Schultz D. Encyclopedia of the United States Constitution

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objectionable materials, and it has ﬁ ned individu-

als, such as Howard Stern, for using certain words

or because of their content. However, the FCC

has also permitted more adult language to be used

on cable and in nonfamily hours.

The music censorship landscape changed dra-

matically in 1985 with the formation of the Par-

ents’ Music Resource Center (PMRC), a group

composed mainly of the wives of some of the most

influential public figures in Washington, D.C.,

including Tipper Gore, wife of former Vice Presi-

dent Al Gore. The group aimed to inform parents

that much of the popular music enjoyed by their

children explicitly glorified drugs, alcohol, vio-

lence, and sex. They wanted the music industry

to voluntarily label recordings containing explicit

lyrics to help parents determine whether certain

music was suitable for their children. A key part of

their strategy was convincing the Senate to hold

a hearing in 1985 on the content of rock music.

Much of the testimony was combative, with state-

ments from members of the PMRC that linked

various social ills to music lyrics, and testimony

by musicians that called the hearing a censorship

charade. Ultimately, the music industry agreed

to place “Parental Advisory: Explicit Content”

stickers on CDs according to their own internal

standards.

Since 1990, some major retail chains, includ-

ing Wal-Mart, have refused to sell CDs containing

warning labels, and some stores restrict sales of

labeled music to people over 18 years old. Some

recording companies have marketed “clean” ver-

sions of songs in order to get the music on the

shelves. A number of states have debated legisla-

tion that would prevent the sale of labeled music,

and some have considered taxing recordings that

contain warning labels. Over the years, Music

Television (MTV) has chosen to ban certain music

videos based on both lyrical and visual content.

Although no music censorship cases have been

heard by the U.S. Supreme Court, one came close.

In 1990, a Florida judge declared 2 Live Crew’s

album As Nasty as They Want to Be obscene, and

the Broward County sheriff ordered it removed

from stores. Although three retailers were

arrested, charges were eventually dropped, and

on appeal, a federal court found that the record-

ing was not obscene; the Supreme Court did not

grant certiorari. As the Internet becomes more

integral to the music industry in the 21st century,

actions against the content of music are likely to

move in new directions.

For more information: Chastagner, Claude.

“The Parents’ Music Resource Center: From

Information to Censorship.” Popular Music 18

(May 1999): 179–192; Cohen, Ronald D. “The

Delinquents: Censorship and Youth Culture

in Recent U.S. History.” History of Education

Quarterly 37 (Autumn 1997): 251–270; Paulson,

Kenneth A. “Regulation through Intimidation:

Congressional Hearings and Political Pressure

on America’s Entertainment Media.” Vanderbilt

Journal of Entertainment Law and Practice 7

(Winter 2004): 61–89.

—Margaret Tullai

Muskrat v. United States 219 U.S. 346 (1911)

In Muskrat v. United States, the Court reversed

and dismissed the claims of David Muskrat that

challenged the constitutionality of a series of con-

gressional restrictions imposed on land owned by

Cherokees. More broadly, however, this decision

acknowledged that Article III of the U.S.

Constitution limits the exercise of federal judi-

cial power to actual cases and controversies that

are brought to the courts for resolution.

In this opinion, the Court put words to a tradi-

tion that had guided its decision making for more

than a century, but one that had never before

been clearly stated: namely, that it would not hear

friendly suits, nor issue hypothetical opinions, nor

address any questions beyond those contained in

real cases or controversies.

The Muskrat case has its origin in a long list

of disputes that grew out of the complexities of

Indian treaties and the congressional struggle

at the turn of the 19th to the 20th century to

address them. The General Allotment Act of 1887

pronounced a new federal Indian policy: Former

tribal lands were to be subdivided, then individu-

ally bought and sold. This initiated a complex pro-

492 Muskrat v. United States

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cess wherein Indian claims to land titles became a

critical element in determining federal allotments,

tribal boundaries, treaty provisions, and corpo-

rate and personal ownership.

Subsequent congressional legislation, in order

to clarify the factual questions that arose as well

as to remedy the bureaucratic inadequacies that a

multitude of these disputes revealed, often would

invite suits against the government. The legislation

speciﬁ ed that these cases were to be tried in fed-

eral courts of claims to determine the details and

resolve the differences in these matters, and that

such decisions could be reviewed by the Supreme

Court.

Muskrat v. United States bears all of these

characteristics. It was born of a 1907 statute,

wherein Muskrat and others were individually

named and authorized to bring suit in the court

of claims “to determine the validity of any acts

of Congress” (Opinion of the Court, p. 360) that

since 1902 had regulated Cherokee lands. The

legislation instructed the attorney general to rep-

resent the federal government in the case, and

the U.S. Treasury to pay the lawyers’ fees for the

attorneys who represented Muskrat and Cherokee

citizens. Muskrat’s suit was, in short, orchestrated,

planned, and paid for by Congress.

