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legislator, he would vote to repeal it, the legisla-

ture being the appropriate branch to provide such

relief for the petitioners, which Justice Scalia had

also argued.

Lawrence is significant in at least two ways.

First, as a gay and lesbian rights case, it

completes the work begun by Romer in articulat-

ing that non-heterosexual Americans are equal

citizens with equal rights, including in that area

where they are deemed most different, their sex-

ual behavior. Whether Lawrence will affect same-

sex marriage cases can only be speculated, and

both sides of this constitutional argument find

comfort in it. Secondly, with its overturning of the

reasoning in Bowers, Lawrence seems ﬁ nally to

express the conviction at the heart of liberal con-

stitutionalism that moral disapproval alone does

not provide a rational basis sufﬁ cient to legitimate

a statute, including one that would infringe on the

liberty interests of a group of Americans whom

the majority has traditionally viewed with disdain,

and that the classic criterion of a showing of harm

must be present to justify any such statute.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—Gordon A. Babst

League of United Latin American Citizens

(LULAC) v. Perry

548 U.S. 399 (2006)

In LULAC v. Perry, 548 U.S. 399 (2006), the

Supreme Court held that a portion of the Texas

congressional redistricting plan enacted in

2003 violated the Voting Rights Act. The Court

declined, however, to declare a clear legal stan-

dard for a claim of political gerrymandering. Six of

the nine justices authored opinions, demonstrat-

ing the lack of consensus on the issues presented

in the case.

The dispute at the heart of the LULAC case

began when the Republican-controlled Texas

Senate and Democratic-controlled Texas House

of Representatives could not agree on a redistrict-

ing plan following the 2000 census. As a result, a

three-judge federal district court created a redis-

tricting plan for the 2002 elections. In those elec-

tions, Texas Republicans gained control of the

state House of Representatives. During the next

legislative session, the Texas Republicans sought to

enact a new redistricting plan to replace the court-

drawn one. A heated political dispute ensued,

with a group of Democratic legislators briefly

ﬂ eeing the state to deny the quorum required to

pass new laws. Eventually the Republican legisla-

tors prevailed and passed a new redistricting plan

that substantially altered several congressional

districts, including District 23, represented by

Republican incumbent Henry Bonilla.

Multiple plaintiffs challenged the new redis-

tricting plan, arguing that it was an improper

partisan gerrymander and violated the Voting

Rights Act, the First Amendment, and the

equal protection clause of the Fourteenth

Amendment. Following a judgment in favor of

the defendants, the Supreme Court remanded the

case back to the district court for reconsideration

in light of Vieth v. Jubelirer, 541 U.S. 267 (2004),

where the Court addressed the issue of the jus-

ticiability of partisan gerrymandering

claims but failed to announce a clear precedent.

On remand, the three-judge panel again found in

favor of the defendants, and the plaintiffs appealed

to the Supreme Court for a second time.

In LULAC, Justice Anthony M. Kennedy

authored a majority opinion with regard to the

political gerrymandering and Voting Rights

Act claims. The majority found that the plaintiffs

failed to present a “manageable, reliable measure

of fairness” for determining the constitutional-

ity of an alleged gerrymander. Thus, the divided

opinion from the Vieth v. Jubelier decision contin-

ues to govern political gerrymandering claims.

The majority found that the redrawn District

23 violated Section 2 of the Voting Rights Act

because it diluted the votes of the Latino popu-

lation. Although District 23 contained a narrow

Latino majority in voting age population, it did

not have a Latino majority of citizen voting age

population. Additionally, the plan diluted the

Latino vote because the majority Latino popula-

tion was composed of two communities separated

by 300 miles and possessing diverging “needs and

422 League of United Latin American Citizens (LULAC) v. Perry

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interests.” The Court refuted the state’s argument

that the newly created District 25, which also

contained a Latino majority, met its requirements

under the Voting Rights Act. Because the new

redistricting plan contained one less “reasonably

compact” Latino majority or “opportunity” dis-

trict than the previous plan, it violated the Voting

Rights Act. Justices Antonin Gregory Scalia,

Clarence Thomas, Samuel Alito, and Chief

Justice John G. Roberts, Jr., argued that the

lower court’s ruling should be upheld because the

redistricting plan did not violate the Voting Rights

Act. As a result of the Supreme Court’s decision,

a three-judge district court panel adjusted the

boundaries of District 23 and neighboring dis-

tricts to comply with the Voting Rights Act in time

for the 2006 elections.

For more information: Grofman, Bernard, and

Gary King. “The Future of Partisan Symmetry as

a Judicial Test for Partisan Gerrymandering after

LULAC v. Perry.” Election Law Journal 6 (2007):

2–34; Ortiz, Daniel R. “Cultural Compactness.”

Mich. Law Review First Impressions 105 (2006):

48–52.

