Schultz D. Encyclopedia of the United States Constitution

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Proclamation of Emancipation (Library of Congress)

432 Lincoln, Abraham

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Unlike the British, who postponed national elec-

tions during World War II, Lincoln held the 1864

election, despite his conviction that he would be

defeated for reelection.

As most former presidents, Lincoln had sup-

ported voluntary colonization of American slaves

abroad. Yet his views evolved. After meeting

resistance to his support for compensated eman-

cipation, he finally used his war power to issue

the Emancipation Proclamation on January 1,

1863, which he followed with active support of

the Thirteenth Amendment to permanently

abolish slavery. Moreover, the Great Emancipa-

tor took steps to free the entire emerging middle

class by signing into law three of the most impor-

tant pieces of legislation in American history. The

ﬁ rst was the Homestead Act of 1862, which James

Buchanan had vetoed previously. The second,

which Buchanan also had vetoed as unconstitu-

tional, was the Land Grant College Act of 1862,

which transformed higher education in the nation.

That same year, Lincoln signed the Paciﬁ c Rail-

road Act, which led to the building of the trans-

continental railroad.

Despite his stunning leadership, the Lincoln

presidency raised a host of constitutional issues:

1) whether presidents must obey Supreme Court

decisions, e.g., D

RED SCOTT (1857); 2) whether

states have a right to secede from the Union; 3)

whether part of a state may secede from an exist-

ing state, e.g., West Virginia from Virginia; 4)

whether presidents have the right to act when Con-

gress is not in session; 5) whether the Emancipa-

tion Proclamation was constitutional; 6) whether

the president’s suspension of habeas corpus was

constitutional; and 7) whether the president or

Congress should determine reconstruction, i.e.,

the extent of the president’s pardoning power. The

outcome of the Civil War itself answered some of

these questions, as did the passage of the so-called

Civil War amendments to the Constitution, as well

as the decisions of the Supreme Court during and

after the Civil War.

To appreciate Lincoln’s philosophy of the law

requires considering his role in preserving the

Union and the idea of democratic government

during an autocratic age; how he emancipated not

only the slaves but the entire middle class and the

nation as a whole; and how “the Great Reconciler”

implemented a non-Marxian “people’s jurispru-

dence” through his “with malice toward none”

philosophy.

For more information: Farber, Daniel. Lincoln’s

Constitution. Chicago: University of Chicago

Press, 2003; Neely, Mark. E., Jr. The Fate of Lib-

erty: Abraham Lincoln and Civil Liberties. New

York: Oxford University Press, 1991; Pederson,

William D. “The Impact of Abraham Lincoln’s

Constitutional Legacy: A Global Outlook.” Lin-

coln Lore 1885 (Summer 2006): 18–22.

—William D. Pederson

line-item veto

The line-item veto is a proposal that would allow

the president to veto certain items from a budget

bill, rather than requiring the president to veto

the entire bill. This type of veto power has been

requested by several presidents, and at least all

since Ronald Reagan was in ofﬁ ce.

The most recent iteration of the attempt to

gain the line-item veto is by the George W. Bush

administration. The version that was considered

by Congress was different from ideas that have

previously been considered. Like the previous

versions, the current version would allow the

president to veto a single budgetary item from a

larger bill. However, rather than seek a two-thirds

majority vote, as is required by the Constitution,

the vetoed item would be sent back to Congress

for a simple majority vote for override. President

Bush believed that this would help to alleviate

major concerns that prior administrations and the

Supreme Court have had with the line-item veto.

However, until legislation passes in both chambers

of Congress and passes what would likely be an

imminent challenge in the federal judicial system,

it is impossible to be sure of the success of this, or

any other, legislative attempt to give the president

the power of the line-item veto.

The most public rebuke of the presidential

power of line-item veto occurred in the Supreme

Court case C

LINTON V. CITY OF NEW YORK, 524

line-item veto 433

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U.S. 417 (1998). Congress granted the president

the power of the line-item veto in 1996. President

Clinton used that power about 80 times before

this case was heard. In this case, President Clinton

vetoed part of the Balanced Budget Act of 1997.