In delivering the opinion for a unanimous (7-0)

court, Justice Day highlighted the lack of genu-

ine adversarial interests that existed between the

Cherokees and the United States, the transparent

objective to garner Supreme Court approval for

the “doubtful character” of congressional legisla-

tion in these matters, and the unofﬁ cial practice

of the Court only to hear actual cases and con-

troversies. Faced with an unabashed congressio-

nal invitation to render an advisory opinion here,

Day declared, “Is such a determination within the

judicial power conferred by the Constitution . . . ?

We think it is not” (361).

Day’s opinion traced the development of this

tradition to Washington’s presidency, when the

administration and Congress asked for the jus-

tices’ advice and counsel on a wide range of issues

from treaty matters with France and Britain to set-

tling Revolutionary War pensions for widows and

orphans. In correspondence, Chief Justice John

Jay and his associates declined to assist on the

grounds that such action would violate the unique

power that was vested only in the judiciary by Arti-

cle III of the U.S. Constitution (see appendix).

Declaring that this was neither a case nor a

controversy and, as such, fell outside its consti-

tutional jurisdiction, Justice Day laid the founda-

tion for the gradual development of the modern

court’s limitation of congressional attempts to

place issues before the court. The holdings of

Muskrat were reafﬁ rmed in Aetna Life Insurance

Co. v. Haworth, 300 U.S. 227 (1937), and further

sharpened in L

UJAN V. DEFENDERS OF WILDLIFE, 504

U.S. 555 (1997), which said it is the Court, not the

Congress, that ultimately determines what is a

true case or controversy.

For more information: Casto, William R. “The

Early Supreme Court Justices’ Most Signiﬁ cant

Opinion.” Ohio Northern University Law Review

29 (2002): 173–207; Kannan, Phillip M. “Advisory

Opinions by Federal Courts.” University of Rich-

mond Law Review 32 (1998): 769–798.

—George Peery

Myers v. United States 272 U.S. 52, 47 S.

Ct. 21, 71 L. Ed. 160

(1926)

Myers v. U.S. established the president’s authority

unilaterally to remove inferior executive officers

appointed “by and with the Advice and Consent of

the Senate” (Article II, Section 2). The Court

thereby resolved a question long debated: When the

Constitution is explicit about the mode of appointing

ofﬁ cials, but silent about the mode of their removal,

who may remove ofﬁ cials jointly appointed? The

Court’s answer established a sweeping executive

authority and derived a substantial power from his

obligation to “take Care that the Laws be faithfully

executed” (Article II, Section 3).

Although the Tenure of Office Act (1867),

which sought to restrict the executive’s removal

power, had been repealed in 1887, an 1876 stat-

ute that required Senate consent to the removal

of all ﬁ rst-, second-, and third-class postmasters

remained on the books. In January 1920, Presi-

dent Wilson removed Postmaster First-Class

Myers v. United States 493

vi+904_EofUSConsti-v2.indd 493 3/20/09 2:17:48 PM

Frank S. Myers before his term expired and with-

out Senate consent, in violation of that law. After

Myers sought unsuccessfully to recover his lost

salary in the U.S. Court of Claims, he appealed to

the Supreme Court.

In a 6-3 decision, authored by Chief Justice

William Howard Taft, the Court entered the

fray and held the 1876 statute unconstitutional.

A lengthy review of history led the Court to con-

clude that “the executive Power” (Article II, Sec-

tion 1) was a broad grant of substantive power, and

that the appointing provisions of Article II, Sec-

tion 2 were to be understood as limitations to this

power which were to be construed strictly. Con-

gress’s power to determine the mode of appoint-

ment of “inferior ofﬁ cers” (Article II, Section 2)

thus does not extend to it the power to limit their

removal once appointed. The power to remove is

inherently executive: The president must be able

to remove ofﬁ cials in whom he has lost conﬁ dence

in order to fulﬁ ll his own obligation to “take Care

that the Laws be faithfully executed” (Article II,

Section 3).

In dissent, Justice McReynolds followed Taft’s

foray into history to conclude that the president

had no such “illimitable” power (272 U.S 52, 192

[1926]), one inconsistent with a Constitution of

limited and enumerated powers. The obligation to

ensure faithful execution of the laws cannot jus-

tify infraction of some of those laws. Further, the

Court’s holding had been “expressly repudiated”

(272 U.S. 52, 202 [1926]) in MARBURY V. MADISON,

5 U.S. (I CR.) 137 (1803), and consistently denied

in subsequent cases.

