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creature might superﬁ cially look like a man, but

he would have to be either a beast or a god. It is

important to see in this example from Aristotle a

crucial element associated with natural law the-

ory: An observed or hypothetical difference that

departs from what is regarded as the “natural”

order/law/pattern is not interpreted as an alterna-

tive choice made by a being with a shared nature

(i.e., two men making different choices, but nei-

ther choice makes the chooser any less a man), but

is, instead, interpreted as indicative of a different

nature (i.e., man in contrast to beast or god). In

the medieval period, Thomas Aquinas (1224–74)

continued the natural law tradition in a manner

that synthesized classical teachings and Christian

doctrine. Aquinas taught that God’s reason was

manifest in what humans could understand as

laws of nature.

Modern writers, like English philosophers John

Locke (1632–1704) and William Blackstone

(1723–80), offered elaborate theories based on

natural law, and both Locke and Blackstone inﬂ u-

enced many American thinkers on matters relating

to natural law, natural rights, individualism, the

right of revolution, and the need for limited gov-

ernment. Locke argued that laws of nature were

simply “rules of reason” (i.e., principles that could

be deduced by rational human beings); speciﬁ cally,

Locke asserted that rational people could ﬁ gure

out for themselves three common-sense rules to

live by: Take care of yourself; do not harm others;

and assist others in taking care of themselves when

doing so does not impose self-harm. Governments

did not need to indoctrinate such rules, Locke con-

cluded. Blackstone concurred, noting that the laws

of nature “are performed in a wondrous involun-

tary manner” insofar as they truly do come natu-

rally to rational people. Locke explicitly linked the

concept of natural law with advocacy of limited

government and the right of revolution.

According to Locke, people had the capacity

for knowing natural law (by virtue of their capac-

ity to reason) on their own, and, therefore, in most

instances, governments should be limited to the

role of “umpirage,” that is, stepping in to resolve

disputes when conﬂ ict arose but then immediately

stepping back and leaving rational people alone to

live as they choose within the rules of reason/nat-

ural law. What if government exceeds its bounds

as umpire and violates the laws of nature? Locke’s

answer was both philosophically logical and politi-

cally radical: If the government rebels against

nature/the laws of nature, it is the people’s right to

resist/revolt against the government.

The writings of John Locke and William Black-

stone, as well as their theories of natural law, were of

tremendous inﬂ uence on the constitutional framers.

Thomas Jefferson, for example, invoked Locke

and natural law in the writing of the Declaration

of Independence. Similarly, the idea of natural law

was behind the idea of a bill of rights, with many of

the ﬁ rst 10 amendments representing basic rights

many thought were natural or God-given. In par-

ticular, the Ninth Amendment, which states that

the “enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage

others retained by the people,” clearly recognized

that individuals had a list of natural rights that the

government could not restrict.

Throughout American history, the concept of

natural law was important in constitutional

interpretation. The idea of natural rights sup-

ported the concepts of economic or substan-

tive due process in the late 19th and early 20th

centuries, as the Supreme Court invoked these

doctrines to limit the ability of state and federal

governments to interfere with the economic rights

of individuals and corporations. Since the New

Deal, natural law, while not explicitly invoked, is

behind many of the claims to protect individual

rights, such as those guaranteeing privacy. Most

recently, Justice Clarence Thomas has invoked

natural law in his constitutional interpretation.

For more information: Blackstone, William.

Commentaries on the Laws of England. Chicago:

The University of Chicago Press, 1979; Locke,

John. “Second Treatise of Government.” In Clas-

sics of Moral and Political Theory. 4th ed. Cam-

bridge, Mass.: Hackett Publishing Company,

2005; Wright, B. F., Jr. “American Interpretations

of Natural Law.” The American Political Science

Review 20 (1926): 524–547.

—Ellen Grigsby

502 natural law

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Near v. Minnesota 283 U.S. 697 (1931)

In Near v. Minnesota, the Supreme Court struck

down as a violation of the First Amendment a

Minnesota statute known as a “public nuisance”

law that allowed authorities to close down any

“malicious, scandalous and defamatory newspa-

per, magazine, or other periodical.” A local pros-

ecutor sought to halt publication of a newspaper

that published virulent anti-Semitic charges and

that also accused the police chief of improprieties.

The state courts upheld the measure and it closed

down the newspaper.

But the U.S. Supreme Court, in a narrow 5-4

ruling, held that the statute was unconstitutional.

It violated the protection of freedom of speech

and the press in the First Amendment. The Court

drew upon age-old English law proscribing “cen-

sorship of the press,” which was then enshrined

in the Constitution and was a predicate of the

freedom of expression provisions in the Constitu-

tion. The Minnesota statute was constitutionally

inﬁ rm, because it required newspapers charged

with statutory offenses to prove that their publi-

cations were true and published for good motives

and justiﬁ able ends, which the court characterized

as “the essence of censorship.” The decision, in

addition to creating a barrier to prior suppression

of freedom of expression, was signiﬁ cant because

it was the ﬁ rst time that the Supreme Court had

ever applied any of the provisions of the Bill of

Rights, the first ten amendments of the U.S.

