Schultz D. Encyclopedia of the United States Constitution

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restriction prevents state and local candidates

and officeholders from raising or spending

funds unregulated by FECA to pay for public

communications that promote or attack federal

candidates.

BCRA placed disclosure requirements on

“electioneering communications” and prohib-

ited unions or corporations from ﬁ nancing elec-

tioneering communications. Before BCRA, only

communications that contained words of “express

advocacy,” i.e., “vote for,” “vote against,” “elect,”

“defeat,” were subject to any limits. BCRA barred

corporations or unions from funding any broad-

cast, cable, or satellite communication mentioning

a clearly identiﬁ able federal candidate within 30

days of a primary or 60 days of a general election

that is directed at that candidate’s electorate. This

deﬁ nition attempted to capture the spirit of the

express advocacy restrictions, though opponents

argued that it covered a far more broad category of

communications and would unreasonably restrict

the right of citizens to engage in lobbying. The

Supreme Court upheld the electioneering com-

munications provisions, reasoning that the deﬁ -

nition of “electioneering communication” would

better capture those ads that really were aimed at

inﬂ uencing an election, although active litigation

continues over this provision.

The Supreme Court ruled that two key provi-

sions of BCRA were unconstitutional. First, the

Court found that a provision of BCRA requiring

parties to choose between making coordinated

expenditures with a candidate in a general elec-

tion and making “independent expenditures” in

support of candidates was unconstitutional. The

Supreme Court has repeatedly invalidated restric-

tions on parties’ expenditures and again held that

independent expenditures by parties were entitled

to First Amendment protection.

Second, the Supreme Court ruled that a minor’s

First Amendment rights extend to campaign con-

tributions, and therefore, BCRA’s prohibition on

political contributions from minors was uncon-

stitutional. Proponents of this provision argued

that contributions from minors were a mere cover

for larger contributions from their parents. The

Supreme Court ruled that so long as a contribu-

tion really was from a minor, it was constitution-

ally protected.

Subsequently in FEDERAL ELECTION COMMISSION

V. WISCONSIN RIGHT TO LIFE, INC., U.S. ___ (2007),

the United States Supreme Court ruled that Sec-

tion 203 of the Bipartisan Campaign Reform Act

of 2002 was an unconstitutional violation of the

First Amendment as applied to certain forms of

political speech.

For more information: Malbin, Michael, ed.

Life after Reform: When the Bipartisan Cam-

paign Reform Act Meets Politics. Lanham, Md.:

Rowman and Littleﬁ eld, 2003; Urofsky, Melvin

I. Money and Free Speech: Campaign Finance

Reform and the Courts, Lawrence: University of

Kansas Press, 2005.

—Karen Blackistone

McCreary County, Kentucky v. American

Civil Liberties Union

545 U.S. 844 (2005)

In a 5-4 decision, the Supreme Court in McCreary

County v. ACLU declared Ten Commandments

displays on the walls of two Kentucky county

courthouses to be unconstitutional. This occurred

on the same day that the Court, also in a 5-4 deci-

sion, upheld a Ten Commandments monument in

Texas (VAN ORDEN V. PERRY).

The Kentucky counties had originally posted

framed copies of an abbreviated King James ver-

sion of the Commandments. Following a com-

plaint by the ACLU, they added eight other

documents, all with religious references, such

as the national motto, “In God we trust,” and

the “endowed by their creator” reference in the

Declaration of Independence. Following

a court injunction, they replaced that display

with a new set of nine documents, including a

more complete version of the Ten Command-

ments. Other items ranged from the Magna

Carta to a picture of “Lady Justice.” Collec-

tively titled “The Foundations of American Law

and Government Display,” the documents all had

statements about their legal and historical signiﬁ -

cance. The Ten Commandments were credited

with providing the “moral background for the

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Declaration of Independence and the foundation

of our legal tradition.”

Using the standard that government actions

must have a secular purpose, Justice David H.

Souter, writing for the majority, chided the

counties that “the secular purpose required has to

be genuine, not a sham, and not merely secondary

to a religious objective.” He also rejected the pro-

posal to ignore the previous displays: “The Coun-

ties’ position just bucks common sense: reasonable

observers have reasonable memories.” Souter then

provided a detailed textual and contextual analy-

sis of the three displays as well as the Ten Com-

mandments display contested two decades earlier

in Stone v. Graham, 449 U.S. 39 (1980), also

from Kentucky. Particularly since more explicitly

religious language in the Commandments was

included in the third display, Souter concluded,

incredulously, “No reasonable observer could

swallow the claim that the Counties had cast off

the objectives so impermissible in the earlier dis-

plays.” He was also bafﬂ ed by the third display’s

mix of documents purporting to educate about

American government. For example, the Magna

Carta was included, but not the Constitution.

