Schultz D. Encyclopedia of the United States Constitution

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For more information: Pick, Randall J. “Loretto

v. Teleprompter: A Restatement of the Per Se

Physical Invasion Test for Takings.” Baylor Law

Review 35 (1983): 373–386.

—Matthew J. Parlow

Loving v. Virginia 388 U.S. 1 (1967)

In Loving v. Virginia, the Supreme Court over-

turned Virginia’s law banning interracial mar-

riage. In making this decision, citing Virginia’s

violations to both the equal protection and

the due process clauses of the Fourteenth

Amendment, the Court also struck down similar

antimiscegenation laws that punished and prohib-

ited such marriages in 15 other states.

Loving v. Virginia marked the ﬁ rst time the

tribunal addressed the question whether state

laws governing marriage could utilize race as the

sole criteria in banning them.

The case reached the Supreme Court nine

years after two residents of Virginia wed. Mildred

Jeter, an African-American female, and Richard

Loving, a Caucasian male, married each other in

Washington, D.C. The District had no antimisce-

genation prohibitions, and Jeter and Loving were

legally joined. The Lovings returned to their home

in Virginia where subsequently they were charged

with violating the statute that prohibited marriages

like theirs. Pleading guilty to the charge, they were

sentenced to a year in jail, which was suspended

on the condition that they leave and not return to

the state for 25 years. They then moved to D.C.,

where they ﬁ led a suit requesting that Virginia’s

law that banned interracial marriage be declared

unconstitutional and that the state be restrained

from enforcing its sentence on them.

Antimiscegenation statutes had their roots in

colonial slavery codes, but their passage and cod-

iﬁ cation was a result of Jim Crow–era laws that

in increasing and more exacting ways separated

whites and blacks. The Virginia law that the Lov-

ings tested was typical. The Racial Integrity Act,

passed in 1924, speciﬁ cally prohibited whites from

marrying blacks. In the words of the Supreme

Court of Appeals of Virginia that upheld the Lov-

ings’ original conviction, the legitimate intent of

these laws was to “ ‘preserve the racial integrity

of its citizens,’ and to prevent ‘the corruption of

blood,’ ‘a mongrel breed of citizens,’ and ‘the oblit-

eration of racial pride.’ ”

Since the founding of the republic, domestic

relations—and the policies associated with them,

marriage, divorce, survivor rights, child custody—

remained the responsibility of the states. Thus

from state to state a wide array of laws regard-

ing these matters was enforced. At one time or

another, 30 states had approved interracial mar-

riage bans like Virginia’s, though by the time Lov-

ing was heard, 14 had repealed them. Although

the full faith and credit clause of Article IV, Sec-

tion 1 acknowledges federal interest in this area of

law, it was not until Loving that the Court squarely

addressed this question.

Employing a benchmark that had emerged in

McLaughlin v. Florida, 379 U.S. 184 (1964), where

the Court had struck down a statute that had pun-

ished interracial cohabitation, Chief Justice Earl

Warren wrote for a unanimous Court and concluded

that strict scrutiny of the Virginia ban revealed

discrimination that ran counter to the “clear and

central purpose of the Fourteenth Amendment

[which] was to eliminate all ofﬁ cial state sources of

invidious racial discrimination in the States.”

In one of the strongest statements in this deci-

sion, Warren went on to say that such bans were

“designed to maintain White Supremacy,” and

were therefore unconstitutional. He concluded,

“Under our Constitution the freedom to marry, or

not marry, a person of another race rests on the

individual and cannot be infringed by the state”

and reversed the Lovings’ convictions.

Loving v. Virginia was one in a series of cases

that the Warren Court tackled that, taken

together, mark an important shift in the consti-

tutional protections of individual civil rights,

especially for African Americans. Four decades

later, the case remains a signiﬁ cant precedent for

the Court’s decisions relative to gay and lesbian

relationships. (See especially L

AWRENCE V. TEXAS,

539 U.S. 558 [2003].)

For more information: Moran, Rachel F. Inter-

racial Intimacy: The Regulation of Race and

442 Loving v. Virginia

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Romance. Chicago: University of Chicago Press,

2001; Woodward, C. Vann. The Strange Career of

Jim Crow. New York: Oxford Press, 1966.

—George Peery

loyalty oaths

Loyalty oaths have been a source of signiﬁ cant con-

stitutional litigation, raising questions to whether

they violate the First Amendment. During the

1950s and the McCarthy era, loyalty oaths were

popular tools to root out communists.