Agreeing with McReynolds’s conclusions,

Brandeis added pointedly that there is “no express

grant to the President of incidental powers resem-

bling those conferred upon Congress by clause 18

of Article I, 8” (272 U.S. 52, 246 [1926]).

Finally, Justice Oliver Wendell Holmes,

Jr. argued that because Congress had created

the ofﬁ ce and had conferred upon the president

the power to appoint its officers, its assent was

required for their removal. The president’s obliga-

tion to ensure the faithful execution of the laws

“does not go beyond the laws or require him to

achieve more than Congress sees ﬁ t to leave within

his power” (292 U.S. 52, 295 [1926]).

For more information: Corwin, Edward S. The

President’s Removal Power under the Constitu-

tion. New York: National Municipal League, 1927;

Entin, Jonathan L. “The Pompous Postmaster and

Presidential Power: The Story of Myers v. United

States.” Case Legal Studies Research Paper No.

05-39 (November 2005); Fisher, Louis. Con-

stitutional Conflicts between Congress and the

President. 4th ed. Lawrence: University Press of

Kansas, 1997.

—Lorna M. Dawson

494 Myers v. United States

vi+904_EofUSConsti-v2.indd 494 3/20/09 2:17:49 PM

495

ﱶﱷﱸ

National Endowment for the Arts v. Finley

524 U.S. 569 (1998)

In National Endowment for the Arts v. Finley, the

Supreme Court rejected the notion that Congress

was barred by the First Amendment from con-

ditioning federal arts funding on adherence to a

vague standard of decency.

After taxpayer-subsidized grants from the

National Endowment for the Arts were awarded

to controversial artists Robert Mapplethorpe and

Andres Serrano in 1989, angry congressional con-

servatives inserted an amendment in the NEA’s

1990 reauthorization, directing the NEA to “take

into consideration general standards of decency.”

Subsequently, the NEA denied the grant applica-

tion of performance artist Karen Finley, who was

renowned for reenacting rape by stripping to the

waist and smearing her body with chocolate. Finley

and three other rejected applicants then challenged

the new directive as violating the First Amend-

ment’s bar against viewpoint discrimination.

By an 8-1 vote, the Supreme Court disagreed,

with Sandra Day O’Connor characterizing the

decency amendment as in fact viewpoint neutral.

However, Justice O’Connor arrived at this con-

clusion in tortuous fashion, by declaring that the

amendment was “merely hortatory.” While the

NEA was entitled to use decency as a factor in

evaluating grant proposals, O’Connor argued, it

was not compelled to do so.

This interpretation of the new directive

stunned observers. The amendment’s congressio-

nal sponsors had fully intended to make the new

rule mandatory, and to reinforce that desire, Con-

gress had slashed the NEA’s budget by $45,000—

the precise total of the grants provided for the

Mapplethorpe and Serrano exhibits. Legal schol-

ars were likewise unsatisfied. Prominent First

Amendment commentator Frederick Schauer

described O’Connor’s handiwork as “an implau-

sible doctrinal structure.”

But perhaps O’Connor’s most trenchant critic

was a colleague. In his concurring opinion, Anto-

nin Gregory Scalia excoriated O’Connor’s dis-

ingenuousness about the amendment, as well as

what he saw as fealty to a ﬂ awed vision of freedom

of speech. Headlining his argument with an all-

capital-letters scold, “THE STATUTE MEANS

WHAT IT SAYS,” Scalia argued that the govern-

ment is free to require that the money it hands

out be used the way it wants it used. Whereas

O’Connor had ducked the question of whether

whoever pays the piper gets to call the tune by

essentially declaring that no tune was actually

being “called,” Scalia embraced government’s abil-

ity to discriminate against disfavored viewpoints

whenever it was subsidizing speech.

Scalia’s doctrinaire argument may have been

more consistent with the intentions of Congress,

but it has never found favor with a majority of the

justices. Indeed, the Court once again declined to

embrace it in U

NITED STATES V. AMERICAN LIBRARY

ASSOCIATION, 539 U.S. 194 (2003), in which it

upheld the federal government’s power to forbid

federal ﬁ nding for libraries that refused to install

anti-pornography ﬁ ltering software on public com-

puters. Yet two of the four justices who signed on

to the plurality opinion (Anthony M. Kennedy

and Stephen G. Breyer) speciﬁ cally noted that

their approval was based on the fact the libraries

were free to turn the ﬁ lters off at patrons’ request,

thus indicating the continuing unacceptability of

the kind of unabashedly mandatory scheme that

Scalia would countenance.

vi+904_EofUSConsti-v2.indd 495 3/20/09 2:17:49 PM

For more information: Finley, Karen. A Dif-

ferent Kind of Intimacy: The Collected Writings

of Karen Finley. New York: Thunder’s Mouth

Press, 2000; Grazia, Edward de. Girls Lean

Back Everywhere: The Law of Obscenity and the

Assault on Genius. New York: Random House,

1992.

