Schultz D. Encyclopedia of the United States Constitution

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and the heavy burden is upon the government to

demonstrate a rational and compelling interest in

making such a distinction. More speciﬁ cally, the

trial court held that the state’s blanket ban on

public school teaching by aliens was unconstitu-

tionally “overbroad” because it did not take into

account the subjects being taught, the relation-

ship of the alien’s home country to the United

States, and the possibility of including an alien’s

loyalty statement in lieu of declaring his or her

intent to become a citizen.

Ambach appealed to the U.S. Supreme Court

asserting that the law was “rational” and that the

lower court had inappropriately applied strict

scrutiny. Writing for a ﬁ ve-person majority, Jus-

tice Lewis Franklin Powell, Jr., reversed the

district court ruling, holding that the New York

law was indeed rational and that the lower court

had erred in applying the stricter standard. Powell

noted that while aliens living in the United States

are entitled to many of the rights of citizens, states

nevertheless have the right to restrict aliens where

there is a compelling interest in doing so. Accord-

ing to Powell, teachers are uniquely suited to serve

as role models for children. They instill attitudes

toward government, the political processes, and

the responsibility of citizenship. Given this unique

relationship and government’s demonstrated inter-

est in promoting good citizens, Powell stated it is

indeed rational for New York State to restrict public

school teaching to U.S. citizens or those who have

expressed a desire to become one. Joining Powell

were Chief Justice Warren Burger and Justices

Byron White, William Hubbs Rehnquist, and

Sandra Day O’Connor.

Justices Harry Blackmun, Thurgood Marshall,

John Paul Stevens, and William J. Bren-

nan, Jr., dissented. Justice Blackmun argued

in part that the law in question “sweeps indis-

criminately” against aliens and is not rational

because it fails to cover aliens teaching in New

York’s private and parochial schools. Blackmun

then compared Ambach to In re Grifﬁ ths (1973),

a case in which the U.S. Supreme Court ruled

that qualiﬁ ed aliens have a right to take the state

bar and practice law. According to Blackmun, “If

an attorney has a constitutional right to take a

bar examination and practice law, despite being

an alien, it is impossible for me to see why a resi-

dent alien, otherwise completely competent and

qualiﬁ ed . . . is constitutionally disqualiﬁ ed from

teaching in the public schools of the great State

of New York.”

Ambach was one in a series of cases where the

U.S. Supreme Court grappled with constitutional-

ity of state laws restricting alien actions. Examples

are Sugarman v. Dougall, 413 U.S. 634 (1973)—

in which the Supreme Court struck down a New

York law that banned aliens from civil service

employment—and Foley v. Connelie, 435 U.S.

291 (1978)—where the Supreme Court upheld a

New York regulation restricting employment of

state troopers to U.S. citizens.

For more information: Aleinikoff, Thomas Alex-

ander, David A. Martin, and Hiroshi Motomura.

Immigration and Citizenship: Process and Policy.

4th ed. St. Paul, Minn.: West, 1998; Bosniak,

Linda. “Membership, Equality, and the Differ-

ence That Alienage Makes.” New York University

Law Review 69 (1994): 1,047; Gordon, Charles,

Stanley Mailman, and Stephen Yale-Loehr. Immi-

gration Law and Procedure. New York: Matthew

Bender, 2001; Neuman, Gerald L. Strangers to

the Constitution: Immigrants, Borders, and Fun-

damental Law. Princeton, N.J.: Princeton Univer-

sity Press, 1996.

—Richard J. Hardy

amending the Constitution

Amending the U.S. Constitution refers to the

formal process of changing the document’s lan-

guage or provisions. When the Founding Fathers

framed the Constitution in 1787, they included

in Article V a process to make amendments to

it. The amending process is a means for enabling

the government to keep the Constitution ready

to meet challenges, both present and future,

striking a balance between entrenchment and

ﬂ exibility.

The Founding Fathers believed that amending

a written constitution was just as much an exer-

cise of constituent power as framing and adopting

22 amending the Constitution

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one and that the people had an inalienable right

to alter or abolish an inadequate government. This

revolutionary generation also believed that the act

of revising a written constitution required corre-

sponding formality and difﬁ culty. Formal changes

to the Constitution should be made only when

the problem to be solved cannot be done so at the

administrative, statutory, or judicial level.

Article V was included to correct defects as

they became apparent or to adapt the Constitution

to changing circumstances. According to Article

V, there are two ways to propose an amendment.

