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ment of the act within Missouri, claiming that it

infringed on the sovereign powers reserved to the

states through the Tenth Amendment and that,

as owner of the wildlife, Missouri had a ﬁ nancial

interest in the wild birds. Noting that an earlier

act of Congress that attempted to regulate bird

populations within the states had failed in the dis-

trict court, Missouri argued that Congress could

not claim powers pursuant to the implementation

of a treaty that it otherwise would not have—spe-

ciﬁ cally, powers reserved to the states.

The opinion of the Court, delivered by Jus-

tice Oliver Wendell Holmes, rebuffed the

state’s claims and held that the act was constitu-

tional. Article II, Section 2 expressly gives to

the president the power to make treaties (with the

advice and consent of the Senate), while Article

VI, Section 2 proclaims that treaties made “under

the Authority of the United States, shall be the

supreme Law of the Land,” state laws or consti-

tutions to the contrary notwithstanding. Further,

legislation passed pursuant to a valid treaty is

itself a valid exercise of Congress’s powers under

the necessary and proper clause (Article

I, Section 8).

In considering the state’s interest in regulating

wild birds and its claims of an exclusive title to

do so, the Court had recourse to the severity of

the problem with which the treaty dealt. Because

the birds are migratory, Missouri could not claim

exclusive title to regulate them. And because

the problem of dwindling bird populations was

“a national interest of very nearly the ﬁ rst mag-

nitude,” the federal government properly may

address the issue: “We see nothing in the Con-

stitution that compels the Government to sit by

while a food supply is cut off and the protectors of

our forests and our crops are destroyed” (252 U.S.

416, 435 [1920]).

Justices Van Devanter and Pitney dissented

without an opinion.

For more information: Healy, Thomas. “Is Mis-

souri v. Holland Still Good Law?: Federalism and

the Treaty Power.” Columbia Law Review 98, no.

7 (1998): 1,726–1,756; Henkin, Louis. Foreign

Affairs and the U.S. Constitution. 2d ed. Oxford:

Oxford University Press, 1996; Lofgren, Charles

A. “Missouri v. Holland in Historical Perspective.”

The Supreme Court Review (1975): 71–122; Rich-

berg, Donald R. “The Bricker Amendment and

the Treaty Power.” Virginia Law Review 39, no.

6 (1953): 753–764.

—Lorna M. Dawson

Missouri v. Jenkins 495 U.S. 33 (1990)

In Missouri v. Jenkins, the Supreme Court ruled

that federal courts may order local governments

to levy a tax increase of their own property taxes

to remedy segregation in public schools. The sig-

nificance of Missouri v. Jenkins is that federal

judges have the “power of the purse” to enter

into tax ﬁ nance and budgeting processes of local

governments and order that they levy speciﬁ c tax

increases in order to effect compliance with the

Constitution, such as desegregation of public

schools. The decision expands the remedial pow-

ers of federal judges under equity law.

In 1984, the district court ruled that the Kan-

sas City, Missouri, School District (KCMSD) was

segregated by race/ethnicity. In 1986, the court

of appeals upheld the ﬁ ndings and ordered that

the costs be divided between the state of Mis-

souri and KCMSD. The district court ordered a

detailed desegregation plan with “magnet schools”

that would attract more white students from

the suburbs. However, state law limited the tax

increase that was necessary to fund the remedies.

The district court ordered property taxes in the

school district doubled, as well as a capital bond

for new school buildings. In 1988, the court of

appeals affirmed the district court, but limited

future tax-increase orders from directly setting

the tax rate itself. Instead, courts should direct the

school district to do so. The opinion of the Court

afﬁ rmed the court of appeals limit on future tax-

increase orders, but reversed the court of appeals

by upholding the tax increase actually ordered by

the district court.

Justice White, joined by Justices William J.

Brennan, Jr., Marshall, Blackmun, and John

Paul Stevens, signed the opinion of the Court.

First, the Supreme Court granted a limited writ of

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certiorari to review only the property tax increase,

but not the appropriateness of the desegregation

plan. Second, White reasoned that “the District

Court abused its discretion in imposing the tax

increase,” because the order violated principles of

comity—the manner by which the tax increase was

ordered. Comity requires that local governments

should not be dictated to by courts, but should

have the opportunity to devise their own solu-

tions. Third, in the future, the district court should

order the school district to levy the property tax

increase itself. The remedial order itself was not

excessive, and the state and school district should

each be responsible for funding their share of the

remedies. Court orders were not invalid under the

Tenth Amendment, reserving nondelegated pow-

ers to the states, because the case involved express

prohibitions of unlawful state conduct under the

Fourteenth Amendment. The supremacy

clause can require local governments to fulﬁ ll

the requirements of the Constitution, including

the remedial power of a federal court to direct a

local government to levy its own taxes.

