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upheld others, depending on whether it deemed

the government’s use of police power as “reason-

able.” It was most apt to ﬁ nd legislation “reason-

able” if it was seen to protect public health, safety,

or morals rather than individual workers.

A strong restatement of the liberty of contract

doctrine occurred in L

OCHNER V. NEW YORK, 198

U.S. 45 (1905), when the Court struck down a

New York statute prohibiting bakers from work-

ing more than 60 hours per week. The Court

maintained bakers had a liberty to determine

how many hours they chose to work and that pub-

lic health was not endangered by bread baked by

those who worked longer hours. However, just

three years later, the Court exempted women

from this liberty of contract. In Muller v. Oregon,

all nine justices agreed that states were indeed

reasonable in limiting the hours that women

could work. Lochner did not apply to them, said

Justice David Josiah Brewer, because women are

physically weaker than men, as well as legally and

economically unequal. Because of these differ-

ences between the sexes, public health and safety

concerns justiﬁ ed the use of police power to pro-

tect women from unscrupulous employers. After

the Muller decision, legislation that “protected”

women in the workforce proliferated, as legisla-

tures freely regulated the hours, wages, and con-

ditions of women’s employment.

In 1923, Adkins v. Children’s Hospital dis-

carded the logic of Muller. In a 5-3 decision

(Justice Louis D. Brandeis, who had argued

Muller before the Court in 1908, did not par-

ticipate), the Court ruled that minimum wage

laws unconstitutionally interfered with women’s

liberty of contract. Writing for the majority, Jus-

tice George Sutherland argued that women “are

legally as capable of contracting for themselves

as men.” In distinguishing this case from Muller,

he pointed out that “great—not to say revolu-

tionary—changes which have taken place since

that utterance, in the contractual, political and

civil status of women, culminating in the Nine-

teenth Amendment” greatly diminished the

need to protect women. Furthermore, the major-

ity rejected the argument that minimum wage

laws protected women’s morals by ensuring them

a decent standard of living. “It cannot be shown

that well paid women safeguard their morals

more carefully than those who are poorly paid,”

wrote Sutherland.

Chief Justice William Howard Taft’s dissent

argued that legislatures had concluded employ-

ees were not on equal footing with employers

and “in their necessitous circumstances are prone

to accept pretty much anything that is offered.”

Whether the Court agreed with this economic

view, Taft wrote, it should defer to legislative judg-

ment in this arena. Futhermore, he said, despite

the Nineteenth Amendment, women were not on

equal footing with men either physically or eco-

nomically. Justice Oliver Wendell Holmes,

Jr., wrote a separate dissent, attacking the notion

of liberty of contract as lacking any moorings in

the text of the Constitution. Congress had used

its police powers constitutionally to “remove con-

ditions leading to ill health, immorality, and the

deterioration of the race,” he wrote. Holmes also

agreed with Taft that the Nineteenth Amendment

had not erased signiﬁ cant differences between the

sexes and that Congress could indeed “take those

differences into account.”

Adkins did not result in the abolition of all pro-

tectionist legislation, but it did signal the begin-

ning of a period in which the Court eagerly struck

down numerous statutes that interfered with the

liberty of contract and the notion of a laissez-faire

economic system. With the advent of the Great

Depression in the 1930s, this put the Court on

a collision course with a Democratic Congress

and the New Deal policies of President Franklin

D. Roosevelt. As the composition of the Court

changed and the public support for the New Deal

remained steady, support for Adkins eroded. It

was directly overruled by the Court in 1937 in

EST COAST HOTEL V. PARRISH, 300 U.S. 379 (1937),

under Chief Justice Charles Evans Hughes. In the

majority opinion, Hughes reiterated many of the

points made by Taft and Holmes in their Adkins

dissents, while Sutherland, now a dissenter, clung

to a defense of liberty of contract. Sutherland was

ﬁ ghting a lost battle, however, for the reasoning

in Adkins and the doctrine of liberty of contract

were now completely defunct.

12 Adkins v. Children’s Hospital

xviii+446_EofUSConsti-v1.indd 12 3/12/09 3:03:38 PM

For more information: Cushman, Barry.

Rethinking the New Deal Court: The Structure

of a Constitutional Revolution. New York: Oxford

University Press, 1998; Gillman, Howard. The

Constitution Besieged: The Rise and Demise of

Lochner-Era Police Powers Jurisprudence. Dur-

ham, N.C.: Duke University Press, 1993; Phillips,

Michael J. The Lochner Court, Myth and Reality:

Substantive Due Process from the 1890s to the

1930s. Westport, Conn.: Praeger, 2001.

—Gwyneth I. Williams

afﬁ rmative action

Afﬁ rmative action is a legal concept that refers to

the use of race, gender, or nationality in employ-

ment decisions and schools admissions in order

to diversify schools and workplaces. The use of

affirmative action is subject to significant criti-

cism, with many claiming that the use of race,

for example, for any purpose is prohibited by the

Constitution by way of the equal protection

clause of the Fourteenth Amendment. The

Constitution, in effect, is “color-blind,” prohibiting

the use of race for any purpose. Conversely, others

contend that the remedial use of race or gender

in employment or school admissions decisions is

constitutionally permitted and necessary in order

to achieve racial and gender integration.