—Joshua A. Kimsey

Lebron v. National Railroad Passenger

Corporation

513 U.S. 374 (1995)

In Lebron v. National Railroad Passenger Corpo-

ration, the Supreme Court addressed the consti-

tutional status of Amtrack for the purposes of the

First Amendment. Although Lebron is nomi-

nally a First Amendment case, its significance

rests primarily with the Supreme Court’s ﬁ ndings

regarding the constitutional obligations of a corpo-

ration created for a public purpose and over which

the government retains permanent control.

At issue in Lebron was a photomontage that

the petitioner, artist Michael Lebron, had con-

tracted to display on a large billboard known as

the “Spectacular” in New York City’s Penn Station.

The proposed montage was a send-up of a popular

advertising campaign by the Coors Brewing Com-

pany of Colorado for its Coors Light product that

featured the tagline “It’s the right beer now.” The

montage proposed by the petitioner portrayed a

group of smiling Coors beer drinkers set against

the image of Nicaraguan villagers threatened by a

ﬁ re-emitting can of Coors beer above the caption,

“Is it the Right’s Beer Now?” Text on both sides of

the image sharply criticized the Coors family for

supporting various political positions and groups,

including the Contra rebels fighting the left-

ist government in Nicaragua. National Railroad

Passenger Corporation (Amtrak), which owned

the billboard, refused to display the ad, citing its

political nature. Lebron ﬁ led suit in district court

in 1993, claiming that the refusal was a violation

of his First Amendment rights.

The district court found that Amtrak’s refusal to

display the montage violated Lebron’s right to free

speech and directed the company to display the

ad. Amtrak appealed to the U.S. Court of Appeals

for the Second Circuit, which subsequently ruled

against Lebron, ﬁ nding in its decision that Amtrak

was, in effect, a private corporation and therefore

was not obligated to uphold liberties guaranteed in

the Constitution. Lebron appealed to the Supreme

Court in 1994, and the high Court reversed the

lower court’s decision regarding Amtrak’s status as

a private body, but took no position on the First

Amendment issue, electing instead to remand that

decision back to the court of appeals. Lower court

decisions that had found Amtrak to be a private

body did so in large measure because the origi-

nal statute that created the rail line had provided

that the corporation would “not be an agency or

establishment of the United States Government.”

Writing on behalf of an 8-1 majority (only Jus-

tice Sandra Day O’Connor dissented), Justice

Antonin Gregory Scalia argued in Lebron

that while Congress could classify agencies as

public or private for administrative purposes, “it

is not for Congress to make the ﬁ nal determina-

tion of Amtrak’s status as a government entity for

purposes of determining the constitutional rights

of citizens affected by its actions.” Justice Scalia

went on to conclude that when government cre-

ates a corporation by special law for the further-

ance of governmental objectives and retains for

itself permanent authority to appoint a majority

of that corporation’s directors, the corporation is

Lebron v. National Railroad Passenger Corporation 423

xviii+446_EofUSConsti-v1.indd 423 3/12/09 3:05:52 PM

part of the government for purposes of the First

Amendment.

Per the remand from the Supreme Court, the

appeals court once again ruled against Lebron

on the First Amendment claim, maintaining in

its October 1995 decision that “Amtrak’s histori-

cal refusal to accept political advertisements such

as Lebron’s . . . is a reasonable use of that forum

that is neutral as to viewpoint.” The appeals court

denied a rehearing, and Lebron’s second appeal to

the Supreme Court was rejected in May 1996.

For more information: Froomkin, Michael.

“Reinventing the Government Corporation.” Illi-

nois Law Review 543, no. 3 (1995): 543–634;

Smith, Catherine. “Lebron v. National Railroad

Passenger Corp. (Amtrak): Another Misapplica-

tion of the Public Forum Doctrine.” St. John’s

Law Review 70 (Summer 1996): 609–628.

—Gregory Baldi

Lee v. Weisman 505 U.S. 577 (1992)

In Lee v. Weisman, the Court ruled that prayers

at public school graduation ceremonies violate the

establishment clause. This case is important

because it uses the coercion test to determine the

meaning of the establishment clause.

For many years, the Providence, Rhode Island,

school district had a policy of allowing school prin-

cipals to invite local clergy members to offer non-

sectarian prayers at graduation ceremonies. Daniel

Weisman, the father of two public school students,

objected to this practice to no avail. Consequently,

he sought a permanent injunction against the

school system from allowing prayers as a violation

of the First Amendment’s establishment clause.

The district court agreed and the First Circuit and

Supreme Court afﬁ rmed.

Writing for a narrow ﬁ ve-justice majority, Jus-

tice Anthony M. Kennedy held that according

to L

YNCH V. DONNELLY, 465 U.S. 668 (1984), the

“government may not coerce anyone to support or

participate in religion or its exercise, or otherwise

act in a way that establishes a [state] religion.” The

school district, by its control of the graduation cer-

emony, and the theoretically required nature of

this once-in-a-lifetime opportunity, places public

and peer pressure on students to stand and main-

tain silence which may signify their participation

or approval.

