Schultz D. Encyclopedia of the United States Constitution

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University of Chicago Press, 2004; Sullivan, Kath-

leen, and Gerald Gunther. Constitutional Law.

15th ed. New York: Foundation Press, 2004.

—William Crawford Green

intermediate level scrutiny test

The intermediate level scrutiny test is used by the

courts to determine if some semi-suspect classiﬁ -

cations, such as gender, are permissible under the

equal protection clause of the Constitution.

The equal protection clause of the Four-

teenth Amendment provides that “no State

shall . . . deny to any person within its jurisdiction

the equal protection of the laws.” In guaranteeing

equality under the law, the Constitution requires

states to justify their decisions to treat persons as

legally different. Under the equal protection doc-

trine, states may treat people differently when

they base it on relevant differences among the

individuals.

The U.S. Supreme Court formulated a two-tier

level of scrutiny to determine whether laws were

constitutional. The first, applying the strictest

standard of review, is used in cases involving laws

based on race or national origin. When such a law

is challenged as unconstitutional, the government

must show it has a “compelling” reason for the law

and demonstrate that it is “necessarily” related

to the objectives it seeks to achieve. The second,

known as minimal scrutiny, is used to judge laws

that classify people on the basis of changeable

characteristics such as wealth or age. Under mini-

mal scrutiny, the state must simply show it has a

“legitimate” reason for the law and demonstrate

that the means are “rationally” related to the ends

it seeks to achieve.

The level of scrutiny is crucial to the out-

come of the case. Statutes reviewed under mini-

mal scrutiny almost always receive the Court’s

approval; conversely, laws reviewed under strict

scrutiny are almost always struck. In the 1970s,

when the federal courts became a forum for the

debate over sexual equality, the Supreme Court

was asked to determine whether laws that differ-

entiated on the basis of sex were consistent with

the equal protection clause.

Reed v. Reed, 404 U.S. 71 (1971), marked the

beginning of the Court’s new approach to constitu-

tional sex equality doctrine. For the ﬁ rst time, the

Court struck a state or federal law on the grounds

of sex discrimination. Although it acknowledged

that the Idaho law favoring men over women as

estate administrators to expedite probate had a

legitimate purpose, it held that the classiﬁ cation

on the basis of sex was not substantially related to

the state’s goal.

In Frontiero v. Richardson, 411 U.S. 677

(1973), the Court reviewed a law that required

women—but not men—to show they provided

more than half of their family’s support in order to

receive beneﬁ ts. Four justices, William J. Bren-

nan, Jr., Thurgood Marshall, Byron White, and

William O. Douglas, voted to raise the level of

scrutiny for sex-based laws, because they believed

that, like race and national origin, sex was unre-

lated to ability and deserved the same searching

scrutiny as these other classiﬁ cations. However,

although a majority voted to strike the law, there

was no majority support for changing the level of

scrutiny.

In C

RAIG V. BOREN, 429 U.S. 190 (1976), the

Court formally adopted the intermediate (or

heightened) scrutiny test for laws based on sex.

The case arose as a challenge to an Oklahoma law

allowing 18-year-old women—but not men—to

buy beer. A lower federal court upheld the law, but

the Supreme Court reversed. Speaking for a 5-4

Court, Justice William J. Brennan, Jr. announced

that prior cases established that sex-based clas-

sifications “must serve important governmental

objectives and must be substantially related to

achievement of those objectives” (Craig v. Boren,

1976, 197). Reviewing earlier cases, Brennan

noted that the Court has refused to approve laws

based on stereotypical ideas of men’s and women’s

roles. Although the purpose of the Oklahoma law

was important, that is, reducing incidents of driv-

ing under the inﬂ uence of alcohol, the Court held

that it did not pass the new intermediate scrutiny

test because the sex-based classiﬁ cation was not

substantially related to this goal.

Writing in dissent, Chief Justice William

Hubbs Rehnquist objected that the majority

382 intermediate level scrutiny test

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had simply imposed a higher level of scrutiny on

laws relating to sex differences without justiﬁ ca-

tion on the basis of precedent. He argued that

this was particularly inappropriate in cases of men

challenging sex-based classifications. Because

there was no history of discrimination against

men, Rehnquist said he would only apply minimal

scrutiny to the Oklahoma law and, in his view, it

was constitutional.

