Schultz D. Encyclopedia of the United States Constitution

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and Troy E. Smith, eds. Federalism in America.

Westport, Conn.: Greenwood Publishing, 2005;

Wood, Gordon. The Creation of the American

Republic 1776–1787. New York: W.W. Norton &

Co., 1969.

—Aaron Jones and Michael W. Hail

just compensation

The Fifth Amendment to U.S. Constitution guar-

antees that private property shall not be “taken for

public use, without just compensation.” Known

as the just compensation clause, the amendment

recognizes the federal government’s authority to

seize property under eminent domain, but the

property owner has a constitutional right to be

compensated for the loss. The purpose of the just

compensation clause is to ensure that individual

property owners do not suffer financial harm

when the government seizes land for a public use.

The principle of just compensation derives from

early 15th-century English law. Many American

colonial governments, however, did not follow the

practice of paying for the taking of land for a public

purpose, and none of the ﬁ rst state constitutions

after independence contained a just compensation

requirement. Legislative supremacy to seize land

for roads and other public purposes soon gave

way to more protection for property rights. A just

compensation clause was adopted for the Vermont

Constitution in 1777 and the Massachusetts Con-

stitution in 1780, and the Northwest Ordinance of

1787 contained a provision requiring compensa-

tion for a governmental taking of private property.

Today, most state constitutions contain language

similar to the Fifth Amendment. In Chicago, Bur-

lington, and Quincy Railroad Company v. Chi-

cago, 166 U.S. 226 (1897), the U.S. Supreme Court

ruled that the just compensation requirement was

binding not only upon the federal government but

also upon state and local governments.

Ordinarily, the government ﬁ rst attempts to buy

land from the owners. If the government is unable

to negotiate a sale, the government may assert the

power of eminent domain and seize the property,

offering the owners what it deems to be a fair

price. In some cases, the property owners ﬁ nd the

compensation inadequate and the amount is con-

tested in court. In Kirby Forest Industries, Inc.

v. United States, 467 U.S. 1 (1984), the Supreme

Court decided that the Fifth Amendment required

that the owner be paid a fair market value for prop-

erty taken. Fair market value is determined by the

courts, and the amount is based on the value of

the property at the time of the taking. Fair market

value is the sum that a willing buyer would pay a

willing seller in the open market. No precise for-

mula exists, however, by which the elements of just

compensation can be calculated, and there is much

debate over what should be considered in the valu-

ation of the property.

The Supreme Court has provided some guide-

lines as to what factors should be considered in

determining fair market value. For example, the

sentimental value of the property to the owner is

not a factor in calculating fair market value. The

owner has a right to recover the monetary equiva-

lent of the property taken and is entitled to be put

in as good a ﬁ nancial position as he or she would

have been in if the property had not been taken.

Fair market value does not have to be based on the

current use of the property if the land has other

potential uses, but the Court has said that prop-

erty owners need not be compensated for future

uses that are considered speculative. In some situ-

ations, the owner is entitled to additional compen-

sation for severance damages. In United States v.

Miller, 317 U.S. 369 (1943), the Court held that if

the government takes a portion of a larger piece

of property and the taking reduces the value of

the land retained by the owner, the calculation

of just compensation will include the “severance

damage” resulting from the taking. Conversely,

if a taking increases the property value of land

retained by the owner, the value of the offsetting

beneﬁ ts may be deducted from the amount owed

the landowner.

Temporary takings of land do not always

require compensation. In Tahoe-Sierra Preser-

vation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302 (2002), the Supreme Court

examined the issue of whether a 32-month ban on

all real estate construction around Lake Tahoe

required the government to pay compensation

402 just compensation

xviii+446_EofUSConsti-v1.indd 402 3/12/09 3:05:45 PM

to the land owners. In a 6-3 opinion delivered by

Justice John Paul Stevens, the Court held that

the development moratorium did not constitute

a taking of the landowners’ property. The Court

concluded that the adoption of a categorical rule

that any deprivation of all economic use, no mat-

ter how brief, constituted a compensable taking

would impose unreasonable ﬁ nancial obligations

upon governments.

For more information: Mercuro, Nicholas. Tak-

ing Property and Just Compensation. Boston:

Kluwer, 1992; Treanor, William Michael. “The

Origins and Original Significance of the Just

Compensation Clause of the Fifth Amendment.”

The Yale Law Journal 94, no. 3 (1985): 694–716.