Concurring in the judgment, Justices Harry

Blackmun, John Paul Stevens, and Sandra

Day O’Connor believe that the establishment

clause prevents more than coercion. Rather, it

prevents government from endorsing any religious

activity because government sponsorship makes

participation relevant to one’s standing in the com-

munity. In a separate concurrence, Justice David

H. Souter maintained that the establishment

clause requires neutrality between religion and

disbelief and that state-sponsored prayer imper-

missibly crosses the line to support.

Dissenting, Justice Antonin Gregory

Scalia, writing for Justices William Hubbs

Rehnquist, Byron White, and Clarence

Thomas, claimed historical analysis and a proper

understanding of coercion would lead the Court

to uphold prayers at graduations. Using history, he

showed that prayer has been a tradition at public

ceremonies from the Declaration of Inde-

pendence to George Washington’s inauguration

to the present. Invocations at high school gradu-

ation ceremonies simply continue this tradition,

and the Court should accommodate this.

Justice Scalia also claimed that no coercion

occurs because students are not forced to pray

or even to stand in respect. Furthermore, it is

illogical to assume that because someone stands

in respect that one is participating in the prayer

or supports prayer. If anything, standing indicates

respect for the religious observances of others,

which is a civic virtue that government has and

should promote. Finally, the coercion that the

establishment clause is meant to prevent is the

state’s imposing its religious beliefs on others, and

the state does not do this with prayers at gradua-

tion ceremonies. This case shows the division on

the court in regard to how to interpret the estab-

lishment clause. While L

EMON V. KURTZMAN, 403

U.S. 602 (1971), is the controlling precedent, the

justices are unhappy with the Lemon test because

of its vagueness, the difﬁ culty in applying it, and

the fear, depending upon their ideology, that it

424 Lee v. Weisman

xviii+446_EofUSConsti-v1.indd 424 3/12/09 3:05:52 PM

allows religion too much or too little a role in the

public square. Unable to ﬁ nd a substitute that can

command ﬁ ve votes, the Court debates tests, from

the more restrictive neutrality and endorsements

test to the less restrictive coercion and accommo-

dation tests.

For more information: Feldman, Stephen.

Law and Religion: A Critical Anthology. New

York: New York University Press, 2000; McCon-

nell, Michael W. “Coercion: The Lost Element

of Establishment.” William & Mary Law Review

27 (1986): 933–941; Sherry, Suzanna. “Lee v.

Weisman: Paradox Redux.” Supreme Court Law

Review 1992 (1993): 123–153; Witte, John. Amer-

ica and the Constitutional Experiment. 2nd ed.

Boulder, Colo.: Westview Press, 2005.

—Frank J. Colucci and Sean Evans

Legal Services Corporation v. Velazquez

531 U.S. 533 (2001)

In Legal Services Corporation v. Velazquez, the

U.S. Supreme Court ruled 5-4 that Congress vio-

lated the First Amendment’s protection against

viewpoint discrimination by restricting legal ser-

vices attorneys’ abilities to challenge the consti-

tutionality of existing welfare laws. This case is

signiﬁ cant in that the Court rejected Congress’s

attempt to limit the First Amendment rights of

legal services providers, not directly, but indi-

rectly, by placing “unconstitutional conditions” on

the receipt of federal funds.

Federally funded legal assistance for the poor

emerged in the mid-1960s as part of Johnson’s War

on Poverty programs. Opposition to this assistance

became intense in the early 1970s, as federally

funded attorneys successfully litigated challenges

to federal and state law. The Nixon administra-

tion initially attempted to dismantle the existing

programs, but changed its position in the face of

aggressive lobbying efforts by the American Bar

Association. In response, Congress established a

new, politically independent Legal Services Cor-

poration (LSC) in 1974. In exchange for indepen-

dence from the executive branch, LSC-funded

attorneys had to accept restrictions on the types

of law reform activities they could pursue, includ-

ing litigation involving abortion, school deseg-

regation, and redistricting, among others. The

restrictions at issue in Legal Services Corporation

v. Velazquez were similarly aimed at limiting the

law reform activities of these attorneys.

In 1996, Congress passed the Omnibus Con-

solidated Rescissions and Appropriations Act,

which, among other things, prohibited federally

funded legal services attorneys from challenging

welfare laws. In addition, if the legal services pro-

viders received federal funds, they were restricted

from engaging in the proscribed actions even if

they were using private funds to do so.

Writing for the majority, Justice Anthony M.

Kennedy found that “[b]y seeking to prohibit the

analysis of certain legal issues and to truncate

presentation to the courts, the enactment under

review prohibits speech and expression upon

which the courts must depend for the proper exer-

cise of the judicial power.” As a result, “the restric-

tion operates to insulate current welfare laws from

constitutional scrutiny and certain other legal

challenges, a condition implicating central First

Amendment concerns.”