In M

ISSISSIPPI UNIVERSITY FOR WOMEN V. HOGAN,

458 U.S. 718 (1982), in a challenge to the univer-

sity’s women-only nursing program, Justice San-

dra Day O’Connor added a new dimension to

the intermediate level scrutiny test by explaining

that in order to defend a sex-based classiﬁ cation,

the state must present an “exceedingly persuasive

justiﬁ cation” for it. The Court also held that it will

apply the heightened form of scrutiny whenever a

sex-based classiﬁ cation is challenged, regardless of

which sex raises the issue.

For more information: Cushman, Claire, ed.

Supreme Court Decisions and Women’s Rights.

Washington, D.C.: Congressional Quarterly

Press, 2001; Mezey, Susan Gluck. Elusive Equal-

ity: Women’s Rights, Public Policy, and the Law.

Boulder, Colo.: Lynne Rienner Publishers, 2003.

—Susan Gluck Mezey

international law and the Constitution

Constitutional scholars and prominent justices

of the Supreme Court strongly disagree on the

proper application of international law in the mak-

ing of domestic statutes and interpretation of the

Constitution.

Originalists like Justice Antonin Gregory

Scalia maintain that international legal docu-

ments and traditions have limited role, if any, in

constitutional jurisprudence since the potential for

deviating from the original intent of the framers is

high when judges resort to foreign legal traditions

and treaties in interpreting the Constitution.

Constitutional comparativists like Justice

Anthony M. Kennedy, on the other hand,

uphold the constitutional principle that, as long as

foreign laws do not directly contravene democratic

values, they can serve as useful precedents to and

vital sources of judicial decisions and domestic

lawmaking. Also closely identiﬁ ed with those who

ascribe to the living constitution tradition of

judicial interpretation, constitutional comparativ-

ists stress the importance of international legal

precedents in dealing with modern constitutional

dilemmas, such as the treatment of members of

transnational terrorist networks captured in the

“Global War on Terror,” and in formulating inter-

national agreements that are crucial to confront-

ing global challenges such as genocide, the illegal

use of child labor, climate change, patents

rights over living organisms, species extinction,

illicit (human and narcotic) trafﬁ cking, and so on.

This comparative constitutional perspective is in

keeping with the fact that the writers of the Con-

stitution heavily borrowed from English Common

Law and European democratic political theory.

The U.S. Constitution provides at least three

different methods in which international trea-

ties and agreements can be directly incorporated

into domestic law. First, courts of various tiers

and prerogatives may refer to international legal

obligations and commitments when interpreting

domestic statutes. Second, Congress could refer to

international laws in making domestic laws. That is,

domestic laws could integrate or incorporate provi-

sions of an international treaty. Third, although

the Constitution grants the president the power to

negotiate and sign international treaties in partic-

ular and conduct foreign relations in general, the

treaty supremacy clause of the Constitution,

Article VI, requires the Senate to ratify treaties

with a majority two-thirds vote. Once a treaty is

signed by the president and ratiﬁ ed by the Senate,

it becomes the “Supreme Law of the Land.”

Given that the constitutional framers drew a

great deal from English Common Law in craft-

ing the Constitution, customary international

laws—established customs, principles and prac-

tices adhered to by a community of nations out

of universal respect for human rights and due to

obligatory treaties—also strongly inﬂ uence consti-

tutional jurisprudence. Prohibitions against slav-

ery and genocide, freedom from detention without

due process of law, and the rights of prisoners of

international law and the Constitution 383

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war to humane treatment are some of the most

commonly accepted customary international laws.

These fundamental human rights are enshrined

in such landmark international treaties as the

International Convention on Civil and Political

Rights and the Third Geneva Convention on the

conduct of war and the treatment of prisoners of

war. Given that the United States has signed and

ratiﬁ ed both conventions, the prolonged detention

in Guantánamo, Cuba, of “enemy combatants”

captured in the “War on Terror” in Afghanistan

and other parts of the world is widely believed to

be a violation of U.S. obligations under custom-

ary international law. Human rights organizations

including Amnesty International, Human Rights

Watch, and American Civil Liberties Union

(ACLU) have repeatedly criticized the Bush

administration’s treatment of “enemy combatants”

as clear violations of the aforementioned human

rights conventions.

The Bush administration responds to these

criticisms by insisting that the prisoners held at

Guantánamo, Cuba, are “enemy combatants” who

do not enjoy the same rights as conventional pris-

oners of war. However, some of those detained

include U.S. citizens and nationals of various

countries who have been held without fair trial for

several months and even years, thus contravening

prohibitions under the International Convention

on Civil and Political Rights against arbitrary and

prolonged detention. Another widely reported

practice that is increasingly a subject of close scru-

tiny is “extraordinary rendition,” an extra-judicial

method used by the Central Intelligence Agency

(CIA) to extract information from suspected ter-

rorists. Suspected members and supporters of

terrorist organizations are extradited to other

countries where they could reportedly be tortured

and detained without fair trial.