—John Fliter

justiciability

Justiciability refers to the question of whether or

not a case presented to a court is capable of judi-

cial resolution. In other words, federal courts do

not necessarily have the authority, or jurisdiction,

to decide every case presented to them, since lim-

its are placed on their power by the U.S. Consti-

tution. Article III, Section 2 of the Constitution

permits federal courts to render judgments only

on real “cases” and “controversies.” The Constitu-

tion, however, does not clearly deﬁ ne these terms,

and therefore, it has been left up to federal judges

to deﬁ ne them.

Over the course of history, United States

Supreme Court justices have developed guide-

lines for determining if a case is justiciable. When

determining the justiciability of a constitutional

issue, judges must ﬁ rst decide if the case exhib-

its adverseness. They also must determine if the

parties in the case have standing to bring suit.

Finally, judges must make sure that the constitu-

tional issue in the case is ripe and is neither moot

nor a political question.

Adverseness requires that the two parties

involved in the dispute are seeking opposing out-

comes. Moreover, adverseness prohibits the Court

from deciding hypothetical or abstract questions

that do not arise out of an actual dispute.

The standing requirement demands that the

parties in the case be personally injured and have

a personal stake in the outcome. In other words, if

a person believes that an existing law violates the

Constitution, he or she cannot bring the case to a

federal court unless he or she has personally been

affected by the law he or she wishes to challenge.

The timing for when a case is brought to the

Court also is important in determining if judges

can rule on the issue. If a case is brought to the

Court too early, it will be dismissed for not being

ripe. Typically, ripeness problems occur when

either the individual in the case has not yet been

injured by the law he or she is challenging or

when the case has not gone through the proper

appellate process. On the other hand, if a case is

brought to the Court too late, it will be considered

moot. Problems of mootness arise when the con-

stitutional issue challenged in the case has already

been resolved or no longer exists.

Finally, a case may be deemed incapable of

judicial resolution because of its subject matter.

Federal courts can rule only on constitutional

questions that are of a legal nature and are for-

bidden from ruling on political questions. Separa-

tion of powers requires political questions to be

decided by the elected branches of government.

However, the Court explained in B

AKER V.

CARR, 369 U.S. 186 (1962), that seeking protec-

tion of a political right does not necessarily mean

the issue presents a political question. Courts can

still rule on political rights as long as the issue also

is a violation of an individual’s legal right. While

the ruling in Baker expanded the Court’s ability

to decide more constitutional questions, Justice

William J. Brennan, Jr., nevertheless, reiter-

ated that certain issues exist that should never be

decided by the federal judiciary. For example, the

Court should not decide “when and whether a war

has ended” nor should it decide whether American

Indian tribes should be recognized by the United

States. Likewise, the Court should not interfere

with the formalities of the legislative process, such

as how long a proposed amendment to the Consti-

tution should be open for ratiﬁ cation. Finally, the

Court should not determine if a “republican form

of government” is being guaranteed to citizens as

justiciability 403

xviii+446_EofUSConsti-v1.indd 403 3/12/09 3:05:46 PM

the Constitution requires under Article IV, Sec-

tion 4.

In sum, the Court has decided that cases and

controversies that do not meet the above require-

ments should not be decided by federal judges,

and thus, are considered nonjusticiable. However,

the biggest criticism of these justiciability require-

ments is that they are self-deﬁ ned and self-imposed

limitations. Hence, while the requirement of justi-

ciability is designed to constrain the powers of the

courts, the courts are asked to police themselves

on this issue.

For more information: O’Brien, David M.

Storm Center: The Supreme Court in American

Politics. 7th ed. New York: W.W. Norton, 2005;

Strum, Philippa. The Supreme Court and ‘Politi-

cal Questions’: A Study in Judicial Evaluation.

Birmingham: University of Alabama Press, 1974.

—Francene M. Engel

404 justiciability

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405

ﱶﱷﱸ

Kansas-Nebraska Act

The Kansas-Nebraska Act, officially An Act to

Organize the Territories of Nebraska and Kan-

sas, is as its title suggests a set of congressionally

approved conditions under which two Plains Ter-

ritories might move from being part of “Indian

Country,” organize, write their own constitu-

tions, elect state and federal ofﬁ cials, and enter

the union as full-ﬂ edged states. It was signed into

law by President Franklin Pierce in May of 1854.