Constitution, to the states. In previous cases, the

Supreme Court and other tribunals had held that

the protections under the Bill of Rights, includ-

ing the First Amendment, applied only to the fed-

eral government and not to state and local units of

government. But the Near case parted from that

restriction and began a process by which most of

the provisions of the Bill of Rights were applied

to state and local governments through a process

known as “selective incorporation.”

The prohibition against prior restriction in the

Near case was not absolute. The Court suggested

that government could obtain “previous restraint

. . . in exceptional cases.” It offered examples such

as national security, actual obstruction to “recruit-

ing” of the military, or publications giving details

of military actions. It also mentioned “obscene

publications” as subject to prior restraint.

Although the decision was a fragile one,

decided by a single vote, the prohibition against

prior restraint has become a bedrock principle of

First Amendment law. As a result of Near, courts

are almost always disinclined to prohibit publica-

tion of offensive or objectionable material. The

prohibition, however, does not extend to post-pun-

ishment sanctions that may be imposed for viola-

tion of laws.

An application of the doctrine was tested. The

protection of national security, as alluded to in

the Near decision, was at the forefront in another

Supreme Court ruling in The Pentagon Papers

case 40 years later. In New York Times v. United

States, 403 U.S. 713 (1971), the Supreme Court

rejected an effort by the government to prohibit

publication of an internal classiﬁ ed report of gov-

ernment decisions regarding the Vietnam War,

which was reﬂ ective of various ﬂ aws and defects

in the way the war had been conducted. Relying

upon the proscription in Near, the majority of the

Court, by a 6-3 vote, held unconstitutional the

effort of the government to stop two newspapers,

the New York Times and the Washington Post.

The decision fortified the barrier against prior

restraint erected in the Near case.

For more information: Friendly, Fred W. Min-

nesota Rag: The Dramatic Story of the Landmark

Court Case That Gave New Meaning to Freedom

of the Press. New York: Random House, 1981.

—Marshall Tanick

Nebbia v. New York 291 U.S. 502 (1934)

In Nebbia v. New York, the Supreme Court

upheld a New York law that ﬁ xed prices for the

retail sale of milk. The Court ruled that it was

not a violation of the due process clause of the

Fourteenth Amendment for the state legisla-

ture to regulate the price of a necessary good such

as milk, as long as the regulation was not arbitrary

or unreasonable.

In the early 1930s, due to a variety of economic

conditions, dairy farmers in New York struggled to

Nebbia v. New York 503

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sell their milk for a price greater than their cost of

production. Milk retailers began buying directly

from farmers, rather than from large milk distribu-

tors, allowing them to bypass the high storage and

delivery costs associated with moving a perishable

item such as milk through the distribution chain,

and thus increasing their own proﬁ ts. As a result,

farmers were forced to sell milk to both retailers

and distributors at a lower price. The state feared

that the drop in price would cause farmers to

loosen up on their health inspections, so the legis-

lature passed a bill that ﬁ xed the minimum price

at which a quart of milk could be sold at 10 cents

for distributors and nine cents for retailers. Neb-

bia, a grocery store owner, was convicted for sell-

ing two quarts of milk and a ﬁ ve-cent loaf of bread

for 18 cents.

Nebbia argued that the government was vio-

lating the Fourteenth Amendment by interfering

with his right to contract with another private

party. Justice John G. Roberts, Jr., writing on

behalf of the majority, responded by stating that

such rights, even if protected, can be infringed

upon if proper regard to due process is given. He

found the state health concerns to be legitimate

and ruled that there is no freedom of contract in

the Fourteenth Amendment sufﬁ cient to super-

sede the right of the state to promote public wel-

fare. He noted that any industry affecting the

public interest is subject to control for the public

good.

Justice McReynolds dissented, arguing that

there was no evidence that this law would help

achieve the ends sought. He noted that consumers

were also struggling and doubted that putting the

price of milk out of reach for a great number of

consumers would help increase returns for dairy

farmers.

Nebbia v. New York stands as a departure from

precedent set by the Supreme Court in L

OCHNER V.

NEW YORK, 198 U.S. 45 (1905), which invalidated a

state law restricting work hours for bakers. Many

other economic regulations were challenged and

upheld in the face of Lochner before Nebbia was

decided, but most, if not all, of those decisions

lacked the breadth and clout of the decision in

Nebbia. Today, Nebbia remains inﬂ uential, while

Lochner deﬁ nes a bygone era of Supreme Court

doctrine.