The growing public scrutiny of the policies

and practices of the Bush administration’s “War

on Terror” has generated a heated debate among

scholars of international law and the U.S. Supreme

Court justices as to whether combatants of non-

state actors such as al-Qaeda can be accorded the

same rights that the Geneva Convention on the

conduct of war and the treatment of prisoners of

war guarantees. This debate is as much about the

proper treatment of “enemy combatants” captured

abroad in battles with global non-state actors as

the basic rights of suspected criminals; thus, what

is at stake is the future of the Geneva Convention

in particular and international human rights law

in general.

The central issue of human rights is further

complicated when, as in the seminal Supreme

Court case of H

AMDI V. RUMSFELD, the captive

happens to be a U.S. citizen. There is no doubt

that this debate will occupy the Supreme Court

and legal scholars for some time to come, as it

strikes at crucial intersections of international and

domestic law.

For more information: Anderson, Kenneth.

“Foreign Law and the U.S. Constitution.” Policy

Review. Available online. URL: http://www.poli-

cyreview.org/jun05/anderson.html. Visited 13 May

2008; Horner, Christopher. “Modern Develop-

ments In The Treaty Process.” (August 1, 2002.)

Available online. URL: http://www.cei.org/gen-

con/025,03243.cfm. Visited 24 December 2006;

Huhn, Ray. “The Constitutional Jurisprudence

of Sandra Day O’Connor: A Refusal to ‘Fore-

close the Unanticipated.’ ” Akron Law Review 39.

Available online. URL: http://www.policyreview.

org/jun05/anderson.html. Visited 13 May 2008;

“War on Terror” Human Rights Issues. Amnesty

International. Available online. URL: http://www.

amnestyusa.org/waronterror/detainees/us_obliga-

tions.html. Visited 24 December 2006.

—Daniel G. Ogbaharya

International Society for Krishna

Consciousness v. Lee

505 U.S. 672 (1992)

The U.S. Supreme Court, in the case of Interna-

tional Society for Krishna Consciousness v. Lee,

declared publicly owned airport terminals are not

free speech forums under the free speech clause

of the First Amendment to the U.S. Constitu-

tion. In the case, a not-for-proﬁ t religious group

called the International Society for Krishna Con-

sciousness (ISKCON) wanted to distribute leaf-

lets and solicit monetary donations inside several

384 International Society for Krishna Consciousness v. Lee

xviii+446_EofUSConsti-v1.indd 384 3/12/09 3:05:40 PM

major public airports within the New York area.

The Port Authority of New York and New Jersey,

which owned the airports, adopted a regulation

forbidding these actions. ISKCON eventually

appealed this ban to the U.S. Supreme Court.

The Court ﬁ rst determined that publicly owned

airport terminals are unlike traditional govern-

ment-owned forums historically used for public

gatherings and discussions such as parks, streets,

and sidewalks. In those more traditional public

forums, government must show that limiting the

speaker is justiﬁ ed by a government interest of a

compelling (very strong) nature, and the restric-

tion on the speaker is narrowly tailored (care-

fully designed) to further that compelling interest

rather than some other interest or no interest at

all. The Court also declared that the Port Author-

ity had not intentionally created a public forum,

by the fact the airport was designed for air travel

and not free speech purposes, and also by the fact

the airport had a long history of trying to restrict

the airport for use by air travelers only, rather than

citizens who wished to distribute political or reli-

gious literature. In designated public forums, the

government must also meet the same standards

when restricting speech as it must meet in tradi-

tional public forums. However, because the air-

port terminals in the case were neither traditional

public forums nor designated as public forums, the

government could enact greater restrictions on

speech as long as those restrictions are reasonable.

The Court concluded that a total ban on solicita-

tion of money was reasonable. Stopping people

and asking them for money would delay the people

who are stopped as well as other people trying to

avoid the solicitation or whose paths are blocked

by the pedestrian congestion caused by people

stopping. This is an important problem to prevent

in crowded airports where travelers are often in a

hurry. In addition, there would be the possibility

that the people asking for money would be lying

about the reasons the money is needed. However,

busy airport customers are unlikely to take the time

to report this fraud when it occurs. Also, if the air-

ports allowed one group into the airport terminals

to solicit money, then the airports would have to

allow all political, religious, and charitable groups

to do so on an equal, nondiscriminatory basis, and

the airport terminals could become too clogged

by people to function as transportation terminals.