These were the last two areas of the original Loui-

siana Purchase to make the transition from terri-

tory to statehood.

The circumstances of, and the consequences

that followed, the passage of this bill make the

Kansas-Nebraska Act a landmark piece of legisla-

tion. It tore the nation apart and set the stage for

the American Civil War.

With Kansas-Nebraska, a series of delicate

compromises that for more than five decades

had been fashioned between free states and slave

states suddenly came crashing to an end. Speciﬁ -

cally repealed was the Missouri Compromise

of 1820 that had barred slavery from most of

the Louisiana Purchase Territory. That ban was

replaced with the notion of popular sovereignty,

mandating self-determination on whether a terri-

tory would enter the Union slave or free, based on

a plebiscite of its citizens.

Manifest Destiny—westward expansion, and

the gradual settlement of territories beyond the

Appalachians that flourished in the land of the

Louisiana Purchase (1803)—had been a bright

and shining beacon of American development in

the early 1800s. However glorious, this movement

carried with it an unstated and far more ambigu-

ous question. Would these newly settled lands

welcome or exclude slavery? Every new acquisi-

tion—from the Northwest Territory to the Louisi-

ana Purchase to that received at the conclusion of

the Mexican War—renewed the tension between

the North and the South that the Three-Fifths

Compromise at the Constitutional Conven-

tion had set in motion. Throughout its early

years, deals had been struck that balanced slave

state interests with those of free states. Former

territories were allowed to enter the Union only

in tandem: one slave, one free. Thus, when Kan-

sas and Nebraska were organized, southerners in

Congress refused to allow their entry unless the

slavery question was altered to permit slavery’s

expansion into an area where formerly it had been

excluded.

The Kansas-Nebraska Act ignited a ﬁ restorm of

chaos in the state of Kansas and political ﬁ reworks

throughout the nation. In Kansas, two separate

legislatures met to write two competing consti-

tutions. Each represented a different set of set-

tlers: those who desired a free state and those who

wanted one where slavery could exist. Bands of

rufﬁ ans and thugs took up arms and began a guer-

rilla war over the controversy. With its assassina-

tions, ambushes, and raids, “Bleeding Kansas,” as

it was popularly known, represents the ﬁ rst shoot-

ing battleground of the Civil War.

Beyond Kansas itself, which was eventually

paciﬁ ed and entered the Union as a free state in

1861, the Kansas-Nebraska Act destroyed long-

held party loyalties. The explicit abrogation of

the Missouri Compromise that Kansas-Nebraska

proposed radically altered a tenuously balanced

political landscape in the United States. An ailing

and weak Whig political party collapsed. Demo-

crats split into northern and southern factions. A

xviii+446_EofUSConsti-v1.indd 405 3/12/09 3:05:46 PM

completely new party, the Republicans, was born

and quickly attracted former Whigs, Free-Soilers,

Abolitionists, Know-Nothings, and others who

were “anti-Nebraska men.” This dramatic party

realignment set the stage for the presidential elec-

tion of 1860, southern secession, and the begin-

nings of the full-ﬂ edged Civil War in 1861.

Democrat Steven A. Douglas, the senior senator

from Illinois, is credited as the author of Kansas-

Nebraska. As chairman of the Senate Territories

Committee, he was instrumental in pushing it

through Congress, in approving its controversial

provisions, and in allying himself with its overall

principles. Historians and scholars have debated

Douglas’s motives for sponsoring a bill so con-

troversial as this, but their complexity and inter-

relatedness mirrored the national tensions and

competing agendas of the mid-1850s. Douglas, a

well-known northern Democrat with presidential

aspirations, recognized he had to strengthen his

credentials with southerners in order to fashion a

credible candidacy for the 1856 or 1860 nomina-

tion. Repealing the Missouri Compromise restric-

tions on slavery achieved this. A transcontinental

railroad in the United States was becoming a likely

possibility, and the central route, one that would

have Chicago serve as the primary midwestern

hub, as opposed to a more southerly site, was from

Douglas’s perspective a very desirable public works

project. In order to have this to succeed, however,

it was necessary for Nebraska to be organized and

on its way to statehood. Further, Douglas believed

citizens should determine the political landscape

in which they lived and felt that the Compromise

of 1850 that ﬁ rst enshrined “popular sovereignty”

after the Mexican War had superseded the slavery

ban of the Missouri Compromise, and would, if

applied to Kansas and Nebraska, avoid a constitu-

tional crisis.

