Schultz D. Encyclopedia of the United States Constitution

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on dissidents during World War I, scores of those

women pickets were arrested and held in unspeak-

able conditions. To draw attention to their cause,

a number of the suffrage women went on hunger

strikes. When jailers brutally force-fed these mid-

dle-class political protesters, much public inter-

est and sympathy turned in their direction. The

Women’s Party gained publicity for the suffrage;

NAWSA organized the political process.

The House of Representatives passed

the suffrage amendment by exactly the required

two-thirds majority on January 10, 1918. Four

members of Congress left their sick beds to cast

crucial votes in support. It passed the Senate

with 66 votes in May 1919. Much of the oppo-

sition to women’s suffrage came from southern

states, where politicians were reluctant to allow

the federal government to get involved in decid-

ing who should and should not vote for fear it

would reopen the “Negro question.” In addition,

powerful lobbies such as the liquor industry (fear-

ing women would support prohibition), business

interests (fearing women would try to reform

working conditions), and conservative religious

groups, such as the Catholic hierarchy, also fought

passage of the amendment.

After Congress assented to the suffrage amend-

ment, ratiﬁ cation by three-fourths of the states

took another year. Supporters assumed most

southern states would refuse to ratify, but Ten-

nessee ultimately provided the ﬁ nal approval. The

deciding vote was cast by a young legislator whose

mother had told him to “be a good boy” and vote

for the suffrage. On August 26, 1920, 26 million

women became enfranchised. Ten states—Dela-

ware and nine in the South—refused to ratify the

amendment.

The results of the Nineteenth Amendment

delighted and disappointed both supporters and

opponents. Women were not able to transform

politics, as their advocates had hoped. On the

other hand, their participation did not destroy

the home, as some anti-suffragists had predicted.

Ultimately, women’s suffrage should be viewed as

a vital step in the evolution of the relationship of

American women with the state, a stage on the

road to full citizenship.

For more information: Flexner, Eleanor. Cen-

tury of Struggle: The Woman’s Rights Movement

in the United States. Cambridge, Mass.: Belknap

Press of Harvard University, 1975; Kerber, Linda

K. No Constitutional Right to Be Ladies: Women

and the Obligations of Citizenship. New York:

Hill and Wang, 2000.

—Mary Welek Atwell

Ninth Amendment

The Ninth Amendment guarantees rights to the

people of the United States otherwise not stated

or enumerated in the Constitution. This amend-

ment is one of the original ten, the Bill of

Rights that amended the Constitution in 1791,

proposed by James Madison in the House of

Representatives. The Ninth Amendment is

the result of intense debates that took place both

between the Federalists and anti-Federalists dur-

ing the debates over the ratification of the

Constitution in 1787 and later, between James

Madison and Alexander Hamilton.

In criticizing the proposed Constitution, the

anti-Federalists argued that it was ﬂ awed because

it lacked a Bill of Rights and therefore threat-

ened the rights and liberties of individuals. In

response, Federalist defenders of the document,

such as Alexander Hamilton in Federalist 84,

argued against a bill of rights. Hamilton offered

two reasons. First, he noted that the proposed

constitution did in fact contain many provisions

that limited the power of the national govern-

ment, such as bans on ex post facto laws and bills

of attainder. Second, and more importantly, Ham-

ilton argued that a bill of rights was not necessary

because the Constitution did not grant any powers

to limit rights and therefore no bill of rights, was

necessary to limit the power of the federal govern-

ment to do that. For Hamilton:

Bills of rights, in the sense and to the extent

in which they are contended for, are not only

unnecessary in the proposed Constitution, but

would even be dangerous. They would contain

various exceptions to powers not granted; and, on

this very account, would afford a colorable pre-

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text to claim more than were granted. For why

declare that things shall not be done which there

is no power to do? Why, for instance, should it

be said that the liberty of the press shall not be

restrained, when no power is given by which

restrictions may be imposed?

Hamilton saw the Constitution as a document con-

taining only expressed powers. By that, unless the

Constitution actually stated that the federal gov-

ernment had a speciﬁ c power, it lacked it. Thus,

why have a bill of rights that stated that Congress

cannot limit freedom of speech if it lacked the

authority to restrict expression?