Thus, the Court concluded that a complete ban on

the solicitation of money inside a publicly owned

airport terminal is reasonable.

In a companion case, Lee v. ISKCON, 505 U.S.

830 (1992), the Court held that although public

airport terminals are not public forums, individu-

als have a right to peacefully distribute leaflets

inside them. This is because the distribution of

leaﬂ ets is less disruptive to the functioning of an

airport, particularly pedestrian trafﬁ c ﬂ ow, than is

the solicitation of money, as individuals can simply

walk quickly by anyone holding out a leaﬂ et for

them to take. Therefore, a complete ban on leaf-

leting inside a public airport terminal is unreason-

able, and thus violates the free speech clause of

the First Amendment.

For more information: Sullivan, Kathleen,

and Gerald Gunther. Constitutional Law. 14th

ed. New York: Foundation Press, 2001; Volokh,

Eugene. The First Amendment: Problems, Cases

and Policy Arguments. New York: Foundation

Press, 2001.

—Rick A. Swanson

interstate commerce

Article I, Section 8 of the Constitution provides,

“Congress shall have the power . . . To regulate

Commerce with foreign Nations, and among the

several States, and with the Indian Tribes.” This

provision, known as the commerce clause, is

the wellspring of Congress’s authority for enacting

legislation in such diverse areas as criminal law,

civil rights, and environmental law.

The Supreme Court ﬁ rst interpreted the scope

of the commerce clause in G

IBBONS V. OGDEN,

22 U.S. (9 Wheat.) 1 (1824), where Chief Jus-

tice John Marshall explained that the clause

grants Congress the power to regulate “commer-

cial intercourse” respecting “more states than

one.” According to Chief Justice Marshall, this

“power of Congress does not stop at the jurisdic-

tional lines of the several States” but extends to

interstate commerce 385

xviii+446_EofUSConsti-v1.indd 385 3/12/09 3:05:40 PM

intrastate commerce if it has an impact on inter-

state activities (id. at 196). Moreover, “[t]his power,

like all others vested in Congress, is complete in

itself, may be exercised to its utmost extent, and

acknowledges no limitations, other than are pre-

scribed in the constitution” (id. at 197).

From 1887 to 1937, however, the Supreme Court

espoused a more circumscribed view of Congress’s

commerce power. Under this view, known as dual

federalism, federal and state governments are

separate sovereigns with separate zones of author-

ity, and it is the judiciary’s role to demarcate and

enforce these separate spheres. The Supreme

Court of this era narrowly deﬁ ned commerce as

an element of business distinguishable from other

elements such as “mining” or “manufacturing”—

zones of interest reserved to the states (U

NITED

STATES V. E.C. KNIGHT CO., 156 U.S. 1 [1895]). The

Court also narrowly deﬁ ned “among the several

States,” permitting Congress to regulate only

activity having a direct effect on interstate com-

merce (S

WIFT & CO. V. UNITED STATES, 196 U.S. 375

[1905]). And it interpreted the Tenth Amendment

to reserve to the states certain zones of interest,

such as local trade and manufacture, beyond the

scope of Congress’s commerce power (H

AMMER V.

AGENHART [The Child Labor Case], 247 U.S. 251

[1918]). Applying this framework, the Court invali-

dated a broad array of federal laws, including New

Deal legislation enacted under President Franklin

Roosevelt.

These decisions relied on formalistic distinc-

tions that many Americans perceived as arbitrary

and even inhumane in light of the Great Depres-

sion’s bleak economic realities. To address this

problem, President Franklin Roosevelt proposed

in 1936 to increase the Supreme Court’s size from

nine to 15 justices. The president abandoned this

“court packing” proposal after Justice Owen Rob-

erts changed his vote in NLRB

V. JONES & LAUGH-

LIN STEEL CORP., 301 U.S. 1 (1937), forming the

ﬁ fth member of a new majority willing to expand

Congress’s commerce power. The change is aptly

known as “the switch in time that saved nine.”

Jones & Laughlin upheld Congress’s authority

to regulate intrastate activities that “have such a

close and substantial relation to interstate com-

merce that their control is essential or appropri-

ate to protect that commerce from burdens and

obstructions” (id. at 37).

The Court fully retreated from its narrow

interpretation of the commerce power in U

NITED

TATES V. DARBY LUMBER CO., 312 U.S. 100 (1941),

and W

ICKARD V. FILBURN, 317 U.S. 111 (1942).