For more information: Cushman, Barry. “Lost

Fidelities,” William and Mary Law Review 41

(December 1999): 95–145; Gillman, Howard. The

Constitution Besieged: The Rise and Demise of

Lochner Era Police Powers Jurisprudence. Dur-

ham, N.C.: Duke University Press, 1993.

—Dylan R. Kytola

Nebraska Press Association v. Stuart 427

U.S. 539

(1976)

In Nebraska Press Association v. Stuart, a court

order restricting media coverage of a murder

suspect’s trial was held to be an unconstitutional

infringement on freedom of the press. The

decision recognized the potential for conflict

between the accused’s Sixth Amendment right

to a fair trial and the First Amendment rights

of the news media. Nevertheless, the Court held

that a restraining order against media coverage

was an unwarranted response to this conflict,

reaffirming that prior restraints are not con-

stitutional except in the most extraordinary of

circumstances.

In October 1975, Erwin Charles Simants was

arrested and charged with the murder of six mem-

bers of a family in Sutherland, Nebraska, a town

of about 850 people. The prosecutor and defense

jointly requested a restraining order limiting news

coverage in order to ensure that the county court

would be able to ﬁ nd an impartial jury and provide

a fair trial. The county court issued an order pro-

hibiting the publication or broadcast of accounts

suggesting that Simants was guilty in the killings.

The order was to remain in effect until a jury was

impanelled.

Attorneys for the media petitioned the state

district court to lift the order, while simultaneously

requesting that the Nebraska Supreme Court hear

their petition on an expedited basis. The district

court issued its own order prohibiting reporting

on evidence of Simants’s guilt, as well as details

about the order itself, and the Nebraska Supreme

Court upheld the restraining order.

504 Nebraska Press Association v. Stuart

vi+904_EofUSConsti-v2.indd 504 3/20/09 2:17:52 PM

The U.S. Supreme Court agreed to hear the

case. Oral arguments were held on April 19, 1976,

and the court’s decision was announced on June

30. The restraining order expired before oral

arguments were heard, and Simants was convicted

and sentenced to death. (Simants was granted a

new trial in 1979 and found not guilty by reason

of insanity.)

Attorneys for the media argued that the

restraining order was an unconstitutional restric-

tion on freedom of the press. Attorneys for Hugh

Stuart, the Nebraska district judge, argued that

extensive pretrial publicity would have made it

impossible for Simants to receive a fair trial and

that therefore Stuart had acted properly in issu-

ing the order to protect Simants’s rights under the

Sixth and Fourteenth Amendments. They

also argued that the case was moot because the

restraining order was no longer in effect.

The Court ruled that the restraining order

was an unconstitutional restriction on the press.

Chief Justice Warren Burger wrote for the

majority and was joined by Justices White, Black-

mun, Lewis Powell, and William Hubbs

Rehnquist. Justices White, Powell, and John

Paul Stevens ﬁ led separate concurrences, and

Justice William J. Brennan, Jr., ﬁ led a concur-

ring opinion that was joined by Justices Stewart

and Marshall.

In the majority opinion, Burger rejected the

argument that the case was moot because, while

the controversy was no longer active, it was “capa-

ble of repetition, yet evading review” (546). The

Court agreed that the case was certain to be the

subject of a great deal of pretrial publicity. Never-

theless, it ruled that a prior restraint on the press

was an inappropriate remedy that was unlikely to

be more effective than less-objectionable alterna-

tives. “If it can be said that a threat of criminal

or civil sanctions after publication ‘chills’ speech,

prior restraint ‘freezes’ it at least for the time,”

Burger wrote, explaining why there must be a

heavy presumption against prior restraint.

For more information: Russomanno, Joseph.

Speaking Our Minds: Conversations with the

People behind Landmark First Amendment

Cases. Mahwah, N.J.: Lawrence Erlbaum Associ-

ates, 2002; Stack, Richard A. Courts, Counselors

and Correspondents: A Media Relations Analy-

sis of the Legal System. Littleton, Colo.: Fred B.

Rothman and Co., 1998.

—Thomas C. Ellington

necessary and proper clause

The necessary and proper clause is found in Arti-

cle I, Section 8 of the United States Constitution,

which reads, “The Congress shall have power . . .

to make all laws which shall be necessary and

proper for carrying into execution the foregoing

powers, and all other powers vested by this Con-

stitution in the government of the United States,

or in any department or ofﬁ cer thereof.”

The necessary and proper clause is subject to

interpretation. Those who take a strict construc-

tionist view of the Constitution argue that Con-

gress’s power is limited to laws directly related to

their speciﬁ c powers listed in Article I, Section 8.

If a power is not listed, Congress does not have it.

Those who take a broad view of the clause suggest

that it is practically impossible to list every single

congressional power in the Constitution. Nor is

it feasible to continually amend the Constitution

each time Congress wants to exercise its power.