Justice Anthony M. Kennedy, joined by

Chief Justice William Hubbs Rehnquist and

Justices Sandra Day O’Connor and Antonin

Gregory Scalia, signed an opinion that concurs

in part and dissents in part. Although it seems a

unanimous decision, these four agreed only that

the district court should not have directly ordered

speciﬁ c tax increases. But they go on to specify

that the “power of taxation is one that the federal

judiciary does not possess,” even by the indirect

route authorized by the majority.

For more information: Schultz, David. Lever-

aging the Law: Using the Courts to Achieve Social

Change. New York: Peter Lang Publishing, 1998.

—Bradley Chilton and Mary Welek Atwell

Mistretta v. United States 488 U.S. 361, 102

L.Ed 2d 714, 109 S.Ct. 647

(1989)

In Mistretta v. United States, the Supreme Court

held that the power of the United States Sentencing

Commission (USSC) to set sentencing guide-

lines for federal courts was neither an unconsti-

tutional delegation of legislative authority nor a

violation of the separation of powers doctrine.

Congress, after over a decade of debate and

research, created the United States Sentencing

Commission (USSC) as an independent agency

of the judicial branch in the Sentencing Reform

Act (SRA), Title II of the Comprehensive Crime

Control Act of 1984. The primary purposes of the

USSC are to establish sentencing policies and pro-

cedures for Article III district courts through

the enactment of sentencing guidelines and policy

statements; to advise Congress and the executive

branch on the establishment of crime prevention

policy; and to collect and analyze data on federal

crimes and sentencing as a resource for the three

branches of government and the public.

Prior to the enactment of the sentencing guide-

lines by the USSC, there was growing concern

among legislators, criminal law practitioners, and

the public about the disparity in judges’ decisions

in similar criminal cases (USSC Guideline Manual

§1A1.1 2005). As noted by the USSC, prior to the

guidelines, district court judges could issue sen-

tences ranging from probation to the maximum

penalty for a particular offense. In establishing

the USSC and the sentencing guidelines, Congress

sought honesty, uniformity, and proportionality

in sentencing (USSC Guideline Manual §1A1.1

2005). By establishing guidelines, the USSC spe-

ciﬁ cally chose to limit federal judges’ discretion by

requiring judges to sentence defendants to prison

time that fell within a certain sentence range for

the vast number of crimes, taking into account

various differences in crimes and defendants’

criminal history background.

The original case was brought by a defendant

indicted in the United States District Court for

the Western District of Missouri. This defendant

argued that the guidelines established by the

USSC were invalid, because the manner in which

the USSC had been created violated the doctrine

of separation of powers, and that Congress had

delegated excessive legislative authority to the

USSC in relation to its powers to set guidelines.

The district court upheld the constitutionality

of the guidelines. Although the defendant origi-

nally ﬁ led a notice of appeal to the U.S. Court of

Mistretta v. United States 483

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Appeals for the Eighth Circuit, both the defen-

dant and the prosecution subsequently petitioned

the United States Supreme Court for certiorari.

In an opinion by Blackmun, joined by Wil-

liam Hubbs Rehnquist, White, Marshall,

John Paul Stevens, Sandra Day O’Connor,

Anthony M. Kennedy, and in pertinent part

William J. Brennan, Jr., the Supreme Court

held that in establishing the USSC and allowing

it to create sentencing guidelines, Congress had

not violated the nondelegation doctrine, because

Congress itself had previously deﬁ ned important

criminal offenses and established gradations of

punishment. As to the nondelegation doctrine, the

Supreme Court indicated the following:

[The guidelines] do not bind or regulate the

primary conduct of the public or vest in the

Judicial Branch the legislative responsibility for

establishing minimum or maximum penalties

for every crime. They do no more than fetter the

discretion of sentencing judges to do what they

have done for generations—impose sentences

within the broad limits set by Congress [Mis-

tretta at 396].

. . . [The] judicial contribution to the enter-

prise of creating rules to limit the discretion of

sentencing judges does not enlist the resources

or reputations of the Judicial Branch in either the

legislative business of determining what conduct

should be criminalized or the executive business

of enforcing the law [Mistretta at 407].

According to the Supreme Court, the USSC’s

guidelines were similar to internal regulations

enacted by courts (Mistretta at 391).

Antonin Gregory Scalia was the lone jus-

tice to dissent to the substance of the majority

opinion. His dissent was based only on the non-

delegation doctrine. In his dissent to the majority

opinion, Scalia wrote that the Sentencing Reform

Act that established the USSC was an invalid del-

egation of legislative power and authority because

the USSC’s rule-making power in establishing

guidelines was a legislative power and not a part

of a valid exercise of judicial or executive power.