Despite Hamilton’s arguments in Federalist

84, many state legislatures during the ratiﬁ cation

process demanded that a bill of rights be added to

the Constitution. Eventually, in part, ratiﬁ cation

of the Constitution was secured when some Fed-

eralists, such as James Madison, agreed to propose

a bill of rights in Congress. In proposing the Bill of

Rights in 1789, the Ninth Amendment was meant

to protect any other rights not already enumerated

either in the original text of the Constitution or

in the rest of the Bill of Rights. Inspired perhaps

by the natural rights theory of John Locke and

other political theorists, the Ninth Amendment

seems to protect any inherent rights of the peo-

ple. Alternatively, perhaps it was meant to defend

rights found in the common law. In either case,

the amendment was meant to protect unenumer-

ated rights. The question, however, is what these

unenumerated rights are.

From 1791, when the Ninth Amendment was

ratiﬁ ed, until 1965, the Ninth Amendment was

not cited as the basis of any Supreme Court deci-

sions. Thus, for over 170 years, there was no clear

indication regarding what the Ninth Amendment

protected. However, in GRISWOLD V. CONNECTICUT,

381 U.S. 479 (1965), the Supreme Court cited the

Ninth along with several other amendments as

protecting a right to privacy. In Griswold, it pro-

tected a right of married couples to secure and use

birth control. Similarly, in ROE V. WADE, 410 U.S.

113 (1973), the Ninth Amendment was also cited

to support a woman’s right to secure an abor-

tion, and in a footnote in Richmond Newspa-

pers, Inc. v. Virginia, 448 U.S. 555 (1980), Justice

Warren Burger cites the amendment in ruling

that the media has a right to attend criminal tri-

als. Justice William O. Douglas also cited this

amendment in a separate concurrence in Lubin

v. Panish, 415 U.S. 709 (1974), contending that

the right of the people to vote in state elections is

one of the unenumerated rights protected by the

Ninth. Beyond these references, this amendment

has not been employed as a constitutional clause

to ﬁ nd and protect rights.

The use of the Ninth Amendment to find a

right to privacy has been controversial. Its use to

support abortion rights and at one time to sup-

port gay and lesbian rights has pitted social

conservatives against liberals, as well as those who

believe in using the intent of the framers in

the interpretation of the Constitution against those

who use other techniques. Thus, the use of the

Ninth Amendment has become netted in political

disputes that question the scope of the authority

of the judiciary to protect individual rights.

For more information: Barnett, Randy, ed.

The Rights Retained by the People. Fairfax, Va.:

George Mason University Press, 1989; Shaw, Ste-

phen K. The Ninth Amendment: Preservation

of the Constitutional Mind. New York: Garland,

1990.

—David Schultz

Nixon, Richard (1913–1999) U.S. vice presi-

dent, 37th U.S. president

Richard Milhous Nixon was the 37th president of

the United States. His keen political skill allowed

him to resurrect a political career thought by

many to be long defunct. He holds the dubious

distinction of being the only president in U.S. his-

tory to resign from ofﬁ ce. During the course of

his career, and especially during his presidency,

he left both a direct and an indirect impact upon

the Constitution.

Richard Nixon was born in Yorba Linda, Cal-

ifornia, on January 13, 1913. He was the son of

Francis “Frank” Nixon and Hannah Milhous. His

father held a variety of jobs, including working

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as an orange farmer, an occupation Nixon often

referred to years later to demonstrate his hard-

scrabble roots. During his formative years, Nixon

suffered the loss of two brothers.

Nixon attended college at nearby Whittier Col-

lege from 1930 to 1934 and went on to, and gradu-

ated from, Duke University Law School in 1937.

In an odd historical footnote, upon graduating

from law school, Nixon applied for a job with the

Federal Bureau of Investigation and was turned

down. Like many of his generation, Nixon served

in the armed forces during the Second World

War. Lieutenant Commander Nixon served in the

Paciﬁ c Fleet from 1942 to 1945.

Following the war, Nixon returned to Whittier,

California, and ran for Congress. In his ﬁ rst cam-

paign for ofﬁ ce, Nixon sought to unseat Demo-

cratic incumbent Jerry Voorhis. The election of

1946 was a strong year for Republican candidates,

although not a presidential election year. One of

the main issues in the election of 1946 was the

effectiveness and propriety of many of the New

Deal programs implemented under Franklin

Roosevelt and Harry Truman. Many were con-

cerned that these programs bordered on, if not

actually being, socialist. In retrospect, it seems

appropriate that in Nixon’s ﬁ rst election, social-

ism and communism would be the most promi-

nent issues of the campaign.

Nixon served in the House of Representa-

tives from 1946 to 1950. While in the House,

Nixon served on the House Un-American Activi-

ties Committee (HUAC). This committee was

notable for its active investigation into alleged

communist spying and infiltration in American

government and the entertainment industry. As a

result of some of the more zealous activities of this

and other congressional committees, the Supreme

Court, in cases such as Watkins v. United States,

354 U.S. 178 (1957), and Barrenblatt v. United

States, 360 U.S. 109 (1959), was required to deﬁ ne

the limits on these investigations.