The ﬁ rst method is for a bill to pass both houses

of the legislature by a two-thirds majority in

each. Once the bill has passed both the House

of Representatives and the Senate, it goes

to the states. The second method prescribed is

for a constitutional convention to be called by

two-thirds of the legislatures of the states and for

that convention to propose one or more amend-

ments. This method has never been used. Of the

17 amendments that have followed the Bill of

Rights, all have originated in Congress. Regard-

less of which proposed route is taken, the amend-

ment must be approved by three-fourths of the

states. The amendment as passed may specify

whether the bill must be passed by the state leg-

islatures or by a state convention. The Twenty-

first Amendment is the only one thus far to be

ratiﬁ ed by speciﬁ cally selected state conventions,

not state legislatures. At no time does the presi-

dent have a role in the amendment process. The

president cannot veto an amendment proposal

or ratiﬁ cation.

Because the amending process was intention-

ally made to be difficult, of the 10,000 amend-

ments proposed, only 33 have received approval

by both the House and Senate, and just 27 have

been ratiﬁ ed by the states. The amendments make

a statement to the world and to posterity about

what governmental principles the United States

most cherishes. They represent a kind of political

symbol of who Americans believe themselves to

be and ought to be. Twelve of the 27 amendments

amending the Constitution 23

(the Bill of Rights, the Thirteenth Amend-

ment, and the Fourteenth Amendment)

address individual rights.

The amendments that were adopted fall into

two categories: (1) deﬁ ning or redeﬁ ning the fun-

damental principles at the heart of the nation’s

constitutional system and (2) correcting defects in

the mechanism of government established by the

Constitution. Amendments to the Constitution

have come in separated clusters that have arisen

during four periods. The period from 1789 to

1804 produced what are referred to as the Anti-

Federalist amendments. The ﬁ rst 10—the Bill of

Rights—adopted in 1791, were ratiﬁ ed immedi-

ately and have been instrumental in protecting

basic liberties in the United States. These changes

were promises fulﬁ lled by the Federalists, who

made them to win ratification of the Con-

stitution itself. For all intents and purposes,

they are part of the original. The Eleventh

Amendment of 1795 protected universal loyalty

to states’ rights. It forbade lawsuits against a state

by citizens of another. The Twelfth Amend-

ment, adopted in 1804, provided for the separate

election of the president and vice president,

which was a reaction to the 1800 electoral college

tie between Thomas Jefferson and Aaron Burr.

It became a “ﬁ x” of an unanticipated problem.

Sixty years elapsed before the Thirteenth,

Fourteenth, and Fifteenth Amendments were

passed. Known as the post–Civil War, or Recon-

struction, amendments, they sealed nationalism

by making U.S. citizenship the source of equal

rights and of protections that the states could not

deny. The Thirteenth Amendment, adopted in

1865, abolished slavery. In 1867, the Fourteenth

Amendment granted all citizens privileges and

immunities, due process, equal protection

under the law, apportionment of representatives,

and Civil War disqualiﬁ cation and debt. The Fif-

teenth Amendment, adopted in 1870, guaranteed

that the rights of an individual could not be denied

because of race.

Another half-century intervened before the

ratiﬁ cation of the Sixteenth through Nineteenth

Amendments. The Sixteenth Amendment,

adopted in 1913, provided for an income tax. The

Seventeenth Amendment, in 1913, provided

for the direct election of senators by the people.

In 1919, the Eighteenth Amendment called

for the prohibition of alcohol, and in 1920, the

Nineteenth Amendment provided women’s

suffrage. These four amendments were part of

the progressive and populist movements to curb

the power of corporations and political bosses and

restore government to the people.

The Twentieth Amendment proposed in

1932 and ratiﬁ ed in 1933, ended the custom of a

“lame duck” Congress having an extra session after

an election that may have thrown out many of its

members. The Twenty-first Amendment,

which was ratiﬁ ed in 1933 and was the only amend-

ment to be ratiﬁ ed by state conventions, repealed

Prohibition. The Twenty-second Amendment

and Twenty-fifth Amendment, ratiﬁ ed in 1951

and 1967, respectively, reﬂ ected mid-20th century

concern with presidential succession. They lim-

ited a president to two terms and provided for his

replacement in case of disability. These are the only

amendments that do not fall into the four clusters.

The last cluster—which includes the Twenty-

third, Twenty-fourth, and Twenty-sixth

Amendment—gave the vote in presidential elec-

tions to the disenfranchised and predominantly

black citizens of the District of Columbia, to

men and women too poor to pay poll taxes or any

other kinds of levy as a prerequisite to suffrage,

and to 18-year-olds, respectively. These three

reflect the egalitarian strains of the 1960s and

might also be called the modern era of constitu-

tional amendment.

The most recent, Twenty-seventh Amend-

ment p

rovided that any pay raise that Congress

tes for itself may not take effect until after

another election, thus giving voters a chance to

express their displeasure. This was sent to the

states in 1789 and ratiﬁ ed two centuries later.