Souter then turned his attention to the dissent-

ing opinion in which Justice Antonin Gregory

Scalia called for a return to the original intent of

the establishment clause. He reminded Sca-

lia that it had meant different things to different

Founders but clearly had the still relevant goal of

keeping government free from religious divisive-

ness. Scalia, in equally pointed tones, rebuked

Souter for reaching a new level of “false assump-

tions” by insisting on a neutrality that did not ﬁ t

with American history. He reminded the major-

ity that even the Court had deviated occasion-

ally for what he labeled “self preservation.” Scalia

also used his space to attack Justice John Paul

Stevens’s dissent in Van Orden for Stevens’s

expansive and ﬂ exible interpretation of the estab-

lishment clause.

In light of the extremely polarized tone of both

sides in this case, it is noteworthy that Justice Ste-

phen G. Breyer, part of the McCreary majority,

joined the McCreary dissenters to form the Van

Orden voting majority.

For more information: Boston, Rob. “Decalogue

Divide.” Church and State July/August 2005, 7–9;

Hester, Joseph P. The Ten Commandments: A

Handbook of Religious, Legal, and Social Issues.

Jefferson, N.C.: McFarland and Co., 2003; Irons,

Peter. God on Trial: Dispatches from America’s

Religious Battleﬁ elds. New York: Viking, 2007.

—Jane G. Rainey

McCulloch v. Maryland 17 U.S. 316 (1819)

In MCCULLOCH V. MARYLAND, the Supreme Court

upheld the power of Congress to create a national

bank under the necessary and proper clause

of the Constitution, and it also ruled that the state

of Maryland had no authority to tax the bank. This

opinion by John Marshall ranks as one of the

most important cases in American constitutional

history.

The underlying facts of the case began to

develop from what were believed to be unfair

competitive advantages enjoyed by the Bank of

the United States, which had been chartered by

Congress in 1816. The ﬁ nancial practices of the

Bank of the United States often disallowed mar-

ket and pricing opportunities. Maryland believed

this to be an egregious abuse of national power by

the Bank of the United States, and in an approach

to restrict banking operations within the state

and specifically the Bank of the United States,

the state of Maryland imposed a tax on the bank.

The Bank of the United States refused to accept

that this tariff was valid and refused to pay. In

doing so, their sovereign rights were called into

question, and the rights of the states and their

abilities to impact the federal government would

be challenged for years to come. The case then

moved to court. Maryland argued that the federal

government and especially the Congress did not

have the authority to establish a bank, because

that power was not delegated to either of them in

the Constitution.

The Supreme Court’s unanimous decision

upheld the authority of Congress to establish a

national bank, and thus Maryland lost its chal-

lenge. Chief Justice John Marshall’s opinion does

in some manner concede that the Constitution

McCulloch v. Maryland 463

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does not explicitly grant Congress the right to

establish a national bank, but noted that the action

by Congress does in spirit fall within the necessary

and proper clause (Article I, Section 8, Clause

18) of the Constitution. This necessary and proper

clause gives Congress the authority to do whatever

is required so as to exercise its enumerated pow-

ers, and so the Court recognized the existence of

implied powers within the Constitution. According

to Marshall:

This clause is nothing more than a declaration

of the authority of congress to make laws, to exe-

cute the powers expressly granted to it, and the

other departments of the government. But the

laws which they are authorized to make, are to

be such as are necessary and proper for this pur-

pose. No terms could be found in the language,

more absolutely excluding a general and unlim-

ited discretion than these. It is not “necessary or

proper,” but “necessary and proper.” The means

used must have both these qualities. It must be,

not merely convenient—ﬁ t—adapted—proper,

to the accomplishment of the end in view; it must

likewise be necessary for the accomplishment of

that end. Many means may be proper, which are

not necessary; because the end may be attained

without them.

Marshall also crushed Maryland’s attempt at

taxation of the U.S. government bank. Marshall

offered that, within the issue as it relates to the

authority of Maryland to tax the national bank, the

Court understood that “the power to tax involves

the power to destroy. . . . If the states may tax one

instrument [of the federal government] they may

tax any and every other instrument . . . the mail

. . . the mint . . . patent rights . . . judicial process.”

The Court stated also that this was not believed

to be the intention of the American people. Also,

the Court believed that the intention of the people

and framers of the Constitution did not design the

government to be dependent upon the respective

states. With this statement, Chief Justice Marshall

again deﬁ ned himself to be a staunch supporter of

the Constitution, further establishing within the

law the rights of Congress and thereby limiting

the rights of the states in action against the fed-

eral government.

Overall, McCulloch v. Maryland offered an

important statement about the power of the

national and state governments, and it defined

how the Constitution would be interpreted in this

regard.