Furthermore, the clause is found in the same sec-

tion of the Constitution granting (not limiting)

Congress’s powers. Article I, Section 8 lists all of

Congress’s explicit powers and ends with the nec-

essary and proper clause, which can be read as yet

another one of Congress’s enumerated powers.

Therefore, the necessary and proper clause serves

an elasticity function in that it allows Congress to

pass laws not expressly enumerated in Article I, but

are nevertheless pursuant to one of their expressly

enumerated powers.

The necessary and proper clause was at the

heart of a number of debates during the early

American Republic over the scope of federal

power with respect to the states. One of the most

famous cases was MCCULLOCH V. MARYLAND, 4

Wheaton 316 (1819), which involved the right of

the federal government to create a national bank.

In 1791, Secretary of the Treasury Alexander

necessary and proper clause 505

vi+904_EofUSConsti-v2.indd 505 3/20/09 2:17:52 PM

Hamilton, a Federalist, invoked the necessary

and proper clause to establish the bank on the

grounds that the Constitution did not expressly

give Congress the power to establish it. Hamilton

argued that Congress not only had those powers

that were expressly enumerated in the Consti-

tution, but under a broad reading of the clause,

Congress also had those powers that were not

expressly denied to it. The bank charter expired

after 20 years, but in 1816, Congress chartered the

Second Bank of the United States, mainly to help

ﬁ nance in part the War of 1812. The clause was

also paired with Congress’s explicit constitutional

power to regulate commerce—the bank was nec-

essary to facilitate the ﬂ ow of interstate com-

merce. Opponents of the bank argued that the

Constitution did not expressly give Congress the

authority to establish a national bank. The state

of Maryland imposed a tax on any bank not char-

tered by the state, which included the Bank of the

United States. Maryland argued that the bank was

unconstitutional because the Constitution did not

speciﬁ cally authorize the federal government to

charter a bank.

In McCulloch, Chief Justice John Marshall

argued that Congress had the authority to incor-

porate a national bank. Even though such power

was not expressly enumerated in the Constitution,

it was an implied power that stemmed from Con-

gress’s other enumerated ﬁ nancial powers, such

as the power to collect taxes, to borrow money, to

regulate commerce, and to declare and conduct a

war. In this case, the bank was necessary in order

to implement Congress’s enumerated powers.

Marshall wrote, “Let the end be legitimate, let

it be within the scope of the Constitution, and all

means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but

consistent with the letter and spirit of the Con-

stitution, are constitutional” (420). In this case,

the end was the establishment of a strong national

economy under the auspices of the taxing and

spending power, which was within the purview

of Congress’s delegated powers. By virtue of the

necessary and proper clause, Congress was autho-

rized to use its best judgment to carry into execu-

tion its constitutional powers. And as long as that

judgment (i.e., the means) did not violate the Con-

stitution, Congress was acting within the scope

of its authority. The bank, therefore, was made in

pursuance of the Constitution and could not be

subject to a tax by the state of Maryland, which in

and of itself violated the supremacy of the Con-

stitution. With this decision, the necessary and

proper clause became the basis for the expansion

of federal authority.

For more information: Gunther, Gerald. John

Marshall’s Defense of McCulloch v. Maryland.

Stanford, Calif.: Stanford University Press, 1969;

McCloskey, Robert G. The American Supreme

Court. 3d ed. Chicago: University of Chicago

Press, 2000.

—Randa Issa

neutral principles

Professor Herbert Wechsler coined the term

“neutral principles” in his 1959 Holmes Lecture

at Harvard Law School. This lecture became one

of the most cited and controversial pieces of legal

scholarship.

Wechsler began the lecture by arguing, contra

Judge Learned Hand, that because the Con-

stitution grants the Supreme Court the power of

judicial review, the Court may, and indeed

must, exercise this power whenever a matter is

properly within its jurisdiction. According to

Wechsler, a corollary to the duty to review the

constitutionality of legislation is the duty to act dif-

ferently from “a naked power organ.” Therefore, to

distinguish constitutional adjudication from “the

ad hoc in politics,” the Court must apply neutral

principles to cases. For Wechsler, a neutral prin-

ciple consists of two elements: content generality

and equal applicability. Wechsler thus deﬁ ned a

principled decision as one resting on “reasons

quite transcending the immediate result that

is achieved” and applying to all parties equally,

“whether a labor union or a taxpayer, a Negro or a

segregationist, a corporation or a Communist.” At

the end of his lecture, Wechsler shocked many by

using this neutrality framework to criticize some

of the Supreme Court’s most progressive deci-

506 neutral principles

vi+904_EofUSConsti-v2.indd 506 3/20/09 2:17:52 PM

sions, particularly those of the Warren Court.

Most famously, Wechsler argued that BROWN V.