Loyalty oaths do two things: declare allegiance

to the government and its institutions and disavow

support for ideologies or associations that oppose

the government and its institutions. Loyalty oaths

are common in the United States. To assume ofﬁ ce,

government ofﬁ cials like the president, members

of Congress, or of the judiciary take loyalty oaths.

Similarly, state employees (including teachers, pro-

fessors, police ofﬁ cers, etc.) often must afﬁ rm their

allegiance and repudiate incitement of revolution.

Armed forces members and national security work-

ers also take loyalty oaths as conditions of employ-

ment. Even school children traditionally pledge

allegiance at the start of the school day.

Early in the nation’s history, the Puritans

required that members pledge their support to

the commonwealth and report dissent. The Con-

tinental Congress had members swear their loy-

alty. The original state legislatures invoked citizen

loyalty oaths to reﬂ ect the covenant between the

state and its citizens. Even now, the oath of alle-

giance is considered the most important part of

the naturalization process for potential citizens.

Customarily, new citizens first take the oath of

naturalization and then pledge allegiance as their

ﬁ rst act as citizens.

Courts have held that loyalty oaths as condi-

tions of employment are constitutional so long

as they are narrow and achieve a legitimate gov-

ernment purpose, even if they infringe on an

individual’s constitutional rights. Oaths must be

reasonably related to the position. Oaths consid-

ered too vague may be deemed unconstitutional.

Loyalty oaths are frequently invoked when

there is the perception of a security threat. Fol-

lowing the Civil War, some states enacted stat-

utes excluding people from certain professions

based on previous sympathy with the Confed-

eracy. In Ex parte Garland, 71 U.S. 333 (1866),

the Supreme Court held that mandating an oath

of prior loyalty as a prerequisite for admission

to the bar was unconstitutional, as it punished,

without trial, an act performed before the impo-

sition of the statute. After World War II, fear of

Communist inﬁ ltration of the public education

system led to state establishment of loyalty oaths

as a condition of employment for educators. In

many jurisdictions, those refusing to sign could

be discharged. Most statutes required of educa-

tors pledge of allegiance to state and U.S. con-

stitutions, assertion not to incite revolution, and

declaration that they did not belong to the Com-

munist Party. Many jurisdictions still continue

the practice.

The Court has repeatedly struck down oaths

considered broad, as they violate due process

and infringe on freedom of speech (Baggett v.

Bullitt, 377 U.S. 360 [1964]). In Keyishian v.

Board of Regents, 385 U.S. 589, 605–606 (1967),

the Court declared a New York loyalty oath

threatened academic freedom by limiting teacher

speech. In Wieman v. Updegraff, 344 U.S. 183

(1952), the Court held the oath infringed on

freedom of association because it indiscrimi-

nately penalized innocent association with the

Communist Party or other groups. The Court

generally disallows attempts to condition ben-

eﬁ t eligibility on loyalty declaration, as it would

have a chilling effect on free speech (Speiser v.

Randall, 357 U.S. 513 [1958]). In contrast, the

Court ruled that loyalty oaths that infringed on

constitutional rights to religious freedom were

not acceptable but that employers could make

reasonable accommodations (Bessard v. Califor-

nia Community College, 867 F. Supp. 1454 [E.D.

Cal. 1994]).

For more information: Levinson, Sanford.

“Constituting Communities through Words That

Bind: Reflections on Loyalty Oaths.” Michigan

Law Review 84, no. 7 (June 1986): 1,440–1,470.

—Robin A. Harper

loyalty oaths 443

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Lujan v. Defenders of Wildlife 504 U.S. 555

(1992)

In Lujan, the Supreme Court ruled that environ-

mental groups lacked standing to challenge a

regulation of the Secretary of the Interior. A rule

promulgated by the Secretary of the Interior inter-

preted the Endangered Species Act as applicable

only within the boundaries of the United States

and on the high seas. The previous regulation had

extended this act to include actions taken in for-

eign nations. The district court dismissed the law-

suit for lack of standing, but the court of appeals

reversed. On remand, and in response to a motion

for summary judgment, the district court entered

judgment in favor of the environmental groups.