For more information: Killenbeck, Mark Rob-

ert. McCulloch v. Maryland: Securing a Nation.

Lawrence: University Press of Kansas, 2006;

White, G. Edward. The Marshall Court and Cul-

tural Change, 1815–1835. New York: Oxford Uni-

versity Press, 1991.

—Ernest Gomez

Megan’s Law

Megan’s Law is a term used to denote a number

of state laws in the United States that require law

enforcement authorities to identify sex offenders

to the public. States must implement some form

of sex- and child-offender registration and com-

munity-notiﬁ cation legislation in order to receive

10 percent of anticrime funds as well as to protect

children from sex offenders.

Since 1996, every state has enacted legisla-

tion requiring sex offenders to register with law

enforcement and have their personal information

available to the community, often for life. Regis-

tration must take place upon release from custody.

Slightly over half of all states require registration

and community notiﬁ cation for juveniles adjudi-

cated delinquent for sex offenses. The ﬁ rst Megan’s

Law was passed in New Jersey in 1994 after the

rape and murder of Megan Kanka by Jesse Tim-

mendequas. Timmendequas was a convicted sex

offender who had lived across the street from

Megan. Timmendequas had twice been convicted

of sexual offenses against children and raped and

murdered his neighbor, seven-year-old Megan

Kanka. Megan’s mother claimed that her daugh-

ter would still be alive if she had known about

her neighbor’s history of sexual offenses. Megan’s

mother and thousands of supporters implored the

New Jersey legislature to help citizens identify

sexual offenders in their neighborhoods.

464 Megan’s Law

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The basic intention of Megan’s Law is to give

parents and guardians the ability to protect their

children by making them aware of the presence

of convicted sex offenders in their neighborhood.

The individual who murdered Megan Kanka was

a convicted sex offender whose background the

Kanka family claims not to have been aware of.

Supporters of Megan’s Law maintain that the law

is imperative because of the inability of sex offend-

ers to be “cured.” Additionally, supporters contend

that sex offenders have extremely high recidivism

rates, so passing the legislation might combat

sexual abuse recidivism. Supporters oppose using

the law for the purpose of harassing or violating

the rights of sex offenders, even if only to prevent

the law from being repealed on the grounds that it

may facilitate such illegal behavior.

Megan’s Law is not such an unusual law, since

information about convicted criminals has always

been public information. In fact, sex offender

registration laws had existed in ﬁ ve states since

1986 and in almost half of the states by 1993.

Most of these laws limited the release of registra-

tion information to law enforcement agencies to

facilitate the location of subjects when new crimes

occurred. One prominent federal law stood out

as a means to combat sexual abuse recidivism.

In 1994, Congress passed the Jacob Wetterling

Act, which required states to create registries of

sexually violent offenders, including offenders who

targeted children. These registries were required

to annually track offenders’ residences for a mini-

mum of 10 years after their release from custody.

Recidivistic offenders were lifetime registers.

Due to several high-proﬁ le rape and murder cases

involving children in the 1990s, sex registration

laws were again reviewed. The state of Washing-

ton lobbied the legislature for community notiﬁ ca-

tion as a citizen’s tool for protecting children and

was successful by 1990. Many states followed suit,

with Megan’s Law becoming the formal policy.

Megan’s Law basically enhanced the Wetterling

Act by requiring community notification of sex

offenders.

Megan’s Law simply makes it easier for parents

and guardians to access information about sex

offenders in lieu of tiresome research. The intent

of Megan’s Law is not to punish sex offenders but

to facilitate in the quest for public safety, particu-

larly where children are concerned. Megan’s Law

provides an easy way for schools, churches, day-

care centers, and volunteer youth organizations to

screen applicants for positions. Parents and guard-

ians can also check babysitters or live-in domestics

against a registry database. On May 17, 1996, Pres-

ident Bill Clinton signed into law the ﬁ rst federal

version of Megan’s Law. According to this version,

every state in the country is required by law to tell

a community when a dangerous sexual predator

is a resident. The law was written by Congress-

man Dick Zimmer and has been amended several

times since the original bill was passed. Different

states have different procedures for making the

required disclosures.

Despite the successful passage of Megan’s

Law, it is not without criticism. For example, not

all state agencies agree that juveniles should be

treated as adults under Megan’s Law. The argu-

ment is that states have failed to consider the

distinct characteristics of juvenile sex offending,

such as exceptionally low recidivism rates and cul-

pability complications arising from age-of-consent

laws. Additionally, while most felony convictions

infringe, in part, a released individual’s rights and

opportunities, no other type of offense results in

such pervasive post-release requirements as do

sexual offenses, particularly those perpetrated

against minors. As a result, there have been at

least two important constitutional challenges to

sex offender registry laws.