BOARD OF EDUCATION, 347 U.S. 483 (1954), was not

a principled decision because the Court’s use of

education-speciﬁ c social science to invalidate the

“separate but equal” doctrine was motivated, not

by a general principle of race equality, but by a

bare desire to integrate public education.

Wechsler’s attack on the Warren Court elicited

harsh responses. Shortly after Wechsler’s lecture,

the then professor and later judge Louis Pollack

drafted an opinion explaining how the Brown

opinion did rest on a neutral principle—the “anti-

subordination” principle that the government may

not discriminate against any racial minority (Louis

H. Pollack, Racial Discrimination and Judicial

Integrity: A Reply to Professor Wechsler, 108 U.

Pa. L. Rev. 1 [1959]). Political scientist Martin

Shapiro modified Wechsler’s thesis by arguing

that, because the Court is just another political

actor whose function is to achieve results that

the people accept, the Court must appear neu-

tral, but need not be neutral (Martin Shapiro, The

Supreme Court and Constitutional Adjudication:

Of Politics and Neutral Principles, 31 Geo. Wash.

L. Rev. 587 [1963]). Some conservative scholars,

seeking to add an originalist element to Wechsler’s

thesis, argued that neutrality must guide the

Court, not only in the application of principles,

but also in their derivation (Robert H. Bork,

Neutral Principles and Some First Amendment

Problems, 47 Ind. L.J. 1 [1971]). Many liberals

sought to abandon Wechsler’s project altogether,

some characterizing it as naive because judges

could not and would not transcend their politi-

cal preferences (Addison Mueller & Murray L.

Schwartz, The Principle of Neutral Principles, 7

UCLA L. Rev. 571, 577 [1960]), and others mak-

ing the sweeping claim that there is no such thing

as a constitutionally neutral principle (Mark V.

Tushnet, Following the Rules Laid Down: A Cri-

tique of Interpretivism and Neutral Principles,

96 Harv. L. Rev. 781 [1983]).

Despite these criticisms, Wechsler’s neutral-

ism remains extremely important to constitu-

tional theory and practice. Neutralism provides

a powerful rebuttal to the legal realist claim that

law is just another name for politics; antirealists

see neutralism as a way to restore the objectivity

and reason that had once distinguished law as a

discipline. Moreover, the ideal of neutrality still

animates constitutional doctrine: Procedural due

process guarantees a hearing before a neutral

arbiter; religious disestablishment and liberty

compel religion-neutrality; equal protec-

tion commands race-neutrality; and free speech

analysis turns on whether a speech restriction

is content- or viewpoint-neutral. Undeniably, no

matter what one thinks of Wechsler’s neutralist

framework and application, his lecture on neutral

principles has profoundly inﬂ uenced the insoluble

debate over the essence of law, and will continue

to play a role in efforts to depoliticize constitu-

tional law.

For more information: Friedman, Barry. “Neu-

tral Principles: A Retrospective,” Vanderbilt Law

Review 50 (1997): 503–535.

—Jesse R. Merriam

New Jersey Plan (1787)

The New Jersey Plan, a governmental outline

proposed by William Patterson at the Consti-

tutional Convention, was created primarily

not only to replace the defunct Articles of Con-

federation, but also to allay smaller states’ fears

about being dominated in the new government.

Ultimately, it was not ofﬁ cially adopted entirely

but formed an integral part of the government

structure decided upon as a result of the Con-

necticut Compromise engineered by Roger

Williams.

William Patterson was born in Ireland but

immigrated to New Jersey as a young man and

graduated from the College of New Jersey, which

was to later become Princeton University. He

studied law and became a citizens’ rights activ-

ist, greatly inﬂ uenced by Enlightenment philoso-

phers. His background; his active participation

before, during, and after the Revolution; and his

resulting renown and influence allowed him to

make significant contributions to the Constitu-

tional Convention.

New Jersey Plan 507

vi+904_EofUSConsti-v2.indd 507 3/20/09 2:17:53 PM

His most important contribution, the New Jer-

sey Plan, was structured in response to the Vir-

ginia Plan proposed by James Madison. The

New Jersey Plan, which he proposed on June 15,

1787, called for the creation of a three-branch gov-

ernment composed of legislative, executive, and

judicial branches. The legislative branch contained

only a single house in which states would have

equal voting power, regardless of size or popula-

tion. The unicameral legislation was empowered

to elect those who were to serve in the multi-exec-

utive branch. In turn, the executive selected the

justices for the Supreme Court, which made up

the judicial branch. Interestingly, the executives

could have been recalled not only by the legisla-

ture, but also by state governors. The New Jersey

Plan also called for the supremacy of the national

government, making all state laws subordinate to

the laws and directions imposed by the central

government.