Race has occupied an ambiguous place in

America and in the U.S. Constitution from its ear-

liest days. Slavery dominated much of America’s

early history, and the original text of the 1787

Constitution addressed the topic in terms of how

African Americans were counted for representa-

tion and in the census, for example. In D

RED SCOTT

V. SANDFORD, 60 U.S. 393 (1857), Justice Roger

Taney indicated that it was clear from the original

intent of the Constitution that African slaves could

not be citizens, and therefore, they did not have

the right to sue for their freedom in federal court.

Subsequently, the Thirteenth, Fourteenth,

and Fifteenth Amendments overturned this

decision and sought to expand the civil rights of

the freed slaves. However, in P

LESSY V. FERGUSON,

163 U.S. 537 (1896), the Court upheld segregation

with the “separate but equal” doctrine. It was not

until B

ROWN V. BOARD OF EDUCATION OF TOPEKA, 347

U.S. 43 (1954), that the Court declared school seg-

regation unconstitutional, thereby beginning the

process of dismantling legally sanctioned, or de

jure, discrimination against blacks.

Some argued that merely dropping the laws that

formally discriminated was not enough; instead,

efforts needed to be undertaken to undo past dis-

crimination. Executive Order 10925, for example,

was issued by President John F. Kennedy in 1961

to bar discrimination in the executive branch, and

it urged “afﬁ rmative action” to diversify the fed-

eral workforce. Executive Order 11246, issued by

President Lyndon B. Johnson in 1965, reinforced

this order and again called for steps to diversify

the workforce by reaching out to women and indi-

viduals of color.

University of Cincinnati student Survi Parvatiyar

gathers with several hundred other protesters from

the group By Any Means Necessary to rally in favor

of afﬁ rmative action, on October 23, 2001, in down-

town Cincinnati.

(Getty Images)

afﬁ rmative action 13

xviii+446_EofUSConsti-v1.indd 13 3/12/09 3:03:39 PM

In 1972, the employment practices of both

public and private employers began to change

due to the methodology being used to deter-

mine racial inequalities. Statistics were reported

to the Ofﬁ ce of Federal Contract Compliance as

to racial makeup of those responsible to comply

with Title VII of the Civil Rights Act of 1964

and then proposals as to how they might correct

race-defined statistical inequalities. The resul-

tant effect was that employees were often hired

based on racial and ethnic origin rather than only

their paper qualiﬁ cations. Schools also began to

consider race and gender in admissions decisions.

In R

EGENTS OF THE UNIVERSITY OF CALIFORNIA V.

BAKKE, 438 U.S. 265 (1978), the Court upheld the

use of afﬁ rmative action in admissions policies but

established that although race may be one factor

to consider when conducting employment and

application searches, the school’s program was

unconstitutional owing to the fact that the pro-

gram amounted to a quota, because race appeared

to be the only factor in some admissions decisions.

Justice Lewis Powell, writing a separate con-

currence in a Court otherwise split 4-4, held that

the Fourteenth Amendment permitted the use

of race in school admissions in order to promote

diversity.

Subsequently, in U

NITED STEELWORKERS OF

AMERICA V. WEBER, 443 U.S. 193 (1979), the Court

upheld voluntary use of affirmative action in

employment. In FULLILOVE V. KLUTZNICK, 448 U.S.

448 (1980), the Court upheld federal programs

setting aside money for minority business enter-

prises, and in J

OHNSON V. TRANSPORTATION AGENCY

OF SANTA CLARA, CALIFORNIA, 480 U.S. 616 (1987),

it upheld a gender-based afﬁ rmative action hiring

program. In M

ETRO BROADCASTING, INC. V. FCC,

497 U.S. 547 (1990), the Court upheld the use of

race in the awarding of broadcast licenses.

Yet, by the end of the 1980s and as the justices

changed, the Supreme Court began to rethink its

views on the use of race or gender in employment

and hiring decisions. In a series of decisions in

1989, the Court made it more difﬁ cult to prove

racial discrimination yet was overturned by the

1991 Civil Rights Act. But in A

DARAND CONSTRUC-

TORS, INC. V. PEÑA, 515 U.S. 200 (1995), the Court

invalidated a set-aside program using racial prefer-

ences when awarding federal contracts. The deci-

sion effectively overturned Metro Broadcasting.

In G

RUTTER V. BOLLINGER, 539 U.S. 306 (2003), the

Court upheld a law-school admissions program

that was narrowly tailored to ensure a critical

mass of minority students at the school as permit-

ted under the Fourteenth Amendment. In writing

for the Court, Justice Sandra Day O’Connor

indicated hope that in 25 years afﬁ rmative action

would no longer be needed. However, in a com-

panion case challenging the University of Michi-

gan’s undergraduate admissions policy, the Court

invalidated it in G

RATZ V. BOLLINGER, 539 U.S.