The exact wording of the Constitution can only

be changed by using the formal amendment pro-

cess; however, the meaning or the interpretation

of the Constitution can change over time. When

circumstances change, the meaning or interpreta-

tion can change as well. As the ultimate arbiter of

how the Constitution is interpreted, the judiciary

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wields more actual power than the Constitution

alludes to. For example, before the privacy cases,

it was perfectly constitutional for a state to forbid

married couples from using contraception, for a

state to forbid blacks and whites to marry, and for

a state to abolish abortion. Because of judicial

changes in the interpretation of the Constitution,

the nation’s outlook on these issues changed. In

these examples, the Constitution was not altered

but rather, the way people viewed the Constitu-

tion. These changes are signiﬁ cant because they

can occur by a judge’s ruling; therefore, since they

are not a part of the written Constitution, they

can be changed later. Historically, the Supreme

Court has interpreted the original document and

its formal amendments with considerable latitude,

enabling adaptation to new circumstances and to

changes in social understanding without formal

amendments.

The Founding Fathers created a process that

provided an almost ideal balance between stabil-

ity and change. Constitutional amendments have

enduring and lasting importance in a system that

prizes America’s distinctive conception of sover-

eignty. The inclusion of Article V and its powerful

mechanisms are at the very core of the Constitu-

tion’s existence and survival.

For more information: Bernstein, R. B., and J.

Angel. Amending America: If We Love the Con-

stitution So Much, Why Do We Keep Trying to

Change It? New York: Times Books, 1993; Chism,

K. “The Constitutional Amendment Process.”

Social Education 69 (November 2005): 373–375;

Kaplan, D. A., and G. Cerio. “Tinkering with the

Constitution.” Newsweek (June 5, 1990), 115;

Kyvig, D. E. Explicit and Authentic Acts: Amend-

ing the U.S. Constitution, 1776–1995. Lawrence:

University of Kansas Press, 1996; Weisberger,

B. A. “Amending America.” American Heritage

(May/June 1995), 24–25.

—Sharon L. Morrison

American Civil Liberties Union

The American Civil Liberties Union (ACLU) is

a major national nonproﬁ t organization devoted

to protecting individual rights against unconsti-

tutional exercises of government power. It is best

known for bringing lawsuits, but it also monitors

and testiﬁ es on legislation and offers public educa-

tion programming. The ACLU has approximately

500,000 members nationwide and afﬁ liates (chap-

ters) in all 50 states and is ﬁ nanced through mem-

bership dues, private donations, and legal fees

awarded when one of its lawsuits is successful and

such fees are available.

The organization that became the ACLU was

organized in 1917, during the height of the now

infamous Palmer Raids, “roundups” and depor-

tations of resident aliens suspected of holding

unorthodox or unpatriotic opinions. It was then

called the National Civil Liberties Bureau and

provided legal advice and aid for conscientious

objectors and people being prosecuted under the

Espionage Act of 1917 and the Sedition Act of

1918. In 1920, the organization changed its name

to the American Civil Liberties Union.

Sometimes called “liberty’s lawyer,” the ACLU

supports the individual liberties protected by the

Bill of Rights: separation of church and state,

freedom of speech and of the press, racial equality,

reproductive rights for women, full civil rights

for gays and lesbians, the Fourth Amendment

rights of criminal defendants and other citizens,

immigrants’ rights, the right to privacy, and

many others. Over the years, ACLU lawsuits have

had an enormous inﬂ uence on U.S. constitutional

law. Some of the organization’s most famous cases

have included the 1925 Scopes case (Tennessee’s

prosecution of a science teacher who taught about

evolution despite a Tennessee law forbidding it);

OREMATSU V. UNITED STATES, 323 U.S. 214 (1944);

ROWN V. BOARD OF EDUCATION OF TOPEKA, 347 U.S.

483 (1954); and R

OE V. WADE, 410 U.S. 113 (1973).

More recently, it has vigorously opposed several

provisions of the PATRIOT Act and National

Security Agency (NSA) efforts to monitor the

communications of ordinary Americans.

As inﬂ uential as its lawsuits have been, many

people (including many who often disagree with

the ACLU) believe the organization’s most impor-

tant function has been the mere fact that it exists

as a watchdog against abuses of government

American Civil Liberties Union 25

xviii+446_EofUSConsti-v1.indd 25 3/12/09 3:03:43 PM

power. Often, improper state and federal behavior

is averted simply because the ACLU sends a warn-

ing letter to the ofﬁ cial or agency involved.