New York sued to return a provision that allowed

the state to raise taxes on hospitals and use the tax

revenue to solicit federal Medicaid payments. The

Supreme Court ruled that the Line-Item Veto Act

violated the presentment clause of the Con-

stitution (Article I, Section 7, Clause 2.). In the

decision, written by Justice John Paul Stevens,

the Supreme Court stated that “[i]f there is to be a

new procedure in which the president will play a

different role in determining the text of what may

become a law, such change must come not by leg-

islation but through the amendment procedures

set forth in Article V of the Constitution.”

The ﬁ nding of the Supreme Court is not sur-

prising, however. On at least two separate occa-

sions, President Reagan’s own administration

noted that the line-item veto was unconstitutional.

During the latter part of the Reagan administra-

tion, there was a public attempt to argue that the

line-item veto would be a constitutional exercise

of presidential power. The most vocal advocate

was Stephen Glazier of the Wall Street Journal.

Because of the public support for Glazier’s argu-

ment, the Ofﬁ ce of Legal Counsel was asked to

prepare an opinion discussing the probability

that the line-item veto was, in fact, constitutional.

OLC’s opinion stated that it was not. The opin-

ion, penned by the head of OLC, Charles Cooper,

stated categorically that “Article I of the Constitu-

tion does not vest the President with the inherent

power to veto portions of a bill while signing the

remainder of it into law.” Cooper received severe

criticism for this decision from conservative pun-

dits. However, what many of these critics might

not have realized was that OLC had already stated

that the line-item veto was unconstitutional.

In 1985, Congress was preparing to give the

president the power of line-item veto. How-

ever, OLC was asked to give its legal opinion on

the proposed bill, and OLC decided that it was

unlikely that the bill would pass constitutional

muster. According to the decision, “[a] bill that

purports to the President a line-item veto by pro-

viding that each item of the appropriation in an

appropriation bill be enrolled, although not voted

on, as a separate bill raises serious constitutional

questions under Article I, § 7, cl. 2 of the Consti-

tution.” In other words, in two separate instances,

with two differing ideas of what might constitute

a constitutional provision to give the president the

power of the line-item veto, President Reagan’s

own legal advisors stated that a legislatively man-

dated power of this type was unconstitutional. It

is not surprising that the Supreme Court came to

the same decision.

Despite several failed previous attempts to

give the president the power of the line-item veto

through legislative action, the idea continues to

appeal to both the president, who tends to desire

more power generally, and Congress, which seems

to need assistance in curbing its own spending

power. The outcome of the president’s power of

the line-item veto will continue to be watched

closely by many people. Ultimately, the power

seems to lie in the Supreme Court’s interpretation

of the Constitution, especially Article I.

For more information: N.A. “Constitutional-

ity of Line-Item Veto Proposal.” Opinions of the

Ofﬁ ce of Legal Counsel 9 (1985): 28; N.A. “The

President’s Veto Power.” Opinions of the Ofﬁ ce of

Legal Counsel 12 (1988): 128.

—Tobias T. Gibson

living constitution

The “living constitution” refers to the notion that

in order to be viable, a constitution must not be

static but rather must be able to adapt to changing

values and circumstances, just as a living creature

grows and changes. The term is most popularly

associated with a continuing debate among con-

stitutional scholars and jurists triggered by writ-

ings and speeches by then-Justice William J.

Brennan, Jr., and then-Attorney General Edwin

Meese in the 1980s, although the dispute traces

back to the American founding and even earlier.

It would seem that a living constitution must

surely be better than the apparent alternative—a

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dead constitution—but the issue is not so simple,

and it may be that the only good constitution is

a dead constitution. On its face, it is hard to see

what could be wrong with a living constitution,

especially in a democracy. If we are to govern our-

selves, there should not be unnecessary structural

or substantive obstacles to achieving the public

will. But taken to the extreme, a living constitution

would be no constitution at all, because it would

impose no constraints upon modern politics. Like

Ulysses strapped to the mast, “we the people” have

bound ourselves to constitutional constraints that

precede and are superior to ordinary politics. The

American constitution, with its division of author-

ity between federal and state levels, separation

of the national government into three branches,

and substantive rights limitations on government,

throws obstacles in the way of self-rule. That, at

least in theory, is how we secure rights against

majority tyranny and preserve some role for the

states. These restrictive clauses—mostly ratiﬁ ed

long before anyone alive today was born—create

a certain “tyranny of the dead.”