244 (2003), claiming the school’s more rigid use

of race was the type of quota that the Court had

struck down in Bakke.

Finally, in Parents Involved in Community

Schools v. Seattle School District No. 1, 551 U.S.

___ (2007), decided together with Meredith v. Jef-

ferson, 551 U.S. ___ (2007), the Supreme Court

invalidated the use of race in school assignments.

These two cases, along with Gratz, suggest that

the Supreme Court under Chief Justice John G.

Roberts, Jr., is moving away from support for

afﬁ rmative action as a remedial tool to diversify

and toward a “color blind” view of the Constitu-

tion that prohibits all use of race and gender in

employment and school admissions decisions.

For more information: Anderson, Terry H.

The Pursuit of Fairness: A History of Afﬁ rmative

Action. New York: Oxford University Press, 2005;

Wise, Tim J. Afﬁ rmative Action. New York: Taylor

& Francis, 2005.

—Ernest Gomez and David Schultz

age and the Constitution

The U.S. Constitution makes several references to

age, speciﬁ cally to minimum age requirements for

members of the House of Representatives

and the Senate. Members of the House of Repre-

sentatives must be at least 25 years of age; senators

must be at least 30 years of age. The Constitution

further dictates that the president and vice pres-

ident must be at least 35 years of age and estab-

14 age and the Constitution

xviii+446_EofUSConsti-v1.indd 14 3/12/09 3:03:39 PM

lishes citizenship and residency requirements on

members of the House and Senate, as well as the

president and vice president.

Courts throughout the United States have

upheld the constitutionality of laws that afford

citizens and residents special privileges, respon-

sibilities, and special protections based on their

age. Chief among the privileges based on age is

the right to vote, which is afforded to U.S. citi-

zens age 18 or older who are not convicted felons,

as granted by the Twenty-sixth Amendment.

At the age of 18, U.S. citizens and residents

reach the “age of legal majority”; that is, they

become adults in the eyes of the law. Thus, they

are able to enter into contracts and own property

in their own names, live independently of their

parents, marry without parental consent, estab-

lish credit and incur debt in their own names, and

enjoy all the rights of adulthood. Upon reaching

the age of legal majority, U.S. citizens and resi-

dents are also subject to the full penalties of civil

and criminal law; they can be convicted of crimes

and imprisoned or fined, as appropriate. Male

citizens of the United States reaching age 18 are

obliged to register for selective service (the draft).

Registered voters rolls and selective service rolls

are used to summon people to jury duty, as under

the Seventh Amendment, accused persons have

the right to trial by jury. Despite reaching

legal majority, adults in the United States may not

purchase, possess, or drink alcoholic beverages

until they reach 21 years of age.

Another legal aspect of age is called the “age

of consent.” This is the age at which the law states

that people have the moral agency to consent to

sexual activity. Age of consent laws are intended

to protect children from sexual exploitation by

adults. Prior to reaching the age of consent, a per-

son may agree to engage in sexual activity, but in

the eyes of the law, such behavior is illegal. A per-

son older than the age of consent who engages in

sexual activity, even if the activity is consensual,

with someone under the age of consent may be

charged with statutory rape, child molestation, or

sexual abuse of a minor. The age of consent var-

ies across states, but the average age of consent

is 16. Age of consent laws pertain to heterosexual

and homosexual activity, and the deﬁ nition of sex-

ual activity is broader than sexual intercourse or

penetration.

The Fair Labor Standards Act prohibits chil-

dren and youth from working under certain con-

ditions and during speciﬁ c hours. Children age 14

through 17 may work between 7 a.m. and 7 p.m.

(up to 9 p.m. between June 1 and Labor Day) for

three hours per school day and eight hours per

non–school day, up to 18 hours per week. Gener-

ally, children age 14 and 15 may work in clerical

and retail positions, as long as their working con-

ditions are not hazardous as deﬁ ned by law. Chil-

dren age 16 and 17 may work in any jobs that are

not deemed hazardous by the U.S. Department of

Labor; generally, jobs in driving, excavation, heavy

machinery operations, meatpacking and process-

ing, mining, paper manufacturing, and rooﬁ ng are

considered hazardous. These laws pertain until

the age of 18. After age 18, that is, upon reach-

ing the age of legal majority, adults may work in

any type of jobs they wish, even if those jobs are

deemed hazardous.

People over age 40 also enjoy special protection

under the law, specifically from discrimination

associated with employment. The Age Discrimi-

nation in Employment Act (ADEA), passed in

1967, makes it illegal to discriminate against

workers age 40 and over in any term, condition, or

beneﬁ t of employment. Hiring, termination, pro-

motion, layoff, pay and beneﬁ ts, job assignments,

and training are speciﬁ cally covered by the act.

