Hurley v. Irish-American Gay, Lesbian &

Bisexual Group of Boston, the Supreme Court

ruled that the sponsor of the annual St. Patrick’s

Day-Evacuation Day Parade did not have to

include members from an Irish gay, lesbian, and

bisexual group because to force it to do so would

violate its First Amendment rights.

The unanimous ruling by the Court, written

by Justice David H. Souter, held application

of the public accommodations law to require the

inclusion of a party the sponsor did not wish to

include violated the sponsor’s free speech rights.

The issues raised in this case include the extent

of a public accommodations law, the primacy of

the First Amendment’s free speech guarantee,

and the nature of a parade in the public forum

as a form of expression. The interesting twist in

this case is that the group at issue, the group that

wished to participate in the parade, was an organi-

zation of gay, lesbian, and bisexual descendants of

Irish immigrants known as GLIB. The Massachu-

setts State Court had ordered the parade sponsors

to include the GLIB contingent, citing the public

accommodations law.

The Court found that the parade was an open

recreational event because its sponsors, the South

Boston Allied War Veterans Council, had been

granted authority to organize and conduct the

parade since 1947 through a permit process that

has involved no other applicant. The Court agreed

with the sponsors that their parade is nonethe-

less a private event, despite as many as 20,000

marchers and up to 1 million viewers, because of

the private sponsorship, irrespective of the size

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston 363

xviii+446_EofUSConsti-v1.indd 363 3/12/09 3:05:33 PM

or location of the audience. As regards parade

participants, the Court found that although they

were not directed to communicate a speciﬁ c mes-

sage, the entire parade was organized to impart

a collective message with respect to each other

and any bystanders along the way, and so was a

form of expression. The Court agreed with the

sponsors, who maintained that GLIB intended

to express its own viewpoint in celebration of

its members’ sexual identity as gay, lesbian, and

bisexual descendants of Irish immigrants and

that this particular expression conﬂ icts with the

parade organizers.

The issue of whether in fact the two expres-

sions collided was resolved in favor of the spon-

sor, a private speaker whose First Amendment

rights included making this determination, one

that is beyond the state’s power to control. Each

parade participant’s expression of whatever view-

point it wishes is perceived by spectators as part

of the overall parade message, so not to allow

the parade’s sponsors to determine whether this

or that message conforms to the overall message

would infringe on their free speech rights, which

include the right to decide on the content of its

own message as well as what it does not wish to

have said in its parade.

Massachusetts’s public accommodations law

was determined not to target speech or discrimi-

nate on the basis of content beyond mandating that

the state prohibit discrimination against individu-

als or groups on the basis of proscribed grounds,

such as sexual orientation. The parade’s sponsors

indicated that they would welcome the participa-

tion of members of GLIB, just not as a unit march-

ing under its own banner. Hence, regardless of the

364 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston

Demonstrators protest the policy of New York’s St. Patrick’s Day Parade organizers not to allow gay groups to

march openly in the procession, as it makes its way up Fifth Avenue on March 17, 2006.

(Michael Nagle/Getty)

xviii+446_EofUSConsti-v1.indd 364 3/12/09 3:05:33 PM

wisdom of the parade’s sponsors in exercising their

freedom of association by not including GLIB and

not desiring to have a statement made regarding

sexual orientation during the parade, they were

well within their rights.

For more information: Murdoch, Joyce, and

Deb Price. Courting Justice: Gay Men and Les-

bians v. the Supreme Court. New York: Basic

Books, 2001.

—Gordon A. Babst

Hylton v. United States 3 U.S. 171 (1796)

Hylton v. United States is an important case that

set the groundwork for judicial review in the

United States. This 1796 opinion of the Supreme

Court explicitly considered the constitutionality

of a federal law, thus indirectly addressing the

extent to which the Court had the power of judi-

cial review. In the end, the Court did not exercise

such review, but the simple fact of considering it

is important historically, as it presaged M

ARBURY V.

ADISON (1803).