The organization is very controversial. To some

extent, this is inevitable, because the Bill of Rights

that it protects was speciﬁ cally designed to pro-

tect minority beliefs and unpopular people from

the passions of popular majorities. There is also

confusion about the difference between protect-

ing people’s rights and agreeing with them. Argu-

ing for an individual’s right to express an opinion

is not agreement with that opinion (the ACLU

has defended the rights of Nazis, for example, to

express opinions and take positions with which

the organization strenuously disagrees). When the

ACLU brings a lawsuit against prayers in public

schools, what the organization is opposing is not

religion but the right of government to dictate citi-

zens’ religious beliefs or observances.

For more information: Kennedy, Sheila Suess.

What’s a Nice Republican Girl Like Me Doing

at the ACLU? Amherst, N.Y.: Prometheus Books,

1997; Walker, Samuel. In Defense of American

Liberties: A History of the ACLU. Carbondale:

Southern Illinois University Press, 1999.

—Sheila Suess Kennedy

American Indians and the Constitution

The Constitution, in its expressed language and

through interpretation and application of several

of its provisions, has always treated American Indi-

ans differently from any other group of people.

Three-ﬁ fths Compromise

Section 2 of Article I of the U.S. Constitu-

tion provides that representation in the House

of Representatives and direct taxes shall be

apportioned among the states according to their

respective populations. These numbers were to

“be determined by adding the whole Number of

free Persons, including those bound to Service

for a Term of Years, excluding Indians not taxed,

three-ﬁ fths of all other persons.” The term other

persons was a euphemism for slaves, and the com-

promise was designed to accommodate the com-

peting concerns of southern and northern states

regarding an acceptable distribution of the direct

tax burden and representation in the House. Often

overlooked in this compelling debate about slavery

was the complete omission of Native Americans

in this calculation. American Indians as a whole

were not taxed at the time, and consequently, they

had neither a representative link to nor a particu-

lar stake in the new republic.

Commerce Clause

Article I, Section 8, provides that Congress shall

have the power to “regulate Commerce with for-

eign Nations, and among the several States, and

with the Indian Tribes.” Delegates to the Con-

stitutional Convention approached this

issue against a backdrop of years of hostilities with

American Indians on the one hand counterbal-

anced by a comparably long period of trade and

commerce with them on the other. Fractured

approaches to these issues by states had been

largely unsuccessful in producing lasting solutions.

These experiences informed the delegates that

uniform regulation, administered by a central-

ized federal authority, was essential. The result-

ing commerce clause was utilized quickly with

the passage, between 1790 and 1834, of several

Trade and Intercourse Acts (for example, 1 Stat.

137, 1790; 1 Stat. 329, 1793; 1 Stat. 469, 1796; 1

Stat. 743, 1799; and 4 Stat. 729, 1834). But the sig-

niﬁ cance of the commerce clause as it relates to

Native Americans advanced far beyond its original

parameters of trade and intercourse, for over time

it became a stepping-stone to the development of

the tremendous federal power over Indian affairs.

Conversely, it has in many respects served to pre-

clude state intrusion into Indian affairs.

Fourteenth Amendment

The Thirteenth, Fourteenth, and Fifteenth

Amendments, ratiﬁ ed during the Reconstruction

era after the Civil War, were designed to establish

and protect the rights of black Americans. Accord-

ingly, Section 2 of the Fourteenth Amend-

ment revisited the Three-ﬁ fths Compromise by

providing as follows: “Representatives shall be

apportioned among the several States according

26 American Indians and the Constitution

xviii+446_EofUSConsti-v1.indd 26 3/12/09 3:03:43 PM

to their respective numbers, counting the whole

number of persons in each State, excluding Indi-

ans not taxed.” Thus, the three-ﬁ fths component

regarding slaves in the apportionment computa-

tion for representation in the House was abol-

ished; however, the exclusion of most Indians in

this computation continued.

Citizenship

Section 1 of the Fourteenth Amendment pro-

vides as follows: “All persons born or naturalized

in the United States and subject to the jurisdic-

tion thereof, are citizens of the United States and

of the State wherein they reside.” By design, this

provision extended national and state citizenship

to former slaves, but its broad language could cer-

tainly be construed to extend the same rights and

privileges to American Indians. The U.S. Supreme

Court rejected this position in Elk v. Wilkins, 112

U.S. 94 (1884), ruling that the “Indians not taxed”

exclusion retained in Section 2 of the amend-

ment reﬂ ected a congressional intent to exclude

Native Americans from the grant of citizenship.

This exclusion was not a mere formality, for citi-

zenship was a prerequisite for other constitutional

rights, such as voting. Although the Fourteenth

Amendment did not extend blanket citizenship,

many American Indians attained citizenship sta-

tus under the provisions of various treaties and

statutes. These selective grants of citizenship

required some condition precedent on the part

of the Indians; for example, the General Allot-

ment Act, 24 Stat. 388 (1887), conferred citizen-

ship to American Indians who complied with the

statutory provisions and received an allotment.