Furthermore, it is illegal to discriminate based

on age in admission to apprenticeship programs

unless the Equal Employment Opportunity Com-

mission (EEOC) grants a speciﬁ c exemption. Age

limits may be imposed only when the employer

can prove a bona ﬁ de occupational qualiﬁ cation

(BFOQ). While the ADEA does not speciﬁ cally

prohibit inquiries about a person’s age or date

of birth, such requests tend to be closely scruti-

nized to ensure that the inquiry was made for a

legal purpose rather than for the purpose of dis-

crimination. Asking a person’s age or birth date

may prevent certain older workers from applying

for employment or may indicate an intentional

attempt to discriminate based on age.

age and the Constitution 15

xviii+446_EofUSConsti-v1.indd 15 3/12/09 3:03:40 PM

In 1990, passage of the Older Workers Beneﬁ t

Protection Act (OWBPA) expanded the ADEA to

prohibit employers from denying beneﬁ ts to older

workers. Employers may reduce benefits based

on age only if the cost of providing the beneﬁ ts to

older workers is the same as that associated with

providing beneﬁ ts to younger workers.

For more information: MacNichol, John. Age

Discrimination: An Historical and Contempo-

rary Analysis. New York: Cambridge University

Press, 2006; Schwartz, Bernard. A History of the

Supreme Court. New York: Oxford University

Press, 1993.

—Cheryl Crozier Garcia

airline passenger searches

Searches of airline passengers, like other searches,

must comply with the Fourth Amendment,

which guarantees the right to be secure against

“unreasonable searches and seizures.” The normal

requirement for “reasonableness” is particularized

suspicion and probable cause to support that sus-

picion. Search warrants are the strongest evidence

of reasonableness but are rarely used in airline

passenger searches.

Routine searches of airline passengers and

their luggage began in response to the hijackings

of the 1960s and 1970s. Their primary purpose

was to prevent hijackings by preventing weapons

from being carried on board. Since these searches

were not intended to gather evidence in criminal

cases, they were approved under an administra-

tive search exception to the warrant requirement

recognized by the Supreme Court in Camara v.

Municipal Court of San Francisco, 387 U.S. 523

(1967). Under this exception, neither particular-

ized suspicion nor probable cause is required.

The California Supreme Court case of People

v. Hyde, 12 C3d 158 (1974), analyzed these issues

in detail and concluded:

The fact that airport searches . . . will inevitably

lead to the detection of some individuals involved

in criminal conduct unrelated to the comman-

deering or destruction of aircraft does not alter

the fundamentally administrative character of

the screening procedure. If the initial intru-

sion is justiﬁ able as part of a regulatory effort to

prevent the hijacking of airplanes, the inciden-

tal discovery of contraband does not offend the

Fourth Amendment.

Some states, such as California, permitted

evidence found in these searches to be used in

criminal cases; others, such as Illinois, allowed

contraband to be seized but prohibited its use in

criminal prosecutions.

Some courts concluded that these searches

were reasonable when they balanced the govern-

ment interest in airline security—preserving both

lives and property—against the relatively limited

intrusion of a routine search (for example, United

States v. Epperson, 454 F.2d 769 [4th Cir. 1972]).

Others ruled that they were permitted under the

consent exception, that passengers implicitly con-

sented to the search when they chose to travel

by plane (for example, United States v. Pulido-

Baquerizo, 800 F.2d 899 [9th Cir. 1986]). Other

courts acknowledged the limited options available

to travelers and questioned whether this could

properly be considered voluntary consent, but

they consistently rejected the argument that pas-

senger searches violated the constitutionally pro-

tected freedom to travel. Some parties also argued

that airline passengers no longer had a reasonable

expectation of privacy from magnetometers and

X-ray scanners, since they are now so common.

If there is no reasonable expectation of privacy,

then the searches are not subject to the Fourth

Amendment.

September 11, 2001, changed the nature of

airport searches and the legal context in which

they take place. After 9/11, it was clear that these

were not routine administrative searches but

intended to identify and incapacitate potential

threats to national security. The searches became

more intrusive, and the costs of noncooperation,

higher. With not just the security of the airplane

but the security of the nation at stake, the balance

has shifted. Courts continue to uphold intrusive

searches, authorizing the Transportation Security

Administration (TSA) to search luggage randomly

16 airline passenger searches

xviii+446_EofUSConsti-v1.indd 16 3/12/09 3:03:40 PM

(Torbet v. United Airlines, Inc., 298 F.3d 1087 [9th

Cir. 2002]), review the contents of laptop comput-

ers, and even seize suspect persons. By 2008, the

Supreme Court had not yet handed down a deci-

sion speciﬁ cally dealing with the TSA’s authority

to search passengers and luggage, but its decisions

have deferred to other executive authority claims

based on national security.