Those concerns require that the Court “must

be vigilant when Congress imposes rules and con-

ditions which in effect insulate its own laws from

legitimate judicial challenge.” Here, the Court

distinguishes this case from R

UST V. SULLIVAN,

500 U.S. 173 (1991), by noting that viewpoint-

based funding decisions may be upheld when

government is the speaker or, as in Rust, when

“government ‘used private speakers to transmit

information pertaining to its own program,’ ” but

“where private speech is involved, even Congress’

antecedent funding decision cannot be aimed at

the suppression of ideas thought inimical to the

Government’s own interest.”

Insofar as the challenged provisions of the 1996

Appropriations Act would allow federally funded

legal services attorneys to argue a particular view

(that welfare statutes and regulations are consti-

tutional) but disallow litigation aimed at another

view (that welfare statutes and regulations are

unconstitutional or unlawful), the restrictions

unconstitutionally violated the First Amendment

Legal Services Corporation v. Velazquez 425

xviii+446_EofUSConsti-v1.indd 425 3/12/09 3:05:53 PM

protections afforded legal services providers and

their clients.

The dissent, written by Justice Antonin Greg-

ory Scalia and joined by Chief Justice William

Hubbs Rehnquist and Justices Sandra Day

O’Connor and Clarence Thomas, argued

that “[t]he LSC subsidy neither prevents anyone

from speaking nor coerces anyone to change

speech.” Thus, the “statutory scheme” decided by

the Court in Rust “is in all relevant aspects indis-

tinguishable from” the provisions at issue in LSC

v. Velazquez. The dissenters recognized that the

prohibition at issue might lead LSC-funded attor-

neys to withdraw from challenges to welfare laws,

but “[s]o what?” Scalia wrote. “Courts must con-

sider only those questions of statutory validity that

are presented by litigants, and if the Government

chooses not to subsidize the presentation of some

such questions, that in no way ‘distorts’ the court’s

role.” The decision of the Court, in the view of the

dissenters, reﬂ ects “the making of innumerable

social judgments through judge-pronounced con-

stitutional imperatives—that prompted Congress

to restrict publicly funded litigation of this sort”

in the ﬁ rst place.

Overall, Legal Services Corporation v.

Velazquez is an important case, drawing limits

upon the ability of the government to use its fund-

ing to restrict free speech rights.

For more information: Cole, David. “Beyond

Unconstitutional Conditions: Chartering Spheres

of Neutrality in Government-Funded Speech.”

New York University Law Review 67 (1992):

675–749; Johnson, Earl, Jr. “Justice and Reform:

A Quarter Century Later.” In The Transformation

of Legal Aid. Oxford: Oxford University Press,

1999; Rhode, Deborah. Access to Justice. New

York: Oxford University Press, 2004.

—Brian M. Harward

legislative veto

Legislative veto is the popular name for a device

granting Congress the power to disapprove, or

veto, proposed executive branch or agency

actions. The device originated in the 1932 Legis-

lative Appropriations Act. This instrumental piece

of New Deal legislation gave the president sweep-

ing new powers to reorganize federal agencies and

functions by executive order, provided that neither

House adopted a resolution disapproving of any

such order during a 60-day period before the order

could take effect. Similar legislative veto provi-

sions became increasingly common in congressio-

nal delegations of authority to federal agencies in

the 1970s, until in the 1983 case of Immigration

and Naturalization Service v. Chadha, 462 U.S.

919 (1983), the U.S. Supreme Court declared the

device unconstitutional. Nevertheless, Congress

retains alternative means of conditioning execu-

tive branch action on its approval.

In essence, a legislative veto operated on the

premise that because the assent of both Houses of

Congress is necessary to enact laws that delegate

authority in the ﬁ rst place, Congress could condi-

tion these delegations on both Houses’ continuing

assent to how that authority is used. Some legis-

lative veto provisions permitted either House (or

even a particular committee) acting alone to veto

executive branch action, while other provisions

required both Houses to act jointly. Yet in contrast

to the Constitution’s explicit grant of a presiden-

tial veto power, by which the president may disap-

prove congressional enactments, no constitutional

provision expressly gives Congress the power to

exercise continuing authority over its legislative

delegations.

The story of the legislative veto therefore is a

story about separation of powers. Accompanying

the rise of a vast federal bureaucracy during and

since the New Deal has been a concern about

the proper relationships among the legislative,

executive, and judicial branches of government,

including concern about the loss of congressional

responsibility over the speciﬁ c contours of federal

law. One manifestation of this concern is the non-

delegation doctrine, a judicial tool that purports

to prohibit Congress from delegating its lawmak-

ing authority to departments and agencies unless

Congress itself has established an “intelligible

principle” that properly guides the exercise of that

delegated authority. In practice, however, the non-

delegation doctrine has been largely toothless in

426 legislative veto

xviii+446_EofUSConsti-v1.indd 426 3/12/09 3:05:53 PM

constraining congressional delegations of lawmak-

ing authority.