Another piece of legislation bestowed citizenship

on Indian women who married non-Indian citi-

zens (25 U.S.C. Section 182 [1888]). These issues

and the impediments associated with them were

rendered moot with the passage of the Citizen-

ship Act of 1924 (8 U.S.C. Section 1401 (b)), which

extended citizenship to all Native Americans born

in the United States.

Treaty Making

Pursuant to Section 2 of Article II of the U.S.

Constitution, the president has the power, with

the advice and consent of the Senate, to make

treaties. Although this provision makes no speciﬁ c

mention of American Indians, there was in fact a

long history of treating with tribes that predated

the Constitution. This policy was pursued by the

various colonial powers because Indian allies

were advantageous in their competition to estab-

lish dominance in the New World. After rati-

fication of the Constitution, the new and

vulnerable United States continued this policy in

order to cultivate trade, facilitate the acquisition

of land needed for white settlement, and avoid

the burdens, economic and otherwise, that would

accompany prolonged hostilities with the tribes.

For nearly 100 years thereafter, treaties were the

preferred national policy in dealing with Native

Americans, addressing a range of issues from

hunting and ﬁ shing rights to removal and reloca-

tion, as well as reservations. This proliﬁ c treaty-

making era ended in 1871, when Congress, in a

rider attached to an appropriations bill, declared

that the United States would no longer contract

with Indian tribes by treaty (16 Stat. 566; 25

U.S.C. Section 71). One enduring legacy of this

period was that tribes were viewed as separate

and sovereign entities.

Tribal Sovereignty

As suggested above, the constitutional bases for

tribal sovereignty are anchored in the commerce

clause of Article I and in the treaty-making power

of Article II. The commerce clause, by group-

ing American Indian tribes with foreign nations

and the states, suggested that tribes were imbued

with a degree of inherent sovereignty comparable

to that of states and other nations. Similarly, the

national policy of making treaties with tribes, con-

ducted in much the same way as the nation entered

into treaties with foreign governments, reinforced

this attribute of tribal sovereignty. The parameters

of tribal sovereignty were ﬁ rst addressed by the

Supreme Court in Cherokee Nation v. Georgia,

30 U.S. (5 Pet.) 1 (1831), a case in which the tribe

sought an injunction to prevent state incur-

sions into tribal territory. The Cherokee ﬁ led their

action directly with the Supreme Court, invoking

the Court’s original jurisdiction as provided

American Indians and the Constitution 27

xviii+446_EofUSConsti-v1.indd 27 3/12/09 3:03:44 PM

in Article III, Section 2, of the Constitution. The

propriety of this tactic depended on whether the

tribe was a “foreign state.” The Court concluded

that, while the tribe was a separate entity with dis-

tinctive attributes of sovereignty, it was not a for-

eign state. Rather, Chief Justice John Marshall

characterized tribes as “domestic dependent

states.” Despite this and other setbacks, tribal sov-

ereignty continues as a viable, albeit limited con-

cept in today’s America.

Many tribes have their own governments, for

example, with legislative, executive, and judicial

branches. Some have their own police forces and

ﬁ re departments and operate their own schools.

Also, some federal courts have ruled that viola-

tions of tribal law and federal law in one trans-

action amounted to two different offenses for

purposes of dual sovereignty and the double

jeopardy clause of the Fifth Amendment (Ramos

v. Pyramid Tribal Court, 621 F. Supp. 967, D.

Nev. [1985]). Consequently, those violations can

be prosecuted in both tribal and federal courts.

It must be remembered, however, that the extent

of tribal sovereignty must be measured against

a backdrop of tremendous federal power over

Indian affairs. In fact, this plenary power of the

federal government is the counterbalance to tribal

sovereignty, as well as to state efforts to intrude

into that sovereignty.

The federal government has wielded this

power to erode tribal sovereignty on some occa-

sions and to reinforce it on others. Erosion of

tribal sovereignty occurred, for example, with the

passage of Public Law 280, whereby the federal

government granted several states broad crimi-

nal and civil jurisdiction over reservations located

within those states (18 U.S.C. Section 1162 and 28

U.S.C. Section 1360 [1953]). On the other hand,

ofﬁ cial federal policy for the past 40 years or so

has been one of promoting tribal sovereignty and

self-determination. This endeavor, which almost

always includes governmental reinforcement of

tribal economic development, is often at odds

with the competing interests of state and local

governments. One emerging conﬂ ict in this con-

text involves tribal gaming activities, an issue

addressed by the Supreme Court in California v.