Scalia opined that Congress established the com-

mission only to exercise law-making powers that

are exclusively reserved for the legislature.

The majority also ruled that the establishment

of the USSC in the judicial branch did not violate

the separation-of-powers doctrine for several rea-

sons, but most importantly because the functions

of the USSC to establish rules and make judg-

ments about sentencing were deemed appropriate

for the judicial branch. Furthermore, the creation

of the USSC did not violate the separation-of-

powers doctrine because the USSC was not a court

and did not hear individual cases and thus did not

improperly unite judicial and political power.

The effect of the Mistretta decision has been

far-reaching. Sentencing guidelines established

by the USSC and upheld by Mistretta and their

amendments were applied to approximately

700,000 federal criminal cases between 1989 and

2005, when the Supreme Court, in UNITED STATES

V. BOOKER, 125 S.Ct. 738 (2005), found that the

guidelines were unconstitutional and rendered

their further use as advisory, rather than manda-

tory, constraints on district court judges.

For more information: Cohen, Mark. “Explain-

ing Judicial Behavior, or What’s Unconstitutional

about the Sentencing Commission?” Journal of

Law, Economics and Organization 71 (1991):

183–199; Epstein, Lee, and Thomas G. Walker.

Constitutional Law for a Changing America:

Institutional Powers and Constraints. 5th ed.

Washington, D.C.: CQ Press, 2004.

—Lydia Brashear Tiede

Monell v. Department of Social Services

436 U.S. 658 (1978)

In Monell v. Dept. of Social Services, the United

States Supreme Court held that municipalities,

such as cities and counties, could be sued under

42 U.S.C. §1983 for violations of citizens’ civil

rights.

Prior to Monell, the Court had established

in Monroe v. Pape, 365 U.S. 167 (1961), that

municipalities were not “persons” for purposes

of Section 1983, and could not be sued under

this statute. Thus, although individual employees

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of municipalities, such as police officers, could

be sued for violations of citizens’ civil rights, the

municipalities themselves could not. The Supreme

Court overturned this decision in Monell, making

possible a much wider range of litigation under

Section 1983 against municipalities and munici-

pal agencies.

The petitioners in Monell were a group of

women employed by the Department of Social

Services and the Board of Education of the city

of New York. The department and the board had

a policy requiring any pregnant employee to take

an unpaid leave of absence after the ﬁ fth month of

pregnancy, regardless of whether such leave was

medically necessary. The female employees sued

the Department of Social Services and its commis-

sioner, the Board of Education and its chancellor,

and the city of New York and its mayor, alleging

claims under 42 U.S.C. §1983. This statutory pro-

vision provides a civil cause of action to individu-

als whose civil rights have been violated under

color of state law. The petitioners sought both

monetary damages and an injunction to ensure

that the policy would not continue to be applied.

The United States District Court for the South-

ern District of New York found that the damages

were not available, because any monetary dam-

ages awarded would have to be paid by the city

of New York, which would not honor the rule of

municipality immunity established in Monroe. On

appeal, the United States Court of Appeals for the

Second Circuit afﬁ rmed the district court’s ﬁ nd-

ing, ruling against the petitioners. The petitioners

then appealed on a writ of certiorari to the United

States Supreme Court.

In an opinion written by Justice William J.

Brennan, Jr., for a majority of the Court, the

justices considered the prior rule set out in Mon-

roe establishing absolute immunity for munici-

palities under Section 1983 and rejected it. The

Court analyzed the legislative history of Section

1983 and concluded that Congress had intended

to allow for municipalities to be sued under the

statute. Although it overruled the holding that

municipalities were entirely immune from suit

under Section 1983, Monell did not disturb the

rule that municipalities could not be held respon-

sible for the torts of their employees under a the-

ory of respondeat superior—a theory that holds

the municipality liable simply because it employs

a person who has caused some injury.

Under the rule set out in Monell, municipali-

ties do not have absolute immunity and may be

sued under Section 1983 for violations of civil

rights that they have caused. Although stressing

that municipalities may be sued only for violations

for which they are actually responsible, the Court

declined to express any view as to the potential

scope of municipal liability under Section 1983.

Subsequent decisions, such as City of Canton v.

Harris, 489 U.S. 378 (1989), have refined this

holding, establishing the types of actions that

may give rise to liability under Section 1983 for

municipalities.

For more information: Gerhardt, Michael.

“The Monell Legacy: Balancing Federalism Con-

cerns and Municipal Accountability under Sec-

tion 1983.” Southern California Law Review 62

(1989): 539, 542–543; Nahmod, Sheldon. Civil

Rights and Civil Liberties Litigation: The Law

of Section 1983. 3d ed. New York: McGraw-Hill,

1991.