The case ultimately reached the U.S. Supreme

Court, where Justice Antonin Gregory Scalia

provided the opinion of the court. He began by

noting that standing cases are typically analyzed

through the injury in fact standard. Speciﬁ cally,

to bring suit in federal court, plaintiffs must suf-

fer a concrete, discernible injury which is neither

conjectural nor hypothetical. Furthermore, the

injury must be fairly traceable to the conduct of

the defendant state.

To help meet this standard, plaintiffs filed

two afﬁ davits describing their foreign trips to the

traditional habitats of endangered species. Each

document disclosed past travel to the habitat as

well as a general statement of intent to return to

these locations. The afﬁ davits claimed an injury

in fact, arguing the American role in these alleg-

edly environmentally detrimental projects would

reduce the population of the species within these

habitats. Defenders of Wildlife pressed a series of

arguments including their eco-system nexus the-

ory arguing that “any person who uses any part of

a ‘contiguous ecosystem’ adversely affected by a

funded activity has standing even if the activity is

located a great distance away” (id. at 565).

The court of appeals previously found standing

based upon a citizen-suit provision. However, the

Supreme Court disagreed. Justice Scalia stated

the judiciary branch cannot, consistent with

Article III of the U.S. Constitution, allow

judicial proceedings to proceed based upon a gen-

eralized grievance. Speciﬁ cally, he argued a gen-

eral intent to return to previously visited sites was

not sufﬁ cient for standing purposes. Without con-

crete travel plans, there was no showing of actual

or imminent injury to the plaintiffs. Parties may

not assert standing by merely emphasizing the

connection of all ecosystems. Instead, the injury

must be in the actual location currently in use by

complaining party. Likewise, the Court noted the

plaintiff’s professional interest in animal survival

did not provide a factual showing of actual injury.

Speciﬁ cally, to have standing, the plaintiff should

submit speciﬁ c facts that the protective species

living in foreign nations were threatened and that

the “Respondents members would thereby be

‘directly’ affected” (id. at 563).

For more information: Nowak, John E., and

Ronald D. Rotunda. Principles of Constitutional

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

—Daniel M. Katz

Luther v. Borden 48 U.S. 1, 39 (1849)

Luther v. Borden is an important political case

where the Supreme Court refused to decide a

case, citing the political question doctrine.

Luther rose from the Dorr Rebellion and result-

ing constitutional crisis in Rhode Island, in which

political reformers attempted to create a new con-

stitution (the People’s Constitution) in the face of

resistance from the existing Charter government.

On June 29, 1842, Luther Borden, a militiaman

under the Charter government acting under the

authority of martial law, broke into the home of

Rachel Luther looking for her son, Dorrite sym-

pathizer Martin Luther. Rachel Luther sued on

the grounds that the Charter government was

no longer the legal government of Rhode Island

since it was superseded by the People’s Consti-

tution, which was ratiﬁ ed by the people in 1841.

The defense argued that the Charter government

was the legal government of Rhode Island at the

time, that it had the authority to declare martial

law, and that Borden was acting as an agent of the

government.

There were three main points of contention

in Luther v. Borden. First, did the Court have

444 Lujan v. Defenders of Wildlife

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jurisdiction to hear the matter or was it a political

question? Second, which government, the Char-

ter government or the People’s Constitution, was

the legal government of the State? Finally, did the

State have the authority to declare martial law?

The Court was unanimous on the ﬁ rst two points,

but disagreed on the third.

In order to determine which law governed this

case, the Court was asked to identify which gov-

ernment was in force at the time—the People’s

Constitution or the Charter government. The

Court refused to enter this area since the Court

felt that the case posed a political question, which

was out of its purview. Justice Roger Taney, who

wrote the opinion for the Court, argued that the

determination of the validity of the People’s Con-

stitution was not a judicial question. Taney made

it clear that under Article IV, Section 4 of the

Constitution (the guarantee clause), which

guaranteed to every state a “Republican Form of

Government,” it rested with Congress to decide

what government is the established one in a state

and it is the president who decides when to inter-

fere in civil disturbances within a state. Justice

Levi Woodbury agreed with Taney that the Court

could not be called upon to serve as an umpire in

political matters.

Although the Court extolled the virtues of the

political questions doctrine as an impediment to

ruling on the matter, the doctrine did not prevent

the Court from taking a position on a political

controversy that it felt was out of its jurisdiction.