In the first case, S

MITH V. DOE, 538 U.S. 84

(2002), the Court heard arguments as to whether

Alaska’s sex offender registration and notiﬁ cation

law and the implementation of community notiﬁ -

cation through the Internet imposes punishment

in violation of the ex post facto clause of the

U.S. Constitution. The argument on behalf of the

United States was that Megan’s law was a remedial

measure designed to protect the public, not to pun-

ish offenders. The argument against registering on

the Internet was that the posting of sex offenders’

criminal history and personal information on the

Internet available to the general public constitutes a

form of punishment that violates the constitutional

Megan’s Law 465

vi+904_EofUSConsti-v2.indd 465 3/20/09 2:17:39 PM

rights of those offenders who committed their

crimes prior to the enactment of the law.

The second notable challenge in 2002, Con-

necticut Department of Public Safety v. Doe, 538

U.S. 1 (2002), involved the due process clause.

Connecticut’s “Megan’s Law” requires persons

convicted of sexual offenses to register with the

Department of Public Safety (DPS) upon their

release into the community and requires DPS to

post a sex offender registry containing registrants’

names, addresses, photographs, and descriptions

on an Internet Web site and to make the registry

available to the public in certain state ofﬁ ces. One

convicted sex offender claimed that the law violates

the Fourteenth Amendment’s due process

clause. The district court and Second Circuit Court

concluded that such disclosure both deprived reg-

istered sex offenders of a “liberty interest” and vio-

lated the due process clause because ofﬁ cials did

not afford registrants a predeprivation hearing to

determine their level of dangerousness. This rul-

ing was reversed on the grounds that mere injury

to reputation does not constitute the deprivation of

liberty interest. Additionally, even if that offender

has been deprived of a liberty interest, due pro-

cess does not entitle him to a hearing to establish

a fact—that he is not currently dangerous—that is

not material under the statute.

For more information: Garfinkle, Elizabeth.

“Coming of Age in America: The Misapplication

of Sex-Offender Registration and Community-

Notiﬁ cation Laws to Juveniles.” California Law

Review 91 (2003): 163–206.

—Kim MacInnes

Metro Broadcasting, Inc. v. FCC 497 U.S.

547

(1990)

In Metro Broadcasting, Inc. v. FCC, the U.S.

Supreme Court upheld the Federal Communi-

cations Commission’s use of race as a factor in

awarding certain types of broadcast licenses to

minority-owned companies in order to increase

diversity in on-air programming.

The 5-4 decision, written by Justice William

J. Brennan, Jr., reﬂ ected the deep divisions in

the Court over the issue of affirmative action,

a rift that spanned 25 years.

One aspect of the rift was reﬂ ected in a short-

lived portion of the Metro Broadcasting decision,

that afﬁ rmative action programs implemented by

the federal government should be afforded more

deference under the Constitution than similar

programs of state and local governments. This

portion of the ruling held that federal afﬁ rmative

action should be measured under an intermediate

constitutional standard—whether there was an

important governmental objective and whether the

means of achieving it was substantially related to

the goal—instead of the stricter standard applied

to state and local afﬁ rmative action programs. But

five years later, in ADARAND CONSTRUCTORS, INC.

V. PENA, 515 U.S. 200 (1995), the Supreme Court

overruled this portion of Metro Broadcasting and

said that any use of race by a government at any

level is inherently suspect and must be subjected

to the strictest standard of review in court.

The case had its origins in 1978, when the FCC

announced that it would consider minority owner-

ship as one of many factors when comparing com-

peting applicants for radio or television broadcast

licenses. The FCC also said that licensees facing

loss of their broadcast outlet in what is known as a

“distress sale” may assign their licenses to minor-

ity-owned broadcast companies. Both of these

new policies were designed to increase minority

participation in broadcasting.

Metro Broadcasting challenged the FCC’s

award of a license to a minority-owned company,

Rainbow Broadcasting, for a new UHF television

station in Orlando, Florida. The Rainbow license

was upheld by the U.S. Court of Appeals for the

District of Columbia Circuit, and Metro

appealed to the Supreme Court. In a related case,

Shurberg Broadcasting objected to a distress sale

of a Hartford, Connecticut, license to a minority-

owned company, Astroline Communications Co.

The D.C. Circuit struck down the FCC distress

sale policy, and Astroline appealed to the Supreme

Court, where the two appeals were combined.

Justice Brennan concluded that “the diversity

of views and information on the airwaves serves

important First Amendment values” and said

466 Metro Broadcasting, Inc. v. FCC

vi+904_EofUSConsti-v2.indd 466 3/20/09 2:17:40 PM

the Court should defer to the FCC’s view that

“there is an empirical nexus between minority

ownership and broadcasting diversity.” He also

concluded that Congress had endorsed FCC

efforts to promote minority ownership.