In 1794, the Congress passed a law assessing

a tax of 16 dollars on “carriages for the convey-

ance of persons.” Daniel Hylton refused to pay

the tax on his carriages. He contended that this

tax amounted to a “direct tax,” prohibited by the

U.S. Constitution. The United States brought suit

against Hylton, alleging that he had violated the

law and that the law had been properly passed.

As Justice Samuel Chase put it, the question in

this case is simple: “whether the law of Congress

. . . entitled ‘An act to lay levies upon carriages,

for the conveyance of persons,’ is unconstitu-

tional and void?” Thus, he deﬁ nes this case as

explicitly addressing the constitutionality of a

federal law.

The decision was rendered by seriatim opin-

ions. Justices Chase, William Paterson, and James

Iredell delivered opinions, all agreeing that the law

was to be upheld. Justice James Wilson recused

himself, since he had expressed a prior opinion on

the case in the Circuit Court of Virginia. Justice

William Cushing did not take part, since he had

been prevented from attending the oral argument.

Newly appointed Chief Justice Oliver Ellsworth

had been sworn in after argument and declined to

take part in the decision.

Chase’s opinion explored the extent to which

the tax was “direct,” and he decided that it was

not. He concludes, with a consideration of the

power of the Court to declare laws unconstitu-

tional, in these words: “It is unnecessary, at this

time, for me to determine, whether this court,

constitutionally possesses the power to declare an

act of Congress void, on the ground of it being

contrary to, and in violation of, the Constitution;

but if the court have such power, I am free to

declare, that I will never declare it, but in a very

clear case.”

Paterson likewise concludes that the tax is not

direct, as does Justice Iredell. Justice Wilson, as

noted, recused himself, but he did allude to the

issue of judicial review when he concluded that “I

shall now, however, only add, that my sentiments,

in favor of the constitutionality of the tax in ques-

tion, have not been changed.” By implication, if he

could be in favor of constitutionality, he could also

be against it under different circumstances.

This is, then, one of the precursors of Marbury

v. Madison. Walter Murphy, James Fleming, and

Sotirios Barber note the importance of Hylton v.

U.S., as well as Hayburn’s Case (1792) and Yale

Todd’s Case (1794) (presented in U.S. v. Ferreira,

54 U.S. 40 [1851]) in raising issues of judicial

review, with the last named case actually invali-

dating provisions of federal law.

For more information: Langran, Robert W. The

Supreme Court: A Concise History. New York:

Peter Lang Publishing, 2004.

—Steven A. Peterson

Hylton v. United States 365

xviii+446_EofUSConsti-v1.indd 365 3/12/09 3:05:34 PM

366

ﱶﱷﱸ

Illinois v. Caballes 543 U.S. 405 (2005)

In Illinois v. Caballes, the U.S. Supreme Court

ruled that police may use drug dogs during rou-

tine trafﬁ c stops, even if they lack probable cause

or reasonable suspicion that the vehicle contains

illegal drugs. This decision gives the police tre-

mendous discretion to search for drugs without

any evidence that the person or vehicle being

searched actually possesses drugs. The use of

canines as a legitimate drug detection tool was

established in United States v. Place, 462 U.S. 696

(1983). In Place, the Court ruled that a canine

sniff was reasonable because a sniff reveals only

illegal drugs, which are contraband and illegal to

possess.

Caballes was stopped for speeding by an Illi-

nois state trooper. After stopping Caballes, the

trooper conducted a routine registration and

criminal record check. While a warning ticket was

being written, the record check came back indi-

cating that Caballes had a prior arrest for mari-

juana distribution. The trooper sought consent

from Caballes to search his vehicle, but Caballes

refused. At this point, approximately 10 minutes

into the trafﬁ c stop, a second trooper arrived with

a drug dog, and he ran the dog around Caballes’s

vehicle. The canine alerted, and a subsequent

search of the vehicle revealed a large quantity of

marijuana. Caballes was arrested.