Additionally, during his tenure on this com-

mittee, Nixon began his ﬁ rst foray onto a national

stage with the investigation of Whittaker Cham-

bers and Alger Hiss. Hiss was charged with being

a communist spy inﬁ ltrating the federal bureau-

cracy. Under the Truman administration, Alger

Hiss served as the secretary-general of the United

Nations Charter Conference. Nixon’s committee

investigations led to Hiss’s indictment and subse-

quent conviction. Following these events, Nixon

was forever maligned as a “red baiter” and often

likened to Senator Joe McCarthy. Not until the

mid-1990s and the fall of the Soviet Union was

Nixon somewhat exonerated, when it was discov-

ered that Alger Hiss had, in fact, been an agent of

the Soviet Union.

Nixon was elected to the United States Senate

in 1950, again defeating a Democratic incumbent,

Helen Gahagan Douglas. Nixon’s career in the

Senate was cut short, however, due to his selection

as General Dwight D. Eisenhower’s vice presi-

dential running mate in 1952. Nixon’s selection

was the result of an agreement between Eisen-

hower and the other front runner to be his run-

ning mate, California Governor Earl Warren. To

preserve party unity and placate Warren, Eisen-

hower promised Warren the ﬁ rst appointment to

the Supreme Court if he was elected.

For eight years, Nixon served as Eisenhow-

er’s vice president. Nixon’s most recognizable

contribution as vice president was his participa-

tion in what was known as the “kitchen debate”

with Soviet premier Nikita Khrushchev. In 1956,

Eisenhower contemplated dropping Nixon from

the reelection ticket due to a campaign finance

scandal involving Nixon. Nixon avoided removal

by appearing with his wife Pat on national televi-

sion and disclosing his family’s personal ﬁ nances

in the famous “Checkers speech.”

Nixon ran for ofﬁ ce in 1960 and lost to John

F. Kennedy in one of the closest elections in the

nation’s history. Following the assassination of

Kennedy and the decision of Lyndon Johnson not

to run for reelection in 1968, Nixon once again ran

for president. Nixon defeated Vice President (and

former Minnesota senator) Hubert H. Humphrey

in a close election.

Nixon’s presidency, like Johnson’s, was mired

in Vietnam. Nixon had promised to bring “peace

with honor” to the United States, but the war

continued for the next ﬁ ve years. Nixon’s policies

showed a great amount of social conscience; he

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signed into law clear-air legislation and founded

the Environmental Protection Agency (EPA).

President Nixon also approved dramatic changes

to American Indian policy, which recognized the

sovereign status of Indian tribes for the ﬁ rst time

in 175 years. Perhaps Nixon’s greatest achieve-

ment as president was his decision to travel to

China and formalize relations with the communist

country. This policy was responsible for bringing

about peace negotiations in Vietnam and cooling

cold war tensions between the United States and

the Soviet Union.

Perhaps Nixon’s most significant constitu-

tional legacies were twofold. First, he had a major

impact on the Supreme Court by appointing

Warren Earl Burger to replace Earl Warren

as chief justice, and Nixon also appointed Wil-

liam Hubbs Rehnquist, a future chief justice,

and Harry Blackmun and Lewis Powell Jr.

Through his four appointments he created a more

conservative Supreme Court, especially in regard

to criminal due process issues.

The second major impact was through the

case U

NITED STATES V. NIXON, 418 U.S. 683 (1974),

which grew out of Watergate. Nixon’s presidency

began to unravel in August of 1973, when bur-

glars broke into the Democratic National Com-

mittee headquarters in the Watergate Hotel in

Washington, D.C. This activity was linked back

to the White House and ultimately led to the

House of Representatives’ voting to draft articles

of impeachment against the president, result-

ing in his resignation from ofﬁ ce. The Watergate

investigations produced two important constitu-

tional moments. First, Archibald Cox had been

appointed to be a special prosecutor to investigate

the break-in, and during the course of both his

and congressional investigations, it was revealed

that Nixon had secretly taped many of his Oval

Ofﬁ ce conversations. Cox sought to obtain these

tapes in his investigation. On October 20, 1973,

in what has come to be known as the “Saturday

Night Massacre,” Nixon ordered Cox ﬁ red. Both

Attorney General Elliot Richardson and Deputy

Attorney General William Ruckelshaus refused to

ﬁ re Cox and instead resigned. The solicitor gen-

eral, Robert Bork, ultimately ﬁ red Cox.