Justice Sandra Day O’Connor wrote the

main dissent, joined by Chief Justice William

Hubbs Rehnquist and Justices Antonin Greg-

ory Scalia and Anthony M. Kennedy. Accus-

ing the majority of departing from established

principles, O’Connor said, “This departure marks

a renewed toleration of racial classiﬁ cations and

a repudiation of our recent afﬁ rmation that the

Constitution’s equal protection guarantees

extend equally to all citizens.”

It was O’Connor who wrote the subsequent

Adarand decision. That ruling, focused on fed-

eral highway contracts, overruled Metro’s use

of a lower standard to judge federal afﬁ rmative

action programs. But the Adarand decision had

no occasion to reconsider the goal of broadcast

diversity as a rationale to justify the use of racial

classiﬁ cations.

For more information: Baynes, Leonard M.

“Life after Adarand: What Happened to the Metro

Broadcasting Diversity Rationale for Afﬁ rmative

Action in Telecommunications Ownership?” Uni-

versity of Michigan Journal of Law Reform 33

(2000): 87–132.

—Stephen Wermiel

Miami Herald v. Tornillo 418 U.S. 241

(1974)

In Miami Herald Publ’g. Co. v. Tornillo, the

Supreme Court ruled that newspapers can-

not be required to publish materials by political

candidates responding to published criticisms.

The decision enhanced the doctrine under the

freedom of expression provisions of the First

Amendment that government generally may not

require individuals or entities to say or print par-

ticular matters.

The case arose out of a state statute in Florida

that granted political candidates a right to equal

space in newspapers to reply to criticisms and

attacks on their records. A candidate for local

office in Florida sought to activate the “right

reply” law after he was criticized by a newspaper

editorial.

The Florida measure was intended to allow

political candidates who are harmed or defamed

by published matter to respond or reply to the

publication. It paralleled a doctrine that had been

established by the Federal Communications Com-

mission (FCC), which regulates the broadcast

industry. Under FCC’s “Fairness Doctrine,”

broadcast media, which are subject to government

licensure, were required for many years to provide

an opportunity for those who were attacked in the

media to respond. The Equal Time Law, a fed-

eral law, also requires broadcasters to give parity

to candidates for political ofﬁ ces during election

campaigns.

The candidate’s claim was upheld by the state

court, but the ruling was reversed by the U.S.

Supreme Court, which held that the law violated

the freedom of press and speech provision of the

First Amendment by forcing publication of unde-

sired speech. The Court struck down the statute

on several grounds: (1) because it “exacts a penalty

on the basis of the content of a newspaper”; (2)

it encourages newspapers to “avoid controversy”;

and (3) it results in compelled “intrusion into the

function of editors.”

While the case involved only the “right of reply”

for newspapers, its impact is much broader. The

effect of the ruling prohibits government from

requiring anyone—traditional media, electronic

communications like bloggers, or others—to pub-

lish material that responds to criticisms. The Tor-

nillo doctrine does not proscribe defamation

claims, but limits remedies for claims to damages,

rather than requiring the publishers of defamatory

materials to furnish the subject of the defamation

the opportunity to reply.

For more information: Bezanson, Randall P.

How Free Can the Press Be? Champaign: Univer-

sity of Illinois Press, 2003; Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—Marshall Tanick

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military and the Constitution

The military or armed forces are subject to

numerous constitutional limitations, raising issues

regarding which branches of the national govern-

ment have control over them.

Having just been through a major war, the

framers of the Constitution were skeptical of

standing armies. Thus, the Second Amendment

discusses the importance of a “well regulated

Militia,” while the Third Amendment makes it

illegal to quarter soldiers in civilian homes dur-

ing peacetime. Despite this, the Framers vested

considerable war-making powers in the hands of

the Congress (including the power to declare war,

raise and support armies, and maintain a navy)

and the president (who is the commander in

chief of the army and navy).

At the same time, the framers were unclear

about the Supreme Court’s power to review mili-

tary acts. Alexander Hamilton, in Federal-

ist 78, spoke of a natural presumption favoring

judicial review but in other places suggested

that issues of war and peace were beyond the

judiciary’s scope. The Supreme Court appeared

to adopt this view in M

ARBURY V. MADISON, 5 U.S.

(1 Cranch) 137 (1803), when it refused to rule on

“political questions”—a category that speciﬁ cally

included military matters. Chief Justice John

Marshall reasoned that such questions were

best discussed by the political branches (Congress

and the president).