In an opposing microcosm, Kansas-Nebraska

was an outrage for Abraham Lincoln. His aban-

donment of the lack-luster Whig Party and his

decision to challenge Douglas in the 1858 Senate

campaign in Illinois as a newly-minted Republi-

can (the one that generated the Lincoln-Douglas

debates) gave evidence of emerging Republican

cohesion on limiting the extension of slavery into

the territories and a clear theme against Demo-

crats. The bill suffused Lincoln’s “House Divided”

speech with galvanizing metaphors of the “tim-

bers” (one of which was this act) being secretly

put in place by Democrats: Douglas, the last two

Democratic presidents and, in the aftermath of

the Dred Scott decision, the chief justice of the

Supreme Court.

The Kansas-Nebraska Act, whatever its objec-

tives during its debate and passage through

Congress, is a wonderful example of unintended

consequences. The United States was a far differ-

ent country after Kansas-Nebraska than before it.

It may be simplistic to say, but without something

like the novel Uncle Tom’s Cabin, the Dred Scott

decision, and the Kansas-Nebraska Act, the deﬁ n-

ing events of the 1860s in the United States might

have turned out very differently.

Americans on the losing side of this act rec-

ognized that the issues of slavery, citizenship

and civil rights ultimately could never be

guaranteed without explicit constitutional pro-

tections. They formed the core group that cham-

pioned those goals. At the end of the Civil War,

in a burst of amending energy unique in Ameri-

can history, they spearheaded the passage of the

Thirteenth, Fourteenth, and Fifteenth

Amendments. Their persistence and clarity

in the face of adversity thus led to dramatically

changing the Constitution and forever altering the

nature of government in the United States.

For more information: Foner, Eric. Free Soil,

Free Labor, Free Men: The Ideology of the Repub-

lican Party Before the Civil War. New York:

Oxford University Press, 1970; Goodwin, Doris

Kearns. Team of Rivals: The Political Genius of

Abraham Lincoln. New York: Simon & Schuster,

2005.

—George Peery

Katzenbach v. McClung 379 U.S. 294 (1964)

In Katzenbach v. McClung, the Supreme Court

ruled that Congress had the authority under the

commerce clause to regulate discrimination in

a local restaurant.

406 Katzenbach v. McClung

xviii+446_EofUSConsti-v1.indd 406 3/12/09 3:05:46 PM

The passage of the 1964 Civil Rights Act

was supposed to remedy discrimination. Previous

efforts by Congress to remedy discrimination in

commercial establishments had been invalidated

by the Supreme Court. Most notably, the Court had

declared unconstitutional in the C

IVIL RIGHTS CASES,

109 U.S. 3 (1883), the Civil Rights Act of 1875 which

banned discrimination in inns and other public

accommodations. Given this decision and pre–

New Deal Court decisions restricting the scope of

Congress’s commerce power, there were some who

questioned whether the 1964 act was constitutional.

The owner of a restaurant that has since been closed

refused to serve persons of color in Birmingham,

Alabama. This violation was in direct affront to Title

II of the Civil Rights Act of 1964.

The restaurant was owned by Ollie McClung

and named Ollie’s Barbecue. It was traditionally

Southern in its offerings, in that they served bar-

becued style meals and pies. The large size of the

restaurant, which staffed almost 40 and sat almost

250, allowed it to reasonably serve many patrons

at once at a location that was more than a mile

away from an interstate and even farther from

train stations. However, the owner refused to seat

African Americans.

Justice Clark delivered the opinion of the Court.

The Supreme Court found that the discrimination

in restaurants posed signiﬁ cant burdens on “the

interstate ﬂ ow of food and upon the movement on

products generally” to such a degree that although

not horribly material in impact, the discrimina-

tion furthered a restriction upon blacks, thereby

restricting their interstate travel and freedom of

movement.

Katzenbach, along with the H

EART OF ATLANTA

V. UNITED STATES, 379 U.S. 241 (1964), afﬁ rmed the

power of Congress under the commerce clause to

regulate discrimination. These two cases were

thus important constitutional victories of oppo-

nents of discrimination during the Civil Rights

movement of the 1960s.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—Ernest Gomez and David Schultz

Kelo v. City of New London 545 U.S. 469

(2005)

In Kelo v. City of New London, the U.S. Supreme

Court affirmed a decision of the Connecticut

Supreme Court that held that the taking of private

property for economic development purposes con-

stituted a valid public use under both the state and

federal constitutions. The Kelo decision was seen

by many as a signiﬁ cant erosion of property rights,

and it resulted in many state and local governments’

restricting the power of eminent domain.