—Steven B. Lichtman

National Labor Relations Board v. Jones

and Laughlin Steel Corp.

301 U.S. 1

(1937)

In NLRB v. Jones and Laughlin Steel Corp., the

U.S. Supreme Court ruled 5 to 4 that the National

Labor Relations Act (NLRA) was constitutional

under Congress’s power to regulate commerce

among the states. The ruling by the Court was

signiﬁ cant in that it signiﬁ ed an important shift

in the Court’s approach to the commerce power

of Congress.

In previous cases, such as UNITED STATES V.

E.C. KNIGHT CO., 156 U.S. 1 (1895), and CARTER

V. CARTER COAL CO., 298 U.S. 238 (1936), the

Court had reasoned that labor practices, as ele-

ments of production rather than distribution,

were activities outside of congressional author-

ity because they had only an indirect effect on

interstate commerce. Distributive activi-

ties, so long as they did not infringe upon states’

reserved powers, were under the regulatory

authority of Congress, as those activities would

have a direct effect on commerce among the

states. The Court’s decision in NLRB v. Jones

and Laughlin Steel Corp. did away with both

the production/distribution distinction as well as

the direct/indirect effects test established by the

Court in the earlier cases.

In 1935, Congress passed the NLRA in

response to the Court’s striking down a collective

bargaining protection provision of the National

Industrial Relations Act (NIRA) in SCHECHTER

POULTRY CORP. V. UNITED STATES, 295 U.S. 495

(1935). The NLRA, known as the Wagner Act,

provided for the establishment of the National

Labor Relations Board (NLRB) to guarantee col-

lective bargaining rights for workers and granted

the NLRB authority to compel action by employ-

ers who ran afoul of fair labor practices that would

affect interstate commerce. A claim was brought

to the NLRB by workers at Jones and Laughlin

Steel Corporation, charging that the company

had discouraged workers from unionizing and

had ﬁ red 10 workers who had engaged in union

activities. The board upheld the charges against

the company and ordered the company to rein-

state the employees. Jones and Laughlin refused

to abide by the board’s order and challenged the

constitutionality of the Wagner Act, which granted

authority to the NLRB. The company argued that,

consistent with U.S. Supreme Court precedent,

labor practices were primarily elements of pro-

duction, had only an indirect effect on interstate

commerce, and were therefore beyond the scope

of congressional authority to regulate. The NLRB

responded by seeking enforcement of its order in a

U.S. district court, but that petition was rejected.

The NLRB appealed to the U.S. Supreme Court,

which granted certiorari.

Justice Hughes wrote the opinion for the

Court. Hughes reasoned that the National Labor

Relations Act’s grant of authority to the NLRB

was constitutional, because labor disputes and

labor unrest may give rise to strikes and other acts

“which directly burden or obstruct interstate or

foreign commerce, or its free ﬂ ow.” Consequently,

such acts are “within the reach of the congressio-

nal power” to regulate. “Acts having that effect are

not rendered immune because they grow out of

labor disputes.” According to the Court, the Jones

and Laughlin Steel Corporation had substantial

commercial dealings on a national scale, “making

their relation to interstate commerce the dominant

factor in their activities,” which led the Court to

the conclusion that the labor disputes that would

arise without NLRB protections would lead to

substantial barriers to the free ﬂ ow of interstate

commerce.

The dissent in the case argued that the major-

ity had simply rejected, without due consideration,

the line of precedent established in production-

related cases. They noted that the indirect effect

on interstate commerce of labor practices in man-

ufacturing steel was so remote as not to fall under

496 National Labor Relations Board v. Jones and Laughlin Steel Corp.

vi+904_EofUSConsti-v2.indd 496 3/20/09 2:17:49 PM

congressional authority to regulate. Discontent

among a few workers might lead to a strike, which

may lead to a reduction in goods traveling inter-

state. But, Justice McReynolds wrote, “By this

chain of indirect and progressively remote events

we ﬁ nally reach the evil” with which the legisla-

tion purports to deal. “A more remote and indirect

interference with interstate commerce or a more

definite invasion of the powers reserved to the

states is difﬁ cult, if not impossible, to imagine.”