Prior to trial, Caballes ﬁ lled a motion to sup-

press the evidence, arguing that the use of the

drug dog without probable cause or reasonable

suspicion of drug possession violated the Fourth

Amendment. Caballes acknowledged that the

amount of time it took to conduct a criminal

record check and to write the warning ticket

was reasonable. The state acknowledged that

no reasonable suspicion that there were drugs

in Caballes’s vehicle existed prior to the canine

alert. The suppression motion was denied, and

Caballes was convicted. The state trial court held

that the length of the trafﬁ c stop was not unduly

increased by the canine sniff and that the canine

was sufficiently reliable to create the probable

cause needed by the ofﬁ cers to conduct a search

of Caballes’s vehicle. The Illinois Supreme Court

reversed this decision, holding that the troopers

lacked “reasonable suspicion” that Caballes was

involved in criminal activity, and that reasonable

suspicion was required before a canine could be

used during a routine trafﬁ c stop.

The U.S. Supreme Court reversed the Illinois

Supreme Court and upheld the use of drug dogs

during routine trafﬁ c stops. First, the Court noted

that when a trafﬁ c stop is both legitimate and con-

ducted in a reasonable manner, then a canine sniff

during the stop is not a search because a sniff of

the exterior of a vehicle does not violate a person’s

legitimate expectation of privacy. Second, the

Court determined that since a person does not

have a legitimate privacy interest in the possession

of illegal drugs, a canine sniff, which only exposes

illegal drugs, does not infringe upon a person’s

legitimate privacy interest. Thus, a canine sniff is

not a search for purposes of the Fourth Amend-

ment, and neither “probable cause” nor “reason-

able suspicion” are needed to conduct a canine

sniff of the exterior of a vehicle.

For more information: Hemmens, Craig, Jen-

nifer Ashley, and Simon Billenge. “Who Let the

Dogs Out?: Drug Dogs in Court.” Criminal Jus-

tice Studies 20, no. 3 (2007): 177–196; Hemmens,

Craig, John Worrall, and Alan Thompson. Crimi-

xviii+446_EofUSConsti-v1.indd 366 3/12/09 3:05:34 PM

nal Justice Case Briefs: Signiﬁ cant Cases in Crim-

inal Procedure. Los Angeles: Roxbury Publishing,

2004.

—Jennifer J. Ashley

Illinois v. Gates 462 U.S. 213 (1983)

In Illinois v. Gates, the Supreme Court estab-

lished rules for when an anonymous tip could be

used as the basis of a search warrant under the

Fourth Amendment.

Warrants are generally required under the

Fourth Amendment. To secure a warrant, law

enforcement ofﬁ cials need to establish probable

cause before a judge that they will ﬁ nd some ille-

gal contraband such as drugs. However, what do

police ofﬁ cers need to produce to establish proba-

ble cause? In many cases, informants provide that.

But what if the tip they receive is anonymous?

In Aguilar v. Fenton, 473 U.S. 402 (1985), the

Supreme Court stated that it was permissible to

use hearsay evidence to establish probable cause

but one must show that the informant is credible

and reliable.

In Spinelli v. United States, 393 U.S. 410 (1969),

the Court ﬁ rst tried to clarify the standards that

must be met to use an anonymous tip to estab-

lish probable cause. At issue was whether there

was probable cause to search an individual based

upon a tip that a person was involved in gambling,

that he was traveling into and out of a particular

apartment, that the apartment contained two

telephones, and that this individual engaged in

luxury, and when that information was veriﬁ ed by

FBI observation of that person. The Court said

that, here, there was not enough information of

the underlying circumstances in the tip to deter-

mine how the conclusion could be reached. For a

tip to be used it must meet Aguilar standards, and

it must meet reliability and credibility as indepen-

dent standards. The Court also stated that there

be independent corroboration of the tip.