Although the antebellum period saw some con-

stitutional debate surrounding the War of 1812 and

the Mexican-American War, it was the Civil War

that put the constitutional arrangements govern-

ing military power to the test. President Abraham

Lincoln suspended habeas corpus, blockaded

Southern ports, silenced dissenting voices, and

established military tribunals. During this time,

the Court deferred to Lincoln—usually over the

dissent of Chief Justice Roger Taney. When

Taney argued that only Congress could suspend

the writ of habeas corpus, Lincoln responded that

it was meaningless to enforce all the laws if the

government fell to pieces.

Reconstruction saw a more assertive Court.

Facing an unpopular president (Andrew John-

son), the Supreme Court, in E

X PARTE MILLIGAN,

71 U.S. (4 Wall.) 2 (1866), granted habeas corpus

to an Indiana citizen sentenced to death by a mili-

tary commission for conspiracy. In reaching this

decision, the Court explained that unlike during

the Civil War, “public safety is assured.” How-

ever, this newfound assertiveness had limits. The

Supreme Court did not challenge the basis of mil-

itary governments in Southern states and, in E

PARTE MCCARDLE, 74 (7 Wall.) 505 (1868), agreed

that Congress could strip the Court’s jurisdiction

to hear a case involving criticism of Mississippi’s

military government.

Although the First World War saw a number

of prosecutions brought against critics of conscrip-

tion, it did not generate a constitutional crisis.

World War II, however, was another matter. In

Ex parte Quirin, 317 U.S. 1 (1942), the Supreme

Court upheld the power of the president to estab-

lish military commissions to try “enemy combat-

ants”—in this case Nazi saboteurs. The main

conﬂ ict, however, centered on President Franklin

Roosevelt’s order deporting Japanese Americans

This 1941 photograph shows President Franklin

D. Roosevelt asking Congress to declare war on

Japan the day after the Japanese attack on Pearl

Harbor.

(Library of Congress)

468 military and the Constitution

vi+904_EofUSConsti-v2.indd 468 3/20/09 2:17:40 PM

living on the West Coast of the United States to

internment camps. Although the deportation

order was issued in early 1942—shortly after the

attack on Pearl Harbor—the Supreme Court did

not rule on its constitutionality until 1944. In

OREMATSU V. UNITED STATES, 325 U.S. 219 (1944),

the Supreme Court upheld the order, noting that

“the properly constituted military authorities”

feared an invasion. Later, however, in Ex parte

Endo, 323 U.S. 283 (1944), issued the day after

Roosevelt announced the closing of the camps,

the Court held that an individual could challenge

her deportation to a camp. Signiﬁ cantly, by this

time, the administration of the internment camps

had been turned over to a civilian organization—a

factor that may have made the Court more willing

to rule against the military.

More recently, the Supreme Court has, in a

series of cases related to the war on terror, lim-

ited the state’s power to detain enemy combatants.

In HAMDI V. RUMSFELD, 542 U.S. 507 (2004), the

Court held that the government cannot indefi-

nitely detain an enemy combatant. In Rasul v.

Rumsfeld, 542 U.S. 466 (2004), the Court held

that civilian courts can hear habeas challenges

from Guantánamo Bay prisoners. Finally, Ham-

dan v. Rumsfeld, 126 S.Ct. 2749 (2006)—a highly

technical ruling—saw the Court invalidate Presi-

dent George W. Bush’s plan to use military com-

missions to try enemy combatants as going beyond

the power he had been given by Congress.

While these cases appear to break from the

pattern of judicial deference on military mat-

ters, they can also be understood as responses to

a weak president at a time (2004–06) when the

fear of terrorism had begun to dissipate. Further-

more, none of the decisions have (so far) struck

a mortal blow against the Bush administration’s

detention of enemy combatants. (For example,

after Hamdan, President Bush was able to go back

and gain congressional authorization for military

commissions.)

Questions of the constitutional position of the

military also arise in the wide variety of cases that

force the Court to review some aspect of mili-

tary life. Here, as well, courts treat the military

with great deference. In part, this is because the

military, like other professional groups, possesses

specialized knowledge. But while courts are occa-

sionally willing to challenge the norms of doctors,

lawyers, and accountants, they tend to treat the

military as a separate society with its own rules.

Deference to the military often trumps other

constitutional rights. For example, in Goldman v.

Weinberger, 475 U.S. 503 (1986), the Court held

that the First Amendment right to free expres-

sion did not cover an air force doctor who sought

to wear a yarmulke while on active duty. The simi-

lar argument was used in ROSTKER V. GOLDBERG,

453 U.S. 57 (1981), which held that male-only

draft registration did not violate the constitution.

At the same time, deference to the military

does not always lead to a rollback of civil rights.

In GRUTTER V. BOLLINGER, 539 U.S. 306 (2005), the

armed forces submitted an amicus brief which

stated that the ROTC and service academies

would be unable, without race-conscious admis-

sions standards, to ﬁ eld a military that was highly

qualified and racially diverse. Justice Sandra

Day O’Connor quoted from this brief repeatedly

in her plurality opinion upholding affirmative

action in higher education.