Taney and Woodbury agreed that courts were not

superior to a constitution and the people who cre-

ated it. Judicial power, they argued, commences

after a constitution is created and derives its

power from it. Accordingly, courts should not be

in the business of determining which government/

constitution is valid. However, the Court made it

clear that its power derived from an “established

government capable of enacting laws and enforc-

ing their execution, and of appointing judges to

expound and administer them” (40). Therefore,

only when a constitution is changed through the

established institutional structures set up by an

existing government will the Court consider inter-

preting it.

For more information: Dennison, George

Marshel. The Constitutional Issues of the Dorr

War: A Study in the Evolution of American Consti-

tutionalism, 1776–1849. Ph.D. Thesis. University

of Washington, 1967; Dennison, George Marshel.

“The Dorr War and Political Questions.” Supreme

Court Historical Society Yearbook (1979): 44–62;

Magrath, Peter C. “Optimistic Democrat: Thomas

W. Dorr and the Case of Luther v. Borden.” Rhode

Island History 27 (1970): 94–112; Schuchman,

John S. “The Political Background of the Politi-

cal-Question Doctrine: The Judges and the Dorr

War.” The American Journal of Legal History 16

(1972): 111–125.

—Randa Issa

Lynch v. Donnelly 465 U.S. 668 (1984)

In Lynch v. Donnelly, a majority of the Supreme

Court, in a 5-4 vote, found no constitutional prob-

lems with a government-owned crèche (Nativity

scene) as part of a larger holiday display including

a Santa, reindeer, and other items, in Pawtucket,

Rhode Island. The city argued that Christmas was

so secularized that even biblical elements such as

the crèche were no longer purely religious sym-

bols, and defended the display as both long-stand-

ing tradition and a way to lure holiday shoppers

downtown. The American Civil Liberties

Union, on behalf of a Jewish resident, argued

that the crèche, unlike other seasonal images,

remained a religious symbol, inappropriate in a

government-sponsored display.

In ruling against Pawtucket, the district court

judge said the Nativity scene’s original meaning

had not disappeared and its placement in the

context of secular items did not have the effect of

secularizing it. Applying the three-part Lemon

test that had guided the Supreme Court’s estab-

lishment clause rulings for the previous two

decades, he found no secular purpose served by

the crèche, while its primary effect implied ofﬁ -

cial government recognition of Christianity as

a favored religion. He also thought the display

risked fostering political divisiveness, thus fail-

ing the third part of the test. Two of the three

appeals court judges upheld this ruling. The lone

Lynch v. Donnelly 445

xviii+446_EofUSConsti-v1.indd 445 3/12/09 3:05:59 PM

dissenter agreed with Pawtucket that Christmas,

and all its symbols, had become entrenched in

American secular tradition. He also thought the

passive nature of the crèche kept it from violating

the establishment clause.

The split lower court decision in this case along

with similar controversies brewing in other cities

led the Supreme Court to agree to hear the case.

One reason for the uncertainty among the lower

courts was that the facts in this case differed sig-

niﬁ cantly from earlier establishment clause cases.

Most major cases thus far had addressed educa-

tion, and the Court had developed a consistent

pattern of applying the Lemon test and disallow-

ing religious practices in public schools. However,

in 1983, in a non-school-related case, Marsh v.

Chambers, 463 U.S. 783, the Court had taken a

different direction, upholding legislative prayers

on the basis of tradition; and it was this line of

thought that the Lynch majority chose to follow.

Chief Justice Warren Burger, writing for

the majority, provided a litany of instances in

which government acknowledged America’s reli-

gious heritage, asserted that the line of church-

state separation was not rigid, and concluded that

in the context of the secular display the crèche

passed the Lemon test. In contrast, the four dis-

senters thought the display failed all parts of the

Lemon test and disagreed with the idea that pub-

lic celebrations of Christmas had always been an

American tradition.

This case left many questions unanswered. It

addressed only a government-owned display and

not private displays on government property. Also,

the emphasis on the “secularizing” effect of the

broader display led to lighthearted but real que-

ries as to how many reindeer were needed to secu-

larize a Nativity scene. It also raised doubts about

the continuing value of the Lemon test as a mean-

ingful criterion for judging establishment clause

cases. And for some Christians, rather than help-

ing to “keep Christ in Christmas,” it served only to

trivialize the religious nature of this holiday.

For more information: Pfeffer, Leo. Religion,

State, and the Burger Court. Buffalo, N.Y.: Pro-

metheus Books, 1984; Swanson, Wayne R. The

Christ Child Goes to Court. Philadelphia, Pa.:

Temple University Press, 1990.