Gates revisits and revises the Spinelli stan-

dards. Here, at issue was whether there was prob-

able cause to issue a search warrant of a residence

and car based upon an anonymous letter detail-

ing a drug purchase when the major facts of the

letter were independently corroborated by a sub-

sequent police investigation. The Supreme Court

said yes. In supporting its decision, the Court said

that there were two factors associated with using

an anonymous tip for the purposes of establish-

ing probable cause: the basis of knowledge and its

veracity. Probable cause is established in a totality

of circumstances test that a search will uncover

wrongdoing instead of following a two-step pro-

cess as suggested by Spinelli.

Gates thus appeared to make it easier to obtain

a search warrant based on an anonymous tip. Even

with the relaxed standards, though, independent

corroboration of such a tip is generally required

under the Fourth Amendment.

For more information: LaFave, Wayne R., Jer-

old H. Israel, and Nancy J. King. Criminal Proce-

dure. St. Paul, Minn.: Thomson/West, 2004.

—Ernest Gomez and David Schultz

impeachment

The power to impeach federal ofﬁ cers is one of

the greatest powers held by the U.S. Congress,

but this power is rarely utilized. This power allows

Congress to keep a check on both the executive

and judicial branches. The House of Repre-

sentatives can bring up impeachment charges

on a federal ofﬁ cial, and afterwards the ofﬁ cial

is brought to trial by the Senate. They can then

choose to convict the official with a two-thirds

vote of the Senate and remove him or her from

office. Congress has the ability to impeach the

president, vice president, cabinet members,

federal judges, and the chief justice and associate

justices of the U.S. Supreme Court. Impeachment

does not hold any criminal or civil penalties, sim-

ply removal from public ofﬁ ce and possibly ineligi-

bility for future attempts to run for ofﬁ ce.

Impeachment was a major consideration during

the Constitutional Convention. The U.S.

Constitution provides for the power of impeach-

ment, but rather vaguely. It is unclear as to who

qualiﬁ es as a civil ofﬁ cer and thus holds a federally

impeachable ofﬁ ce. We can see this in Article II,

Section 4 of the U.S. Constitution, which states

impeachment 367

xviii+446_EofUSConsti-v1.indd 367 3/12/09 3:05:34 PM

that “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 most frequent target of

impeachment is federal judges who hold lifetime

appointments.

The impeachment process has its origins

in 14th-century England. During this period,

the struggling English Parliament utilized the

impeachment process to force the ofﬁ cers of the

king to be held accountable. The king himself was

not impeachable, but the ministers and judges

were punishable for criminal activity and abuse

of power by use of impeachment. In the early

American colonies, the governments made use of

this English process of impeachment. They had a

system by which the lower legislative house would

bring charges and the upper legislative body would

issue judgment.

During the Constitutional Convention, the

framers wished to keep provisions for impeach-

ment. They did not want severe sanctions as in

England such as fines, imprisonment, or even

death. In the English system, the House of Com-

mons had the ability to impeach practically anyone

for crimes and misdemeanors. However, the fram-

ers wished to focus impeachment procedures on

speciﬁ c federal ofﬁ ces rather than on individuals.

The idea was to protect the interest of the public

rather than punish speciﬁ c individuals.

The Constitution is clear about the process of

impeachment. Article I lays out which chamber

is in charge of the different processes involved

in the impeachment process. Section 2 sets out

that the House of Representatives “shall have the

sole power of impeachment” and Section 3 states

that the U.S. Senate has “the sole power to try

all impeachments.” It is also speciﬁ ed in Article

II, Section 2 that the president does not have the

ability to grant reprieves and pardons in cases of

impeachment.

The impeachment process has not been utilized

on many occasions. Because of this, there has not

been a standard procedure for initiating impeach-

ments. A few ways in which impeachments have

been brought about are by a letter from the presi-

dent, a resolution ﬁ led by a member of the House

of Representatives to conduct an investigation,

and sometimes the House Judiciary Committee

issues a resolution.