NLRB v. Jones and Laughlin Steel Corp. is an

important case to consider in light of its contribu-

tion to the development of the Court’s approach

to the commerce clause. This case signaled a

new direction for the Court in commerce clause

cases, away from the tests established earlier to

limit congressional authority in manufacturing

and toward a much more broad understanding of

the scope of congressional power to regulate inter-

state commerce.

Moreover, the case is viewed as a turning point

in constitutional development. From 1933 to 1937,

the Court had repeatedly turned back major New

Deal legislation aimed at regulating the national

economy. In this case, the Court rejected those

limits it had embraced prior to President Roos-

evelt’s court-packing proposal (in which Roosevelt

proposed to increase the number of Supreme

Court judges from nine to 15). Though the pro-

posal was rejected by Congress, the “switch in

time that saved nine” is remembered for its pro-

found contribution to constitutional development

and a greater role for Congress in the nation’s

economy. As the Court became dominated by

appointees of President Franklin Roosevelt, sub-

sequent cases, like U

NITED STATES V. DARBY LUMBER

CO., 312 U.S. 100 (1941), and WICKARD V. FILBURN,

317 U.S. 111 (1942), consolidated that constitu-

tional revolution.

For more information: Cortner, Richard C. The

Jones and Laughlin Case. New York: Knopf, 1970;

Hardin, Patrick, et al. The Developing Labor Law:

The Board, the Courts, and the National Labor

Relations Act. 4th ed. Washington, D.C.: Bureau

of National Affairs, 2001.

—Brian M. Harward

National League of Cities v. Usery 426 U.S.

833

(1976)

In National League of Cities v. Usery, the Supreme

Court, in a closely divided decision, held that a

federal law that required states to pay a mini-

mum wage to state and local employees violated

the Tenth Amendment because it “operate[s] to

directly displace the States’ freedom to structure

integral operations in areas of traditional govern-

mental functions.” Usery is the only decision of the

Supreme Court between 1937 and 1990 to strike

down a federal law as unconstitutional under the

Tenth Amendment. The Court subsequently over-

ruled Usery in G

ARCIA V. SAN ANTONIO METROPOLI-

TAN TRANSIT AUTHORITY, 469 U.S. 528 (1985).

At issue in Usery was whether Congress had

the power, pursuant to the commerce clause of

Article I of the U.S. Constitution, to enact

the Fair Labor Standards Act, which required that

states pay their state and local employees a mini-

mum wage. The issue arose when a consortium of

cities and states brought suit against the secretary

of labor, Mr. Usery, contending that Congress

could not exercise its commerce power “so as to

force directly upon the States its choices as to how

essential decision[s] regarding the conduct of inte-

gral governmental functions are to be made.” In

the view of appellant National League of Cities,

the Tenth Amendment reserved to the states deci-

sions regarding traditional state and local func-

tions, such as the setting of minimum wages for

state employees.

In an opinion written by then-Justice William

Hubbs Rehnquist for four other justices, the

Court agreed that the states retained the power

to set minimum wages for state employees. Justice

Rehnquist reasoned that, although it is “beyond

peradventure that the commerce clause . . . is a

grant of plenary authority to Congress,” the power

is not without limits. “Congressional enactments

which may be fully within the grant of legislative

authority contained in the commerce clause may

nonetheless be invalid if they offend” particu-

lar constitutional provisions, such as the Sixth

Amendment’s right to trial by jury or the

Fifth Amendment’s guarantee of due process.

The Usery Court held that the Tenth Amendment

National League of Cities v. Usery 497

vi+904_EofUSConsti-v2.indd 497 3/20/09 2:17:50 PM

reﬂ ects one such limitation: it limits the federal

government from interfering with traditional

state or local functions. Forcing states to pay

their employees a federal minimum wage would

require the states to raise taxes or cut services to

pay increased wages and, in turn, may force states

to “substantially restructure traditional ways in

which the local governments have arranged their

affairs.”

Justice Blackmun penned a short concur-

rence downplaying the possible implications of

the majority’s opinion. In his view, the majority

opinion adopted a balancing approach that would

“not outlaw federal power in areas such as envi-

ronmental protection, where the federal interest

is demonstrably greater and where state facility

compliance with imposed federal standards would

be essential.”

In dissent, Justice William J. Brennan, Jr.,

joined by Justices White and Marshall, contended

that the Tenth Amendment did not afﬁ rmatively

limit Congress’s power under the commerce

clause and assailed the majority for setting forth

an unworkable standard for ascertaining the limits

of congressional power. In a separate dissent, Jus-

tice John Paul Stevens argued that the Court

had failed to articulate a principled basis to deter-

mine whether a particular federal law violates the

Tenth Amendment.