Darby explicitly rejected the view that production

was a zone of interest reserved to the states, and it

expressly overruled Hammer v. Dagenhart’s hold-

ing that the Tenth Amendment afﬁ rmatively limits

Congress’s commerce power. “The [Tenth] amend-

ment states but a truism that all is retained which

has not been surrendered” (Darby, 312 U.S. at

124). Wickard, in turn, expressly rejected earlier

distinctions between direct and indirect effects on

interstate commerce (317 U.S. at 124).

This broad interpretation survived for almost

60 years: between 1937 and 1995, the Supreme

Court did not invalidate a single federal law as

exceeding Congress’s commerce power. (See, e.g.,

Hodel v. Virginia Surface Mining & Reclama-

tion Assn., Inc., 452 U.S. 264 [1981], upholding

Congress’s authority to regulate strip mining on

intrastate land not part of interstate commerce,

even though such regulation historically had been

the province of the states, and H

EART OF ATLANTA

MOTEL INC. V. UNITED STATES, 379 U.S. 241 [1964],

upholding Congress’s authority to prohibit dis-

crimination in places of public accommodation.)

Then, in UNITED STATES V. LOPEZ, 514 U.S. 549

(1995), the Court shocked many by invalidating

a provision of the Gun-Free School Zones Act of

1990 criminalizing the possession of a handgun

within 1,000 feet of a school. The Court explained

that the interstate commerce clause authorizes

Congress to regulate three categories of activities:

1) the use of the channels of interstate commerce;

2) instrumentalities of interstate commerce, or

persons or things in interstate commerce, even

though the threat may come only from intrastate

activities; and 3) intrastate activities having a

substantial relation to interstate commerce (514

U.S. at 558–59). Only the third category was rel-

evant in Lopez. The Court held that because the

criminalization of mere possession of a handgun

“has nothing to do with commerce or any sort of

386 interstate commerce

xviii+446_EofUSConsti-v1.indd 386 3/12/09 3:05:40 PM

economic enterprise, however broadly one might

deﬁ ne those terms,” the act “cannot, therefore, be

sustained under our cases upholding regulations

of activities that arise out of or are connected with

a commercial transaction, which viewed in the

aggregate, substantially affects interstate com-

merce” (id. at 561).

The Court confirmed in U

NITED STATES V.

ORRISON, 529 U.S. 598 (2000), that Lopez was

no aberration. Morrison held that Congress had

exceeded its commerce power in enacting the

Violence Against Women Act of 1994, which cre-

ated a federal civil remedy for victims of gender-

motivated crimes of violence. As in Lopez, the

Morrison Court “reject[ed] the argument that

Congress may regulate noneconomic, violent

criminal conduct based solely on that conduct’s

aggregate effect on interstate commerce” (529

U.S. at 617). The Court explained, “The regula-

tion and punishment of intrastate violence that is

not directed at the instrumentalities, channels,

or goods involved in interstate commerce has

always been the province of the States. Indeed,

we can think of no better example of the police

power, which the Founders denied the National

Government and reposed in the States, than the

suppression of violent crime and vindication of its

victims” (id. at 618).

The Supreme Court’s most recent decision con-

struing Congress’s commerce power is G

ONZALES

V. RAICH, 545 U.S. 1 (2005). There, the Court con-

sidered whether Congress may prohibit, via the

Controlled Substances Act, “the local cultivation

and use of marijuana in compliance with Califor-

nia law” (id. at 5). The Court upheld Congress’s

regulation of the intrastate, non-economic activ-

ity of growing and using marijuana for medicinal

purposes. It reasoned that when a comprehensive

regulatory scheme itself is “within the reach of

federal power, the courts have no power to excise,

as trivial, individual instances of the class” (id. at

23; internal quotation marks omitted). In such

instances, courts “need not determine whether

[the regulated] activities, taken in the aggregate,

substantially affect interstate commerce in fact,

but only whether a ‘rational basis’ exists for so

concluding” (id. at 22). Although Raich expressly

distinguished Lopez and Morrison on the ground

that the regulations at issue in those cases were

not enacted pursuant to a comprehensive regu-

latory scheme, the extent to which the presently

constituted Supreme Court will further constrict

the scope of Congress’s commerce power in the

name of dual federalism remains to be seen.