—Johanna Hickman

Montesquieu and the Constitution

The baron de Montesquieu’s ideas on the sepa-

ration of powers as a constitutional device for

achieving liberty influenced the authors of the

Constitution of the United States. Their version

of his ideas is embodied in the Constitution in

the Legislative Article (Article I), the Execu-

tive Article (Article II), and the Judicial Article

(Article III) and institutionally in the Congress,

president, and the judiciary.

Charles-Louis de Secondat, baron de le Brède

et de Montesquieu, was born on January 18, 1689,

at the castle of La Brède near Bordeau. In 1716, he

inherited the barony of Montesquieu and the pres-

idency of the Bordeaux Parlement, which was basi-

cally the post of chief justice of a local court, from

his uncle. In this role, he championed provincial

rights against the centralized power of the king.

Montesquieu and the Constitution 485

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In 1721, Montesquieu published anonymously The

Persian Letters (Les lettres persanes), which was

an immediate and sensational success. When his

authorship was discovered, it won him literary

acclaim. The book pretended to be letters written

by two Persian travelers. Using the sensuality of

their imagined harems as a backdrop, he engaged

in severe social criticism of Europe and France.

In 1729, Montesquieu began traveling in search

of political liberty. When he journeyed to England,

he discovered the liberty he was seeking. Because

he was a nobleman and a famous man of letters,

he was royally received, elected to the Royal Soci-

ety, and for two years given thorough explanations

of England’s system of government. He eventu-

ally concluded that separation of powers was the

cause of English liberties. In 1731, Montesquieu

returned to Bordeaux, where he began a series of

studies that culminated in 1748 with the publica-

tion of The Spirit of Laws (De l’esprit des lois).

The Spirit of Laws is divided into 33 books (livres)

of chapter length. For Montesquieu, the “spirit”

of the law lay in the origin and development of

the law through custom. This included the devel-

opment of the meaning of legal terms, rules, and

adoption of laws.

For Montesquieu, the key to liberty lay in mod-

erate governments. He expounded on this in Book

XI, Section 4, of The Spirit of Laws. In Section

6 of Book XI, Montesquieu discusses separation

of powers, that is, the division of government into

three branches with each having only legislative,

only executive, or only judicial powers. For Mon-

tesquieu, every government chooses a goal such

as dominion, war, religion, or commerce as the

guide to its actions. The delegates at the Consti-

tutional Convention chose political liberty as

the American goal due to his inﬂ uence.

Montesquieu’s ideas are discussed in three

articles in the F

EDERALIST PAPERS. In Federalist 9

and 43, his ideas are used to expound the idea of

a federal union. His views on separation of powers

are discussed at length in Federalist 47.

For more information: Courtney, Cecil Patrick.

Montesquieu and Burke. Oxford: Blackwell &

Mott, 1963; Pangle, T. L. Montesquieu’s Philoso-

phy of Liberalism: A Commentary on “The Spirit

of the Laws.” Chicago: University of Chicago

Press, 1973; Shackleton, Robert. Montesquieu: A

Critical Biography. London: Oxford University

Press, 1961.

—Andrew J. Waskey

Morse v. Frederick 551 U.S. ___ (2007)

In Morse v. Frederick, the Supreme Court, by a

5-4 vote, held that public school ofﬁ cials were not

barred by the First Amendment from restrict-

ing students’ drug-related speech.

The case arose from an incident in which

high school senior Joseph Frederick refused to

remove his 14-foot banner reading “BONG HiTS

4 JESUS” during a school-sponsored outing to

watch the Olympic torch parade. The principal,

Deborah Morse, thinking this an endorsement of

drug use, conﬁ scated the banner and suspended

him. Frederick said the words were nonsensical

and meant to get him on television. He thought

the actions taken against him violated his First

Amendment free speech rights, and the principal

should be held liable for damages. The district

court supported Morse. The Ninth Circuit Court

of Appeals supported Frederick.

The Supreme Court was divided in its reasons

as well as its votes. Chief Justice John G. Rob-

erts, Jr., writing for the majority, dismissed

Frederick’s argument that the circumstances did

not make this a “school speech” case and agreed

with Morse that the message might be interpreted

as pro-drug. While not repudiating the landmark

case, TINKER V. DES MOINES, 393 U.S. 503 (1969),

he employed two principles from a later school

speech case, Bethel School District v. Fraser, 478

U.S. 675 (1986): (1) Students do not automatically

have the same rights as adults or as they them-

selves might have outside of school; and (2) the Tin-

ker standard—protecting student speech except

when clearly disruptive of the school’s educational

mission—was not the only criterion for deciding

school speech cases. Roberts drew on Fourth

Amendment cases, congressional spending, and

school board policies to demonstrate that com-

bating student drug use was a government prior-

486 Morse v. Frederick

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ity. Finally he clariﬁ ed that this ruling supported

school officials’ power to discipline specifically

pro-drug speech and did not address more gener-

ally “offensive” speech.

