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standard” element as an exercise in futility. The

Court also reafﬁ rmed some basic underlying ideas

espoused in their earlier cases, emphasizing the

importance of a free and robust exchange of ideas.

Citing Roth, they reiterated that the First Amend-

ment was to protect the exchange of ideas for the

purpose of bringing political and social changes

desired by the people, and that public portrayal of

hard-core sexual conduct for commercial gain falls

outside the protection of the Constitution.

The dissenters in Miller, Justices William O.

Douglas, Brennan, Stewart, and Marshall, felt

that the law was still too vague and overbroad. Jus-

tice Douglas wrote that “what shocks me may be

sustenance for my neighbor” and that “obscenity—

which even we cannot deﬁ ne with precision—is

a hodge-podge. To send men to jail for violating

standards they cannot understand, construe, and

apply is a monstrous thing to do in a Nation dedi-

cated to fair trials and due process.”

Despite the concerns of the dissenting justices,

the Miller test remains alive and well. It was last

utilized by the Court in deciding A

SHCROFT V.

ACLU, 535 U.S. 564 (2002). Some legal scholars

see the application of Miller as an affirmation

of its continued viability and an indication that

the Court has no intention of reformulating an

obscenity test any time soon.

Obscenity laws apply to all forms of publica-

tions, printed or recorded, on paper, tape, or in

cyberspace. The widespread availability and use

of the Internet in the late ’90s prompted Congress

to pass several forms of legislation intended to

keep obscene materials from being easily viewed

by children. All of the laws enacted were chal-

lenged and have been struck down in whole or in

part. The Court found that the 1996 Communi-

cations Decency Act and portions of the 1998

Child Online Protection Act and the Child Por-

nography Prevention Act were unconstitutionally

overbroad in several cases, including Ashcroft v.

ACLU.

The Court acknowledged the government’s

compelling interest in protecting minors from

commercial pornographers, but found that all

three laws were overbroad and that there were

less restrictive alternatives available that would

not unduly interfere with an adult’s constitutional

right to view this type of materials.

The Supreme Court has been diligent and

steadfast in upholding the First Amendment. It

should also be noted that state law, federal law,

and the Supreme Court have never set their sights

on punishing or limiting private, individual, in-

home possession of obscene materials. In all the

cases, the focus of attention was on the distribu-

tion and sale of materials by dealers for commer-

cial gain. However, the mere possession of child

pornography is in violation of the law. The Court

has noted that child pornography can con-

stitutionally be totally proscribed because of the

state’s interest in protecting the children exploited

in the production process.

For more information: Kalven, Harvey. A Wor-

thy Tradition: Freedom of Speech in America.

New York: Harper & Row, 1988.

—Loretta M. Young

O’Connor, Sandra Day (1930– ) Supreme

Court justice

Sandra Day O’Connor was sworn in as the first

female Supreme Court justice on September 25,

1981, after being nominated by President Ron-

ald Reagan and conﬁ rmed 99–0 by the Senate.

On July 1st, 2005, O’Connor announced that her

retirement from the Supreme Court would occur

upon the conﬁ rmation of her successor. However,

with the death of Chief Justice William Hubbs

Rehnquist, John G. Roberts, Jr., who was

nominated to assume O’Connor’s position, instead

took the place of Rehnquist. The retirement of

Sandra Day O’Connor from the Supreme Court

became ofﬁ cial on January 31, 2006, when Sam-

uel Alito was sworn in as associate justice.

On March 26, 1930, Sandra was born to Henry

and Ada Day in El Paso, Texas. She spent most of

her childhood on a cattle ranch in southeastern

Arizona, where she worked on the ranch and read

in her spare time.