On the other hand, rigid adherence to old text

and principles may be suffocating, preventing

adaptation to changing circumstances and per-

ceived needs. As Brennan wrote, “the genius of

the Constitution rests not in any static meaning it

might have had in a world that is dead and gone,

but in the adaptability of its great principles.” The

trick, then, is to ﬁ nd a balance, so that constitu-

tional interpretation is not too lively, but not

comatose. Conservative critics of the living con-

stitution approach say the answer is simple: Apply

the enduring principles of the Constitution consis-

tently, and if you don’t like them, amend the Con-

stitution. But amending the Constitution is a

long and difﬁ cult process, making it hard to bring

in modern constitutional principles. More impor-

tant, how to identify and apply basic constitutional

principles and textual meaning is not clear.

For example, the Fourteenth Amendment

forbids denial by the states of equal protec-

tion of the law. The amendment was passed on

the heels of the Civil War and intended to secure

the rights of newly freed slaves, yet the language

is simple and sweeping. Does the amendment for-

bid or tolerate—or even require—affirmative

action programs to eradicate effects of past or

present discrimination? Should women’s rights be

enforced just as strongly as those of racial minori-

ties, even though the amendment came decades

before women even gained the right to vote?

And what about business corporations? They are

persons in the eyes of the law, so should they be

able to claim protection against state discrimina-

tion? There are no simple answers even at this

level of generality, and more uncertainties arise as

principles are applied to speciﬁ c circumstances.

Some guidance, then, is needed to apply the

text. Critics of the living constitution advocate

immersion in the meanings and understanding of

language at the time constitutional text was writ-

ten and ratiﬁ ed and the then-prevailing political

theories. Some argue, for example, that the Dec-

laration of Independence must be central to

informed constitutional interpretation. Skeptics

of this approach argue that going beyond the text

in this way is only an obsolete version of living

constitutionalism, but proponents say it is at least

better moored to the Constitution than modern

judicial journeys into fundamental values. They

argue that living constitutionalism easily becomes

a vehicle for substituting the personal preferences

of the judge or justice for the will of the people.

In his exchange with Justice Brennan, Edwin

Meese emphasized that adhering to the Consti-

tution promotes democracy: “The Constitution is

the fundamental will of the people. . . . To allow

the courts to govern simply by what it [sic] views

at the time as fair and decent, is a scheme of gov-

ernment no longer popular; the idea of democracy

has suffered.”

It is easy to exaggerate the differences between

proponents and critics of the living constitution, in

part because of the inherently evolving character

of constitutional doctrine, which has developed in

the pattern that judges in Anglo-American com-

mon law have followed for centuries: developing,

articulating, and applying rules in a sequence of

cases in very specific fact situations. It is these

doctrines, rather than the text itself, that most

determine the outcomes of cases and the develop-

ment of the law. So in a sense all constitutional

living constitution 435

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law is living law, gradually developing into a form

quite different from the original document. Even

conservative jurists and scholars, who are fre-

quently critics of living constitutionalism, have led

the development of new doctrines, such as in fed-

eralism and property rights cases.

On the other hand, it is difﬁ cult to ﬁ nd a scholar,

and probably impossible to ﬁ nd a judge, who is so

enthused with living constitutionalism that he or

she would advocate entirely abandoning text and

doctrine to strike out in bold new directions. Even

in these post-modern days, there is no signiﬁ cant

dispute over the meaning of many clauses, such

as the age requirement to serve as president or

the allocation of two Senate seats per state. The

sparks start to ﬂ y more over the substantive pow-

ers of the national government and the rights that

limit both state and federal governments. But

even here, it is still prudent to root constitutional

arguments in text and tradition, even if that is no

more than a jumping-off point. In response to the

success of the Federalist Society in nurturing an

intellectual base in the courts and universities in

support of dead originalism, liberal jurists and

scholars, who have been most commonly associ-

ated with living constitutionalism, have in turn

created the American Constitution Society as

a way to remind the public, and perhaps them-

selves, that they as well recognize the primacy of

the Constitution.