This provided the point of departure for Jus-

tice Samuel Alito’s concurring opinion. Alito

expressed continued support for the Tinker stan-

dard and a reluctance to deviate from it. His vote

was based on the speciﬁ c circumstances of this

case and was not intended to empower schools to

censor any student speech inconsistent with their

educational mission.

In sharp contrast, Justice Clarence Thomas,

also concurring, wholeheartedly endorsed the

Court’s opinion, while arguing that the Tinker

standard “is without basis in the Constitution”

and student speech has no constitutional protec-

tion. He described disciplinary powers of early

American private schools, arguing that when pub-

lic schools appeared, they inherited these powers.

“In the earliest public schools, teachers taught and

students listened.” Thomas believed the Court

rejected this tradition in Tinker but was restoring

it piecemeal. He joined the Court to help “erode”

Tinker, preferring, however, to abandon the Tin-

ker principle entirely.

Justice John Paul Stevens, dissenting, took

Frederick at his word as to his motivation and

argued that by bowing to Morse’s interpretation,

the Court trivialized Tinker and endorsed view-

point discrimination. To Stevens, it was “implau-

sible” that Frederick’s banner would lead to

increased student drug use. He feared that there

would be “no stopping point” after this ruling,

with schools silencing perfectly legal mention of

drugs as in classroom debates about legalizing

marijuana for medical uses.

Justice Stephen G. Breyer agreed with the

Court’s position that Morse’s “qualiﬁ ed immunity”

protected her from liability for monetary damages.

However, reminding the Court in his concurring/

dissenting opinion of the tradition of avoiding

constitutional questions if a narrower ruling was

possible, he would have decided for Morse on that

basis alone.

The conservative American Committee for

Law and Justice (ACLJ) and other religious right

organizations ﬁ led amicus curiae briefs on behalf

of Frederick, putting them uncharacteristically

on the same side as the American Civil Lib-

erties Union (ACLU) and in opposition to the

Bush administration. Their concern was that a

ruling giving broad power to school ofﬁ cials could

endanger student religious speech.

The case also attracted attention because of the

presence of former independent prosecutor Ken-

neth Starr, who volunteered his time to represent

Morse.

For more information: Johnson, John W. The

Struggle for Student Rights. Lawrence: Univer-

sity of Kansas Press, 1997; Raskin, Jamin B. We

the Students: Supreme Court Cases for and about

Students. 2d ed. Washington, D.C.: CQ Press,

2003.

—Jane G. Rainey

Mueller v. Allen 463 U.S. 388 (1983)

In Mueller v. Allen, the Supreme Court ruled that

a Minnesota statute (290.09, subd. 22) did not

violate the establishment clause of the U.S.

Constitution’s First Amendment. The statute

allowed Minnesota taxpayers to deduct expenses

for tuition, textbooks, and transportation for their

children attending public or private elementary

and secondary schools. The 5-4 decision set the

standard for determining the constitutionality of

state aid for parents who send their children to

parochial schools.

Justice William Hubbs Rehnquist, joined by

Justices Warren Burger, White, Lewis Pow-

ell, and Sandra Day O’Connor, delivered the

opinion of the court. In this opinion, Rehnquist

applied the three-part Lemon test, set forth in

LEMON V. KURTZMAN, 403 U.S. 602 (1971), to deter-

mine whether the statute violates the establishment

clause. The Lemon test requires that a statute (a)

must have a legitimate secular purpose, (b) must

not have the primary effect of either advancing or

inhibiting religion, and (c) must not result in an

“excessive entanglement” with religion. Rehnquist

explained that the Minnesota legislation had the

secular purpose of educating the populace, and it

Mueller v. Allen 487

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did so by defraying the cost of educational expenses.

The statement also stressed the important role that

private schools play in relation to public schools by

providing educational alternatives and competition

and offsetting operating costs.

In applying the second part of the Lemon test,

advancing or inhibiting religion, the court ruled

that, since the deductions were available to all

parents, including those whose children go to pub-

lic school, the statute was not subject to challenge

under the establishment clause. They also found

that this case was different from earlier cases,

because the aid was provided to the parents rather

than directly to the schools. Lastly, Rehnquist

explained that the statute did not result in exces-

sive entanglement with religion just because state

ofﬁ cials determine the eligibility of textbooks that

qualify as legitimate deductions. Making deci-

sions to disallow deductions for books and materi-

als used in teaching religious tenets, doctrines, or

worship is insufﬁ cient evidence of entanglement.

Dissenting justices Marshall, William J.