The legislative veto offered a different kind of

check on congressional delegations of lawmaking

authority, a check lodged exclusively in the legisla-

tive branch itself. A legislative veto allows Con-

gress to delegate broad authority up front, while

reserving the ability to oversee and disapprove

speciﬁ c exercises of this authority after the fact.

Yet even from its ﬁ rst appearance in the 1932 Leg-

islative Appropriations Act, concerns arose about

the constitutionality of this reservation of author-

ity. As a result, Congress omitted a legislative veto

provision when it renewed the president’s reorga-

nization authority in 1933.

The device reappeared in 1939 in a similar

executive branch reorganization act, and thereaf-

ter appeared, on average, several times a year for

the next three decades. Then, in the 1970s, partly

because of increased distrust of the executive

branch, Congress rapidly multiplied the number

of legislative veto provisions, including them in a

variety of contexts, from war powers to emergency

petroleum allocations to expenditure controls to

regulating presidential papers. Congress even

considered adopting a generic legislative veto that

would have applied to all agency actions.

Accordingly, in Immigration and Natural-

ization Service v. Chadha, the Supreme Court

squarely addressed the question of whether the

Constitution permitted Congress to retain this

form of control over agency activities. Directly

at issue was a provision in the Immigration and

Naturalization Act that allowed either House of

Congress to override the Justice Department’s

exercise of its statutory authority to suspend the

deportation of a deportable alien and allow the

alien to obtain permanent residence status. Indi-

rectly at issue was the constitutionality of some

200 legislative veto mechanisms then present in a

variety of federal laws.

As authorized by statute, an immigration judge

had granted Jagdish Chadha a suspension of depor-

tation on the grounds that deportation would cause

Chadha extreme hardship. The House of Rep-

resentatives adopted a resolution disapproving

this suspension, however, with the result that the

INS was required to deport Chadha. Chadha then

sought federal court review of the INS’s deporta-

tion order. Because the INS agreed with Chadha’s

position that the House’s disapproval of his sus-

pension was unconstitutional, Congress accepted

the invitation to participate in the case to defend

the constitutionality of the legislative veto.

Notwithstanding Congress’s arguments that

the legislative veto was both consistent with the

Constitution’s lawmaking processes and a signiﬁ -

cant tool for facilitating legislative responsibil-

ity in an increasingly complex government, the

Supreme Court found the veto unconstitutional.

The Court took a formalistic approach, reasoning

that because the House’s resolution of disapproval

altered legal rights, it was an exercise of lawmak-

ing power and therefore must conform with the

two fundamental lawmaking requirements set

forth in Article I, Section 7, Clauses 2 and 3 of

the Constitution: 1) bicameralism, or passage by

both Houses of Congress, and 2) presentment,

or approval by the President (or the override of

a presidential veto). The disapproval resolution

was unconstitutional because it satisﬁ ed neither

requirement.

In response to the Chadha decision, Congress

replaced many of the 200 now invalidated legisla-

tive veto provisions with “report-and-wait” provi-

sions. These devices require agencies to inform

Congress ahead of time how they intend to use

their delegated authority and then give Congress

a defined interval to withdraw or modify the

agency’s authority through the ordinary lawmak-

ing processes of bicameralism and presentment,

if Congress (and the president) so chooses. In

addition, Congress continues to use a number of

informal, nonstatutory “legislative veto” devices

to control executive action, particularly through

demands that agencies get approval from the rele-

vant appropriations committees or subcommittees

for certain uses of appropriated funds, demands

that agencies are loath to ignore because of Con-

gress’s power of the purse.

Among the many pieces of legislation that

include a legislative veto is the War Powers Act,

a law meant to limit the power of the president

to deploy troops. However, given that it operates

legislative veto 427

xviii+446_EofUSConsti-v1.indd 427 3/12/09 3:05:54 PM

with a two-house veto, its constitutionality is in

question.

For more information: Bruff, Harold, and

Ernest Gellhorn. “Congressional Control of

Administrative Regulation: A Study of Legislative

Vetoes.” Harvard Law Review 90 (1977): 1,369–

1,440; Craig, Barbara. Chadha: The Story of an

Epic Constitutional Struggle. New York: Oxford

University Press, 1988; Fisher, Louis. “The Leg-

islative Veto: Invalidated, it Survives.” Law and

Contemporary Problems 56, (1993): 273–292;

Korn, Jessica. The Power of Separation: American

Constitutionalism and the Myth of the Legislative

Veto. Princeton, N.J.: Princeton University Press,

1996.