So it is probably fair to say that, paraphrasing

Thomas Jefferson, we are all living constitu-

tionalists, and we are all dead constitutionalists.

There is virtually universal recognition that inter-

pretation should be rooted in the Constitution

and that fundamental principles embedded in the

document are enduring yet adaptable to chang-

ing circumstances. But just what those principles

are and how they should be ranked and applied

is disputed. That debate is both healthy and con-

structive, arguably improving the quality of con-

stitutional development. Many liberal jurists and

scholars, for example, have been critical of the

death penalty, even suggesting that it should be

unconstitutional under the cruel and unusual

punishment clause of the Eighth Amendment.

Conservatives counter that the Constitution

includes speciﬁ c references to capital punish-

ment, so it would be nonsensical to strike it down

under that same document. The courts have

effectively split the difference, upholding the

constitutionality of the death penalty but looking

more closely at how it is applied, holding that an

arbitrary or discriminatory application would be

unconstitutional.

We are back to where we began, and that is to

suggest that a constitution is inescapably living,

changing in its meaning as judges and justices

struggle to understand and apply its principles in

changing circumstances, yet also essentially dead,

embodying a set of principles superior to the day-

to-day whims of politics, and effective only when

interpretation is conscientiously constrained by

text. When it comes to protecting rights, federal-

ism, and separation of powers, the “cold hand of

the dead” may be inescapable. The controversy

over the living constitution will go on, because it

embodies the inescapable tensions between rights

and democracy, and between our rich legacy and

future aspirations.

For more information: Belz, Herman. A Living

Constitution or Fundamental Law?: American

Constitutionalism in Historical Perspective. Lan-

ham, Md.: Rowman & Littleﬁ eld, 1998; Marshall,

Thurgood. “The Constitution: A Living Docu-

ment.” Howard Law Journal 30 (1987): 623–628;

Wolfe, Christopher. How to Read the Constitu-

tion. Lanham, Md.: Rowman & Littleﬁ eld, 1996.

—Christopher Wolfe

lobbying and the First Amendment

Lobbying is a constitutionally protected activ-

ity. Accountability and integrity in representative

government are achieved through the ability of

the public to access and petition those elected to

represent their interests. Justice Hugo Black

observed, “The whole concept of representa-

tion depends upon the ability of the people to

make their wishes known to their representa-

tives” (Eastern Railroad Presidents Conference

v. Noerr Motors, Inc., 365 U.S. 127, 137 [1961]).

To this end, the First Amendment guarantees

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that no law shall abridge “the right of the people

. . . to petition the Government for a redress of

grievances.”

Lobbying is advocacy of a point of view, either

by groups or individuals, who may be paid, inde-

pendent, or volunteers. In addition to direct com-

munication with government ofﬁ cials, lobbyists

research, analyze, and draft legislation; build

coalitions around issues; and educate government

ofﬁ cials, employees, and corporate ofﬁ cers as to

the implications of legislative proposals.

Public officials must consider information

from a broad range of interested parties in order

to reach fair and informed decisions. The U.S.

Supreme Court has recognized that “[p]resent-

day legislative complexities are such that the indi-

vidual members of Congress cannot be expected

to explore the myriad pressures to which they are

regularly subjected” (United States v. Harriss, 347

U.S. 612, 625 [1954]). While the U.S. Constitution

protects freedom of speech for those speaking on

behalf of both institutional and personal interests,

courts have recognized that these rights may be

regulated to protect the public interest.

In 1928, the Senate enacted a bill requiring

lobbyists to register with the secretary of the Sen-

ate and the clerk of the House, but the House failed

to pass the legislation. The issue did not go away,

and members of Congress were concerned that

concentrated lobbying efforts by a vocal minor-

ity could distort legislation of national impact.

Eventually, Congress enacted the Federal Regu-

lation of Lobbying Act (repealed by the Lobbying

Disclosure Act of 1995) as part of the Legislative

Reorganization Act of 1946. For the ﬁ rst time, lob-

byists were required to register and ﬁ le quarterly

reports with the House and Senate. In 1954, the

Supreme Court upheld registration requirements

in United States v. Harriss, but deﬁ ned the legis-

lation narrowly to exclude individuals who spent

their own money to lobby Congress directly from

the act’s requirements. Individual scandals led

to calls to strengthen lobbying laws. In 1976, the

Senate passed such a measure. Notably, concerns

that the legislation would violate the First Amend-

ment rights of lobbyists prevented the measure

from gaining traction in the House.