For more information: Barnett, Randy E. “The

Original Meaning of the Commerce Clause.” Uni-

versity of Chicago Law Review 68 (2001): 101–

147; Clark, Bradford R. “Translating Federalism:

A Structural Approach.” George Washington Law

Review 66 (1998): 1,161–1,197; Lessig, Lawrence.

“Translating Federalism: United States v. Lopez.”

Supreme Court Review 192 (1995): 125–215;

Rotunda, Ronald D. “The Commerce Clause, the

Political Question Doctrine, and Morrison.” Con-

stitutional Commentary 18 (June 22, 2001): 319.

—Andre Mura

Interstate Commerce Commission (ICC)

Interstate Commerce Commission (ICC) was one

of the ﬁ rst federal regulatory bodies and was the

ﬁ rst independent agency, nicknamed the Fourth

Branch by some in reference to the three branches

afﬁ rmed by the Constitution.

The ICC was enacted through the Interstate

Commerce Act of 1887 and signed into existence

by President Grover Cleveland. The agency lasted

more than 100 years, ﬁ nally being closed in 1995.

The Constitution’s Tenth Amendment gives rise to

the federal government’s power to regulate only

matters that are speciﬁ cally delegated to it by the

Constitution. In the late 1880s, the emergence of

the railroads, coupled with the national reliance

upon the railroads, pushed the government to

attempt to regulate the unfair advantages that a

few select and very powerful private railroad com-

pany owners wielded.

The challenges to the government, as elabo-

rated through the enforcement of the Sherman

Anti-trust Act regulation of the Rockefeller fam-

ily, suggested that a railroad company could

corner the markets and control pricing, supply

quality, and concessions for transport into several

Interstate Commerce Commission 387

xviii+446_EofUSConsti-v1.indd 387 3/12/09 3:05:41 PM

markets and therefore constrain the development

of smaller business. This ability to impact both the

markets and the government power through mar-

ket manipulation created a ripe atmosphere for the

ICC to be established. The enduring impact upon

regulatory bodies and future federal agencies was

represented through the adoption by these agen-

cies of similar structure and independence stan-

dards. The seven-member board of the ICC and

the demand that no one on the board could retain

economic ties within an industry that they regu-

lated amounted to a belief in the agencies that

at times suggested that there was more honor in

regulation than politics. The ICC also drove the

idea of independence by staggering appointments

so that political impact could be avoided and the

operations of major endeavors would continue

without compromise.

In the late 1800s, anti-rail sentiment began

to become a social rallying point and a political

issue. The use of discriminatory political inﬂ uence

practices, the lack of pricing regulation, and the

concern for the western producers of goods and

livestock were all overt practices that spurred the

call for reform of the rail systems. The emergence

of the trucking industry changed the voracity of

the ICC as the agency picked up other concerns

over time, and in the late 1920s, it was believed

that the railroads’ impact on the economy was on a

downward spiral which would never be recovered.

By the mid- to late ’20s, the Ripley plan for railroad

consolidation was established as a way to reduce

the competition that threatened to cause some

train carriers to go bankrupt. The ICC became

an early proxy for southern business rights against

the rights of southern blacks as these blacks rode

on trains through the South. The impact of the

Civil Rights Act and the Freedom Riders took

the ICC into unfamiliar places, and the leader-

ship of the ICC agreed to support the Civil Rights

legislation.

For more information: Hoogenboom, Ari, and

Olive Hoogenboom. A History of the ICC: From

Panacea to Palliative. New York: W.W. Norton,

1976; Stone, Richard D. The Interstate Commerce

Commission and the Railroad Industry: a History

of Regulatory Policy. Westport, Conn.: Praeger,

1991.

—Ernest Gomez

Iroquois Indian League and the Constitution

There are some who argue that the Iroquois

Indian League had an impact upon the framers

of the Constitution. The support for this inﬂ uence

is not great, even though there are some apparent

parallels between the way the Iroquois organized

themselves and how the Constitution structured

the idea of federalism and the relationship

of power between the states and the national

government.

Long before the end of the colonial era, ﬁ ve

Iroquoian-speaking tribes in Upstate New York

had formed a military and economic alliance

among themselves. At first only the Cayuga,

Mohawk, Oneida, Onondaga, and the Seneca

belonged to the Iroquois League. In 1772, the

Tuscarora tribe migrated from North Carolina

to New York to escape their enemies. They were

given land and representation at League Confer-

ence meetings, thereby making the Iroquois the

Six Indian Nations.