Cabazon Band of Mission Indians, 480 U.S. 202

(1987). In that case, the tribe, pursuant to feder-

ally approved ordinances, operated high-stakes

bingo and card games. These activities were open

to the public and played mostly by non-Indi-

ans. State and local ofﬁ cials sought to prevent or

restrict these gaming activities via application of

various regulatory statutes and ordinances. They

argued that unregulated high-stakes bingo and

card games were susceptible to infiltration by

organized crime. The competing federal-tribal

interests focused on promoting tribal self-deter-

mination, providing employment opportunities

for tribal members, and generating revenue for

the tribe. The state maintained that it had juris-

diction because the gaming activities occurred on

Public Law 280 reservations. The Court rejected

this contention, ruling that while P.L. 280 ceded

jurisdiction over criminal cases and private civil

litigation, it did not grant the state general civil

regulatory authority.

The Court added that the state laws and local

ordinances were preempted by federal policy. This

preemption in turn reinforced tribal sovereignty.

In the aftermath of Cabazon, Congress passed

the Indian Gaming Regulatory Act, 25 U.S.C.

Sections 2701–2721 (1988), which established a

comprehensive framework for the regulation of

Indian gaming activities. By its express language,

the act is designed to strengthen tribal govern-

ment and promote tribal economic development

and self-sufﬁ ciency (25 U.S.C. Section 2702). On

the other hand, the act does recognize that states

have legitimate interests that must be considered;

for example, it provides that tribes have the exclu-

sive right to regulate gaming activities that are

neither speciﬁ cally prohibited by federal law nor

prohibited by the particular state’s criminal law

or public policy (25 U.S.C. Section 2701[5]). This

area of inquiry and the accompanying interplay

among federal, tribal, and state interests will most

certainly command attention in the future.

Bill of Rights

The Bill of Rights protected civil liberties

by limiting the powers of the federal government.

Most of those same protections were made appli-

28 American Indians and the Constitution

xviii+446_EofUSConsti-v1.indd 28 3/12/09 3:03:44 PM

cable to state action via the due process clause

of the Fourteenth Amendment and the judicially

created concept of selective incorporation. In

their relationships with the federal and state gov-

ernments, Native Americans enjoy these rights

and protections. Regarding these fundamental

rights, one area of proliﬁ c litigation has centered

on Indian use of peyote. The First Amendment’s

free exercise clause protects religious freedom,

and, in the exercise of that freedom, members of

the Native American Church have long used pey-

ote as a sacrament in religious ceremonies. More

recently, many states have added peyote to their

lists of controlled substances and proscribed its

use. One illustrative case involving these compet-

ing interests was E

MPLOYMENT DIVISION V. SMITH,

494 U.S. 872 (1990), in which two of the church’s

practitioners were terminated from their employ-

ment and denied unemployment beneﬁ ts because

they had used peyote in religious services.

At the time, there was longstanding precedent

to the effect that governmental action that substan-

tially burdens religious practice must be justiﬁ ed by

a compelling governmental interest (Sher-

bert v. Verner, 374 U.S. 398 [1963], and W

ISCONSIN

V. YODER, 406 U.S. 205 [1972]). The U.S. Supreme

Court departed from this compelling interest test

in Smith, holding instead that there was no viola-

tion of the First Amendment if the impediment to

the exercise of religion was not the object of the law

in question but “merely the incidental effect of a

generally applicable and otherwise valid provision”

(402 U.S. 872, 878). Congress responded to Smith

by passing the Religious Freedom Restora-

tion Act (RFRA), which prohibits government

from substantially burdening the free exercise of

religion unless it can demonstrate that the burden

is in furtherance of a compelling governmental

interest and is the least restrictive means of fur-

thering that interest (42 U.S.C. Section 2000bb-1).

As originally enacted, this prohibition applied to

all federal and state laws, with Congress relying

on Section 5 of the Fourteenth Amendment in

extending RFRA’s coverage to the states.