Most importantly, the New Jersey Plan offered

smaller states a hope of not being dominated by

more populous states like Virginia and Pennsyl-

vania. Some smaller northern states even feared

an expected rise in southern populations due to a

temporary economic boom at the time. The equal

representation scheme in the unicameral legisla-

tion was seen as a protection for smaller states and

contrasted directly with the Virginia Plan, which

proposed a bicameral legislation based entirely

upon population-based representation. In this

way, Patterson’s proposal was a direct rebuttal of

the Virginia Plan, somewhat throwing the Consti-

tutional Convention into turmoil, as delegates and

states were split between the plans.

From a legal standpoint, the New Jersey Plan

was more similar to the Articles of Confederation,

since it guarded certain powers for states and

protected smaller ones. As a result, the proposal

reheated arguments over whether or not to rework

or scrap the former confederation system. Impasse

reigned over the Convention until the Connecti-

cut Compromise was decided upon, leading to a

mixing of the Virginia and New Jersey plans.

For more information: Berkin, Carol. A Brilliant

Solution: Inventing the American Constitution.

New York: Harcourt, 2002; Collier, Christopher.

All Politics Is Local: Family, Friends, and Provin-

cial Interests in the Creation of the Constitution.

Hanover, N.H.: University Press of New England,

2003; Collier, Christopher. Decision in Philadel-

phia: The Constitutional Convention of 1787. New

York: Ballantine Books, 1987; Solberg, Winton U.,

ed. The Constitutional Convention and the For-

mation of the Union. 2d ed. Urbana: University of

Illinois Press, 1990.

—Arthur Holst

New Jersey v. T.L.O. 469 U.S. 325 (1985)

In New Jersey v. T.L.O. the Supreme Court ruled

that public school ofﬁ cials do not need a warrant

or probable cause before conducting a search. For

a search to be valid, all they need is reasonable

grounds to suspect that the search will produce

evidence that a student has violated either the law

or a school rule.

A teacher at a New Jersey high school dis-

covered T.L.O., a 14-year-old freshman, and her

friend smoking in the school restroom in violation

of a school rule. The two girls were brought to

the vice-principal’s ofﬁ ce and questioned about

the incident. T.L.O. denied she had been smok-

ing and claimed that she never smoked. The vice-

principal then opened T.L.O.’s purse and saw a

pack of cigarettes and a package of cigarette roll-

ing papers commonly associated with marijuana

use. A further search of the purse produced a

small quantity of marijuana, a pipe, plastic bags, a

substantial amount of money, an index card with

the names of students who owed T.L.O. money,

and two letters implicating her in the sale of mari-

juana. This evidence was turned over to police,

and T.L.O. was charged with delinquent con-

duct. The juvenile court denied T.L.O.’s motion

to suppress the evidence found in her purse,

holding that the search by the vice-principal was

reasonable. T.L.O. was subsequently adjudicated

delinquent. The state appellate court affirmed

the juvenile court’s ruling, but the New Jersey

Supreme Court reversed, holding that the search

was unreasonable and that the evidence should

be suppressed.

508 New Jersey v. T.L.O.

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The United States Supreme Court held that,

although students are constitutionally protected

from illegal searches and seizures while at school,

school ofﬁ cials are not bound by the same restric-

tions as law enforcement officers. Police need

“probable cause” before they can conduct a search,

but teachers and other school ofﬁ cials are permit-

ted to search a student when they have “reasonable

suspicion” to believe that the student has violated

the law or broken a school rule. The Court noted

that school officials have an important interest

in maintaining a safe and orderly learning envi-

ronment; thus school ofﬁ cials need not obtain a

warrant before searching a student. However,

the Court warned that such searches, when con-

ducted by school ofﬁ cials, must be reasonable and

not excessively intrusive in light of the student’s

age and sex and the nature of the violation.

The Court cited two considerations in deter-

mining whether a warrantless search of a stu-

dent by a school official is “reasonable” or not.

First, “one must consider whether . . . the action

was justiﬁ ed at its inception.” Second, “one must

determine whether the search . . . was reasonably

related in scope to the circumstances which justi-

ﬁ ed the interference in the ﬁ rst place.” In short,

the first criterion involves the justification, or

grounds, for initiating the search, while the sec-

ond relates to the intrusiveness of the search.

For more information: Beger, Randall. “The

Worst of Both Worlds: School Security and the

Disappearing Fourth Amendment Rights of Stu-

dents.” Criminal Justice Review 28, no. 3 (2003):

336–354; Hemmens, Craig, Benjamin Steiner,

and David Mueller. Criminal Justice Case Briefs:

Signiﬁ cant Cases in Juvenile Justice. Los Angeles:

Roxbury Publishing Company, 2004; Lawrence,

Richard. School Crime and Juvenile Justice. New

York: Oxford University Press, 1998.