—Steven F. Huefner

Lemon v. Kurtzman 403 U.S. 602 (1971)

In Lemon v. Kurtzman, the Supreme Court

developed the Lemon test, a tool for determin-

ing if government funding or actions constitute a

violation of the First Amendment establish-

ment clause.

The relationship between church and state

has changed over the course of history. In ancient

times, government and religion were inextrica-

bly intertwined and there was no separation. For

example, Roman emperors were treated with

utmost reverence and respect and were consid-

ered religious ofﬁ cials; medieval monarchs ruled

the people, and it was believed that they did so

with God’s authority. Even today, some countries

continue to have tight connections between state

and religion. The world’s greatest conﬂ icts have

arisen from the people’s refusal to acknowledge a

state religion or to recognize a political leader as a

religious authority.

In the United States, the separation of church

and state has its roots in the First Amendment

of the Constitution which states “Congress shall

make no law respecting an establishment of reli-

gion, or prohibiting the free exercise thereof.”

This amendment, also known as the establishment

clause, has been the springboard for a great deal

of litigation.

Lemon v. Kurtzman was one of many First

Amendment cases. In that case, the State of Penn-

sylvania enacted a law that provided aid to many

religious schools, most of which were Roman

Catholic, in the form of direct reimbursement

for teachers’ salaries and textbooks. The primary

plaintiff, Alton Lemon, a taxpayer and parent of

a child attending a Pennsylvania public school,

was displeased by the thought of state funds being

used for religious purposes and ﬁ led suit against

Kurztman, Superintendent of Public Instruction,

and others. The plaintiffs alleged that the law fos-

tered religion and was a violation of the establish-

ment clause.

This litigation gave birth to a three-part con-

stitutionality analysis applicable to any establish-

ment of religion challenge, known as the Lemon

test or the neutrality doctrine: 1) the primary pur-

pose of the law must not be to advance religion

and there must be a legitimate secular purpose; 2)

the primary effect of the law must be one that nei-

ther advances or inhibits the practice of religion;

3) the challenged law must not result in excessive

government entanglement with religion.

In applying the ﬁ rst leg of the analysis, the Court

did not ﬁ nd a basis to conclude that the primary

legislative intent was to advance religion. The stat-

ute clearly stated that it was intended to enhance

secular (nonreligious) education in all schools and

conditioned reimbursement on instructors’ teach-

ing only courses offered at the public schools, using

the same materials as public schools, and a tacit

agreement not to teach religion courses.

The Lemon Court did not reach the second

step of the analysis, “primary effect,” recognizing

a clear violation of the third prong. The justices

agreed that the detailed process for reimburse-

ment dealt the final blow to the statute, which

by its very nature would inevitably require “com-

prehensive, discriminating, and continuing state

surveillance to ensure that the restrictions were

obeyed” and that “these prophylactic contacts

will involve excessive and enduring entanglement

between state and church.”

The Lemon test remains a source of contro-

versy with some justices on the Supreme Court

advocating different tools, such as the coercion

428 Lemon v. Kurtzman

xviii+446_EofUSConsti-v1.indd 428 3/12/09 3:05:54 PM

test, to determine if there is an establishment

clause violation.

For more information: Kritzer, Herbert M.,

and Mark J. Richards. “Jurisprudential Regimes

and Supreme Court Decisionmaking: The Lemon

Regime and Establishment Clause Cases.” Law

and Society Review 37, no. 4 (2003): 827–840.

—Loretta M. Young

letters of marque and reprisal

Letters of marque and reprisal provide a legal

mechanism for waging war while sparing the pub-

lic great expenses. Letters of marque were com-

missions from a government to a private person

authorizing military operations beyond the bound-

aries of the nation (marque) in order to search,

seize, or destroy property of the enemy. Usually

letters of marque were issued to those who would

arm a ship for use in seizing enemy shipping.

The Continental Congress issued letters of

marque and reprisal during the Revolution-

ary War, which brought many prize cases into

the courts. Letters of marque and reprisal were

addressed in the Articles of Confederation at Arti-

cle VI, Para. 5, which says that states could issue

letters of marque only after a declaration of war by

the Congress. The “letters of marque or reprisal”

could be issued only against the kingdom or state

and citizens against whom Congress had declared

war. However, the states could issue letters of

marque if the waters of the state were so infested

with pirates that it could brook no delay.

Article IX, Para. 1 of the Articles of Confed-

eration granted to Congress the sole and exclusive

power to issue letters of marque and reprisal dur-

ing time of peace. Issuing letters of marque and

reprisal in either war or peace required the afﬁ r-

mative vote of nine states (Article IX, Para. 6).

The authors of the Constitution carried the

practice of issuing letters of marque into the new

constitution. However, the power was limited to

the Congress alone, giving it a greater control over

foreign policy and war powers. The Constitution

forbids the states (Article I, Section 8, Para. 11)

from granting letters of marque.

James Madison briefly discussed letters of

marque in Federalist Papers No. 44. As presi-

dent, he issued them during the War of 1812.