—Jane G. Rainey

446 Lynch v. Donnelly

xviii+446_EofUSConsti-v1.indd 446 3/12/09 3:06:00 PM

447

ﱶﱷﱸ

Madison, James (1751–1836) fourth U.S.

president

James Madison, Jr., is often called the “father” of

the U.S. Constitution. Few individuals have had

more inﬂ uence on the writing, recording, ratiﬁ ca-

tion, amendment, implementation, and interpreta-

tion of that document.

Born at his mother’s homestead at Port Con-

way, Virginia, in March 1751, Madison was the son

of a wealthy Virginia planter whose name he bore

and who was a leading citizen of Orange County.

Madison went to boarding school and studied

under private tutors before entering the College

of New Jersey (today’s Princeton). Although Madi-

son completed his undergraduate degree quickly,

he spent additional time studying under President

John Witherspoon before returning to Virginia.

After his return, Madison tutored his siblings

and became involved with politics. He was per-

turbed by the actions of local ofﬁ cials who were

imprisoning Baptist ministers for their views.

Madison also joined his father in opposing what he

believed to be British abuses of colonial liberties.

As Virginia edged toward independence, Madison

was appointed to the state Constitutional Con-

vention, where he served on the committee that

formulated the Virginia Bill of Rights. He helped

revise language introduced by George Mason so

that the Declaration recognized religious freedom

not simply as a matter of “toleration” but as a natu-

ral right. Madison and Thomas Jefferson later

battled Patrick Henry for the complete disestab-

lishment of church and state in Virginia.

Although subsequently losing an election to the

Virginia legislature, Madison served as a member

of the Governor’s Council and went from there to

the Continental Congress and then to the Virginia

legislature. Madison was a leader in both bodies.

He developed an unfavorable view of the weak

government under the Articles of Confedera-

tion. He recognized that this government lacked

adequate powers to promote domestic prosper-

ity, to defend itself against foreign enemies, and

to rectify abuses of individual liberties and other

excesses that he saw at that level. He soon began

advocating a stronger national government.

Madison had been selected to attend the Mount

Vernon meeting to discuss common problems

between Maryland and Virginia, but the governor

did not inform him of his appointment in time

for him to attend. By contrast, he appears to have

been a leading ﬁ gure at the Annapolis Convention

in September 1786. With the help of Alexan-

der Hamilton and other nationalists, Madison

pushed for what was to become the Constitu-

tional Convention of 1787; he subsequently

got the Virginia legislature to lend its support.

Madison was the ﬁ rst delegate from Virginia

to arrive in Philadelphia. He masterminded the

Virginia Plan, which got the 55 delegates who

were attending to think about formulating a new

plan of government rather than simply revising

the existing government of the Articles of Confed-

eration. The Virginia Plan proposed replacing a

government centered on Congress with one based

on separate legislative, executive, and judicial

branches. He proposed a bicameral Congress in

which states would be represented in both houses

by population to replace the unicameral Congress,

in which each state had a single vote; in addition to

being more consistent with majority rule, this pro-

posal favored states, like Virginia, with larger pop-

ulations. Madison favored a unitary president and

an independent judiciary. He had to compromise

vi+904_EofUSConsti-v2.indd 447 3/20/09 2:17:34 PM

on most issues. Contrary to his hopes, the Conven-

tion eventually settled on a Congress where only

one house was apportioned according to popula-

tion. The convention also defeated other pet mea-

sures of Madison’s, like a Council of Revision that

would combine executive and judicial ofﬁ cers, and

a congressional veto of state legislation.

Although the Convention met in secret, Madi-

son took comprehensive notes of the proceed-

ings. These were not published until after his

death. They remain the best record of Convention

deliberations.

Even before the Convention adjourned, some

distrusted its work. As it was sent to the states

for ratification, Madison supported Federalist

proponents of the document over anti-Federalist

opponents. Madison joined Alexander Hamil-

ton and John Jay as one of three authors of The

EDERALIST, a series of newspaper articles, later

collected in book form, explaining and defend-

ing the new document. Madison’s more impor-

tant contributions included: Federalist 10, where

he advanced the idea that a republican, or rep-

resentative, government spread over a large land

area would embrace more factions, making it less

likely that any one would destroy the liberties

of the others; Federalist 39, where he defended

the new government as being “partly national”

and “partly federal”; and Federalist 51, where he

argued for the advantages of a system of sepa-

rated powers.