The intelligent Sandra Day headed to Stanford

University in California for college. In 1950, she

graduated with a bachelor’s degree in economics

522 O’Connor, Sandra Day

vi+904_EofUSConsti-v2.indd 522 3/20/09 2:17:57 PM

and headed off to Stanford Law School. Her per-

formance in law school was stellar. She completed

the course work in two years instead of three,

served on the Stanford Law Review, was inducted

into the legal honor society Order of the Coif, and

graduated third in a class of 102. The person who

graduated ﬁ rst in that class was future Chief Jus-

tice William Hubbs Rehnquist. Rehnquist and

Sandra Day formed a close friendship during

law school that including a brief period of dating.

They would become lifelong friends. While in law

school, Sandra did meet the man that she would

eventually marry, John Jay O’Connor III. The

couple married on December 20, 1952, about six

months after Sandra graduated law school.

Since the beginning of her legal career, being

female played a major role. Despite stellar per-

formance in law school, the only job Sandra Day

O’Connor was offered was a secretarial position

in Los Angeles. At that time, there were very few

women in the legal industry, and law ﬁ rms were

not willing to hire a woman to be an attorney.

Women in law ﬁ rms generally worked only in sec-

retarial and administrative positions. Given her

training and intellectual capabilities, O’Connor

continued searching for a position as an attorney.

She turned to a district attorney in San Mateo

County, California, who had previously hired a

female attorney, and she sought any position as an

attorney. The district attorney gave her an attor-

ney position, even though it was unpaid initially.

In this position, O’Connor found that she loved

being a lawyer and the fulﬁ llment of a career in

public service.

The following year, in 1953, O’Connor’s hus-

band John graduated from law school and took a

position with the army’s Judge Advocate General

Corps stationed in Frankfurt, Germany. Sandra

Day O’Connor went with her husband, but once

again found difﬁ culties gaining employment. In

Germany, she worked as a civilian lawyer with

the Quartermaster Corps. After a few years in

Germany, John O’Connor found a good job with

a large law firm in Phoenix, Arizona, in 1957.

Despite having higher grades and class ranking

than her husband, Sandra once again had dif-

ﬁ culties ﬁ nding a position and eventually ended

up forming her own law ﬁ rm with another person.

Within the ﬁ rst six years of living in Phoenix, the

O’Connors had three sons, and Sandra decided

to become a full-time mother and part-time vol-

unteer in 1962, when her second son was born.

In 1965, she decided to return to full-time legal

work and found a position in the Arizona attor-

ney general’s ofﬁ ce. After excelling in the attorney

general’s ofﬁ ce, she was appointed to the Arizona

state senate in 1969. Starting in 1974, she served

as a judge on the Maricopa County Superior

Court. Five years later, Governor Bruce Babbitt

appointed her to the Arizona Court of Appeals.

Associate Justice Sandra Day O’Connor (United

States Supreme Court)

O’Connor, Sandra Day 523

vi+904_EofUSConsti-v2.indd 523 3/20/09 2:17:57 PM

At a time when women faced many barriers in the

legal industry, she excelled and eventually earned

an appointment to the United States Supreme

Court.

When O’Connor became the ﬁ rst female justice,

the Court adopted the term “Justice” instead of

addressing each other as “Mr. Justice.” Observers

assumed that she would become one of the most

conservative members of the Court. As a justice

on the Supreme Court, she often voted with other

conservatives such as Chief Justice Rehnquist.

Generally, she opposed extending new rights to

those accused of committing crimes, and she was

also a reliable vote in supporting states rights and

federalism, such as in U

NITED STATES V. LOPEZ,

514 U.S. 549 (1995), seeking to place some lim-

its upon the ability of the federal government to

regulate states or tell them what to do. Over time,

O’Connor seemed to change or moderate her con-

servative views. For example, while in WEBSTER

V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 490

(1990), she voted to uphold some restrictions on

the use of state funds to provide for abortion

services, in PLANNED PARENTHOOD OF SOUTHEAST-

ERN PENNSYLVANIA V. CASEY, 505 U.S. 833 (1992),

she wrote the majority opinion reafﬁ rming ROE V.