For more information: Lichtman, Steven B.

“The Justices and the Generals: A Critical Exami-

nation of the U.S. Supreme Court’s Tradition of

Deference to the Military, 1918–2004.” Maryland

Law Review 65 (2006): 907–949; Neely, Mark

E., Jr. The Fate of Liberty: Abraham Lincoln and

Civil Liberties. Oxford: Oxford University Press,

1992; O’Connor, John F. “Statistics and the Mili-

tary Deference Doctrine: A Response to Profes-

sor Lichtman.” Maryland Law Review 66 (2007):

668–706; Pilon, Roger. “The War Powers in Brief:

On the Irreducible Politics of the Matter.” Car-

dozo Public Law, Policy and Ethics Journal 2

(2003) 49–58; Pushaw, Robert J. “The ‘Enemy

Combatant’ Cases in Historical Context: The

Inevitability of Pragmatic Judicial Review.” Notre

Dame Law Review 82 (2007): 1,005–1,083; Vagts,

Detlev F. “Military Commissions: A Concise His-

tory.” American Journal of International Law 101

(2007): 35–48.

—Robert A. Kahn

military and the Constitution 469

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Miller-El v. Cockrell 537 U.S. 322 (2003)

In Miller-El v. Cockrell, the Supreme Court held

that the Fifth Circuit Court of Appeals improperly

denied petitioner Thomas Joe Miller-El’s Certiﬁ -

cate of Appealability by failing to properly review

the district court’s decision to deny petitioner’s

habeas corpus petition for relief based on the

Dallas county prosecutor’s discriminatory use of

peremptory strikes to remove African Americans

from Miller-El’s state capital murder trial.

In this case, the petitioner, Miller-El, sought

relief from a 1986 Texas state court capital mur-

der conviction through a habeas corpus petition

based on a violation of his equal protection

rights. Miller-El’s petition was based on his claim

that prosecutors had used 10 of 11 peremptory

strikes to eliminate African Americans from the

jury hearing Miller-El’s case in a purposeful and

discriminatory manner.

At the state trial court level, Miller-El had

asked the judge to strike the jury due to the

prosecutor’s improper and discriminatory use of

peremptory strikes. The trial court denied Miller-

El’s request, and subsequently, he was convicted

by the jury of capital murder. Miller-El ﬁ led both

direct appeals and habeas relief before the Texas

state courts. During the time period when Miller-

El ﬁ led his state court appeals, the U.S. Supreme

Court, in B

ATSON V. KENTUCKY, 476 U.S. 79, 106

S.Ct. 1712, 90 L.Ed.2d 69, created a new standard

for analyzing equal protection claims. Under Bat-

son, the Supreme Court established a three-step

process for evaluating claims that prosecutors had

exercised peremptory challenges in violation

of a defendant’s equal protection. Under the new

three-step process: (1) the defendant must show

with prima facie evidence that the peremptory

challenges had been exercised on the basis of race;

(2) if the defendant succeeds with step one, then

the prosecution must offer a “race-neutral basis”

for striking jurors; and (3) the trial court must

determine if the defendant has shown purposeful

discrimination.

After failing at the state court level, Miller-El

filed a habeas petition with the federal district

court raising a Batson claim. The federal court

denied his petition in deference to the state court

decision. The Fifth Circuit Court of Appeals sub-

sequently denied a Certificate of Appealability

to Miller-El, required before that court can take

control of the case.

In its decision, the Supreme Court found

that Miller-El’s case was entitled to review by

the Fifth Circuit Court of Appeal, because he

had presented overwhelming evidence that the

prosecution had improperly exercised peremp-

tory strikes against potential African-American

jurors. Under the Batson standard, the Supreme

Court found that Miller-El had convincingly

established that peremptory strikes used by the

prosecution in his state trial were exercised in a

discriminatory manner. Specifically, Miller-El

showed that prosecutors had exercised peremp-

tory strikes and removed 91 percent of the eli-

gible African-American jurors and only removed

13 percent of other, non-black jurors. Also, under

Batson, the Court found that the prosecution

did not provide a credible race-neutral basis for

striking African-American jurors. Miller-El also

presented evidence showing that the prosecu-

tor asked jurors different questions regarding

capital punishment and minimum sentences

during voir dire, depending on their race. Miller-

El also showed that one of the prosecutors in

his case had access to a Dallas County policy to

strike minorities from juries.

Justice Clarence Thomas was the lone dis-

sent in this case. In his separate opinion, Thomas

claimed that petitioner had not shown by clear and

convincing evidence that the prosecution’s strik-

ing African Americans from the jury was done due

to race.