A key argument raised during the debates cen-

tered on whether a bill of rights was necessary. In

time, Madison—who may have been inﬂ uenced

on the subject by correspondence from Thomas

Jefferson, and who most certainly viewed the

adoption of such a bill as a way of heading off a

second convention that might undo the work of

the ﬁ rst—agreed to work for a bill of rights once

the new constitution was adopted. Blocked by

Governor Patrick Henry from the U.S. Senate,

Madison defeated James Monroe to gain a seat

in the House of Representatives, where he

introduced the Bill of Rights and was its stron-

gest supporter. Madison did not succeed in get-

ting an amendment that would protect the rights

of conscience against state intervention, but the

ﬁ rst 10 amendments did protect many fundamen-

tal liberties against federal abuse.

Although Madison had united with Hamilton

in defense of the new Constitution, he quickly

parted ways with the ambitious ﬁ nancial program

that Hamilton introduced on behalf of increasing

national powers. Madison unsuccessfully joined

his friend Secretary of State Thomas Jefferson in

opposing the establishment of a national bank. He

also opposed the initiatives that the Washington

administration was taking in foreign affairs, argu-

ing that the House of Representatives should have

more say in treaty implementation. In time,

Jefferson and Madison helped found the Demo-

cratic-Republican Party, which opposed Federalist

expansion of the national government and increas-

ingly stressed the importance of states’ rights. In

1794, Madison married a widow, Dolley Todd

Payne, who would later establish herself as one

James Madison (Library of Congress)

448 Madison, James

vi+904_EofUSConsti-v2.indd 448 3/20/09 2:17:34 PM

of the most inﬂ uential ﬁ rst ladies. In the interim,

Madison served again in the Virginia legislature.

When the Federalists adopted the Alien

and Sedition Acts of 1798, the latter of which

restricted freedom of speech, Madison and Jeffer-

son responded by secretly authoring the Virginia

and Kentucky Resolutions. Madison’s words were

more temperate than Jefferson’s, but Madison’s

suggestion that states should be able to “inter-

pose” themselves against unconstitutional legis-

lation set the stage for more divisive theories of

federalism that followed. In his famed Report

of 1800, Madison later built on these resolutions

by stressing the powers reserved to the states and

by denying that the national government had any

authority to restrict freedom of speech or press.

Madison served as Jefferson’s secretary of state

from 1801 through 1809, a time during which the

United States purchased the Louisiana Territory,

and in which Madison became the defendant in the

case of M

ARBURY V. MADISON, 1 Cranch (5 U.S.) 137

(1803) that established the right of the judiciary to

void unconstitutional federal legislation. Madison

then served two terms as president. His presidency

was marked by the War of 1812. Despite extreme

peril, including the sacking of the White House,

Madison did not request legislation, like the Alien

and Sedition Acts, to restrict individual liberties.

Over time, Madison accepted the constitutional-

ity of the national bank, but he vetoed other mea-

sures that he did not think the Constitution had

granted to the national government.

In retirement at his plantation at Montpelier,

Madison entertained numerous guests. He served

on the board of trustees for the University of Vir-

ginia, which Thomas Jefferson had established;

was a delegate to the Virginia Constitutional

Convention of 1829–30; and grew particularly

concerned about the growing movement for nul-

liﬁ cation of state laws. He died on June 28, 1836,

the last delegate to the Constitutional Convention

to do so. In words published after his death, he

urged his fellow countrymen to cherish national

unity.

For more information: Meyers, Marvin, ed.

The Mind of the Founder: Sources of the Politi-

cal Thought of James Madison. Indianapolis, Ind.:

Bobbs-Merrill, 1973; Miller, William L. The Busi-

ness of May Next: James Madison and the Found-

ing. Charlottesville: University Press of Virginia,

1992; Rakove, Jack N. James Madison and the

Creation of the American Republic. Glenview, Ill.:

Scott, Foresman, 1990; Rutland, Robert Allen.

James Madison: The Founding Father. New York:

Macmillan Publishing Company, 1987; Sheldon,

Garrett Ward. The Political Philosophy of James

Madison. Baltimore, Md.: Johns Hopkins Univer-

sity Press, 2001.

—John Vile

Madsen v. Women’s Health Center, Inc.