When an impeachment resolution is passed

in the House of Representatives, the House then

selects who will serve as prosecutors during the

trial in the Senate. The House of Representa-

tives then provides the Senate with the articles

of impeachment and notiﬁ es them that there is a

need to hold a trial. The trial that takes place in

front of the Senate is similar to that of a criminal

trial where each side has the opportunity to pres-

ent evidence and call witnesses, and the ofﬁ cial

that is being tried has the right to have an attor-

ney. Generally, the president pro tempore of the

Illustration by T. R. Davis of George T. Brown, ser-

geant-at-arms, serving a summons on President John-

son, in Harper’s Weekly, March 28, 1868

(Library of

Congress)

368 impeachment

xviii+446_EofUSConsti-v1.indd 368 3/12/09 3:05:35 PM

Senate or the vice president presides over the trial,

and the chief justice is usually on hand to rule on

evidence and answer questions. During a closed

session at the end of the trial, the Senate deliber-

ates the guilt or innocence of the accused person.

The Senate votes on each article of impeachment,

and if any article receives a two-thirds vote, then

they rule to convict the ofﬁ cial. Finally, the Sen-

ate votes whether or not to remove a guilty ofﬁ cial

from ofﬁ ce and whether or not he or she is eligible

to hold a federal ofﬁ ce in the future.

Throughout American history, few individuals

have been subject to impeachment. In 1804, Fed-

eralist Party Supreme Court Justice Samuel Chase

was impeached by the Democratic-Republican

House over disputes regarding his handling of tri-

als. The Senate, with Vice-President Aaron Burr

presiding, acquitted him in 1805. Among presi-

dents, the Republican House impeached Andrew

Johnson in 1868 in disputes over the handling of

Reconstruction. The Senate acquitted him by one

vote. In 1974, the House Judiciary Committee

voted on several articles of impeachment against

President Richard Nixon that included obstruc-

tion of justice arising out of Watergate and for

engaging in secret bombings of Cambodia. Nixon

resigned before the full House voted to impeach.

Finally, in 1998, the House voted to impeach

President William Clinton on four charges arising

out of the special prosecutor’s investigation into

his affairs with Monica Lewinsky and Paula Jones.

The Senate acquitted him on all charges.

For more information: Bacon, Donald C.,

Roger H. Davidson, and Morton Keller, eds. The

Encyclopedia of the United States Congress. New

York: Simon and Schuster, 1995; Nelson, Michael,

ed. Guide to the Presidency. 2nd ed. Washington,

D.C.: Congressional Quarterly, 1996.

—Jacqueline M. Loubet

imports, taxes on

Tariffs, or taxes on imports, played an integral

role in the American push for independence

from Great Britain. Accordingly, tariffs assumed

a place of central importance in the Constitu-

tion. The authority to impose a tariff is allocated

to Congress by Article 1, Section 8 of the U.S.

Constitution as part of congressional power to lay

and collect taxes. Import taxes must be uniform,

imposed throughout the United States.

Throughout U.S. history, taxes on imports have

been used to raise revenue, to protect American

manufacturers from foreign competition, or to

retaliate against other nations. The demand for

revenue, however, has been the driving force

behind tariff policy. The leaders of the new nation

recognized that the government needed to cre-

ate a revenue system to provide for operating

expenses while paying down the debt left over

from the American Revolution. However, any new

level of taxation would compete with numerous

state and local revenue streams. Congress real-

ized that federal revenue needed to come from

tariffs, since Americans imported a large number

of manufactured goods along with raw materi-

als, such as molasses. In 1789, the ﬁ rst tariff act

passed under the Constitution after considerable

debate. Many of the northern states, interested in

developing their own manufacturing industries,

demanded high protective tariffs, while the agri-

culture-based southern states saw low tariffs as

being in their best interests. Throughout the 19th

century, protection of the iron, cotton manufac-

turing, wool, hemp, and other domestic industries

remained a recurrent theme in tariff bills.

The challenge to free trade posed by the tariff

has long been controversial. Robert Walker, secre-

tary of the treasury in the administration of Presi-

dent James K. Polk and a proponent of free trade,

engaged in an inclusive reading of Article 1, Sec-

tion 8. He interpreted the Constitution as requir-

ing Congress to both impose and collect taxes. In

reality, Walker’s concern proved unwarranted as

Congress never laid duties that it could not col-

lect. Merchants, on selecting goods to import, had

to pay the congressionally predetermined duty for

the given product.