The Republic of Texas issued at least six let-

ters of marque in its ﬁ ght against Mexico. How-

ever, when Mexico issued letters of marque in

the Mexican-American War (1846–48), President

Polk declared that privateering would be treated

as piracy.

The Declaration of Paris in 1856 banned the use

of letters of marque by civilized nations. The United

States did not sign this document, but during the

War Between the States and the Spanish-Ameri-

can War (1898) it issued statements that it would

not issue such letters. However, between 1861 and

1865, the Confederate States of America issued

almost a hundred letters of marque and reprisal.

Following the September 11, 2001, terrorist

attack, Congressman Ron Paul of Texas proposed

legislation (H.R. 3074) to authorize the granting

of letters of marque and reprisal in the war on ter-

rorism. The United States is not a party to Pro-

tocol I of the Geneva Convention which forbids

reprisals against civilians and their property. This

allows reprisals against non-state actors including

terrorists.

For more information: Marley, David. Pirates

and Privateers of the Americas. Santa Barbara,

Calif.: ABC-CLIO, 1994; Rodin, David. War and

Self-Defense. Oxford: Oxford University Press,

2002.

—Andrew J. Waskey

liberty of contract

Liberty of contract was an important constitutional

doctrine of the late 19th and early 20th centuries

that was often invoked by the Supreme Court to

limit government regulation. The doctrine is often

linked or related to substantive due process

under the Fourteenth Amendment.

In 1897 in the case of Allgeyer v. Louisiana,

165 U.S. 578 (1897), the U.S. Supreme Court

established a new constitutional right under the

rubric of liberty of contract. Ostensibly a consti-

tutional protection from government interference

liberty of contract 429

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with the freedom to enter into contractual agree-

ments for all individuals, the new right principally

served the interests of business and signiﬁ cantly

reduced the authority of government to enact

worker protective measures.

In Allgeyer, the Supreme Court struck down a

statute enacted by the state of Louisiana that lim-

ited the sale and purchase of insurance contracts.

A more controversial use of the concept of liberty

of contract came in 1905 with the case of L

OCH-

NER V. NEW YORK, U.S. 45, 25 S. Ct 539 (1905). In

Lochner, the Supreme Court ruled that because

individuals had a constitutional liberty to contract

freely, statutes that interfered with this liberty

must be shown to protect a public interest that

outweighs the individual right. This case chal-

lenged the power of the state of New York to enact

a law limiting the number of hours a week that

a baker could work to 10 hours a day, six days a

week. The state defended the law as a health code

allowable under the state’s police powers.

However, the Supreme Court rejected this

argument, contending instead that the measure

was a patronizing overreaching by the state and

could not be a health code since the number of

hours a baker worked had no impact on the quality

of the bread produced and then later consumed by

the public. Beginning with Lochner, the Supreme

Court consistently framed its analysis of state

and federal laws that claimed to be health and

safety codes as unconstitutional “protectionist”

measures.

Lochner marked the zenith of the doctrine of

substantive due process analysis that had given

birth to the concept of liberty of contract as a new

constitutional right against which statutes regulat-

ing private property could be challenged. Begin-

ning with only the seed of the idea’s being planted

by dissenting justices in the Slaughterhouse Cases,

83 U.S. 16 Wall. 36 (1873), the Supreme Court had

been cultivating the thought that the Fourteenth

Amendment’s due process clause could be used

to provide constitutional protection for markedly

unfettered capitalism.

In the year previous to handing down Allgeyer,

the Supreme Court had determined in an other-

wise unremarkable case that business corporations

are “legal persons” for constitutional purposes,

pulling them under the constitutional umbrella

of protections of the Bill of Rights and the

Fourteenth Amendment (S

ANTA CLARA COUNTY

V. SOUTHERN PACIFIC RAILROAD COMPANY, 118 U.S.

398 [1886]). Hence, the liberty of contract that

applied to individuals traditionally understood as

individual human beings now also applied to busi-

ness corporations. With its power to review the

substance of economic legislation to determine

its constitutionality under the doctrine of sub-

stantive due process together with the doctrine

of liberty of contract, which recognized business

corporations and individual persons as equals in

contractual negotiations, the Supreme Court had

two constitutional tools with which it could strike

down legislation that regulated business.

The Supreme Court continued its use of the

concept of liberty of contract under substantive

due process analysis to protect economic interests

against state and federal worker protective leg-

islation for 40 years, ﬁ nally abandoning the con-

cept in the case of W

EST COAST HOTEL V. PARRISH,

300 U.S. 379, 57 S. Ct. 578 (1937). Although the

Supreme Court emphatically repudiated the con-

cept of liberty of contract in this case, the Court

did not reject the doctrine of substantive due

process, which stands as a constitutional doctrine

today and continues to enable the Supreme Court

to play a signiﬁ cant role in the American constitu-

tional and political debate over rights.