For more information: Airline Passenger Secu-

rity Screening: New Technologies and Imple-

mentation Issues. Washington, D.C.: National

Academy Press, 1996; Lawson, Deborah. “Case-

note: Fourth Amendment Searches with Liberty

and Justice for All . . . Unless You Choose to Fly:

Torbet v. United Airlines, Inc.” Journal of Air Law

and Commerce 68 (2003): 647–654; Miller, Eric J.

“Comment: The ‘Cost’ of Securing Domestic Air

Travel.” John Marshall Journal of Computer and

Information Law 21 (2003): 405–436; Rochow-

Leuschner, Deborah von. “CAPPS II and the

Fourth Amendment: Does It Fly?” Journal of Air

Law and Commerce 69 (2004): 139–172.

—Barbara J. Hayler

Alabama v. Shelton 535 U.S. 654 (2002)

In Alabama v. Shelton, the U.S. Supreme Court,

in a 5-4 decision, with the opinion of the majority

being delivered by Justice Ruth Bader Ginsburg,

upheld the decision rendered in the Alabama

Supreme Court that a lawyer must be provided

for the accused in criminal cases that may result

in imprisonment even if it is for a short period of

time. This case, like G

IDEON V. WAINWRIGHT, 372

U.S. 335 (1963), involved the Sixth Amendment

to the U.S. Constitution and the right of an indi-

gent defendant to have the assistance of a court-

appointed counsel. The Shelton case took the

concept of right to counsel a step further by

indicating that the right to counsel also extends to

defendants who receive a suspended sentence.

The defendant was LeReed Shelton, who took

it upon himself to be his own representative at

a bench trial in the District Court of Etowah

County, Alabama. He was convicted by this

court of third-degree assault. The charge carried

a maximum penalty of one-year imprisonment

and a $2,000 ﬁ ne. Shelton invoked his right to a

new trial before a jury in the circuit court. He

appeared before the circuit court and again repre-

sented himself and was convicted a second time.

Even though the court warned Shelton of the dan-

gers of representing himself, the court at no time

offered to provide Shelton with legal counsel. The

circuit court sentenced Shelton to 30 days, sus-

pended his sentence, and then placed him on two

years probation.

Shelton appealed this court’s decision on the

tenets of the Sixth Amendment, and the Alabama

Court of Criminal Appeals initially afﬁ rmed this,

yet when the case was returned for remand, the

appeals court reversed itself and noted: “a sus-

pended sentence . . . does not trigger the Sixth

Amendment right to appointed counsel unless

there is ‘evidence in the record that the [defendant]

has actually been deprived of liberty.’ ” The Ala-

bama Supreme Court reversed the appeals court

decision, noting “that a defendant may not be ‘sen-

tenced to a term of imprisonment’ absent provision

of counsel.” The Alabama Supreme Court found

that a suspended sentence constituted a “term of

imprisonment” even though imprisonment was

taking place immediately after the verdict.

The U.S. Supreme Court majority opinion

noted:

We think it plain that a hearing so timed and

structured cannot compensate for the absence

of trial counsel, for it does not even address

the key Sixth Amendment inquiry: whether the

adjudication of guilt corresponding to the prison

sentence is sufﬁ ciently reliable to permit incar-

ceration. Deprived of counsel when tried, con-

victed, and sentenced, and unable to challenge

the original judgment at a subsequent probation

revocation hearing, a defendant in Shelton’s cir-

cumstances faces incarceration on a conviction

that has never been subjected to the “crucible of

meaningful adversarial testing,” United States v.

Cronic 466 U.S. 648, 656 (1984).

The Supreme Court held that a prison term,

even though suspended, is still a prison term.

Alabama v. Shelton 17

xviii+446_EofUSConsti-v1.indd 17 3/12/09 3:03:40 PM

For more information: Bodner, Polina R.

“Imposition of a Suspended Sentence in a Misde-

meanor Case Invokes a Defendant’s Sixth Amend-

ment Right to Counsel.” Suffolk University Law

Review 37, no. 1 (2004): 211–217; Kitai, Rinat.

“What Remains Necessary Following Alabama v.

Shelton to Fulﬁ ll the Right of a Criminal Defen-

dant to Counsel at the Expense of the State?”

Ohio Northern University Law Review 30, no. 1

(2004): 30–58; Lewis, Anthony. Gideon’s Trum-

pet. New York: Vintage Books, 1989; Young, Adam

D. “An Analysis of the Sixth Amendment Right to

Counsel As It Applies to Suspended Sentences

and Probation: Do Argersinger and Scott Blow a

Flat Note on Gideon’s Trumpet?” Dickinson Law

Review 107, no. 3 (2003): 699–722.

—Dan Krejci

Alden v. Maine 527 U.S. 706 (1999)

In Alden v. Maine, the Supreme Court ruled that

the Eleventh Amendment barred a suit against

a state involving enforcement of the Fair Labor

Standards Act (FLSA), a law requiring employers

to pay their workers minimum wages and overtime

pay. Although the FLSA had initially exempted

federal, state, and local governments, by 1974, it

had been amended to include most government

employees.