On remand to the Fifth Circuit Court of

Appeals, this court again ruled against Miller-El

on the merits of his Batson claim that prosecutors

had exercised peremptory strikes in a discrimina-

tory manner. The Supreme Court heard on certio-

rari Miller-El’s subsequent appeal of his case in

Miller-El v. Dretke, 545 U.S. 231 (2005), not on

the question on whether the court of appeals had

improperly failed to issue a Certiﬁ cate of Appeal-

ability, but this time on the direct issue of discrim-

ination. In this case, the Supreme Court reversed

the Fifth Circuit’s decision.

470 Miller-El v. Cockrell

vi+904_EofUSConsti-v2.indd 470 3/20/09 2:17:41 PM

The two Miller-El decisions were part of

a group of cases in which the Supreme Court

expressed dissatisfaction with the decisions of the

Fifth Circuit Court of Appeals and Texas district

courts that approved of death penalty convictions

in light of prosecutorial misconduct.

For more information: Johnstone, Mattie, and

Joshua M. Zachariah. “Peremptory Challenges

and Racial Discrimination: The Effects of Miller-

El v. Cockrell.” Georgetown Journal of Legal Eth-

ics 17 (Summer 2004): 863–886.

—Lydia Brashear Tiede

Miller v. California 413 U.S. 15 (1973)

In Miller v. California, the Supreme Court, in a

5-4 decision, stipulated three legal tests for deter-

mining if material was considered obscene. First,

material is obscene, according to the Court, if the

work, taken in its entirety, appeals to the prurient

interest in sex. In other words, if the material is

intended for the sole purpose of arousing a dis-

tasteful interest in sexual activity, then the material

is considered obscene. Second, if the work depicts

in a “patently offensive way, sexual conduct spe-

ciﬁ cally deﬁ ned by the applicable state law,” then

it is obscene. Third, the work is obscene if, taken

in its entirety, it lacks any “serious literary, artis-

tic, political, or scientiﬁ c value.” The signiﬁ cance

of this case was that it was seen as an answer to

a previous case, ROTH V. UNITED STATES, 354 U.S.

476 (1957), a case that set the “average person”

obscenity standard. In the Roth case, Justice

William J. Brennan, Jr., noted the standard

for obscenity as “whether to the average person,

applying contemporary community standards, the

dominant theme of the material taken as a whole

appeals to prurient interests.”

Marvin Miller, the appellant in this case, had

been arrested, tried, and convicted pursuant to

California Penal Code Section 311.2(a) for dis-

tributing obscene material. Miller sent through

the mail an advertisement for the sale of adult

books that depicted men and women engaging in

sexual activity. Five of these brochures ended up

at a restaurant located in Newport Beach, Califor-

nia, where the manager and his mother opened

the material and subsequently made a complaint

to local law enforcement.

Chief Justice Warren Burger delivered the

opinion of the Court. He was joined by Justices

White, Blackmun, Lewis Powell, and Wil-

liam Hubbs Rehnquist (Justices William O.

Douglas, Brennan, Stewart, and Marshall dis-

sented). In addition to setting the three tests dis-

cussed above, the Court noted that it was “not our

function to propose regulatory schemes for the

sates. That must await their concrete legislative

efforts. It is possible, however, to give a few plain

examples of what a state statute could deﬁ ne for

regulation.” They then proceed to provide exam-

ples of lewd sexual conduct that the Court consid-

ered to be obscene. In addition, the Court noted

that the “First Amendment protects works

which, taken as a whole, have serious literary,

artistic, political, or scientiﬁ c value, regardless of

whether the government or a majority of the peo-

ple approve of these ideas the works represent.”

Basically, the protection of speech and press is

done in order to bring about free and open dis-

course in the marketplace of ideas. The publica-

tion of hard-core sexual activity for nothing more

than commercial gain for the vendor or just for

the sake of depicting hard-core sexual activity is

a different matter and may not be protected by

the First Amendment to the Constitution of the

United States of America.

After the decision was rendered by the Court,

law enforcement agencies saw this as an opportu-

nity to close various pornographic establishments.

However, they soon learned that the Miller deci-

sion did not provide them with carte blanche to

pursue even those people who displayed “four-let-

ter” words. The Court, as previously stipulated,

held that only hard-core pornography lay outside

the purview of the First Amendment.

For more information: Farber, Daniel A., Wil-

liam N. Eskridge, Jr., and Philip P. Frickey. Cases

and Materials on Constitutional Law: Themes for

the Constitution’s Third Century. St. Paul, Minn.:

Thompson/West, 1993; Wayne, Stephen J., G. Cal-

vin Mackenzie, and Richard L. Cole. Conﬂ ict and

Miller v. California 471

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