At issue in Kelo was an attempt by the City of

New London, a municipal corporation, and the

New London Development Corporation, to use

a state law to take unblighted land to build and

support economic revitalization of the city’s down-

town. In its plan, New London divided the devel-

opment into seven parcels, with some of these

parcels including public waterways or museums.

However, one parcel, known as Lot 3, would be

a 90,000 square feet high technology research

and development ofﬁ ce space and parking facil-

ity for the Pﬁ zer Pharmaceutical Company. Sev-

eral plaintiffs in Lot 3 challenged the taking of

their property, claiming that the condemnation

of un blighted land for economic development

purposes violated both the state and federal

constitutions.

They argued that the taking of private prop-

erty under Chapter 132 and the handing it over

to another private party did not constitute a valid

public use, or at least the public beneﬁ t was inci-

dental to the private beneﬁ ts generated. The Con-

necticut Supreme Court rejected their claims

under both the state and federal constitutions, and

the U.S. Supreme Court granted certiorari to the

federal question of whether the taking of private

property for economic development purposes,

when it involved the transferring of the land from

one private owner to another, constituted a valid

public use under the Fifth and Fourteenth

Amendments. Writing for a divided Court, Jus-

tice John Paul Stevens ruled that the taking

did not violate the public use requirement of the

Fifth Amendment.

In reaching his holding, Stevens first noted

how the case pitted two propositions against one

Kelo v. City of New London 407

xviii+446_EofUSConsti-v1.indd 407 3/12/09 3:05:47 PM

another—“the sovereign may not take the prop-

erty of A for the sole purpose of transferring it

to another private party B, even though A is paid

just compensation. On the other hand, it is

equally clear that a State may transfer property

from one private party to another if future ‘use by

the public’ is the purpose of the taking; the con-

demnation of land for a railroad with common-

carrier duties is a familiar example.” However, he

contended that neither of these rules resolved the

case. Instead, drawing upon past precedents, Ste-

vens ﬁ rst reafﬁ rmed the proposition that a taking

for a purely private beneﬁ t would be unconstitu-

tional. But in this case, this was not a private tak-

ing, because the decision to acquire the property

was part of a “ ‘carefully considered’ development

plan” that revealed that neither the real nor hid-

den motive was to convey a private beneﬁ t.

Second, the Court rejected arguments that

because the property would eventually be used

and transferred to a private party it failed the pub-

lic use requirement because the land would not be

used by the public. Here Stevens stated that the

“Court long ago rejected any literal requirement

that condemned property be put into use for the

general public” and that instead this narrow read-

ing of public use had been rejected in favor of a

broader public purpose reading of the public use

doctrine. Thus, as Stevens deﬁ ned the issue, the

case turned on whether the taking served a valid

public purpose, and he ruled that the Court should

adhere to the long established judicial tradition

of deferring to legislative determinations on this

matter, as evidenced by its decisions in Berman

v. Parker, 348 U.S. 26 (1956), and H

AWAII HOUSING

AUTHORITY V. MIDKIFF, 467 U.S. 229 (1984). Given

the broad and flexible meaning attached to the

public use stipulation and past judicial deference

to legislative determinations of what is considered

a public purpose (use), Stevens and the majority

concluded that the taking of private property for

economic development purposes was a valid pub-

lic use.

Finally, Stevens rejected arguments that the

Court carve out an economic development excep-

tion to the broad public use doctrine that it had

created. He rejected this new rule as unworkable,

stating it would be impossible principally to dis-

tinguish economic development from other valid

public purposes. He also rejected assertions that

the taking for economic development purposes

blurred the distinction between a public and a

private taking.

In many ways, Kelo really did not make new

law in terms of taking private property for eco-

nomic development purposes. As Stevens pointed

out, the city could not take private property for a

private beneﬁ t for a private party. He also noted

that the more narrow conception of public use

had long since been abandoned, and governments

have long had the power to take property for a

variety of public welfare purposes, including eco-

nomic development. Kelo really simply reafﬁ rmed

a trend that already existed in the law. Overall,

Kelo seemed to cap a recent line of jurisprudence,

giving governments broad authority to take pri-

vate property, even for economic development

purposes.