Brennan, Jr., Blackmun, and John Paul Ste-

vens asserted that the establishment clause

prohibits states from subsidizing religious educa-

tion, whether directly or indirectly, and that the

Minnesota statute tax deductions were a form of

subsidy for sectarian schools. They countered the

majority’s opinion of the secular purpose of the

law by explaining that, although the deductions

are available to all parents, in practice the bulk

of the beneﬁ t goes to parents who send their chil-

dren to religious schools, because those are the

schools that charge tuition. Furthermore, they did

not agree with the majority’s view that there was

signiﬁ cant difference between this case and prec-

edent set forth in earlier cases, particularly Com-

mittee for Public Education v. Nyquist, 413 U.S.

756 (1973). The dissenting opinion also held that

allowing tax deductions for any textbooks used

exclusively in religious schools violates the estab-

lishment clause.

The signiﬁ cance of the Mueller v. Allen deci-

sion was the potential impact on future legisla-

tion concerning tax credits for religious schooling.

Rehnquist’s application of the Lemon test and

the clariﬁ cation that tax deductions for education

beneﬁ t all parents establish criteria for new laws

to follow.

For more information: Connolly, John W. “Muel-

ler v. Allen: A New Standard of Scrutiny Applied

to Tax Deductions for Educational Expenses.”

Duke Law Journal (1984): 983–1,001; Renstrom,

Peter G. Constitutional Rights Sourcebook. Santa

Barbara, Calif.: ABC-CLIO, 1999.

—Jocelyn Tipton

Muller v. Oregon 208 U.S. 412, 28 S.CT. 324

(1908)

In Muller v. Oregon, the United States Supreme

Court upheld an Oregon statute limiting the num-

ber of hours per day women could work and set-

ting the minimum wage they must be paid. Curt

Muller challenged his conviction under the statute

as a deprivation of his due process rights under

the Fourteenth Amendment, inviting the court

to apply its substantive due process analysis

to ﬁ nd the Oregon statute unconstitutional, as it

had done three years previously in LOCHNER V.

NEW YORK, 198 U.S. 45, 25 S.Ct. 539 (1905).

In Lochner, the Court had held that a maxi-

mum hour law for bakers in New York unconsti-

tutionally infringed the due process rights of

owners of bakeries and their employees. Although

the Supreme Court did apply the same substan-

tive due process analysis to the Oregon statute

as it had with that of New York, unlike with the

New York statute, the Court found the Oregon

statute to have passed its test of constitutionality,

i.e., that the statute served a public interest that

outweighed the individual right.

As the 19th century came to an end and the

20th began, the Progressive Era of American

politics dawned as well, bringing with it numer-

ous state and federal statutes seeking protection

for the American worker. In light of the Supreme

Court’s substantive due process doctrine requir-

ing all statutes that posed regulations on business

to pass the Court’s test of constitutionality, to wit,

that they were serving a public interest that out-

weighed the private property right, the defense of

such statutes necessarily required evidence that

488 Muller v. Oregon

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the challenged statutes were, in fact, within the

authority of the government to enact as a health,

safety, or morals code.

In Muller, the Progressive Movement sought to

defend the Oregon maximum hour/minimum wage

law for women by proving that it was a true pub-

lic health law for women. To this end, the National

Consumers’ League hired future Supreme Court

Justice Louis D. Brandeis to make its case. Filing

what later came to be known as a Brandeis brief,

Brandeis wrote a 113-page argument that consisted

of two pages of legal citation and 111 pages of social

science research on the impact of long working

hours and low pay on the health and well-being of

women and, by extension, the family.

Although the state of New York had asserted

that it, too, was seeking to protect the health and

well-being of its bakers in Lochner, the assertion

that the New York law was a health code had fallen

on deaf ears only three years previously. Brandeis’s

strategy of focusing on proving that the law was,

in fact, a health code and not simply the “protec-

tionist” legislation struck down in Lochner proved

compelling to the Court. Although this case stands

as a victory for progressive forces and the use of

the Brandeis brief in court, it must also be under-

stood in the context of the political culture of the

times with its structure of sexism that pervaded

both Brandeis’s argument and the resulting Court

opinion. The only signiﬁ cant difference between

the statutes challenged in Lochner and Muller

is that, in the former case, men were to be pro-

tected from sweatshop conditions, and in the lat-

ter case, women were the subject of the law. The

structure of gender discrimination that these two

cases, taken together, highlight would continue to

permeate both legislation and court doctrine until

the last quarter of the 20th century, ultimately

disadvantaging both men and women.

In the end, Muller was only a quite small ray of

hope for those concerned with conditions faced by

the American worker in the early years of the 20th

century. Within 15 years of the Muller decision,

the Court returned to its Lochner view of worker

protective legislation, overturning a congressional

statute governing Washington, D.C., that set a

minimum wage for women in the district (A

DKINS

V. CHILDREN’S HOSPITAL, 261 U.S. 525 [1923]). It

would take almost 15 more years before the Court

would accept the judgment of the nation that had

elected and reelected Franklin D. Roosevelt and

his “New Deal” of progressive legislation and

cease using its substantive due process analysis to

second-guess elected legislative action in the eco-

nomic realm.