The dispute over the tapes came to a head in

United States v. Nixon, where the Supreme Court

in an 8-0 decision ruled that, while the concept

of separation of powers recognized executive

privilege, it had to give way to the demands and

needs of a criminal investigation. What this meant

was that Nixon had to turn the tapes over to the

special prosecutor. Shortly after turning over the

tapes, on August 9, 1974, Richard Nixon became

the ﬁ rst president in U.S. history to resign from

office. This led to Gerald Ford’s assuming the

presidency. Ford subsequently pardoned Nixon for

any crimes arising out of Watergate.

Nixon died in 1999 in Yorba Linda, California.

He was preceded in death by his wife Patricia.

For more information: Kurland, Phillip. Water-

gate and the Constitution. Chicago: University of

Chicago Press, 1978; Small, Melvin. The Presi-

dency of Richard Nixon. Lawrence: University

Press of Kansas, 2003.

—R. Reid LeBeau

Nixon v. Shrink Missouri Government PAC

528 U.S. 377 (2000)

In Nixon v. Shrink Missouri Government PAC,

the Supreme Court upheld a state law limiting the

size of contributions that could be made to candi-

dates for state ofﬁ ce.

Missouri’s campaign finance system had

a series of ceilings on contributions to candi-

dates for state offices, with the highest ceiling

being $1,075. In 1997, Shrink Missouri Govern-

ment PAC gave $1,025 to Zev David Fredman, a

Republican candidate for state auditor; they added

another $50 gift in 1998. Shrink Missouri argued

that they would have given more to Fredman had

they been so allowed, and Fredman himself con-

tended that the gift ceiling was so low that it made

effective campaigning impossible. Consequently,

they argued, the statute unduly limited political

expression.

By a vote of 6 to 3, the Court upheld the Missouri

law—the ﬁ rst time in 18 years that the Court had

completely upheld a campaign ﬁ nance law. David

H. Souter’s majority opinion turned aside the

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argument that the Missouri ceiling was too low.

Even though the seminal campaign ﬁ nance opin-

ion, BUCKLEY V. VALEO, 424 U.S. 1 (1976), made it

more difﬁ cult for restrictions on political money

to survive constitutional scrutiny, it did not neces-

sarily follow that a low contribution limit ran afoul

of the First Amendment. What Souter argued

was that, so long as there was sufﬁ cient evidence

of corruption as a result of the money in politics,

the courts should defer to the legislative branches

in the setting of contribution limits, so long as they

were not so low that they made it difﬁ cult for a

candidate to run an effective campaign.

The nature of Souter’s opinion stood in stark

contrast to the angry words in both the dissents

and the concurrences. Shrink revealed conclu-

sively that the Court was bitterly divided on some

of the most basic assumptions undergirding its

campaign ﬁ nance jurisprudence. In separate dis-

sents, both Anthony M. Kennedy and Clar-

ence Thomas stridently called for Buckley to

be overruled. Calling the earlier case a “half-way

house,” Justice Kennedy ﬂ atly stated that “Buckley

has not worked.” Justice Thomas bemoaned “the

analytic fallacies of our ﬂ awed decision in Buckley

v. Valeo” and speciﬁ cally urged that it be struck

from the books as a means of precluding any

future attempts at campaign ﬁ nance reform.

However, it was not only skeptics about the

campaign ﬁ nance project who pronounced them-

selves unhappy with the existing structure. Con-

curring in the result, Stephen G. Breyer gently

argued that Buckley should be replaced with an

opinion that would allow for more regulations on

political money. Yet it was John Paul Stevens

who put the sword to Buckley most dramatically.

In his own concurrence, Stevens countered that

opinion’s core holding with his own declaration

that “money is property; it is not speech,” and he

decried how Buckley had created a system of non-

transparent political “mercenaries” whose cash

paid for misleading “speech by proxy.”

Ultimately, Stevens came much closer to win-

ning the argument than Kennedy and Thomas.

In late 2003, in M

CCONNELL V. FEDERAL ELECTION

COMMISSION, 540 U.S. 93 (2003), Stevens co wrote

(with Sandra Day O’Connor) an opinion

preserving the more comprehensive campaign

ﬁ nance restrictions embodied by the Bipartisan

Campaign Reform Act of 2002.

For more information: Redish, Martin H.

Money Talks: Speech, Economic Power, and the

Values of Democracy. New York: New York Uni-

versity Press, 2001; Urofsky, Melvin I. Money and

Free Speech: Campaign Finance Reform and the

Courts. Lawrence: University of Kansas Press,

2005.