Concurring, Justice Anthony M. Kennedy

argued that he agreed that so long as a taking was

rationally related to a public purpose, it should

be upheld, whether it is condemnation for eco-

nomic development purposes or not. However, he

also contended that “a rational-basis standard of

review is appropriate does not, however, alter the

fact that transfers intended to confer beneﬁ ts on

particular, favored private entities, and with only

incidental or pretextual public beneﬁ ts, are for-

bidden by the Public Use Clause.” Kennedy noted

how pretextual takings which really are meant

to beneﬁ t a private party have long been forbid-

den and that in situations involving these types of

takings—especially those involving a transfer of

property from one private individual to another—

a more heightened standard of review might be

needed. However, because the trial judge in this

case did not ﬁ nd that the taking was primarily for

a primary beneﬁ t, the heightened scrutiny was not

required.

Dissenting, Justice Sandra Day O’Connor,

joined by Justices William Hubbs Rehnquist,

Antonin Gregory Scalia, and Clarence

Thomas, acknowledged that there are three situ-

ations when the Court has upheld the taking of

408 Kelo v. City of New London

xviii+446_EofUSConsti-v1.indd 408 3/12/09 3:05:47 PM

private property under a broad public use doc-

trine. The ﬁ rst is when this property is transferred

to public ownership to construct a hospital, road,

or military base. Second, transfers of private prop-

erty to another private owner are permitted when

common carriers such as railroads take possession

because ultimately the public does get to use the

property.

O’Connor also identifies a third category of

takings, when property is being used in a harm-

ful manner, as being sanctioned by the Court as a

valid public use. In reaching this claim, O’Connor

examines both Berman and her opinion in Mid-

kiff, arguing that in the former blight and in the

latter concentrated ownership skewing the real

estate market were the bads that the legislatures

were seeking to abate and which the Court was

willing to afﬁ rm. O’Connor did not see the New

London condemnation as one seeking to alleviate

some bad that the Kelo property was inﬂ icting on

others. Instead, the Court argued that what the

majority opinion had done was to move “from our

decisions sanctioning the condemnation of harm-

ful property use, the Court today significantly

expands the meaning of public use.” Hence,

because the taking of the Kelo property did not

ﬁ t into one of these three categories, it should not

be permitted.

O’Connor’s dissent is notable for a couple of

other points. First, she does acknowledge the

broad deference that generally should be given to

legislatures when it comes to making public use

decisions. Second, notably absent from her opinion

is a clear indication that she wished to increase the

level of scrutiny for public use decisions. Granted

that O’Connor would carve out three types of

takings as permitted public uses, while excluding

others, nowhere does her opinion really suggest

heightened scrutiny of legislative motives.

The lone justice willing to move toward offer-

ing property more substantive protection was

Thomas. In his solo dissent, he argued for a return

to the original meaning of the public use clause.

For Thomas, public use is not the same as public

welfare or purpose, and property may be taken

only to further an expressly enumerated power.

Singularly among the justices, he would not afford

deference to legislatures to deﬁ ne what is a pub-

lic use; contrary to what the Court has previously

held, Berman and Midkiff are wrong, and the Con-

stitution imposes a substantive limit on the power

of the government to take private property.

As a result of the Kelo decision, many of its

critics worried that property rights were no longer

adequately protected from a government taking.

Many state and local governments thus adopted

legislation that either banned or made it more dif-

ﬁ cult to take private property for economic devel-

opment purposes.

For more information: Schultz, David. “What’s

Yours Can Be Mine: Are There Any Private Tak-

ings After City of New London v. Kelo?” UCLA

Journal of Environmental Law and Policy 24

(2006): 195–234.

—David Schultz

Kennedy, Anthony M. (1936– ) Supreme

Court justice

Anthony M. Kennedy has served as an associate

justice of the Supreme Court since his nomina-

tion by President Ronald Reagan in 1988. With

the recent retirement of Justice Sandra Day

O’Connor, Kennedy is now the Court’s lone

swing voter in many controversial cases. This

position has given him great power to shape the

Court’s decisions in key areas of constitutional

jurisprudence.

Kennedy, the second of three children, was

born in Sacramento, California, on July 23, 1936.