In 1992, John Alden and other state probation

ofﬁ cers ﬁ led suit in a Maine federal district court,

claiming that the state had violated the FLSA

and owed them overtime pay. The court agreed

and ordered the state to pay them, but the par-

ties did not agree on the amount. In the interim,

the U.S. Supreme Court had ruled that the prin-

ciple of state sovereignty, as stated in the Eleventh

Amendment, barred federal courts from exercis-

ing jurisdiction over states. Alden et al.’s case was

dismissed.

Shortly thereafter, they ﬁ led suit in state court,

which also dismissed their case, ruling that the

doctrine of sovereign immunity incorporated the

principles of the Eleventh Amendment and that

the states cannot be sued in state court, either.

The Maine Supreme Court afﬁ rmed, holding that

if states are immune from suit by private individu-

als in federal court, they are also immune in state

court. The court concluded that if plaintiffs can-

not sue states in federal court, they cannot simply

bring their actions to state court to achieve their

ends.

The probation ofﬁ cers’ principal argument was

that Article VI of the U.S. Constitution, known

as the supremacy clause, requires state courts

to enforce valid federal laws such as the FLSA.

Citing Congress’s power to regulate the national

economy, they emphasized that the state must

enforce the federal law in its courts. The U.S. gov-

ernment entered the case to urge the Supreme

Court to reverse the state court, declaring that the

supremacy clause prevails over a state’s sovereign

immunity. The brief for the United States noted

that the FLSA speciﬁ es that any government may

be sued by their employees in any state or federal

court and the supremacy clause requires the state

courts to enforce the law.

In announcing the decision for the Court, Jus-

tice Anthony M. Kennedy strongly defended

the principle of state sovereign immunity, quoting

from the writings of the nation’s founders to dem-

onstrate how deeply they felt about the importance

of immunity from private lawsuits as an attribute of

state sovereignty. The Court held that the plaintiffs

must show that states had been required to relin-

quish their immunity as part of the original consti-

tutional compromise. But there was no evidence

of this in the constitutional text, he said, rejecting

the plaintiffs’ argument that the supremacy clause

in Article VI required the state to enforce federal

laws. Kennedy concluded that Congress lacked

the authority to revoke state sovereign immunity

through regulatory laws such as the FLSA.

Justice David H. Souter dissented, quoting

extensively from the constitutional debates and

arguing that there was no clear consensus among

the founders on the breadth of sovereign immu-

nity. Moreover, states should not be allowed to

violate federal rights with impunity, and this rul-

ing, he charged, would allow them to engage in

illegal wage and hours practices.

For more information: Mezey, Susan Gluck.

“The U.S. Supreme Court’s Federalism Jurispru-

18 Alden v. Maine

xviii+446_EofUSConsti-v1.indd 18 3/12/09 3:03:41 PM

dence: Alden v. Maine and the Enhancement of

State Sovereignty.” Publius: The Journal of Feder-

alism 30 (2000): 21–38; Royer, Christine. “Para-

dise Lost? State Employees’ Rights in the Wake of

New Federalism.” Akron Law Review 34 (2001):

637–688.

—Susan Gluck Mezey

Alito, Samuel (1950– ) Supreme Court justice

Samuel Anthony Alito, Jr., member of the U.S.

Supreme Court and former U.S. Court of Appeals

judge, was born on April 1, 1950, in Trenton, New

Jersey. Strong academically, Alito posted excel-

lent results at Steinert High School in Hamilton

Township, New Jersey, and was able to attend

Princeton University, where he graduated from

the Woodrow Wilson School of Public and Inter-

national Affairs in 1972. He continued his studies

at Yale Law School, where he served as editor of

the school’s prestigious legal journal and gradu-

ated with a J.D. in 1975.

Enlisted by Selective Service in 1970, Alito was

able to continue his studies while being assigned

to ROTC and a summer boot camp. He served on

active duty in 1975 following his graduation but

thereafter was assigned to inactive reserves until

he left the military in 1980.

From the start of his career, Alito has con-

structed an impressive record of employment in

the legal sector. He began as a legal clerk on the

Third Circuit and went on to work as an assistant

U.S. attorney in New Jersey. He argued numerous

cases concerning drugs and the Maﬁ a. In 1985,

Alito became deputy assistant to Attorney General

Edwin Meese during the second term of the Rea-

gan administration. In his post, he established him-

self as an active conservative, stating that William

F. Buckley, Alexander Mordecai Bickel, and

Barry Goldwater inspired him. He also expressed

his views on the Constitution and current affairs

at the time, stating that he did not believe in racial

or ethnic quotas nor in a constitutional protection

for the right to have an abortion.

From 1987 to 1990, Alito was a U.S. attorney

in New Jersey, before being nominated by Presi-

dent George H. W. Bush on February 20, 1999, to

the U.S. Court of Appeals for the Third Circuit,

where he remained until 2006. During some of

this time, he worked as a professor of law at Seton

Hall University.