Even a right as basic as free speech can be regu-

lated in certain instances. The Supreme Court has

upheld campaign contribution legislation where it

was found to “serve the basic government interest

in safeguarding the integrity of the electoral pro-

cess without directly impinging upon the rights

of individual citizens and candidates to engage in

political debate and discussion” (B

UCKLEY V. VALEO,

424 U.S. 1 [1976]). Appropriate regulation in this

area is regulation which acts as a shield, protect-

ing the public and integrity of the institution, not

regulation that seeks to act as a sword by carving

out exceptions to basic First Amendment rights.

Lobbying need not be an equal opportunity activ-

ity. It makes no difference that some groups are

more effective than others in gaining support

for their positions. Rather, through appropriate

disclosure, lobbyists themselves become subject

to the same pressures they place on legislators.

Such disclosure may implicate political and ethi-

cal considerations which may prevent legislators

from undertaking certain interactions with lob-

byists. The First Amendment requires regulation

rather than prohibition. Indeed, “[b]ecause First

Amendment rights need breathing space to sur-

vive, government may regulate the area only with

narrow speciﬁ city” (Cantwell v. Connecticut, 310

U.S. 296, 311 [1940]).

Congress has been unable to substantially

amend the substance of the provisions at issue

in Harriss. A series of amendments that would

have required disclosure by certain grassroots

organizations was defeated in 1993. New tech-

nologies have presented new challenges for regu-

lators. In 2007, the Senate struck a provision in

pending lobbying reform legislation that would

have required individuals involved in certain

grassroots efforts, including blogging, to register

as lobbyists. The effect of the Harriss decision

was to regulate only those who lobby directly.

Ironically, the very decision which upheld cer-

tain regulations on lobbyists acts to prevent fur-

ther legislation. Any additional legislation would

likely require certain interests to disclose their

activities for the ﬁ rst time. Some fear that such

legislation could chill citizen involvement in the

legislative process.

lobbying and the First Amendment 437

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Lobbying is a tradition nearly as old as Con-

gress itself. Indeed, it would be difﬁ cult for Con-

gress to complete its work without lobbyists. Laws

regulating lobbying must strike a balance between

disclosure in the public interest and the First

Amendment rights of those who speak on behalf

of issues and interests.

For more information: Nowak, John E., and

Ronald D. Rotunda. Principles of Constitutional

Law. St. Paul, Minn.: Thomson/West, 2005.

—Mark A. McGinnis

Lochner v. New York 198 U.S. 45, 25 S.Ct.

539

(1905)

In Lochner v. New York, the Supreme Court

invalidated a state law restricting the number of

hours a bakery employee could work. The state

argued that the law was in place to protect the

health of employees and the general public, but

the Court held that the state was unconstitution-

ally interfering with each individual’s liberty to

contract as protected by the due process clause

of the Fourteenth Amendment.

A New York law prohibited employers from

requiring or permitting employees to work more

than 10 hours in a day or 60 hours in a week.

Joseph Lochner, the owner of a bakery in Utica,

New York, was convicted on two separate occa-

sions for overworking an employee. He appealed

the second conviction, giving rise to this case.

The state of New York contended that the law

was designed to protect workers from health haz-

ards related to long and odd hours in bakeries,

which are often hot and void of clean air. The state

also argued that overworking bakers results in a

poorer quality product, affecting the health of the

public consumers. Justice Peckham responded in

his majority opinion by stating that bakers were

fully capable of negotiating their own work hours

and that if an individual baker felt he needed to

work more to, for example, support his family, it

should be his prerogative. He pointed out that

plenty of other legislation was passed to ensure the

bakery was clean and also noted that there is no

quantiﬁ able evidence that a loaf of bread made in a

baker’s 11th hour of work is any less clean or whole-

some than a loaf made in his 10th hour. Finally, he

hypothesized that a contrary decision would render

economic protections provided by the substantive

element of the due process clause meaningless.