WADE, 410 U.S. 113 (1973), afﬁ rming the right of

women to terminate pregnancies. Additionally, in

cases such as SHAW V. RENO, 509 U.S. 690 (1993),

she was very critical of the use of race in the draw-

ing of district lines, but in GRUTTER V. BOLLINGER,

539 U.S. 306 (2003), she wrote the majority opin-

ion afﬁ rming the use of race in a law school admis-

sions process in order to promote diversity. Finally,

while in BOY SCOUTS OF AMERICA V. DALE, 530 U.S.

640 (2000), she upheld the right of the Boy Scouts

to exclude a gay leader from their organization, in

LAWRENCE V. TEXAS, 539 U.S. 558 (2003), she wrote

a separate concurrence striking down, on equal

protection grounds, a state law that criminal-

ized consensual homosexual sodomy.

In her last couple of years on the Supreme

Court, Justice O’Connor became a critical swing

vote. With the Court often deadlocked 4-4

between liberals and conservatives, her ﬁ fth vote

was highly sought and generally decided the out-

come in the case.

After leaving the Court in 2006, she toured

the country speaking, and also served as a senior

judge in some lower federal court cases.

For more information: Maveety, Nancy. Jus-

tice Sandra Day O’Connor. New York: Rowman

& Littleﬁ eld Publishers, 1996; McFeatters, Ann

Carey. Sandra Day O’Connor: Justice in the Bal-

ance. Albuquerque: University of New Mexico,

2005.

—Carol Walker

Ogden v. Saunders 25 U.S. 213 (1827)

In Ogden v. Saunders, the Supreme Court upheld

a state bankruptcy law against claims that it vio-

lated the contract clause of the Constitution.

Article I, Section 10, Clause 1 of the Constitu-

tion states, “No State shall enter into any Treaty,

Alliance, or Confederation; grant Letters of

Marque and Reprisal; coin Money; emit Bills

of Credit; make any Thing but gold and silver Coin

a Tender in Payment of Debts; pass any bill of

attainder, ex post facto Law, or Law impairing

the Obligation of Contract, or grant any Title of

Nobility.” Article I, Section 8, Clause 4 notes that

Congress has the power “to establish an uniform

Rule of Naturalization, and uniform laws on the

subject of Bankruptcies throughout the United

States.” Ogden v. Saunders focuses on portions

of these two sections—the issue of making laws

“impairing the Obligation of Contracts” and laws

on the subject of bankruptcies. This case involved

a citizen of Kentucky named Saunders who was

suing a Louisiana citizen named Ogden over a

contract dispute. Ogden had been a resident of

Louisiana when the two agreed to the contract.

Ogden subsequently moved to New York. Saun-

ders claimed in the suit that Ogden had not made

payment on the obligation. Ogden, as a resident of

New York, claimed bankruptcy as his defense on

an 1801 New York bankruptcy law.

In a 4-3 decision, Justice Washington, in his

discussion of the case, posed an intriguing ques-

tion. The first and most important point to be

decided in this cause turns essentially upon the

question whether the obligation of a contract is

524 Ogden v. Saunders

vi+904_EofUSConsti-v2.indd 524 3/20/09 2:17:58 PM

impaired by a state bankruptcy law or insolvent

law, which discharges the person from his liability

under a contract entered into in that state after

the passage of the act.

The key question here was whether Congress

had the sole power to pass bankruptcy laws, which

hinged on what was meant by the phrase regard-

ing the enactment of laws “impairing the Obli-

gation of Contracts.” The Court found that the

New York law was not in violation of the contract

clause contained in the U.S. Constitution. In other

words, for any contract that is made after the

enactment of a bankruptcy law, any obligations set

forth in the contract are subject to the provisions

of that law. In other words, once a bankruptcy law

is enacted, that law becomes part of any contract

that is entered into after the date of enactment.

However, even though the Court upheld the legal-

ity of the 1801 New York law, it restricted its appli-

cability to the state in which the law was enacted.

For more information: Hall, Kermit L., and

Kevin T. McGuire, eds. The Judicial Branch. New

York: Oxford University Press, 2005.