Following Usery, the Court struggled to

deﬁ ne what powers were reserved to the states

under the Tenth Amendment. A decade later,

the Court, in an opinion by Justice Blackmun,

expressly overruled Usery in Garcia v. San Anto-

nio Metropolitan Transit Authority, rejecting as

“unsound in principle and unworkable in prac-

tice, a rule of state immunity from federal regula-

tion that turns on a judicial appraisal of whether

a particular government function is ‘traditional’

or ‘integral.’ ”

For more information: McAffee, Thomas B.,

Jay S. Bybee, and A. Christopher Bryant. Powers

Reserved for the People and the States: A History

of the Ninth and Tenth Amendments. Westport,

Conn.: Praeger Publishers, 2006.

—Andre Mura

national security and the Constitution

The making of national security under the Con-

stitution is assigned primarily to the president

in Article II as commander in chief of the

armed forces and to Congress under its various

powers outlined in Article I. While both of

these branches of government have historically

shared responsibility in the creation of national

security policy, at different times Congress and

the president have sought to assume more respon-

sibility, thereby setting up conﬂ ict and competi-

tion between the two. Moreover, the making of

national security policy also raises issues regarding

the scope of protection for individual rights when

the United States faces a security threat. The com-

petition between Congress and the president and

the balance of freedom versus security can espe-

cially be seen since the events of 9/11, as the presi-

dent has sought to assume more authority in the

making of national security and foreign policy, and

as critics contend that many of his actions violated

the Constitution and the Bill of Rights.

The authors of the Constitution of the United

States created a system of ordered liberty, in which

the Constitution distributes powers for securing

national security among the three branches of gov-

ernment. To the president and the Congress were

given the major portions of power and responsi-

bility, including law enforcement and war powers

as outlined in Articles I and II. Article I, Section

8 of the Constitution describes several exclusive

powers of Congress in the area of war making and

foreign policy, including the authority to declare

war, to raise and support an army and navy, and

to make regulations for the military. Article II,

Section 2 makes the president exclusively the

commander in chief of the armed forces. Finally,

Article II, Section 2 gives Congress and the presi-

dent joint authority to nominate and confirm

ambassadors and to negotiate and ratify treaties.

In general, the courts have had the responsibil-

ity to settle disputes between them and to protect

the liberties of the people, deciding cases between

order and liberty.

Throughout American history there has been

a continuing debate regarding where the lines are

drawn to divide the constitutional authority of the

498 national security and the Constitution

vi+904_EofUSConsti-v2.indd 498 3/20/09 2:17:50 PM

president from that of the Congress. While dur-

ing the Civil War, President Abraham Lincoln

and Congress often clashed, the Supreme Court

generally endorsed Lincoln’s authority to act. For

example, in the Prize Cases, 67 U.S. 635 (1863),

the Court upheld Lincoln’s order to blockade the

South’s ports, ruling that the president’s power as

commander in chief was broad enough to permit

this action. However, in E

X PARTE MILLIGAN, 71

U.S. 4 Wall. 2 (1866), the Supreme Court ruled

that an American citizen could not be tried by

military commission when the civil federal courts

were open and operational. The significance of

the Milligan decision was that it limited the ability

of the president to try American citizens without

all the constitutionally protected guarantees when

accused of a crime. Finally, in EX PARTE MCCARDLE,

74 U.S. 506 (1869), the Supreme Court ruled that

it lacked the jurisdiction to hear a habeas cor-

pus petition by an individual even though it had

already heard oral arguments in his case. These

three Civil War–era cases seem to suggest that

the courts will defend or ignore individual rights,

presidential power, and congressional authority at

different times when the United States is facing

security threats.

Congress and the president competed for rival

inﬂ uence in foreign and national security policy

after the Civil War and through World Wars I

and II, but individual rights were challenged in a

series of cases, such as SCHENCK V. UNITED STATES,

249 U.S. 47 (1919), and WHITNEY V. CALIFORNIA,

274 U.S. 357 (1927). The Supreme Court upheld

laws criminalizing individuals who criticized

World War I or who otherwise were deemed to

have engaged in subversive activity. Similarly, dur-

ing the cold war after World War II, in cases such

as Dennis v. United States, 341 U.S. 494 (1951),

the Court upheld the conviction of a member of

the Communist Party for a violation of the Smith

Act, which had made it illegal to “knowingly or

willfully advocate, abet, advise or teach the duty,

necessity, desirability or propriety of overthrow-

ing the Government of the United States or of

any State by force or violence, or for anyone to

organize any association which teaches, advises

or encourages such an overthrow, or for anyone

to become a member of or to affiliate with any

such association.” The Smith Act and other poli-

cies such as loyalty oaths, during the Cold

War and McCarthy eras, effectively make it illegal

simply to be a communist. All these actions were

taken as necessary to protect national security,

and the Supreme Court displayed a mixed record

in upholding or voiding them on constitutional

(generally First Amendment) grounds.