Section 5 empowers Congress to enforce, by

appropriate legislation, the amendment’s other pro-

visions, most notably the due process and equal

protection clauses. This is critical because, as

mentioned above, the Bill of Rights originally lim-

ited the federal government but had no applica-

tion to the states. The Fourteenth Amendment

provides in pertinent part that no “State shall

deprive any person of life, liberty, or property,

without due process of law. . . .” Over time, most

of the liberties contained in the Bill of Rights,

including the free exercise clause, were selectively

incorporated into the due process clause and

made applicable to the states. In C

ITY OF BOERNE

V. FLORES, 521 U.S. 507 (1997), the Supreme Court

ruled that RFRA was unconstitutional insofar as

it purported to bind the states. The Court deter-

mined that Congress in applying RFRA to state

action, had exceeded its enforcement power under

Section 5 and had in fact altered the meaning of

the free exercise clause. According to the Court,

this infringed on the interpretive power of the

judiciary and, thereby, violated the principle of

separation of powers and the federal-state bal-

ance. RFRA’s scope was subsequently narrowed

to cover only federal actions, and its application

to federal legislation was upheld in Gonzales v. O

Centro Espirita Beneficente Uniao Do Vegetal,

546 U.S. 418 (2006).

Indian Civil Rights Act

As noted above, Native Americans, in their rela-

tionships with federal and state governments,

enjoy constitutional rights and protections. Until

1968, however, there was no similar vehicle for

safeguarding fundamental rights against actions

by tribal governments. In Talton v. Mayes, 163

U.S. 376 (1896), the Supreme Court ruled that the

Bill of Rights did not apply to tribal governments,

and other courts have held that the Fourteenth

Amendment does not limit tribal authority (Barta

v. Oglala Sioux Tribe, 259 F.2d 533, 6th Cir.

[1958]). Consequently, American Indians, vis-à-vis

their relationship with tribal governments, had no

guarantees relative to these basic rights. Congress

addressed this discrepancy with the passage of the

Indian Civil Rights Act of 1968 (ICRA; 25 U.S.C.

Sections 1301–1323).

ICRA prevents tribes, in the exercise of their

powers of self-government, from denying to

American Indians and the Constitution 29

xviii+446_EofUSConsti-v1.indd 29 3/12/09 3:03:44 PM

individuals most of the rights contained in the

First, Fourth, Fifth, Sixth, Eighth, and Four-

teenth Amendments. These statutory rights, while

comparable to their constitutional counterparts,

are not exactly the same; for example, the First

Amendment guarantees the free exercise of reli-

gion and prohibits the establishment of religion.

ICRA includes a free exercise clause but contains

no establishment clause (25 U.S.C. Sec-

tion 1302 [1]). Consequently, tribal governments

may endorse a particular religion. In addition,

the Sixth Amendment has been interpreted to

require appointed counsel for indigent defendants

for all felonies (G

IDEON V. WAINWRIGHT, 372 U.S.

335 [1963]) and for many misdemeanors (Argers-

inger v. Hamlin, 407 U.S. 25 [1972], and A

LABAMA

V. SHELTON, 535 U.S. 654 [2002]). ICRA, on the

other hand, provides that a criminal defendant has

the right “at his own expense to have the assis-

tance of counsel for his defense” (25 U.S.C. Sec-

tion 1302 [6]).

For more information: Getches, David H.,

Charles Wilkinson, and Robert Williams, Jr. Fed-

eral Indian Law: Cases and Materials. St. Paul,

Minn.: West Publishing, 1993; Reese, Michael.

“The Indian Civil Rights Act: Conﬂ ict Between

Constitutional Assimilation and Tribal Self-Deter-

mination.” Southeastern Political Review 20:

29–61.

—Michael Reese

appellate jurisdiction

Appellate jurisdiction is the power of one court

or other entity to review the actions of another

body. The power to hear cases regarding federal

constitutional and statutory issues is allocated to

the U.S. Supreme Court, the inferior (or lower)

federal courts, and the various state court systems.

The actual authority over any particular matter

may derive from either federal constitutional pro-

visions or the statutory enactments of Congress.

Article III of the U.S. Constitution

assigns the judicial power of the United States

to the Supreme Court and those inferior federal

courts created by Congress. Article III speciﬁ cally

deﬁ nes the judicial power by two criteria: subject

matter and class of litigants. The subject matter of

the federal judicial power includes the ability of

the federal courts to hear all cases arising under

the Constitution, federal laws or treaties, or admi-

ralty or maritime authority. Article III also extends

the judicial power to cases involving ambassadors

and other public ministers or ofﬁ cers and cases

that involve a controversy between two or more

states or between parties of differing states.

The actual exercise of appellate jurisdiction by

the Supreme Court is one characterized by signiﬁ -

cant statutory discretion. Such discretionary ﬂ ex-

ibility is not the rule for all other federal courts.

The appellate jurisdiction of the Supreme Court

and the other federal courts is, furthermore, sub-

ject to the “Exception and under such Regula-

tions” clause of Article III. Through the operation

of this constitutional provision, Congress has on

occasion acted to control the ability of the federal

courts to hear certain classes of cases; for example,

recent congresses have sought to limit the power

of the federal courts over such diverse matters as

busing for school integration purposes, abortion,

prayer in the public schools, and the recitation of

the Pledge of Allegiance.