—Steven B. Lichtman

Northwest Ordinance

The adoption of the Northwest Ordinance, also

called the Ordinance of 1787, was one of the most

signiﬁ cant achievements of the Continental Con-

gress under the Articles of Confederation. The

Ordinance, ofﬁ cially titled “An Ordinance for the

Government of the Territory of the United States,

Northwest of the River Ohio,” was adopted on July

13, 1787. Following the adoption of the Constitu-

tion, the Ordinance was afﬁ rmed by the U.S. Con-

gress with minor changes.

Following the 1783 Treaty of Paris, which

ended the Revolutionary War, the United States

was left in possession of the Ohio Country, an area

west of Pennsylvania, bounded by the Great Lakes

on the north, the Ohio River on the south, and the

Mississippi River on the west. The region, which

had previously been closed to colonial settlement,

was subject to both continuing British interfer-

ence and conﬂ icting claims by Connecticut, Mas-

sachusetts, New York, and Virginia.

The Ordinance established a civil government

in the territory, with a territorial governor, sec-

retary, and three judges appointed by Congress.

When the population of the territory reached

5,000 free adult male inhabitants, the people

would elect a general assembly, which would send

a non-voting delegate to Congress. When the

population increased to 60,000, the territorial

legislature would draft a constitution and petition

Congress for admission as a state.

Although the Articles of Confederation did not

include a bill of rights, the Northwest Ordinance

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guaranteed that “[n]o person . . . shall ever be

molested on account of his mode of worship or reli-

gious sentiments.” It provided for “the beneﬁ ts of

the writ of habeas corpus, and of trial by jury.”

The Ordinance barred cruel or unusual punish-

ments and forbade laws that would “interfere with

or affect private contracts.” It recognized that

“the means of education shall forever be encour-

aged.” Many of the protections contained in the

Northwest Ordinance were later carried over to

the Bill of Rights.

The Ordinance prohibited slavery and invol-

untary servitude in the territory at a time when

slavery was still permitted in several northern

states. Later legislative acts continued to recog-

nize the Ohio River as the boundary between

free and slave states. The Ordinance also noted

that “[t]he utmost good faith shall always be

observed towards the Indians; their lands and

property shall never be taken from them without

their consent.”

The Ordinance provided for the formation of

“not less than three nor more than ﬁ ve states” out

of the Northwest Territory. Ultimately, the terri-

tory was organized into the present-day states of

Ohio, Indiana, Illinois, Michigan, and Wisconsin.

A part of the organic laws of the United States,

the Northwest Ordinance served as the model for

the admission of all future states to the Union.

For more information: Onuf, Peter S. Statehood

and Union: A History of the Northwest Ordinance.

Bloomington: Indiana University Press, 1987.

—Mark W. Podvia

nude dancing

Nude dancing is a form of expression that the

Supreme Court has given communities wide

latitude to restrict. This is true even though the

Court has stated that nude dancing implicates

some First Amendment concerns.

From the burlesque shows of the 1920s and

1930s to the current “gentlemen’s clubs,” estab-

lishments that offer women dancing in stages of

undress have been popular with customers and

unpopular with government officials. Since the

1970s, communities have tried various means of

shutting down or covering up such establishments.

The Supreme Court has been reluctant to give any

protection to the practice of nude dancing and has

given communities a great deal of latitude in pro-

hibiting such activities.

The central constitutional question is whether

nude dancing is expressive activity that commu-

nicates a message and thus is entitled to First

Amendment protection, or whether it is conduct

that can be prohibited by local governments. In a

series of cases, the Supreme Court has addressed

the protection that nude dancing enjoys and does

not enjoy.

California v. LaRue, 409 U.S. 109 (1972),

allowed the state of California to deny a liquor

license to any club that allowed nude dancing.

The Court’s decision upheld the law on the basis

of the Twenty-first Amendment and did not

directly answer the question of First Amendment

rights. Many states across the nation adopted this

tactic along with zoning regulations in attempts to

discourage nude dancing establishments.

In the case of Barnes v. Glen Theatre Inc., 501

U.S. 560 (1991), the Court ruled that nude danc-

ing was “within the outer perimeters of the First

Amendment, although only marginally so.” How-

ever, the ﬁ ve-person majority upheld the Indiana

law on the basis that the intent was not to sup-

press an erotic message but was a general prohi-

bition against public indecency. Justice David

H. Souter, in a concurring opinion, argued that

harmful secondary effects of nude dancing (e.g.

crime, sexual assaults) could be used as a basis for

the prohibition of such conduct. The four-person

dissent argued that the regulation was aimed at

expressive conduct and that nudity was an essen-

tial part of the message.