—David Mueller

New State Ice Co. v. Liebmann 285 U.S. 262

(1932)

New State Ice Co. v. Liebmann, a Depression-

era Supreme Court decision, is both a historical

curiosity and a signiﬁ cant precursor. The major-

ity opinion is an artifact of pre–New Deal due

process jurisprudence. The dissent foreshadows

the eclipse of that jurisprudence after 1937. Lieb-

mann thus provides an instructive window into

ongoing debates over the constitutional relation-

ship between government police power and the

rights of property.

This case arose from a dispute between two

competing Oklahoma City ice companies. The

New State Ice Company sued one Liebmann,

another ice purveyor, seeking an injunction

prohibiting Liebmann from selling ice without

the license required by state law. At trial, the

federal district court dismissed New State’s bill

of complaint. That court’s reasoning is grounded

in a reading of the Fourteenth Amendment

due process clause then prevailing—a reading

derived from an 1877 U.S. Supreme Court deci-

sion, MUNN V. ILLINOIS, 94 U.S. 113. Munn ties the

constitutionality of government economic regula-

tions to the character of the business being regu-

lated. As Justice George Sutherland, author of the

New State opinion, put it: “The question here is

whether the business is so charged with a public

use as to justify the particular restriction.”

By a 6-2 vote (recently appointed Justice Car-

dozo did not participate), the Supreme Court held

that the Oklahoma statute failed the Munn test.

It was clear to the majority that the ice business

is an “ordinary business . . . essentially private in

its nature.” Consequently, following Munn and cit-

ing a long list of subsequent progeny, Sutherland

concluded: “A regulation which has the effect of

denying or unreasonably curtailing the common

right to engage in a lawful private business, such

as that under review, cannot be upheld consistent

with the Fourteenth Amendment.”

Famously, Justice Brandeis disagreed. He sup-

ported the legitimacy of legislative discretion,

and urged judicial restraint in second-guessing

such judgments. Brandeis also rejected the Munn

doctrine: “[T]he true principle is that the state’s

power extends to every regulation of any busi-

ness reasonably required and appropriate for the

public protection.” He then placed the Oklahoma

statute squarely within the context of the Great

New State Ice Co. v. Liebmann 509

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Depression. “The people of the United States are

now confronted with an emergency more serious

than war.” Social misery is rife, Brandeis wrote,

and proposed governmental responses are prob-

lematical. Nevertheless: “There must be power

in the states and the nation to remould, through

experimentation, our economic practices and

institutions to meet changing social and economic

needs.” To this Sutherland had replied: “It is plain

that unreasonable or arbitrary interference or

restrictions cannot be saved from . . . condemna-

tion . . . merely by calling them experimental.”

Accordingly, New State Ice Co. v. Liebmann

illustrates the clash between “garden-variety”

Munn-era economic due process (1877–1937), on

the one hand, and the competing view—portray-

ing each state “as a laboratory . . . try[ing] novel

social and economic experiments”—that displaced

(without destroying) the previous vision.

For more information: Krishnakumar, Anita

A. “On the Evolution of the Canonical Dissent.”

Rutgers Law Review 52 (Spring 2000): 781–825;

Sanders, Anthony B. “The ‘New Judicial Federal-

ism’ before Its Time: A Comprehensive Review of

Economic Substantive Due Process under State

Constitutional Law since 1940 and the Reasons

for Its Recent Decline.” American University Law

Review 55 (December 2005): 457–540.

—James C. Foster

New York Times v. Sullivan 376 U.S. 254

(1964)

In New York Times v. Sullivan, the Supreme

Court struck down the application of a state def-

amation law to a newspaper and in the process

issued a constitutional rule for the protection of

freedom of the press.

Defamation was not subject to any protection

under the freedom of press and speech provision of

the First Amendment of the U.S. Constitution

until 1964, when the Supreme Court decided the

landmark case of New York Times Co. v. Sullivan.

In that case, a full-page fund-raising advertisement

was published in the New York Times magazine

by a civil rights organization, asserting abuse

and inappropriate behavior by law enforcement

authorities in Montgomery, Alabama, during the

height of the Civil Rights movement. The police

commissioner of the city sued the newspaper for

defamation for libel based on some minor inaccu-

racies in the advertisement, such as the statement

that Dr. Martin Luther King Jr. had been arrested

seven times, when, in fact, he had been arrested

on only four occasions.

A state court jury in Alabama awarded

$500,000, which the state supreme court upheld.

The U.S. Supreme Court reversed the ruling,

holding that because the commissioner was a

“public official,” he could not prevail unless he

could prove that the newspaper published the

inaccuracies with “knowing falsity or reckless dis-

regard for the truth,” which the Court referred

to as “actual malice.” The Court reasoned that

the right of freedom of press and speech under

the First Amendment of the U.S. Constitution

requires some “breathing space” for errors, and

that allowing defamation actions for inaccurate

statements about public ofﬁ cials would deter the

media and others from speaking out on important

matters of public concern.