The word Iroquois is a French pronunciation

of the Algonquian word ireohkwa, which means

“real adders” (snakes). The Algonquian word was a

derogatory term for their Iroquoian-speaking ene-

mies. The Iroquois called themselves collectively

the Haudenosaunee, which means “the people of

the Longhouse.” Iroquois towns were protected

by wooden palisades, behind which the people

lived in longhouses made of poles covered with

elm bark. The Iroquois longhouse was a symbol

of the Iroquois League. It was a great longhouse

with the Seneca guarding the Western Door and

the Mohawks guarding the Eastern Door.

Iroquois tradition reports that they were orga-

nized into a political organization about 1570 by

two Indians into the Iroquois League (or Iroquois

Confederacy). The Cayuga, Mohawk, Oneida,

Onondaga, and Seneca were brought together

by a Huron prophet, Deganawida (the Peace-

388 Iroquois Indian League and the Constitution

xviii+446_EofUSConsti-v1.indd 388 3/12/09 3:05:41 PM

maker), and by Hiawatha, a Mohawk. Together

they traveled throughout Iroquois lands preach-

ing a message of peace and unity. Deganawida

and Hiawatha were active at a time of internecine

warfare between the clans that was rendering the

tribes into dysfunctional remnants.

Deganawida preached his vision of the tribes

united under the sheltering branches of a Tree of

Great Peace. Hiawatha and he carried a wampum

belt to symbolize the Great Law of Peace. Opposi-

tion was overcome when the principal opponent of

their plan was made the head of the League. Stud-

ies of the oral traditions of the Iroquois suggest

that the Gayaneshakgowa (Great Law of Peace)

founding the impressive Confederacy may have

begun several centuries earlier.

Some historians have claimed that the Found-

ing Fathers of the United States modeled the

democratic self-government of the original 13

states after the Iroquois Confederacy. The differ-

ent states were compared to the different tribes

of the Iroquois. The members of the House of

Representatives and the Senate were like the

50 sachems or chiefs chosen by clan mothers to

represent the tribes. The president and his cabinet

were like the honorary Pine Tree Sachems. Wash-

ington, D.C., was like the village of Onondaga,

the main village of the Onondaga tribe where the

Grand Council was held every year.

Historians today are less supportive of the

claim that the Iroquois League influenced the

Constitution. In fact the evidence is thin. More-

over, given the bias and discrimination that many

held against Indians, viewing them as uncivilized

savages, it is unlikely that the framers would have

turned to them for constitutional ideas.

For more information: Fenton, William Nelson.

The Great Law and the Longhouse: A Political

History of the Iroquois Confederation. Norman:

University of Oklahoma Press, 1998; Morgan,

Lewis Henry. League of the Iroquois. Secaucus,

N.J.: Carol Publishing Group, 1996.

—Andrew J. Waskey

Iroquois Indian League and the Constitution 389

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390

ﱶﱷﱸ

Jacobellis v. Ohio 378 U.S. 184 (1964)

Jacobellis v. Ohio was an important Supreme

Court case seeking to deﬁ ne obscenity.

Nico Jacobellis was a theater manager in Cleve-

land Heights who showed the movie Les Amants

(The Lovers) and was subsequently convicted for

possessing and displaying an obscene ﬁ lm in vio-

lation of Ohio law. That conviction was upheld by

Ohio’s highest court but was overturned by the

U.S. Supreme Court on June 22, 1964.

In the wake of the Supreme Court’s 1957

opinion in ROTH V. U.S., 354 U.S. 476 (decided

together with Alberts v. California), the justices

found themselves increasingly immersed in the

murky waters of obscenity. In Roth, the Court

directly held that obscenity was not covered by

the First Amendment’s umbrella that pro-

tects freedom of speech and of the press. At the

same time, the Roth opinion, written by Justice

William J. Brennan, Jr., limited the reach of

obscenity statutes under the Constitution. The

constitutional test would be “whether to the aver-

age person, applying contemporary community

standards, the dominant theme of the material,

taken as a whole, appeals to prurient interest,”

and further, that the material lacks “the slight-

est redeeming social importance.” Writing for the

6-3 majority in Jacobellis, Brennan utilized the

Roth standard while recognizing its limits. Since

obscenity was a constitutional issue, Brennan

noted, the Court simply could not avoid the dif-

ﬁ cult and unpleasant decisions “involved in every

obscenity case” that emerged.

Importantly, in Jacobellis, Brennan clariﬁ ed the

meaning of “contemporary community standards,”

stating that such standards had to be national, not

local, in scope. On this point, Chief Justice Earl

Warren, in dissent, argued for the local approach

to community standards (a view eventually adopted

by the Court in its 1973 M

ILLER V. CALIFORNIA, 413

U.S. 49, decision).