Justice John Harlan dissented, arguing that

the majority underestimated the hazardous effects

of working in a bakery. Justice Oliver Wendell

Holmes, Jr., also dissented, arguing that the judi-

ciary had no right to supplant the judgment of the

New York state legislature on the issue and that

governments have restrained the public’s right of

contract for centuries. He listed Sunday laws and

usury laws as examples. Holmes’s dissent is most

famous for the statement that the “Constitution

did not enact Spencer’s Social Stats,” a reference

to the notion that the Constitution did not embody

a speciﬁ c economic philosophy to be enforced by

the Court.

The Supreme Court used the precedent set in

Lochner to invalidate economic regulations for over

30 years. However, by the end of the 1930s Loch-

ner had lost most of its inﬂ uence. If the Court had

left any doubt over its stance on Lochner, it made

itself clear in 1955, in Williamson v. Lee Optical,

348 U.S. 483, when Justice William O. Douglas

explained that the days were over when the Court

uses the due process clause to strike down a state’s

business and industry regulations because it deems

them unwise or improvident. Today, the Supreme

Court uses its rational basis test to analyze

challenges to most economic regulations.

For more information: Bernstein, David E.

“Lochner Era Revisionism, Revised: Lochner and

the Origins of Fundamental Rights Constitution-

alism.” Georgetown Law Journal 92 (November

2003): 1–58; Cox, Archibald. The Court and the

Constitution. Boston: Houghton Mifﬂ in, 1987.

—Dylan R. Kytola

Locke, John (1632–1704) English political

philosopher

John Locke was an important British political

thinker who inﬂ uenced many of the framers and

founders of the American Constitution.

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The British philosopher John Locke is often

referred to as the American political philosopher

because his political thought arguably inﬂ uenced

the nation’s founders more than any other political

theorist. Locke’s major political writings include

his Two Treatises of Government (published in

1689) and A Letter Concerning Toleration (ﬁ rst

published anonymously in 1685), each reﬂ ecting

the political conﬂ icts of the times and especially

the rivalries between crown and Parliament and

between religious denominations. Locke crystal-

lized the central elements of liberalism in his day

into a coherent political regime dedicated to the

protection of “life, liberty, and estate,” with the

state playing largely the role of umpire or protec-

tive nightwatchman. Locke’s social contract argu-

ment provides a modern statement to show how

government is made legitimate and also how revolt

is legitimate when government ceases to be.

Locke’s political philosophy is based in his

empiricist and rationalist inclinations, which dic-

tate that all knowledge originally is grounded in

sensory perception and that while ideas may have

non-arbitrary, agreed-upon meanings, there are

no knowable innate or pure ideas to give human-

kind objective answers. An innate idea must be

believed in, such as an article of religious faith,

and the mind is such that it cannot be compelled to

believe that to which it has not on its own assented.

It is no indication of actual assent to a proposition

or a particular understanding if it is given under

threat of compulsion. Hence, compulsion in mat-

ters of faith is a fruitless attempt to overpower a

person’s natural liberty to willingly form his or her

own ideas, and submission to an enforced ortho-

doxy reﬂ ects more the (illegitimate) power of the

enforcer than it does voluntary assent to an idea.

Locke argues that application of the principle of

toleration is a prudent response to divergent, sin-

cerely held beliefs and a better way to manage and

maintain a stable society than for the state to side

with one or other religious truth. Any agent, how-

ever, is welcome to try to persuade others of the

superiority of its understandings through persua-

sive arguments or good works.

Locke’s notion of consent to be governed is

roughly parallel to assent in knowledge, as con-

sent grants legitimacy to the state and cannot be

compelled, and any attempt at coercion relies on

force, not reason, and so is unjust. Locke’s version

of the social contract described a rather idyllic

state of nature in which people enjoyed natural

equality and had sufficient resources to meet

their needs, provided they worked with nature to

secure them, whereby a property claim was cre-

ated to any goods produced. In addition, the peo-

ple recognized a moral law, the Law of Nature,

which requires that the plenty that is available to

them be preserved so as much and as good should

remain for others and the next generation. When

the inevitable disputes arose regarding property

claims, disputes which need not be presumed

hostile, it became necessary ﬁ rst to establish some

collective mechanism to deal with these inconve-

niences, something people individually could not

do nearly as well despite their “executive power”

to enforce their justifiable claims based in the

Law of Nature.