One of the most important Court cases exam-

ining the relationship between the powers of

these two branches is found in YOUNGSTOWN SHEET

& TUBE V. SAWYER, 343 U.S. 579 (1952). Here Presi-

dent Truman stepped in via executive order and

had the steel mills of the nation seized in order to

avert a strike during the Korean War. The Supreme

Court overturned the seizure. Justice Robert

Jackson’s concurrence in the case suggested that

the president’s or commander in chief’s authority

is limited in scope, and he cannot act on his own

without the consent of Congress on most matters

that offer other methods for recourse.

Jackson described three categories of presiden-

tial power: (1) “When the President acts pursuant

to an express or implied authorization of Congress,

his authority is at its maximum”; (2) “When the

President acts in absence of either a congressional

grant or denial of authority, he can only rely upon

his own independent powers, but there is a zone

of twilight in which he and Congress may have

concurrent authority, or in which its distribution

is uncertain”; and (3) “When the President takes

measures incompatible with the expressed or

implied will of Congress, his power is at its lowest

ebb, for then he can rely only upon his own consti-

tutional powers minus any constitutional powers

of Congress over the matter.” Jackson’s concur-

rence sets up a trifold analysis of presidential and

congressional power in national security based on

whether the two branches are cooperating or in

conﬂ ict.

The lines between congressional and presiden-

tial power were again tested in the Vietnam War.

Here, Presidents Lyndon Johnson and Richard

Nixon deployed hundreds of thousands of troops

without a formal declaration of war by Congress.

They instead relied upon the Gulf of Tonkin Reso-

national security and the Constitution 499

vi+904_EofUSConsti-v2.indd 499 3/20/09 2:17:50 PM

lution, which was adopted by Congress on August

7, 1964, in response to an alleged attack on the

United States by North Vietnam. The resolution

seemed to empower the president to take any steps

necessary to protect the United States. Many con-

tended that the Vietnam War and the deployment

of troops was unconstitutional, but in cases such

as Mora v. McNamara, 389 U.S. 934 (1967), the

Supreme Court refused to address this question.

In 1973, Congress sought to close the gap

between the lines of authority of Congress to make

war versus the president’s power as commander in

chief by adopting the War Powers Act. This act

provides for limited presidential engagement of

troops for up to 60 days, and it also mandates that

the president must consult with Congress when

possible before deploying troops. Congress, by

joint resolution, could also require the president

to bring the troops home sooner. However, the act

has thus far been invoked by the president only

once—in 1975, when Gerald Ford sent troops in

to rescue members of the Mayaguez who had been

captured by Cambodia—and the constitutionality

of it is in question, since it relies upon a legisla-

tive veto. In INS v. Chada, 462 U.S. 919 (1983),

the Supreme Court declared unconstitutional a

one-house legislative veto, leaving open whether

even a two-house veto would be upheld.

The terrorist attacks of September 11, 2001,

on the United States have yet again raised ques-

tions about what powers the president as com-

mander in chief has. Similarly to what happened

in Vietnam, Congress authorized the president to

respond to the attacks with the authorization to

use military force (AUMF) of September 14, 2001,

“to use all necessary and appropriate force against

those nations, organizations, or persons he deter-

mines planned, authorized, committed or aided

the terrorist attacks that occurred on September

11, 2001, . . . in order to prevent any future acts of

international terrorism against the United States

by such nations, organizations, or persons.” The

authorization appeared, or has been invoked, to

give him extensive power to respond to terrorist

attacks. President Bush has invoked AUMF, as well

as claims of inherent executive authority as com-

mander in chief, to undertake a variety of actions,

including electronic surveillance of overseas com-

munications without warrants issued by the courts

and the detaining of suspected terrorists without

arraignments. These claims of presidential author-

ity, along with AUMF and the adoption of the

PATRIOT Act, have raised concerns that the war

on terrorism is both threatening individual liber-

ties and producing a usurping of congressional

power by the president.

The Supreme Court has addressed some of

the constitutional issues arising out of the actions

taken by the president and Congress since 9/11. In

AMDI V. RUMSFELD, 542 U.S. 507 (2004), RASUL V.