The “actual malice” referred to by the Supreme

Court differs from the traditional notion of “mal-

ice,” which consists of ill will or spite. Under the

“actual malice” standard of New York Times, a

claimant must prove that the person making the

defamatory statements knew of their falsity with

reckless disregard for the truth.

In subsequent decisions, the Supreme Court

extended the New York Times rule to “public ﬁ g-

ures,” persons who are in the limelight or volun-

tarily inject themselves into controversial matters

(Curtis Publishing Co. v. Butts and Associated

Press v. Walker, 388 U.S. 130 [1967]). It also ruled

that “actual malice,” knowing falsity and reckless

disregard of the truth, must be established by clear

and convincing evidence and cannot be based on

shoddy or careless investigation or reporting, but

generally must consist of a “purposeful avoid-

ance of the truth” (Harde-Hanks Communica-

tions, Inc., v. Connaughton, 491 U.S. 657 [1989]).

Punitive damages against the media also were

restricted to instances where there is “knowing

510 New York Times v. Sullivan

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falsity or reckless disregard of the truth” (Gertz v.

Robert Welch, Inc., 418 U.S. 323 [1974]).

The standards established in New York Times

do not apply in all instances. Those rules are lim-

ited to claims involving “public ofﬁ cials,” elected

or appointed government personnel, “public ﬁ g-

ures,” and in some instances, matters of high-level

public concern. These high standards make it very

difficult for government personnel, well-known

people, or those involved in high-proﬁ le contro-

versies to prevail in defamation cases.

But private ﬁ gures, individuals who do not fall

within these categories, can pursue defamation

claims without complying with the high standards

of the New York Times doctrine. They can pre-

vail if they prove that the defamatory statement

was made carelessly or negligently. In these situ-

ations, a claimant need not prove that the falsity

was intentional or done with recklessness.

For more information: Kalven, Harvey. A

Worthy Tradition: Freedom of Speech in Amer-

ica. New York: Harper & Row, 1988; Lewis,

Anthony, ed. Make No Law: The Sullivan Case

and the First Amendment. New York: Random

House, 1991.

—Marshall Tanick

Nineteenth Amendment

The Nineteenth Amendment to the Constitution

states, “The rights of citizens of the United States

to vote shall not be denied or abridged by the

United States or by any state on account of sex.

Congress shall have power to enforce this article

by appropriate legislation.” The amendment was

ratified on August 18, 1920, giving American

women the right to vote in both state and fed-

eral elections.

The campaign to win women’s suffrage dates

from the 1848 Seneca Falls Convention, where

the delegates approved a resolution stating “that it

is the duty of the women of this country to secure

to themselves their sacred right to the elective

franchise.” The 19th-century movement, under the

leadership of Elizabeth Cady Stanton and Susan B.

Anthony, developed two major arguments to sup-

port voting rights for women. They made the case

that full citizenship included the suffrage and that

to be true to its egalitarian principles the United

States must include women in the electorate. They

and their followers also argued that women would

use the franchise to improve society—to abolish

slavery, to reform working conditions, to protect

children, to enact prohibition—and that women

would bring their unique perspective to address

existing social problems.

Until the Civil War, women’s rights organiza-

tions were mostly indistinguishable from anti-

slavery groups. Many suffragists hoped that their

interests would be considered as part of the con-

stitutional changes that followed the war. Spe-

ciﬁ cally, advocates of votes for women believed

that the Fifteenth Amendment, prohibit-

ing denial of voting rights on the basis of “race,

color, or previous condition of servitude,” might

be improved by adding the word “sex” to the list

of forbidden discriminators. However, they were

disappointed when their former allies in the abo-

litionist cause asked them to wait their turn for

the vote. According to the Republicans who con-

trolled Congress and supported the amendment,

it was “the Negro’s hour.” Women’s suffrage would

be delayed another 50 years.

Supporters of votes for women, if united in

their goal, were divided in their strategy. The

National Women’s Suffrage Association advocated

an amendment to the U.S. Constitution, while the

American Women’s Suffrage Association worked

more at the state level. The two groups united

in the late 1890s to form the National American

Women’s Suffrage Association (NAWSA). In 1916,

their leader, Carrie Chapman Catt, developed her

“Winning Plan,” which involved a tight hierarchi-

cal organization; extensive fund-raising, education

and lobbying of politicians; and eventually win-

ning the support of President Woodrow Wilson

for a constitutional amendment.

NAWSA’s efforts were undoubtedly aided by

a rival organization, the more militant Women’s

Party. Members of the latter group picketed

outside the White House, holding banners that

offered mild criticisms of Wilson for his tepid

interest in women’s suffrage. During a crackdown

Nineteenth Amendment 511

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