People would move out of the state of nature

and into civil society primarily in order to inter-

pret and enforce the Law of Nature more fairly

and evenly, especially as regards conﬂ icting prop-

erty claims. Locke understood property as more

than merely material belongings or assets, and

extended this concept to include anything—espe-

cially, one’s person and one’s rights—that a person

may have an interest in, contributes to a person’s

independence from others, and provides the basis

for claims against others who violate them. Even-

tually, however, as society and the issues people

confronted or raised regarding property became

more complex, the community would need to

establish some overarching binding author-

ity—a government—entrusted with the power to

enforce the Law of Nature and arbitrate disputes

in an impartial way, making judgments based in

promulgated law and constrained to serve the

interests of the people.

Locke presents the classical liberal argu-

ment that the State is established through the

consent of the majority of the people to secure

their interests through the use of duly consti-

tuted civil power. Should the government betray

the trust placed in it through a series of abuses

Locke, John 439

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by either its executive or legislative branch, then

the people can regard it as having revolted from

them and may exercise their right to recall their

trust through, if necessary, an armed rebellion.

Locke’s arguments in favor of individual rights,

property, limited government, and the right of

the people to hold their governors accountable

to them, including through the threat of rebel-

lion, appealed to the American founding gen-

eration, inﬂ uencing not only the drafting of the

Declaration of Independence, but also the

Constitution.

For more information: Hartz, Louis. The Lib-

eral Tradition in America: An Interpretation of

American Political Thought since the Revolution.

New York: Harcourt Brace, 1965; Pangle, Thomas

L. The Spirit of Modern Republicanism: The

Moral Vision of the American Founders and the

Philosophy of Locke. Chicago: Chicago University

Press, 1988.

—Gordon A. Babst

Locke v. Davey 540 U.S. 712 (2004)

In Locke v. Davey, the U.S. Supreme Court held

that the state of Washington did not violate the

U.S. Constitution by excluding a student from a

publicly funded scholarship program.

In 1999, the Washington legislature created the

Promise Scholarship, a program designed to assist

academically gifted students with postsecond-

ary education expenses. After satisfying various

academic and ﬁ nancial conditions, Joshua Davey

received the scholarship funding and enrolled at

Northwest College, a church-affiliated institu-

tion. When Davey chose to major in both pastoral

ministries and business administration, however,

Washington withdrew Davey’s funding, because

Promise Scholarship funding was not available to

students attending religious colleges who studied

religion from a devotional perspective. Washing-

ton placed this limitation on Promise Scholarship

funding to comply with its state constitution’s

prohibition on public funding of clergy training.

Davey challenged this limitation, claiming that

Washington’s exclusion of him from the Promise

Scholarship on the basis of his desire to use the

funding for religious purposes violated the free

exercise, free speech, and equal protection

clauses in the U.S. Constitution.

In a 7-2 opinion, the Court rejected all of Dav-

ey’s claims. The Court found that Davey’s burden

was akin to being denied the scholarship fund-

ing in the first place—a burden that the Court

found minimal since the scholarship’s financial

and academic conditions prevented many people

from ever being eligible to receive the funding.

The Court ruled that Davey’s minimal burden

could not defeat Washington’s substantial inter-

est in enforcing the separation of church and state

required by its own state constitution.

Justice Antonin Gregory Scalia wrote a

dissenting opinion, in which Justice Clarence

Thomas joined, declaring that because the free

exercise clause categorically prohibits the govern-

ment from ever discriminating on the basis of reli-

gion, the majority wrongly focused on the weight

of Davey’s burden. Moreover, Justices Scalia and

Thomas claimed that because the withdrawn

funding cost Davey almost $3,000, the majority

would still be wrong even if the weight of Davey’s

burden were relevant.

Davey is an important case because it per-

mits states to require a greater degree of church-

state separation than the U.S. Supreme Court

has interpreted the establishment clause to

require. It is quite likely, for example, that the

Davey rule permits those states that implement

school-voucher programs to limit the use of the

funding to secular purposes, even though the

U.S. Supreme Court has expressly held that the

establishment clause does not compel this limi-

tation. Many scholars have noted, however, that

the discretion that Davey grants the government

must be limited because at some point a state’s

attempt to enforce a strict separation between

church and state will violate the free exercise

clause’s guarantee of religious liberty. Many

believe, for instance, that the free exercise clause

deprives states of the authority to prohibit state

employees from using their income for private

religious purposes, but it is not clear why states

lack this authority under the Davey rationale.