512 U.S. 753 (1994)

In Madsen v. Women’s Health Center, the

Supreme Court decided whether anti-abortion

protestors had the right to conduct protests at

women’s health centers that performed abortions

by blocking access to the building and preventing

women from pursuing their constitutional right to

obtain abortions.

The protest activity took place at the Aware

Woman Center for Choice in Melbourne, Florida,

with protestors blocking doors and marching in

front of the building, using bullhorns to spread

their message. They approached patients to

attempt to dissuade them from getting abortions

and demonstrated at the homes of clinic staff.

When the Center filed suit in September 1992,

a state court judge ordered the protestors not to

trespass on Center property, block its entrances,

or physically abuse anyone entering or leaving the

clinic; the judge speciﬁ cally noted that the order

was not intended to limit protestors from exercis-

ing their First Amendment rights.

About six months later, as the protestors vio-

lated the court order, the court created a 36-foot

buffer zone around the clinic entrances and drive-

ways (including the public sidewalk) within which

all anti-abortion speech was banned. It also pro-

hibited protestors from making excessive noise

and showing images that could be heard or seen

by patients during surgery and recovery. Addi-

tionally, the court established a 300-foot zone to

Madsen v. Women’s Health Center, Inc. 449

vi+904_EofUSConsti-v2.indd 449 3/20/09 2:17:34 PM

maintain a distance between protestors and clinic

patients and a 300-foot barrier around the homes

of clinic staff.

The Florida Supreme Court unanimously

upheld the order, declaring that the state’s con-

cern for public safety as well as women’s right to

abortion outweighed the demonstrators’ right to

protest against the performance of abortions.

On appeal to the U.S. Supreme Court, although

the anti-abortion protestors did not challenge the

300-foot zone in which only invited speech was

allowed, they claimed that the rest of the state

court order violated their First Amendment rights.

They also argued that the court order targeted anti-

abortion expression because pro-choice demon-

strators were allowed within the buffer zone. The

Center contended that the court order promoted a

number of interests, including public safety of clinic

staff and patients. They further maintained that the

regulation was a proper crowd control measure that

was unrelated to opinions on abortion.

When the case reached the Court, it directed

most of its attention to the constitutionality of the

36-foot buffer zone. The 6-3 ruling, announced

by Chief Justice William Hubbs Rehnquist,

found that the court order was content-neutral and

applied to all persons engaged in clinic protests,

regardless of their message. The Court determined

that the burden imposed by the order was no

greater than necessary to further the government’s

interest in preserving order and upheld the 36-

foot buffer zone around the clinic entrances and

driveway to allow access to the clinic and allow

street trafﬁ c. It found, however, that the restric-

tions forbidding protestors from showing images

were unjustiﬁ ed because they were an unneces-

sary burden on the protestors’ constitutional rights.

Similarly, it found the 300-foot zone around the

clinic and at staff residences too broad, because it

prevented protestors from expressing their views

peacefully and exceeded the government’s inter-

est in ensuring access to the clinic and preventing

intimidation of patients and staff.

For more information: Hagan, Melanie C. “The

Freedom of Access to Clinic Entrances Act and

the Nuremberg Files Web Site: Is the Site Properly

Prohibited or Protected Speech?” Hastings Law

Journal 51 (2000): 411–444; Hare, Ivan. “Method

and Objectivity in Free Speech Adjudication: Les-

sons from America.” International & Comparative

Law Quarterly 54 (2005): 49–87; Keast, Tiffany.

“Injunction Junction: Enjoining Free Speech after

Madsen, Schenck, and Hill.” American Univer-

sity Journal of Gender, Social Policy & the Law

12 (2004): 273–307; Zick, Timothy. “Speech and

Spatial Tactics.” Texas Law Review 84 (2006):

581–651.

—Susan Gluck Mezey

Magna Carta

The Magna Carta is an important English legal

document that also had a big impact upon the

American Constitution.

Magna Carta means “Great Charter” in Latin

(the language in which it was originally written)

and was granted by King John in 1215 under the

duress of a potential civil war. Magna Carta lim-

ited certain key powers of the king and was revised

several times over the following years. The 1225

version remains today as what many refer to as

Magna Carta, because King Edward I of England

included it in his 1297 statute rolls, thus conclud-

ing the evolution of Magna Carta itself.