His father was a lobbyist with a reputation for

influence in the California legislature, and his

mother was involved in various civic activities. In

1958, Kennedy graduated Phi Beta Kappa from

Stanford University with a B.A. in Political Sci-

ence. He then enrolled in Harvard Law School,

where he graduated cum laude in 1961.

After Harvard, Kennedy went to work as an

associate for a law ﬁ rm in San Francisco. Then,

with the unexpected death of his father in 1963,

he returned to Sacramento to take over his

father’s practice. That same year Kennedy wed

Mary Davis, whom he had known for many years.

Kennedy, Anthony M. 409

xviii+446_EofUSConsti-v1.indd 409 3/12/09 3:05:47 PM

Together they would have three children. Ken-

nedy continued to run his father’s practice until

1975, when President Gerald Ford appointed him

to the Court of Appeals for the Ninth Circuit.

On June 26, 1987, Justice Lewis Powell

announced his retirement from the Supreme

Court. President Reagan’s ﬁ rst nominee was Rob-

ert Bork, a judge on the court of appeals for

the District of Columbia circuit. Bork was

met with ﬁ erce opposition in the Senate for his

conservative views and ultimately failed to win

confirmation. Next Reagan nominated Douglas

Ginsburg, also from the D.C. circuit. Ginsburg

soon withdrew himself from consideration, how-

ever, amid allegations of substantial prior mari-

juana use. Finally, Reagan turned to Kennedy to

ﬁ ll the vacancy. He was conﬁ rmed unanimously

by the Senate on February 3, 1988, and he took

his seat 15 days later.

Kennedy’s voting pattern is a blend of mostly

pragmatic-conservativism coupled with a strong

libertarian streak. In some areas, such as criminal

procedure and affirmative action, he has usu-

ally voted with the conservative bloc. For example,

Kennedy provided the critical ﬁ fth vote in Hud-

son v. Michigan, 547 U.S. 586 (2006), a case which

held that a “violation of the ‘knock-and-announce’

rule does not require suppression of evidence

found in a search.”

In other areas, Kennedy has frustrated many

conservatives. He has generally been protective

of free speech. In T

EXAS V. JOHNSON, 491 U.S. 394

(1989), Kennedy voted with the majority to strike

down flag desecration laws. Later, in M

ADSEN V.

OMEN’S HEALTH CENTER, INC., 512 U.S. 753 (1994),

and Hill v. Colorado, 530 U.S. 703 (2000), Kennedy

dissented from the majority’s opinion that states

could prohibit “unpopular speech” of protesters

outside abortion clinics. However, Kennedy’s

support of free speech is not without its limits. In

Garcetti v. Ceballos, 547 U.S. 410 (2006), Ken-

nedy wrote the majority opinion which held that

the First Amendment does not protect public

employees from being disciplined for speech made

pursuant to their professional duties.

One of the cases which has caused Kennedy

to incur great ire from conservatives is L

AWRENCE

V. TEXAS, 539 U.S. 558 (2003). Kennedy, writ-

ing for the majority, held that laws prohibiting

homosexual sodomy were unconstitutional. This

decision reversed the precedent set in B

OWERS

V. HARDWICK, 478 U.S. 186 (1986). In doing so,

he emphatically noted, “Bowers was not correct

when it was decided, and it is not correct today. It

ought not to remain binding precedent. Bowers v.

Hardwick should be and now is overruled.” If the

outcome were not enough of an outrage to critics,

Kennedy cited foreign cases in support of his deci-

sion. This practice, widely done outside the United

States, has been criticized by some, particularly in

Congress.

Another contentious issue for Kennedy is the

death penalty. In the case of A

TKINS V. VIRGINIA,

536 U.S. 304 (2002), Kennedy voted with the

majority to rule executions of the mentally handi-

capped unconstitutional. Then, in Roper v. Sim-

mons, 543 U.S. 551 (2005), Kennedy, writing for

the majority, ruled that minors are not eligible to

be executed. In Roper, as in Lawrence, Kennedy

quoted cases from other countries, much to the

chagrin of many in his party.

Kennedy’s abortion jurisprudence has been

very nuanced. Kennedy was one of the authors of

the plurality decision in Planned Parenthood v.

Casey, 505 U.S. 833 (1992). In this case, the Court

upheld a constitutional right to an abortion but did

allow states to pass certain restrictions as long as

they did not create an “undue burden.” In con-

trast, Kennedy dissented from the Court’s opin-

ion in Sternberg v. Carhart, 530 U.S. 914 (2000),

where the Court had struck down laws banning

late-term abortions.