For more information: Bickel, Alexander M. The

Least Dangerous Branch: The Supreme Court at

the Bar of Politics. New Haven, Conn.: Yale Uni-

versity Press, 1986; Cardozo, Benjamin N. The

Nature of the Judicial Process (The Storrs Lecture

Series). New Haven, Conn.: Yale University Press,

1960; Ely, John Hart. Democracy and Distrust:

A Theory of Judicial Review. Cambridge, Mass.:

Harvard University Press, 2004.

—Phyllis Farley Rippey

Munn v. Illinois 94 U.S. 113 (1876)

In Munn v. Illinois, the United States Supreme

Court upheld an Illinois statute requiring grain

elevators to have operating licenses and setting

maximum rates chargeable for storage of grain.

After being found in violation of the statute, Ira

Munn challenged the law as an infringement of

his due process rights. Although the Supreme

Court rejected Munn’s argument in this case, at

the same time, it opened the door to the possi-

bility that there were cases where Munn’s Four-

teenth Amendment analysis would prevail with

the Court. In so doing, the Court established and

legitimated in all but explicit language the doc-

trine of substantive due process.

Munn’s argument reasserted the framework of

analysis of the Fourteenth Amendment ﬁ rst urged

on the Supreme Court in The Slaughterhouse

Cases in 1867, 10 years previously. That argument

was based on a reading of the Fourteenth Amend-

ment as having two signiﬁ cant features: (1) that

the amendment offered constitutional protection

to all Americans, not just to newly freed slaves

and black Americans and (2) that the due process

clause was intended as a check on overreaching

protectionism by state governments.

Munn v. Illinois 489

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The due process clause forbids the states from

writing laws that deprive individuals of life, lib-

erty, or property without due process. Beginning

with The Slaughterhouse Cases (see Butchers’

Benevolent Association of New Orleans

. . .), two years after ratiﬁ cation of the Fourteenth

Amendment, lawyers for business corporations

introduced a constitutional interpreta-

tion of the Fourteenth Amendment that, in time,

came to be endorsed by the Supreme Court as the

doctrine of substantive due process. The struc-

ture of the argument is as follows: (a) Due pro-

cess protections include more than ensuring that

laws are properly enacted and enforced; (b) even if

legislative rules are properly followed, the result-

ing law may, itself, be a deprivation of liberty or

property without due process; (c) consequently,

the appropriate constitutional role for the Court

is to look beyond the process of legislation to the

substance of the law to determine its constitution-

ality; and (d) should the substance of the law vio-

late due process, the Court must strike it down as

unconstitutional. This reading of the Fourteenth

Amendment’s due process clause greatly enhances

the power of the Supreme Court and expands its

role in American politics and, consequently, sig-

nificantly undermines the authority of govern-

ment to enact economic (private property–related)

legislation.

In The Slaughterhouse Cases, the Supreme

Court majority rejected this argument, but the

four-justice minority opinion embraced it, giving

it signiﬁ cant credibility and encouraging lawyers

for business clients to continue to urge the argu-

ment on the Court in succeeding cases, which Ira

Munn’s attorneys did in Munn v. Illinois in 1876.

In the intervening 10 years between these two

cases, the Supreme Court majority came to join

the view of the dissenting minority of The Slaugh-

terhouse Cases. In Munn, the Supreme Court

made two statements of enormous signiﬁ cance to

governments seeking to regulate business in some

measure as well as to the businesses subject to the

regulations.

First, the Court reafﬁ rmed the traditional view

that it is legitimate for government to regulate

private property “clothed in a public interest,” and

thus, under the Fourteenth Amendment, it can-

not be assumed that, in all cases of government

regulation of private property, there has neces-

sarily been a deprivation of property without due

process. Had the Supreme Court ended its opin-

ion here, both Ira Munn and business interests

generally would have lost the war against the

regulation of business, perhaps for all time. But

to the delight of business, the Court continued

its opinion with the statement that “[u]nder some

circumstances they [government regulations on

business] may [amount to a deprivation], but not

under all.”

With these words in Munn, substantive due

process was full born as a constitutional doctrine.

Because the Court acknowledged that there were

some cases where government regulation of pri-

vate property may constitute a deprivation of

property or liberty without due process, the hold-

ing necessarily begged the question: Under what

circumstances was this the case? To answer this

question, the Supreme Court necessarily had to

assume the task of looking at the substance of leg-

islation to determine whether the government had

overstepped its authority under the Fourteenth

Amendment’s due process clause.