The issue of harmful secondary effects was

expanded on in the case of City of Erie v. PAP’s

A.M., 529 U.S. 227 (2000). In this decision, the

Court reafﬁ rmed that nude dancing had symbolic

meaning but upheld a law banning all nude danc-

ing because of harmful secondary effects that

accrue to areas with adult entertainment. Among

the effects cited were crime, prostitution, and

drug use. The Court did not require government

nude dancing 517

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ofﬁ cials to prove that such harmful effects were

in fact taking place or that regulating nude danc-

ing would ameliorate them. The Court said the

government could assume such premises. Justice

Antonin Gregory Scalia concurred in the

majority’s decision, attacking the Barnes majori-

ty’s reasoning and arguing that cities had the right

to protect morals through such regulations. Jus-

tice John Paul Stevens dissented, arguing that

a total ban on nude dancing was unnecessary and

that zoning laws could achieve the same results.

While nude dancing has not fared well with the

Supreme Court, less explicit forms of adult enter-

tainment (i.e., topless dancing) have been left rela-

tively unregulated. Despite efforts at regulation,

“gentlemen’s clubs” proliferated during the 1980s

and 1990s.

For more information: Manuto, Ron, and Sean

Patrick O’Rourke. “Dances with Wolves: Nudity,

Morality and the Speech Conduct Doctrine.” Free

Speech Yearbook 43 (1994): 86–109.

—Charles Howard

Nulliﬁ cation Controversy

The Nullification Controversy stemmed from a

debate during the early American republic over

whether states had the right to nullify federal

laws. Nullification had its roots in the Tariff of

1828 (also known as the Tariff of Abominations),

passed by Congress to protect industries in the

North against European competition. The tariff

and its economic repercussions worried the South

and provided the impetus for a sectional conﬂ ict.

The Nulliﬁ cation movement was led by Vice

President John C. Calhoun of South Caro-

lina, who authored the South Carolina Exposi-

tion and Protest. At its core was the belief that

the Union was a compact of the sovereign states

that came together to form the Constitution. Since

the federal government was a result of a compact

among the several states, the states had the ﬁ nal

say over the scope of their own authority, as well

as that of the federal government. The nulliﬁ ers

believed that, since the Constitution did not pro-

vide for an independent arbiter to settle disputes

between the states and the federal government,

only the parties to the constitutional compact (the

states) could judge constitutional infractions.

The Exposition proclaimed that the tariff was

unconstitutional and identiﬁ ed a remedy for such

a breach of federal power. The remedy did not lie

in the federal judiciary, since that would raise the

judiciary above the states who created the Con-

stitution. Rather it lay in the states themselves, as

sovereign parties to the constitutional compact.

Calhoun’s Exposition shifted its focus from the

role of the states in the creation of the constitu-

tional compact and in checking federal authority

to the right of a single state to nullify a federal

law. Accordingly, South Carolina was a sovereign

party to the constitutional compact, and it alone

(through its state legislature) had the right to pre-

serve its sovereignty and impose a veto on any

laws that threatened its sovereignty.

The prospect of nulliﬁ cation loomed large as a

Senate debate over the fate of public lands (the

Foote Resolution) turned into one of the most

famous debates over nulliﬁ cation and who had the

right to interpret the Constitution and veto uncon-

stitutional laws. On January 21, 1830, Senator

Robert Hayne (South Carolina) changed the focus

from the resolution to an attack on the tariffs and

the evils of national consolidation, in particular

the federal government (and the judiciary) being

the sole judge of its own powers.

Senator Daniel Webster’s (Massachusetts)

response was geared toward defending the

Supreme Court as vital to the Union. According to

Webster, the Constitution did not authorize a sin-

gle state, in particular, a state legislature, to nul-

lify a federal law. He argued that the government

was created by the people, not by the state legis-

latures. The people declared that the Constitution

was the supreme law of the land, and if each state

legislature was permitted to nullify federal laws,

then the Union would no longer exist. Webster felt

that it was impossible to live under a government

of uniform laws if each state had the right to judge

for itself constitutional infractions. As for the res-

olution of constitutional disputes, Webster noted

that the people had already vested in the Consti-

tution such a tribunal—the federal judiciary.