440 Locke v. Davey

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The ultimate scope of the Davey holding, and

how it will mediate the tension between the reli-

gion clauses, remains to be seen.

For more information: Berg, Thomas, and

Douglas Laycock. “Davey’s Mistakes and the

Future of State Payments for Services Provided

by Religious Institutions.” Tulsa Law Journal 40,

no. 2 (2005): 227–253; Brown, Stephen P. Trump-

ing Religion: The New Christian Right, the Free

Speech Clause, and the Courts. Tuscaloosa, A la.:

University of Alabama Press, 2002; Merriam, Jesse

R. “Finding a Ceiling in a Circular Room: Locke

v. Davey, Federalism, and Religious Neutrality.”

Temple Political & Civil Rights Law Review 16

(2006): 103–143.

—Jesse R. Merriam

Loretto v. Teleprompter Manhattan CATV

Corp.

458 U.S. 419 (1982)

In Loretto v. Teleprompter Manhattan CATV

Corp., the U.S. Supreme Court held that any gov-

ernment regulation that authorizes a permanent

physical occupation of private property will always

constitute a compensable taking pursuant to the

Fifth and Fourteenth Amendments of the

U.S. Constitution.

In 1973, the state of New York adopted a stat-

ute that prohibited landlords from interfering

with the installation of cable television facilities

on their property by local cable companies. The

statute also limited the compensation that cable

companies were required to pay landlords for this

right to an amount set by the state’s Commission

on Cable Television. At the time, the commission

set this amount at $1.

Jean Loretto was the owner of a five-story

apartment building in New York City that had

cable television equipment installed by Tele-

prompter Manhattan CATV. She brought a class

action lawsuit on behalf of all landlords serviced by

Teleprompter Manhattan CATV and alleged that

the installation of cable equipment was a physi-

cal invasion of private property that amounted to

a taking for which the plaintiffs were entitled to

just compensation.

The New York trial court found for the cable

company, and the appellate division afﬁ rmed. The

New York Court of Appeals affirmed the lower

court’s decisions, finding that the statute was a

legitimate exercise of the legislature’s police

powers that did not constitute a taking under the

balancing test articulated in Penn Central Trans-

portation Co. v. New York City, 438 U.S. 104

(1978). The U.S. Supreme Court reversed, holding

that the cable equipment effected a permanent

physical occupation of Loretto’s private property

and was thus a per se compensable taking. In so

doing, the Court reafﬁ rmed its precedents that

had established this per se rule.

The Court pointed to prior cases involving tele-

graph and telephone lines, underground pipes,

and wires. The Court noted that even though a

permanent physical occupation—such as the cable

equipment—may not seriously interfere with an

owner’s use and enjoyment of their property, a

regulation requiring a permanent physical occu-

pation is qualitatively more severe than any regu-

lation of property use. The owner has lost, among

others, the rights to possess, use, dispose, and

exclude with regard to the area of such occupa-

tion. Accordingly, the Court rejected a de minimus

exception for minor permanent physical occupa-

tions reasoning that no matter how small or insig-

niﬁ cant, such occupations deprive an owner of all

of their property rights to that area. However, the

Court noted that the extent of the occupation is

relevant in determining just compensation. Ironi-

cally, on remand, the New York Court of Appeals

found that just compensation for the cable equip-

ment occupation was $1—the amount originally

set by the commission.

The Court’s ruling was narrow, as it applied

only to permanent physical occupations—whether

by the government or by a third party with gov-

ernment authorization. Any temporary physical

occupations, such as overﬂ ights, and regulations

that restrict use are instead subject to the Penn

Central balancing test. However, this case was

signiﬁ cant for reviving the per se rule that lower

courts had ignored in favor of the Penn Central

test, which did not guarantee the ﬁ nding of a tak-

ing or the payment of just compensation.

Loretto v. Teleprompter Manhattan CATV Corp. 441

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