Beginning with Munn and continuing for the

next 60 years, the Supreme Court imposed its

substantive due process analysis on economic leg-

islation, ﬁ nding more times than not that the gov-

ernment had exceeded its powers. As part of its

substantive due process doctrine, the Court con-

structed a “test of constitutionality” that required

all legislation challenged as infringing due process

protections to make the case that the enactment

served a public interest that outweighed the indi-

vidual right. Failing this test, state and federal laws

were struck down by the Court. It was entirely

within the power of the Court to determine both

what the purpose of the challenged law was and

whether that purpose outweighed the individual

right. In the vast majority of cases over the 60

years after Munn, the Supreme Court routinely

found public policy regulating business to be con-

stitutionally invalid. Consequently, the lawyers for

Ira Munn lost his battle but won business’s war

against government regulation.

490 Munn v. Illinois

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Although the Supreme Court ultimately backed

away from imposing its substantive due process

analysis on economic legislation by the late 1930s,

its authority to review the substance of legislative

enactment continues apace today.

For more information: Currie, David P. The

Constitution in the Supreme Court: The First

Hundred Years, 1789–1888. Chicago: University

of Chicago Press, 1986; Kelly, Alfred H., Winfred

A. Harbison, and Herman Belz. The American

Constitution: Its Origins and Development. New

York: W.W. Norton & Company, 1991.

—Phyllis Farley Rippey

music censorship

Music censorship refers to changing, eliminating,

or otherwise suppressing individual songs or musi-

cal genres based on the content of the lyrics. Music

censorship, if undertaken by the government, is

generally a violation of the First Amendment

free speech clause. However, there are some cir-

cumstances when the government may regulate

musical lyrics on television and radio.

The First Amendment to the U.S. Constitution

says that “Congress shall make no law . . . abridg-

ing the freedom of speech.” This explicit restric-

tion on Congress’s power has thus far prevented

legislation that would permit or require music cen-

sorship, and no Supreme Court decisions expressly

deal with efforts to censor music. The Court has,

however, explicitly stated that obscene speech is

not protected under the First Amendment, and

this would be the standard applied to music.

Under MILLER V. CALIFORNIA, 413 U.S. 15 (1973),

speech is obscene (1) if the average person, apply-

ing contemporary community standards, would

ﬁ nd that the material appeals to prurient inter-

ests; (2) if the material depicts or describes sexual

conduct in a patently offensive way; and (3) if it

lacks literary, artistic, political, or scientiﬁ c value.

As discussed brieﬂ y below, most music censorship

has been the result of either intense public pres-

sure, or indirect governmental pressure, to restrict

certain music in order to protect young people

from offensive lyrics.

Popular music has long been the bane of the

older generation. In the early 20th century, rag-

time, jazz, and blues were viewed with alarm

because they expressed, among other things, the

sexual side of human nature. By the 1950s, the

inﬂ uence of radio and the emergence of rock and

roll combined to raise adult fears that sexually

suggestive lyrics were fostering perversion and

delinquency in young people. Radio disc jockeys

increasingly banned certain songs, often at the sug-

gestion of, or with the support of, local authorities

and religious groups. As television became more

prevalent in American society, efforts to censor

certain types of music spread to TV. For example,

when the Rolling Stones appeared on the Ed Sul-

livan Show in 1967, they changed the words of

“Let’s Spend the Night Together” to “Let’s Spend

Some Time Together” in response to Sullivan’s

belief that the original phrase was objectionable.

The 1960s and 1970s ushered in parental fears

of illicit drug use, as well as public outcries against

song lyrics that alluded to drugs. Among the more

controversial actions of the 1970s was a widespread

ban on John Denver’s “Rocky Mountain High”

because radio stations thought “high” would be

perceived as a reference to drug use. Otherwise,

lyrics deemed objectionable were often bleeped or

otherwise obscured by radio stations, sometimes

without the consent of the artists. In general,

music censorship was a local affair, with scant

attention paid by national public ﬁ gures.

While, in general, the government cannot cen-

sor music sold in CDs or in other formats, it may

restrict what is broadcast on public airwaves. In

FEDERAL COMMUNICATIONS COMMISSION V. PACIFICA

FOUNDATION, 438 U.S. 726 (1978), the Supreme

Court upheld a decision by the Federal Commu-

nications Commission to ﬁ ne a radio station for

the broadcast of George Carlin’s “Seven Dirty

Words” comedy routine because it contained sev-

eral four-letter words. Even though these words

were speech under the First Amendment, the

Court ruled that the FCC could prohibit the use

of these words on broadcast television and radio in

order to protect captured audiences and children

from hearing them. In general, as a result of this

decision, the FCC can censor broadcasts of some

music censorship 491

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