518 Nulliﬁ cation Controversy

vi+904_EofUSConsti-v2.indd 518 3/20/09 2:17:56 PM

On November 24, 1832, the “people of the

State of South Carolina” issued an Ordinance of

Nullification and declared the Tariff Act “null,

void, and no law, nor binding on this State, its ofﬁ -

cers or citizens.” The Ordinance also declared that

any promises, contracts, obligations, and judicial

proceedings made in pursuance of the act to be

“utterly null and void.” In addition, it stipulated,

“no case decided by the courts of the State regard-

ing the Ordinance or acts of the legislature made

in pursuance of it, could be appealed to the U.S.

Supreme Court.” Finally, the Ordinance provided

that, with the exception of members of the legis-

lature, all civil and military ofﬁ cers were required

to take an oath to obey, enforce, and execute the

Ordinance. “No allegiance is due to any power or

authority but this State” (South Carolina Ordi-

nance of Nulliﬁ cation, 28–31).

The final aspect of this interpretive struggle

involved the rejection of nulliﬁ cation throughout

the country. President Andrew Jackson, one of the

strongest advocates of states’ rights, was also one

of the most ardent critics of nulliﬁ cation. Northern

and southern states issued resolves condemning

the ordinance and pronouncing it as destructive to

the Union. Many states’ rights advocates believed

in the compact theory, but they did not subscribe

to nulliﬁ cation. Even Georgia, Virginia, and Ohio,

which were continually involved with their own

struggles against the national government, and in

particular the federal judiciary, condemned the

ordinance.

For more information: Bancroft, Frederic. Cal-

houn and the South Carolina Nulliﬁ cation Move-

ment. Baltimore, Md.: The Johns Hopkins Press,

1928; Freehling, William W. Prelude to Civil War:

The Nulliﬁ cation Controversy in South Carolina

1816–1836. New York and London: Harper and

Row, 1966; Houston, David Franklin. A Critical

Study of Nulliﬁ cation in South Carolina. Glouces-

ter, U.K.: Peter Smith, 1968; State Papers on Nul-

liﬁ cation. New York: Da Capo Press, 1970.

—Randa Issa

Nulliﬁ cation Controversy 519

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520

ﱶﱷﱸ

obscenity

Obscenity is a category of speech or expression

that is not protected by the First Amendment.

This stands in contrast to material that is porno-

graphic and does receive constitutional protec-

tion. However, deﬁ ning exactly what is considered

obscene has been a problem for the courts.

The Supreme Court has been grappling with

a workable deﬁ nition of obscenity for over half a

century. By the late 1960s, the Supreme Court

had already heard dozens of obscenity-pornog-

raphy cases. Justice John Harlan II called this

deluge of litigation “the intractable obscenity

problem” in Interstate Circuit, Inc. v. Dallas, 390

U.S. 676, 704 (1968). Justice William J. Bren-

nan, Jr., referred to the issue of obscenity as “the

vexing problem,” and in his dissent in Paris Adult

Theatre I v. Slaton, 413 U.S. 49 (1973), wrote that

“no other aspect of the First Amendment has, in

recent years, demanded so substantial a commit-

ment of our time, generated such disharmony of

views, and remained so resistant to the formula-

tion of stable and manageable standards.”

Obscenity cases are difficult because they

involve First Amendment rights. Freedom of

speech is a fundamental right, one that this country

greatly cherishes and that shall not be permitted

to slowly erode. Balancing the First Amendment

rights of the people against the government’s

power to restrict certain types of speech in order

to protect particular segments of the population

and maintain order and decency will always be a

formidable task.

These cases can also be complex. Although the

primary constitutional question revolves around

the First Amendment, obscenity cases may involve

several constitutional issues. Alleging that a stat-

ute is too vague to give notice of the proscribed

action may bring the due process clause of

the Fourteenth and Fifth Amendments into

focus. Federal obscenity laws may be challenged

on the basis that they invade the sovereignty of a

state, requiring Ninth and Tenth Amendment

inquiries.

Criminal obscenity laws were recorded as early

as 1726. The Acts and Laws of Massachusetts Bay

Colony expressly prohibited “composing, writ-

ing, printing or publishing, of any ﬁ lthy obscene

or profane song, pamphlet, libel or mock-sermon,

in imitation or in mimicking of preaching, or any

other part of Divine Worship.” A majority of states

made blasphemy or profanity punishable offenses,

despite having ratiﬁ ed the Constitution and the

First Amendment guarantee that “Congress shall

make no law . . . abridging the freedom of speech,

or of the press.” An in-depth historical analysis of

the various forms of unprotected speech, includ-

ing obscenity, was undertaken by the Supreme

Court and became the foundational premise for

every obscenity case. The Court found in B

EAU-

HARNAIS V. ILLINOIS, 343 U.S. 250 (1952), that the

unconditional phrasing of the First Amendment

was not intended to protect every utterance.