King John, a Plantagenet, had come to the

throne upon a legitimate but disputed claim. The

expensive campaign that he waged to regain his

lost interests in Normandy required heavy taxa-

tion upon the aristocracy during a time of vexing

inﬂ ation. King John’s decisive defeat at the Battle

of Bouvines in 1214 inﬂ amed the already discon-

tented aristocracy. A powerful group of barons

directed by Stephen Langdon, archbishop of Can-

terbury, forced the issue of liberties to be granted

by the king. The Articles of the Barons, as it was

known, was sealed by King John in a ﬁ eld at Run-

nymede, England, on June 12, 1215. The formal

version of Magna Carta was agreed upon by the

barons and the king on June 19, 1215.

Clearly, the significance of Magna Carta far

exceeds most of its actual wording. The majority of

the document had to do with largely feudal issues

beneﬁ ting the aristocracy from which little mod-

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ern constitutional law could be gleaned. After this

has been removed, however, what remains in its

provisions is nothing short of monumental, ensur-

ing that the king would not be above legal retribu-

tion. He would also be required to consult with

the barons in important state matters, including

taxation. This would ultimately lead to the rise of

the British Parliament. For the United States, the

beginnings of representation by the people can be

traced through our English legal heritage directly

to Magna Carta.

Also important to Anglo-American legal his-

tory, Magna Carta established several specific

requirements upon the courts of the day. These

are enumerated in Clauses 17–22. Among them,

courts would have to be held in a ﬁ xed location,

instead of traveling from place to place. Further

pertinent jurisdictional issues of the time were

addressed. Clause 40 seems somewhat modern

and fundamental, though it of course must be

taken in historical context. It stated, “To no one

will we sell, to no one will we refuse or delay right

or justice.”

Looking speciﬁ cally to the United States Consti-

tution (and subsequently to state constitutions), the

legacy of Magna Carta is readily apparent. It can

be argued that the entire U.S. Constitution belies

a philosophy deeply steeped in limiting the powers

of government when basic individual liberties are at

issue, as seen in Magna Carta. Clearly, these rights

are particularly visible in the Bill of Rights.

Clause 39 of Magna Carta is of great signiﬁ -

cance to the U.S. Constitution. It actually con-

tained what modern Americans might call a due

process clause. It stated that “No free man shall

be arrested or imprisoned or disseised or outlawed

or exiled or in any way victimized, neither will we

attack him or send anyone to attack him, except by

the lawful judgment of his peers or by the law of

the land.” The Fifth Amendment of the U.S. Con-

stitution clearly harkens to this concept with the

language “No person shall . . . be deprived of life,

liberty, or property, without due process of law.”

Further, the Fourteenth Amendment

applies due process rights to the states and says

“No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property,

without due process of law.”

Also pertaining to the Bill of Rights, though

clearly the 13th century had different stan-

dards and mores than today’s constitutional cli-

mate, one can see the beginnings in Clause 20

of Magna Carta the prohibition against cruel

and unusual punishment. The U.S. Constitu-

tion has such a clause in the Eighth Amendment.

Moreover, Clause 21 of Magna Carta shows the

beginnings of the right to a jury of our peers,

which is presented in the Sixth Amendment of

the U.S. Constitution.

Of further interest, a few clauses remain

directly in force today as British law.

Please note: Magna Carta is historically more

often and correctly referred to without the article

“The” in its name. In other words, “Magna Carta”

and not “The Magna Carta” is preferable.

For more information: Blake, Robert, ed. The

English World: History, Character, and People.

New York: Harry N. Abrams, Inc., Publishers,

1982; Lyon, Ann. Constitutional History of the

United Kingdom. Portland, Oreg.: Cavendish

Publishing Limited, 2003.

—Maria Collins Warren

Mann Act

The Mann Act, or White Slave Traffic Act, was

a federal statute enacted in 1910 to address the

fear of “white slavers” coercing young women liv-

ing in cities into prostitution. The statute made it

a felony to knowingly transport in interstate

commerce or persuade or coerce the interstate

travel of “any woman or girl for the purpose of

prostitution, debauchery, or for any other immoral

purpose” with or without her consent. Conviction

could bring a ﬁ ne up to $5,000 and imprisonment

up to ﬁ ve years.

The U.S. Supreme Court upheld the statute’s

constitutionality in Hoke v. United States, 227

U.S. 308 (1913). The next year, in Wilson v. United

States, 232 U.S. 563 (1914), a commercial prosti-

tution case, the Court held that a person violated

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