The Supreme Court has occasionally ruled on

tariffs. In P

OLLOCK V. FARMERS LOAN AND TRUST

COMPANY, 157 U.S. 429 (1895), the Court struck

down an income tax provision included in the Wil-

son-Gorman Tariff Act of 1894 on the grounds

imports, taxes on 369

xviii+446_EofUSConsti-v1.indd 369 3/12/09 3:05:35 PM

that it was a direct tax under the U.S. Constitution.

Passage of the Sixteenth Amendment in 1913

made the Court decision moot. As other forms of

government ﬁ nancing gained popularity, the tariff

dimmed in importance. Protectionist sentiment in

Congress took precedence to the revenue needs

of the government. The Hawley-Smoot Tariff Act

of 1930 constituted the peak of U.S. duties. Fol-

lowing the Great Depression, the international

community generally acknowledged that tariffs

damaged world trade and contributed to slowed

economic growth.

For more information: Elliott, Orrin. The

Tariff Controversy in the U.S., 1789-1833. Palo

Alto, Calif.: Stanford University, 1892; Sorenson,

Leonard R. Madison on the “General Welfare” of

America: His Consistent Constitutional Vision.

Lanham, Md.: Rowman & Littleﬁ eld, 1995.

—Caryn E. Neumann

impoundment

Impoundment refers to the practice of a chief

executive to not spend money appropriated by

the legislature. Presidents have exercised the

impoundment power since the early republic.

The impoundment of funds has often been used

to respond to changing events, such as entering

a war, and to prevent waste by making federal

projects more efficient. The Constitution does

not expressly allow for the exercise of the power

of impoundment, and its authority is derived from

legislation. The president does have the power of

the veto, which if used successfully, reduces the

need for impoundment.

The question of impoundment raises the larger

issue of who has the “power of the purse” to

determine budgetary priorities and direct federal

funds. Presidents began expanding their control

over economic and budgetary matters with the

administration of Franklin D. Roosevelt. Until

the time that President Richard Nixon came

into ofﬁ ce, impoundments were infrequent and

temporary, usually involving small amounts of

money, and Congress often supported their use.

However, Nixon sought to impound funds at an

unprecedented level, claiming that it was an

inherent presidential power to refuse to spend

appropriated monies for projects he did not sup-

port and to control deﬁ cit spending by the Demo-

cratic-dominated Congress. The City of New York

ﬁ led a lawsuit challenging Nixon’s impoundment

of funds, and the Supreme Court ruled that presi-

dents had no constitutional authority to withhold

funds allotted by law (Train v. City of New York,

420 U.S. 35 [1975]).

Congress also challenged Nixon, claiming he

used impoundment as selective law enforcement.

To recapture its control of federal funds and stop

the perceived presidential encroachment onto its

budgetary turf, Congress passed the Congressio-

nal Budget and Impoundment Control Act of 1974.

A primary purpose of this act was to constrain the

use of impoundments by codifying the chief exec-

utive’s impoundment authority. Two new proce-

dures were established. Under the act, a president

may propose to rescind, or cancel, appropria-

tions, although Congress must agree by a major-

ity vote within forty-ﬁ ve days for the rescission to

take effect. A president may also recommend to

defer spending appropriated funds within a one-

year time frame. The act created a Congressional

Budget Ofﬁ ce and permanent committees in both

chambers to provide support to members of Con-

gress in the form of cost estimates and a budget

timetable for tracking spending. These reforms

added a measure of coherence to the budgetary

process, since before this there was no real coordi-

nation between the congressional committees that

raised revenues and those that spent the monies.

There is general agreement that the passage of

the 1974 act has led to a reassertion of the role

of Congress in the budgetary process, although

room for improvement remains as deadlines for

enacting budget resolutions are routinely missed

and partisanship on budget matters has increased.

Nevertheless, Congress still tends to respond to

priorities set by chief executives.