The question of the extent of the appellate

jurisdiction of the Supreme Court and other fed-

eral courts is one as old as the nation itself. The

heart of the controversy lies in whether Congress

has the authority to determine which cases the

federal courts may hear under the judiciary’s con-

stitutional grant of appellate jurisdiction. The ﬁ rst

act of Congress addressing the judicial power of

the federal courts, the Judiciary Act of 1789, 1

Stat. 73, did not provide authority for the inferior

federal courts to exercise all of the judicial power

identiﬁ ed in Article III. This statutory basis for

the view that Congress is not required to grant

to the lower federal courts all the jurisdiction

authorized by Article III was somewhat afﬁ rmed

by Supreme Court in the case of Sheldon v. Still,

49 U.S. 441 (1850). The Supreme Court held that

Congress has the power to establish the federal

courts and to deﬁ ne the jurisdiction these courts

may exercise. The action by the Supreme Court

in the appeal in E

X PARTE MCCARDLE, 74 U.S. 506

30 appellate jurisdiction

xviii+446_EofUSConsti-v1.indd 30 3/12/09 3:03:44 PM

(1869), in which the Court accepted the congres-

sional withdrawal of jurisdiction over habeas

corpus appeals, would also seem to support that

view of the extensive authority of the Congress to

control boundaries of appellate jurisdiction.

The extent of the appellate jurisdiction of the

federal courts may be a somewhat unresolved

issue. The actual practice is much less compli-

cated. Three basic methods of securing judicial

review by the Supreme Court are now statu-

torily authorized: certiorari review pursuant to

28 U.S.C. sec. 1254 (1), appeals pursuant to 28

U.S.C. sec. 1253, and certiﬁ cation of questions

pursuant to 28 U.S.C. sec. 1254 (2). The manda-

tory appeals jurisdiction of the Supreme Court

was eliminated by statute in 1988, P.L. 100-352,

102 Stat. 662.

The United States courts of appeal were cre-

ated by the Circuit Courts of Appeals Act in 1891,

26 Stat. 826. These courts were created to be an

intermediate step between the federal district

courts and the Supreme Court. This is the essen-

tial character of the courts of appeal today. The

courts of appeal are expressly courts of limited

appellate jurisdiction. The basic authority of the

courts of appeal is set out in 28 U.S.C. sec. 1291,

where jurisdiction is granted for “appeals from all

ﬁ nal decisions of the district courts of the United

States.”

Speciﬁ c rules of procedure, promulgated by the

Supreme Court through the work of its advisory

committees, provide in great detail how appellate

litigants are to seek judicial review through the

federal courts’ appellate jurisdiction. The proce-

dural details are contained in the various editions

of the Rules of the Supreme Court of the United

States and the Federal Rules of Appellate Pro-

cedure. These rules are subject to congressional

review, which extends, to a certain degree, con-

gressional authority over the actual practice of

appellate jurisdiction in the United States.

For more information: Fallon, Richard H.,

Daniel J. Meltzer, and David L. Shapiro. Hart

and Wechsler’s the Federal Courts and the Fed-

eral System. 4th ed. New York: Foundation Press,

2003; Stern, Roger J., Eugene Gressman, Stephen

M. Shapiro, and Kenneth S. Geller. Supreme

Court Practice. 8th ed. Washington, D.C.: Bureau

of National Affairs, 2002.

—Jerry E. Stephens

Apprendi v. New Jersey 530 U.S. 466 (2000)

In Apprendi v. New Jersey, the Supreme Court

ruled that a judge could not set a sentence above

the statutory maximum without a jury determina-

tion of the facts beyond a reasonable doubt sup-

porting such a decision. The signiﬁ cance of this

decision is to remove more sentencing discretion

from the judge and to ensure the protection of the

right to trial by jury and the right to due

process of the defendant.

Charles Apprendi, Jr., ﬁ red shots into the home

of an African-American family. He pled guilty to

two counts of second-degree possession of a ﬁ re-

arm for an unlawful purpose, which carried a min-

imum of ﬁ ve years and a maximum of 10 years in

prison, and third-degree possession of an antiper-

sonnel bomb, which carried a minimum of three

years and a maximum of ﬁ ve years in prison.

After Apprendi pled guilty, the prosecutor ﬁ led

a motion to enhance the sentence under the hate

crime statute. An enhancement to an existing

sentence is a statutorily determined increase of a

sentence for a particular reason. For a hate crime

enhancement, the sentence can be increased when

the committed crime is completed with a racially

discriminatory purpose. In the Apprendi case,

the judge alone heard evidence on the hate crime

enhancement and found, by a preponderance of

the evidence, that the crime was completed with a

racially biased purpose. The judge, therefore, sen-

tenced Apprendi to a prison term of 12 years for

one of the counts of second-degree possession of a

ﬁ rearm for an unlawful purpose.

Apprendi appealed his case to the U.S.

Supreme Court, claiming that any fact deter-

mined by the judge alone that increased the statu-

tory maximum for which a defendant was charged

and convicted violated his Sixth Amendment

right to jury trial. The grounds of his claim were

based on Fourteenth Amendment rights of

due process and Sixth Amendment rights to jury

Apprendi v. New Jersey 31

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