BUSH, 545 U.S. 466 (2004), RUMSFELD V. PADILLA,

542 U.S. 426 (2004), and Hamdan v. Rumsfeld,

126 S.Ct. 2749 (2006), the Supreme Court has

generally ruled that the president lacks the author-

ity to detain indeﬁ nitely both American citizens

and aliens without hearings, and the Court has

also ruled that the tribunals and procedures set

up so far have not complied with the Constitution.

In addition, in American Civil Liberties Union v.

National Security Agency, 438 F. Supp. 2d 754

(D. Mich. 2006), a Michigan district court struck

down as unconstitutional the president’s warrant-

less electronic surveillance program, ﬁ nding that

it violated both the First and Fourth Amend-

ments. More important, this case rejected the

500 national security and the Constitution

President George W. Bush speaks to members of the

armed forces, Department of Defense, and Depart-

ment of State in the Pentagon auditorium on March

19, 2008.

vi+904_EofUSConsti-v2.indd 500 3/20/09 2:17:51 PM

government’s claims that the president has inher-

ent authority for this type of surveillance. How-

ever, a Sixth Circuit decision overturned the

Michigan court, ruling that the plaintiffs lacked

standing because they had failed to demonstrate

an injury.

Overall, recent post-9/11 debates and litigation

continue to highlight the tension between the pow-

ers of the president and Congress and the status

of individual rights that are constitutionally raised

when national security issues are implicated.

For more information: Ball, Howard. The USA

Patriot Act of 2001: Balancing Civil Liberties

and National Security: A Reference Handbook.

Santa Barbara, Calif.: ABC-CLIO, 2004; Dycus,

Stephen, et al. National Security Law. New York:

Aspen Law and Business, 2006; Graham, Edward

M., and David M. Marchick. U.S. National Secu-

rity and Foreign Direct Investment. Washington,

D.C.: Institute for International Economics, 2006;

Moore, John Norton, and Robert F. Turner, eds.

National Security Law. Durham, N.C.: Carolina

Academic Press, 2005; Posner, Richard A. Not

a Suicide Pact: The Constitution in a Time of

National Emergency. New York: Oxford Univer-

sity Press, 2006; Shanor, Charles A., and L. Lynn

Hogue. National Security and Military Law in a

Nutshell. St. Paul, Minn.: Thomson/West, 2003.

—David Schultz and Andrew J. Waskey

natural law

Natural laws (also known as the laws of nature)

are principles, conditions, or patterns that are not

of human making or human design; rather, natu-

ral laws are those laws that exist independently of

human will and that have as their origin nature

itself or a divine entity. For some, such as Justice

Clarence Thomas, natural laws are the basic

rules or principles that should guide the constitu-

tion and interpretation of human laws, including

the Constitution.

Theories of natural law generally claim that

natural law is morally superior to positive law

(law made by governments) and that positive laws

should be evaluated in relation to the standards

set by the laws of nature. Theories of natural law

also tend to argue that natural laws have a uni-

versal claim to our obedience. That is, natural law

theory tends to conceptualize natural law as a law

that imposes obligations that form the boundar-

ies of acceptable human choices and actions. Fur-

thermore, natural law theorists have generally

taught that humans know natural law by virtue of

a special human attribute, usually reason (or, for

theologically minded natural law theorists, reason

assisted by revelation). A belief in natural law is

a prevalent theme in ancient, medieval, and early

modern political and moral philosophy. Theo-

ries of natural law have also influenced Ameri-

can political thought and jurisprudence since the

colonial period, including the writing of the Dec-

laration of Independence and the Constitu-

tion. In fact, many of the rights found in the Bill

of Rights were thought of as natural rights, and

the limitations on the powers of the government

found in the Constitution may have had natural

law origins.

The roots of natural law theory can be traced

to antiquity. Arguments grounded in assumptions

about the existence of natural law can be found

in the classical Greek political theories of Plato

(427?–347 b.c.) and Aristotle (384–322 b.c.) and

in the teachings of Greek and Roman Stoics (Zeno,

Cicero, Seneca, Marcus Aurelius). While disagree-

ing about the speciﬁ c content of the best political

life or the best political system, for example, both

Plato and Aristotle taught that there are certain

standards (of justice, virtue, goodness, etc.) that

are transcendent and objective, in that the sub-

stance of such standards are not reducible to the

mere opinions of humans, but, rather, exist in a

realm of truth more enduring and reliable than

the fads or whims of the moment.

Indeed, Aristotle wrote that humanness itself

was identiﬁ able by means of its natural (objectively

true) and lawlike qualities. Aristotle taught, for

example, that man was, by nature, a creature who,

according to his very essence as a man, could live

fully only as a member of a polis (political commu-

nity). Someone who might appear to be a man but

who lived outside the polis would be essentially

(i.e., naturally) of a different character—such a

natural law 501

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