In late 2005, Alito’s dream of becoming a mem-

ber of the U.S. Supreme Court began to come to

fruition. On October 31, 2005, he was nominated

by President George W. Bush to the Supreme

Court seat formerly occupied by Sandra Day

O’Connor. The nomination was ofﬁ cially submit-

ted to the U.S. Senate on November 10, 2005,

and Alito’s confirmation hearing took place in

January 2006.

Alito received a “well-qualified” rating from

the American Bar Association, and his nomination

was approved in committee by a vote broken along

party lines, 10 to 8. Although a ﬁ libuster by the

Democratic opposition threatened his conﬁ rma-

tion in the Senate, Alito was conﬁ rmed by a vote

of 58 to 42. He was sworn in to his post shortly

after by Chief Justice John G. Roberts, Jr. Alito

joined the Court midterm.

As a result of Alito’s ascension, the U.S. Supreme

Court has become majority–Roman Catholic for

the ﬁ rst time ever in its history. Alito’s religion,

Italian-American roots, and conservative views

have resulted in comparisons with fellow justice

Antonin Gregory Scalia. Notably, Alito is a

member of the Federalist Society, a conservative

and libertarian group. He is married and has two

children.

In his ﬁ rst two years on the Supreme Court,

he has aligned himself with Chief Justice Roberts,

voting with him almost 90 percent of the time. He

has supported the conservative wing of the Court

in ruling that bans on partial-birth abortions do

not violate a woman’s right to terminate a preg-

nancy, and he has also voted in cases such as Hein

v. Freedom from Religion Foundation, 127 S.Ct.

2553 (2007), and Lance v. Coffman, 127 S.Ct.

1194 (2007), to tighten the rules of standing and

make it more difﬁ cult for plaintiffs to be able to

present their cases in federal court.

For more information: CNN.com. “Bush Nomi-

nates Alito to the Supreme Court.” Available online.

URL: http://www.cnn.com/2005/POLITICS/10/31/

Alito, Samuel 19

xviii+446_EofUSConsti-v1.indd 19 3/12/09 3:03:41 PM

scotus.bush/index.html. Downloaded November

1, 2005; Federal Judicial Center. “Alito: Judges

of the Federal Courts.” Available online. URL:

http://www.fjc.gov/public/home.nsf/hisj. Down-

loaded May 6, 2008.

—Arthur Holst

Allen v. State Board of Elections 393 U.S.

544

(1969)

In Allen v. State Board of Elections, the Supreme

Court ruling, consistent with S

OUTH CAROLINA V.

KATZENBACH (1966), upheld the constitutionality of

Section 5, afﬁ rming a broad range of voting prac-

tices for which preclearance is required under the

Voting Rights Act of 1965.

The four cases that constitute Allen involve

the application of the 1965 Voting Rights Act to

state election laws and regulations in both Mis-

sissippi and Virginia. The Mississippi cases were

consolidated on appeal and argued together, and

because of the grounds on which the Supreme

Court decides these cases, the appeal in a Virginia

case was also disposed by the Court’s opinion in

the case. Thus, in all four cases, both states passed

new laws in which the central issue is whether the

provisions of these laws fell within the Section 5

prohibitions that prevent the enforcement of “any

voting qualiﬁ cation or prerequisite to voting, or

standard, practice, or procedure with respect to

voting” unless the state first complies with one

of the section’s approval procedures as provided

under the Voting Rights Act.

In Allen v. State Board of Elections, the Supreme

Court ruled that provisions of both the Mississippi

and Virginia state laws violate the Voting Rights

Act of 1965. Speciﬁ cally, in a 7-2 opinion by Chief

Justice Earl Warren, the Court interpreted Sec-

tion 5 of the Act broadly to require preclearance

for a wide range of election practices and therefore

against state prerogatives. According to the Court,

states are prohibited by Section 5 from enacting or

seeking “to administer any voting qualiﬁ cation or

prerequisite to voting, or standard, practice, or pro-

cedure with respect to voting different from that

in force or effect on November 1, 1964,” without

ﬁ rst submitting their intended change to the U.S.

Ofﬁ ce of the Attorney General to obtain consent or

secure a favorable declaratory judgment from the

District Court for the District of Columbia.

In cases titled Nos. 25 (Fairley v. Patterson), 26

(Bunton v. Patterson), and 36 (Whitley v. Williams),

the Mississippi parties who brought suits sought

declaratory judgments in the District Court for

the Southern District of Mississippi, alleging that

certain amendments to the Mississippi Code were

subject to the provisions of Section 5 and there-

fore not enforceable until the state has complied

with the approval requirements established by the

Voting Rights Act. Dismissing the complaints in all

three cases, a three-judge district court ruled for

the state of Mississippi and held that its amend-

ments did not come within the purview of Section

5 of the Voting Rights Act. Appellants brought

direct appeal, and the Supreme Court consolidated

the cases and postponed consideration of jurisdic-

tion to a hearing on the merits. In Allen, appellants

were functionally illiterate, duly registered voters

of the Fourth Congressional District of Virginia.