For more information: Breyer, Stephen. Active

Liberty: Interpreting Our Democratic Consti-

tution. New York: Knopf Publishers, 2005; Van

Geel, T. R. Understanding Supreme Court Opin-

ions. 4th ed. New York: Pearson Longman Pub-

lishers, 2005.

—Phyllis Farley Rippey

Lincoln, Abraham (1809–1865) 16th U.S.

president

America’s greatest president, according to the

polls of scholars, and the subject of more books

than any other democratic leader in world history,

Abraham Lincoln in his performance in the presi-

430 Lincoln, Abraham

xviii+446_EofUSConsti-v1.indd 430 3/12/09 3:05:54 PM

dency (1861–65) turned into one of the greatest

surprises of all time. The frontier lawyer literally

saved the Union and preserved the idea of self-

government in the world during an age of mon-

archs, ended slavery, and promulgated the first

code in international law regarding the conduct

of soldiers and treatment of prisoners of war dur-

ing wartime. Remarkably, this was accomplished

in the midst of a great civil war.

The Great Commoner’s biography was a clas-

sic rags-to-riches story of a self-made person. Born

February 12, 1809, in Kentucky, Abraham was

the only son of Tom and Nancy Hanks Lincoln

who survived infancy. The family moved to Indi-

ana, where he grew up on a farm, and he moved

to Illinois immediately after turning legal age.

His border-state origins and frontier background

made him an outsider by New England and aris-

tocratic Southern standards. He “married up”

when he wed Mary Todd, the politically ambitious

daughter of one of the most prominent families

in Lexington, Kentucky. She literally dusted him

off to make him more socially acceptable. Having

rejected his father’s preference of working with his

back, Lincoln became a self-taught lawyer, allow-

ing him to enter Mary Todd’s world.

In 1832, he ran for the Illinois statehouse but

lost. More important than the outcome is that the

youthful Lincoln ran for public ofﬁ ce long before

he became a lawyer—earlier than any other

lawyer who became president. After bouts as a

storekeeper, surveyor, postmaster, and other posi-

tions, he had discovered the perfect match for his

interests and abilities. He ran for the statehouse

again in 1834, winning the ﬁ rst of four terms. In

an extremely short time, Lincoln emerged from

nowhere to become the Whig ﬂ oor leader in the

state legislature. It was the ﬁ rst of two transform-

ing moments in his political life; the second was

his presidency. Between those two periods, he

spent time seeking or serving in political ofﬁ ce,

except for a seemingly dormant ﬁ ve-year hiatus

between his single term in the U.S. House of

Representatives (1846–48) and the semi-

nal Lincoln-Douglas debates that dealt with the

spread of slavery into the territories, marking his

active return to the political arena.

Other than his single term in Congress, Lincoln

spent seventeen years in Springﬁ eld, Illinois, prac-

ticing law and developing his political views and

jurisprudence. Enjoying a highly active practice

with three separate law partners, he became one

of Illinois’s best-known lawyers. With the demise

of the Whigs, the lawyer-politician became the

Republican candidate for the U.S. Senate, rep-

resenting the new anti-slavery party that he had

helped to organize in Illinois. He engaged in the

seven famous debates with “the Little Giant,”

incumbent Democratic senator Stephen A. Doug-

las, who advocated the amoral concept of “popu-

lar sovereignty” in dealing with slavery. Lincoln

countered with a Golden Mean approach, by

opposing the spread of slavery into the new ter-

ritories but upholding protection of the institution

in the South, as guaranteed by the U.S. Constitu-

tion. Though Douglas won that battle in the short

term by retaining his Senate seat, two years later

Lincoln emerged as the dark-horse compromise

candidate of the Republican Party and defeated

Douglas for president after the Democratic Party

split over the slavery issue. However, the ﬁ rst suc-

cessful Republican ticket only won 39.8 percent of

the popular vote.

To the surprise of many, the former Whig law-

yer demonstrated a willingness to act to meet the

secession crisis after Southern extremists fired

ﬁ rst at Ft. Sumter, triggering the outbreak of the

Civil War. Lincoln was unwilling for a minority to

overturn the results of the 1860 election. While

Congress was in recess, the consummate politi-

cian and skillful lawyer saw the crisis in constitu-

tional terms. He instinctively transformed John

Locke’s “prerogative power” of the executive as a

means to guide his actions, unlike his much more

experienced yet befuddled Democratic Party pre-

decessor, James Buchanan. Using his war powers,

Lincoln blockaded Southern ports, raised funds

to finance the war, suspended habeas cor-

pus, initiated the draft, and issued paper money.

These bold initiatives and others made Lincoln

the chief executive who governed the most extra-

constitutionally until World War II. Nonetheless,

he understood that his actions would be subject

eventually to congressional and judicial scrutiny.

Lincoln, Abraham 431

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