For more information: Cronin, Thomas E., and

Michael A. Genovese. The Paradoxes of the Amer-

ican Presidency. 2nd ed. New York: Oxford Uni-

versity Press, 2004; Fisher, Louis. Constitutional

370 impoundment

xviii+446_EofUSConsti-v1.indd 370 3/12/09 3:05:35 PM

Conﬂ icts between Congress and the President. 4th

ed. Lawrence: University Press of Kansas, 1997.

—Rebecca Wiggins

incorporation

Incorporation refers to the process where the

Supreme Court has utilized the Constitution’s

Fourteenth Amendment to require state gov-

ernments to apply to their citizens the civil lib-

erties speciﬁ ed in the Bill of Rights. Even

though most of the Bill of Rights has now been

incorporated to apply to states, not all of the provi-

sions are binding on them. The process of incorpo-

ration has been a gradual one, taking place during

most of the 20th century, with the bulk of that

occurring after World War II.

Because the national government conceived by

the Constitutional Convention would pos-

sess only the delegated and enumerated powers,

the delegates, especially those who were mem-

bers of the Federalist Party, such as Alexander

Hamilton, deemed a bill of rights unnecessary.

During the battle over ratification of the

Constitution, the omission of a bill of rights

attracted criticism from the Anti-Federalists. In

September 1789, James Madison, in the first

Congress, proposed 12 amendments, 10 of which,

once ratiﬁ ed in December 1791, became the Bill of

Rights. Insofar as the Constitution’s purpose was

to establish the national government, it followed

that the amendments were designed to restrict

national government actions that would deprive

citizens of civil liberties. Accordingly, the first

words of the First Amendment are “Congress

shall make no law.” In proposing the amendments,

Congress did not intend to place restrictions on

state governments’ actions, and, in ratifying them,

the state legislatures did not anticipate that such

restrictions would be imposed on them. The U.S.

Supreme Court afﬁ rmed the inapplicability of the

Bill of Rights at the state level in its 1833 opinion

in the case of B

ARRON V. MAYOR AND CITY COUN-

CIL OF BALTIMORE, 32 U.S. (7 Pet.) 243 (1833). This

circumstance left citizens unprotected, at least as

far as the Constitution and the national govern-

ment were concerned, when state governments

mistreated them by refusing to recognize their

entitlement to civil liberties.

In the aftermath of the Civil War, Congress and

the state legislatures placed three amendments

into the Constitution to protect African Ameri-

cans. The Thirteenth Amendment reafﬁ rmed

the prohibition against slavery, the Fourteenth

Amendment established the right of blacks to enjoy

the status of national and state citizenship, and

the Fifteenth Amendment prohibited denial

of the right to vote based on race. Section 1

of the Fourteenth Amendment states, “All persons

born or naturalized in the United States, and sub-

ject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

This section would take on signiﬁ cance beyond

the intention to ensure that African Americans

would be recognized as citizens.

Ratification of the Fourteenth Amendment

prompted attorneys for criminal defendants and

other litigants to appeal adverse decisions of state

supreme courts to the U.S. Supreme Court based

on the claim that the amendment had estab-

lished state-level protections of civil liberties. At

first, such attorneys invoked the amendment’s

privileges and immunities clause. The U.S.

Supreme Court rebuffed such claims, rejecting

the suggestion that “privileges and immunities”

ought to be interpreted as a reference to speciﬁ c

liberties (Slaughterhouse Cases, 83 U.S. [16 Wall.]

36, 74–80 [1873]). Attorneys then directed the

Court’s attention to the provision of the amend-

ment that prohibited any state government from

“depriv[ing] any person of life, liberty, or prop-

erty, without due process of law.” Again, the Court

was initially skeptical. For example, in its opinion

in the case of Hurtado v. California, 110 U.S.

516, 534–535 (1884), the Court offered an argu-

ment based on “nonsuperﬂ uousness.” In Hurtado,

when the Court was urged to interpret “due pro-

cess” as encompassing the right to indictment by

incorporation 371

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