Particularly since O’Connor’s departure, Ken-

nedy can be seen as trying to build consensus

whenever possible. For example, in L

EAGUE OF

NITED LATIN AMERICAN CITIZENS V. PERRY, 548 U.S.

399 (2006), Kennedy wrote a majority opinion,

which held that Texas’s redistricting plan of 2003

was not unconstitutional but that District 23 must

be redrawn to comply with the Voting Rights

Act of 1965. At least in part, each justice either

joined the opinion or ﬁ led a concurrence.

Although when nominated he was seen as a

solid vote for the conservative bloc, Kennedy has

410 Kennedy, Anthony M.

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often frustrated many conservatives. Justices Ken-

nedy and O’Connor had served as a moderating

force on the Court for over 15 years. Now with

O’Connor’s departure, Kennedy is the lone swing

justice. This gives him great opportunity to shape

the Court’s decision and thus the law of the land.

For more information: Simon, James F. The

Center Holds: The Power Struggle Inside the

Rehnquist Court. New York: Simon and Schuster,

1995; Yarbrough, Tinsley. The Rehnquist Court

and the Constitution. New York: Oxford Univer-

sity Press, 2000.

—Raymond V. Carman, Jr.

Kent, James (1763–1847) American jurist and

legal scholar

James Kent, one of the first American consti-

tutional scholars of note, was born on July 31,

1763, in Fredericksburgh, Connecticut, the eldest

of seven children of Elisha and Abigail Kent.

Although of military age during part of the con-

flict, Kent played no role in the Revolution. In

1781, he graduated from Yale University. Kent

sought to establish a legal practice but struggled

in poverty for years.

As the new nation debated the new Consti-

tution, Kent placed himself strongly on the side

of the Federalists. A conservative, he expected

government to vigorously protect property rights

and to guard against the excesses of the masses.

Kent’s political connections eventually helped him

acquire a professorship of law at Columbia Uni-

versity in 1794. Dissatisfied with the lackluster

reception of his lectures, Kent resigned in 1797.

By this time, he had been elected to the New York

Assembly and then received an appointment as

Master in Chancery in 1796. While continuing

his lucrative chancery position, Kent became the

recorder of New York City in 1797. The position,

the most distinguished in the state judicial system

below a judgeship in the supreme court, brought

the leading attorneys in the state before Kent. As

a result, his legal reputation grew. In 1798, Kent

joined the New York Supreme Court. He became

chief justice in 1804 and remained on this bench

until 1814. More frequently than any of his col-

leagues, Kent delivered the opinions of the court.

His opinions were written out and ﬁ lled with cita-

tions, a practice that the other justices eventually

adopted. The opinions, at Kent’s urging, were

recorded and occasionally published for the ben-

eﬁ t of the bar in New York and other states. Kent

soon acquired a national reputation.

Kent, as one of the first American justices,

played a critical role in the development of the

American legal system. Like his peers, he strug-

gled with the issue of whether the law should

emphasize English tradition or American original-

ity. Along with his Federalist peers, Kent favored

English law. Kent found that the Constitution

gave Congress the power to regulate commerce

and that the states had a similar right. As long as

Congress did not enter a ﬁ eld, the state is free to

act. Further, since English common law permit-

ted monopolies, the state of New York possessed

the power to permit monopolies.

In 1814, Kent became chancellor of New York.

In this position, he not only respected English

legal decisions handed down before the Revolu-

tion, but those issued after independence. Kent

warned against the dangers of universal suffrage

as tending to jeopardize the rights of property

and the principles of liberty. Upon reaching the

mandatory retirement age of 60, Kent resigned as

chancellor. After teaching again at Columbia, he

died in New York City on December 12, 1847.

For more information: Horton, John Theodore.

James Kent: A Study in Conservatism. New York:

D. Appleton Century, 1939.

—Caryn E. Neumann

Kimel v. Florida Board of Regents 528 U.S.

(2000)

In Kimel v. Florida Board of Regents, the U.S.

Supreme Court ruled that the Eleventh

Amendment shields states from having to pay

damages in suits brought under the Age Discrimi-

nation in Employment Act (ADEA).

The ADEA, ratiﬁ ed in 1798, bars federal court

judges from enforcing certain kinds of lawsuits

Kimel v. Florida Board of Regents 411

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