Based on Roth, Brennan concluded that the

film in question was a serious undertaking that

received considerable critical praise. Obscene

material was excluded from First Amendment pro-

tection (a protection applied to the states through

the due process clause of the Fourteenth

Amendment) only because it was “utterly with-

out redeeming social importance” in going “sub-

stantially beyond customary limits of candor.” And

this was not the case with Les Amants.

Justice Hugo Black (joined by Justice Wil-

liam O. Douglas), Justice Potter Stewart and

Justice Arthur J. Goldberg wrote concurring opin-

ions in the case, while Justice John Marshall

Harlan, along with Warren (joined by Justice

Tom Clark), dissented, arguing that Ohio had

acted “within permissible limits.”

In his brief concurring opinion, Stewart stated

that obscenity laws under the Constitution were

limited to hard-core pornography. He then wrote,

“I shall not today attempt further to define the

kinds of material I understand to be embraced

within that shorthand description, and perhaps

I could never succeed intelligibly doing so. But

I know it when I see it, and the motion picture

involved in this case is not that.” Stewart’s “I know

it when I see it” comment, in many ways, would

become the signature feature of Jacobellis and

one that indicated just how far the Supreme Court

still had to go in search of constitutional clarity

regarding obscenity.

xviii+446_EofUSConsti-v1.indd 390 3/12/09 3:05:41 PM

For more information: Friedman, Leon, ed.

Obscenity: Oral Arguments Before the Supreme

Court. New York: The Confucian Press, 1980.

—Norman Provizer

Jay, John (1745–1829) ﬁ rst chief justice of the

United States

John Jay was the first chief justice of the U.S.

Supreme Court and a well-known political leader.

Jay was born in New York City, December 12,

1745, the youngest of eight children of Mary

Van Cortlandt Jay and Peter Jay, a prosperous

merchant. Jay’s mother taught him English and

Latin grammar until he left home to be formally

instructed. At age 14, Jay entered King’s College

(later renamed Columbia University) and received

his diploma with honors. Jay clerked in a law ofﬁ ce

and was admitted to bar in 1768. Jay became one

of the most successful attorneys in New York,

ﬁ rst in partnership with an old college classmate,

Robert R. Livingston, Jr., and then on his own.

Jay married the cousin of his former law partner,

Sarah Van Brugh Livingston, in 1774. The Jays

had six children.

In 1774, Jay committed himself to the cause

of independence by representing his state at the

First Continental Congress. He did not sign the

Declaration of Independence because of

duties drafting the state constitution of New York.

In 1777, Jay was appointed chief justice of New

York’s newly formed Supreme Court of Judicature.

His judicial activities ended when he was sent by

New York to the Second Continental Congress in

November 1778. Jay helped with the establishment

of the ﬂ edgling republic. Jay, as a peace commis-

sioner, along with Benjamin Franklin, negotiated

the Peace Treaty of 1783, which ended the Revo-

lutionary War with favorable terms for the United

States. Once the Constitution had been drafted,

Jay contributed ﬁ ve essays of those that became

known as T

HE FEDERALIST PAPERS. They were

intended to persuade the citizens of New York to

ratify the Constitution.

President George Washington was reportedly

willing to consider Jay for any number of high

posts in the new government, and on Septem-

ber 24, 1789, he nominated the 43-year-old New

Yorker to be the nation’s first chief justice. As

chief justice, Jay’s most notable case was C

HISHOLM

V. GEORGIA, 2 U.S. (2 Dall.) 419 (1793). The hold-

ing of the Court established the right of citizens

of one state to sue another state in federal court,

afﬁ rming that some of the state’s sovereignty was

subordinate to the U.S. Constitution. Because of

the unfavorable reaction to the decision, Congress

quickly proposed the Eleventh Amendment,

which reversed the Court’s decision, denying fed-

eral courts authority in suits by citizens against a

state and barring such suits unless the defendant

state consented.

Jay resigned from the Supreme Court on June

29, 1795, to serve as governor of New York for two

three-year terms. He then retired from public life

in 1801. President John Adams sent Jay’s name,

without his knowledge, to the Senate in hopes of

reappointing him chief justice. The Senate con-

ﬁ rmed him, but Jay declined the position because

of his dislike of circuit court riding and his disap-

pointment that the Supreme Court was not vested

with sufﬁ cient authority. He spent his unusually

Chief Justice John Jay (Library of Congress)

Jay, John 391

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