They brought a declaratory judgment action in

the U.S. District Court for the Eastern District of

Virginia claiming that a Virginia statute modifying

voting bulletin violates the equal protection

clause of the Fourteenth Amendment and the

Voting Rights Act of 1965. After the three-judge

court dismissed their complaint, a direct appeal

was lodged, and the Supreme Court similarly post-

poned consideration of jurisdiction questions to a

hearing on the merits.

Remanding all four cases to the district courts

with instructions to issue injunctions restraining

the further enforcement of the enactments until

such time as both states adequately demonstrated

compliance with Section 5 of the Voting Rights

Act, Chief Justice Warren ruled that “what a fair

interpretation of the Voting Right Act requires

is that States in some unambiguous and record-

able manner submit any legislation or regulation

directly to the Attorney General with a request

for his consideration.” The term voting, the Court

observed, included

all action necessary to make a vote effective in

any primary, special, or general election, includ-

20 Allen v. State Board of Elections

xviii+446_EofUSConsti-v1.indd 20 3/12/09 3:03:41 PM

ing, but not limited to, registration, listing . . .

or other action required by law prerequisite to

voting, casting a ballot, and having such ballot

counted properly and included in the appropri-

ate totals of votes cast with respect to candidates

for public or party office and propositions for

which votes are received in an election.

Further, the Court noted that “the Voting

Rights Act was aimed at the subtle, as well as the

obvious, state regulations which have the effect of

denying citizens their right to vote because of

their race.” Citing R

EYNOLDS V. SIMS, the Supreme

Court observed that the act gives a broad inter-

pretation to the right to vote, recognizing that vot-

ing includes “all action necessary to make a vote

effective.” The legislative history on the whole,

according to the Court, “supports the view that

Congress intended to reach any state enactment

which altered the election law of a covered State

in even a minor way.”

Thus, according to the Court, Section 5 suits

may be brought in at least three ways. First, the

state may institute a declaratory judgment. Sec-

ond, an individual may bring a suit for declara-

tory judgment and injunctive relief, claiming

that a state requirement is covered by 5 but has

not been subjected to the required federal scru-

tiny. Third, the ofﬁ ce of the Attorney General

may bring an injunctive action to prohibit the

enforcement of a new regulation because of the

state’s failure to obtain approval under Section 5.

Finally, a three-judge district court is required

for all actions challenging provisions of the Vot-

ing Rights Act.

Recently, in Presley v. Etowah County Comm’n,

502 U.S. 491 (1992), while reafﬁ rming Allen, the

Supreme Court emphasized that changes covered

under Section 5 must have a direct relation to vot-

ing. Seemingly retreating from its more expansive

position with Allen, the Supreme Court provided

a nonexclusive list of four categories in which vot-

ing changes covered under Section 5 would nor-

mally fall: 1) changes in the manner of voting, 2)

changes in candidacy requirements and qualiﬁ ca-

tions, 3) changes in the composition of the elector-

ate that may vote for candidates for a given ofﬁ ce,

and 4) changes affecting the creation or abolition

of an elective ofﬁ ce.

For more information: Hasen, Richard. The

Supreme Court and Election Law: Judging Equal-

ity from Baker v. Carr to Bush v. Gore. New York:

New York University Press, 2003.

—Marc G. Pufong

Ambach v. Norwick 542 U.S. 507 (1979)

In Ambach v. Norwick, the Supreme Court nar-

rowly upheld the constitutionality of a New York

statute that restricted the permanent certiﬁ cation

of public school teachers to U.S. citizens or aliens

who intend to apply for citizenship. The Court

ruled that because public classroom teachers are

agents of the government and have a signiﬁ cant

inﬂ uence over students, the state has compelling

interest in refusing to certify aliens who express no

interest in becoming U.S. citizens. In applying the

“rational basis” test, the Court rejected claims that

the law violated the Fourteenth Amendment’s

equal protection clause.

Susan M. W. Norwick was born in Scotland,

moved to the United States in 1965, and mar-

ried a U.S. citizen. Norwick was eligible to apply

for U.S. citizenship but expressed no intention

of renouncing her British citizenship. In 1973,

after graduating from college, Norwick applied to

become an elementary teacher in the state of New

York. Although otherwise qualiﬁ ed, her applica-

tion for certiﬁ cation was denied by the New York

Commission on Education solely on the basis of

Section 3001(3) of the New York Education Law,

which bars aliens from teaching in public schools

unless they manifest intention to become U.S.

citizens. Norwick sued Gordon M. Ambach, New

York State commissioner of education, and others

in U.S. district court, asserting that the law vio-

lated her right to equal protection under the Four-

teenth Amendment.

The three-judge federal district court, apply-

ing strict scrutiny, ruled for Norwick. Under

“strict scrutiny,” a law that on its face distin-

guishes between people in part because of their

nationality is presumed to be unconstitutional,

Ambach v. Norwick 21

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