Beginning with ROTH V. UNITED STATES, 354 U.S.

476 at 484–485 (1957), the Court undertook the

task of deﬁ ning what constituted constitutionally

protected speech and what did not. Five justices

joined in the opinion. The majority concluded that

the test for obscenity was whether, to the average

person, applying contemporary community stan-

dards, the dominant theme of the material, taken

as a whole, appeals to the prurient interest.

This test was an improvement over the exist-

ing English common law rule developed in Regina

vi+904_EofUSConsti-v2.indd 520 3/20/09 2:17:56 PM

v. Hicklin, L.R. 3 Q.B. 360 (1868), which deﬁ ned

obscenity as material intended to “deprive and

corrupt those whose minds are open to such

immoral inﬂ uences.”

However, in subsequent analyses, Roth would

become unworkable due to the difﬁ culty in deter-

mining “community standards.” The Court clearly

exhibited its disparate views and the insufﬁ ciency

of the Roth test in J

ACOBELLIS V. OHIO, 378 U.S. 184

(1964), ﬁ nding that the motion picture in question

was not obscene but not being completely able to

agree on the reasoning. Justice Stewart penned his

famous words, “I shall not today attempt further

to deﬁ ne the kinds of materials I understand to be

embraced within that shorthand description; and

perhaps I could never succeed in intelligibly doing

so. But I know it when I see it, and the motion

picture involved in this case is not that.”

Two years later, the Court edited the Roth

test in Memoirs v. Massachusetts, 383 U.S. 413

(1966). This time, only three justices joined in the

plurality opinion. Elaborating on the Roth deﬁ ni-

tion, the Court held that before speech could be

considered obscene, “it must be established that

(a) the dominant theme of the material taken as a

whole appeals to a prurient interest in sex; (b) the

material is patently offensive because it affronts

contemporary community standards relating to

the description or representation of sexual matters;

and (c) the material is utterly without redeeming

social value.” The Court would eventually dis-

parage the plurality opinion in Memoirs in later

years, and eventually none of the members of the

Court would support the Memoirs formulation of

obscenity.

An opportunity to reformulate and agree on the

deﬁ nition of obscenity presented itself in MILLER

V. CALIFORNIA, 413 U.S. 15 (1973). At last, the

Court would establish a standard for identifying

obscene material that would remain viable even

today. Miller was a commercial purveyor of adult

material. As part of an advertising campaign, he

conducted a mass mailing intended to publicize

the availability and sale of four books entitled

“Intercourse,” “Man-Woman,” “Sex Orgies Illus-

trated,” and “An Illustrated History of Pornogra-

phy.” The Court described the books as containing

some descriptive printed material, but consisting

primarily of pictures and drawings very explic-

itly depicting men and women in groups of two

or more engaging in a variety of sexual activities,

with genitals often prominently displayed.

One of the brochures was sent to a restaurant.

The manager of the restaurant and his mother

opened the envelope and were apparently upset

by the contents. They lodged a formal complaint

with the local police department. Miller was

arrested pursuant to a violation of the California

Penal Code and later convicted by a jury for know-

ingly distributing obscene material. On appeal,

the Appellate Division of the Superior Court of

Orange County, California, summarily dismissed

his action, and Miller appealed to the United

States Supreme Court.

Justice Warren Burger delivered the opin-

ion of the Court, which held that (1) obscene

material is not protected by the First Amendment,

citing Roth v. United States; (2) the basic guide-

lines for the trier of fact in deciding whether a

work is obscene must be: (a) whether “the average

person, applying contemporary community stan-

dards would ﬁ nd that the work, taken as a whole,

appeals to the prurient interest,” (b) whether the

work depicts or describes, in a patently offensive

way, sexual conduct speciﬁ cally prohibited by the

applicable state law, and (c) whether the work,

taken as a whole, lacks any serious literary, artis-

tic, political, or scientiﬁ c value; (3) the jury may

measure the factual issue of “prurient appeal and

patent offensiveness” by the prevailing standard

in the forum community, and need not employ

a national standard. In footnote two, the Court

noted that pornography is a subgroup of obscene

expression.

This was the first time since Roth that the

majority could agree on a standard. Various mem-

bers of the Court voiced their dissatisfaction with

previous standards. Justice White wrote, “While

Roth presumed obscenity to be ‘utterly without

redeeming social importance,’ Memoirs required

that it be affirmatively established by the pros-

ecution, a burden that is virtually impossible to

discharge under our criminal statutes.” Justice

Brennan criticized the prior national “community

obscenity 521

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