—Dan Krejci

Olmstead v. United States 277 U.S. 438

(1928)

In Olmstead v. United States, the Court ruled that

using evidence from wiretaps without a warrant

is not an illegal search and seizure violating the

Fourth Amendment. This decision promotes

the physical trespass theory, which says that the

Fourth Amendment prevents the government only

from physically seizing tangible items, not intan-

gible items like conversations. Forty years later,

the Court overruled Olmstead in Katz v. United

States, 389 U.S. 347 (1967).

Roy Olmstead was a successful bootlegger who

was indicted and convicted for importing and sell-

ing liquor during Prohibition. At his trial, pros-

ecutors introduced incriminating evidence from

wiretaps placed on Olmstead’s and his partner’s

telephone lines without a warrant. Olmstead

unsuccessfully sought to exclude this evidence

on the grounds that it was an illegal search and

seizure under the Fourth Amendment and that

it violated his Fifth Amendment right against

self-incrimination. The appellate court

afﬁ rmed the conviction, and the Supreme Court

upheld wiretapping in a 5-4 decision.

Writing for the majority, Chief Justice Taft

promoted the physical trespass theory, which says

that the Fourth Amendment protects only tan-

gible things such as houses, persons, papers, etc.,

from physical intrusion and literal seizure. Since

the police did not enter the house or ofﬁ ce of the

accused and they cannot seize the spoken word,

there was no search and no seizure. The police

simply tapped lines outside the house and wrote

down the conversations they heard, making the

wiretap the equivalent of overhearing a conversa-

tion in public. Moreover, since there was no illegal

search, there was no Fifth Amendment violation

against self-incrimination.

In dissent, Justice Brandeis objected to the lit-

eral interpretation of the Constitution, claiming

that constitutional doctrine must change as tech-

nology changes. He believed that physical intru-

sion and seizure is immaterial, because the Fourth

Amendment protects against “every unjustiﬁ able

intrusion by the government upon the privacy of

the individual.” Wiretapping violated Olmstead’s

privacy, and the evidence should be thrown out.

In a separate dissent, Justice Butler used a lit-

eral approach infused with property rights prin-

ciples to protect the conversations. He claimed

that the parties on the phone own their conversa-

tion, because the wires belong solely to the par-

ties communicating at that time. Thus, any seizure

violates the Fourth Amendment.

In response to this decision, Congress prohib-

ited the warrantless wiretapping of telephones and

telegraphs by passing the Federal Communica-

tions Act in 1934. However, the physical trespass

theory still allowed the police to intercept conver-

sations by listening through walls as long as they

did not physically invade the individual’s home or

ofﬁ ce. Eventually, the Supreme Court replaced

the physical intrusion standard with the “reason-

able expectation of privacy” standard in Katz,

providing greater protection to persons, conversa-

tions, homes, businesses, papers, etc.

Olmstead v. United States 525

vi+904_EofUSConsti-v2.indd 525 3/20/09 2:17:58 PM

For more information: Difﬁ e, Whitﬁ eld, and

Susan Landau. Privacy on the Line: The Politics of

Wiretapping and Encryption. Cambridge, Mass.:

MIT Press, 1998; Kerr, Orin S. “The Fourth

Amendment and New Technologies: Constitu-

tional Myths and the Case for Caution.” Michigan

Law Review 102 (March 2004): 801–888.

—Sean Evans

one person, one vote

“One person, one vote” is a voting principle that

emphasizes political equality which was ﬁ rst pro-

nounced as a constitutional rule by the Supreme

Court in REYNOLDS V. SIMS, 377 U.S. 533 (1964).

It gives assurance to citizens that their political

preference is equal in weight to those of all oth-

ers. Such equality is politically fair, because it

preserves the core ideal of universal suffrage by

incorporating the respect due, and the responsi-

bilities owed, to each citizen in a democracy.

In the United States, the concept of one per-

son, one vote originates from two sources: the

Constitution and the Supreme Court’s articula-

tion of relevant constitutional provisions. First,

from the Constitution, the concept of one person,

one vote is drawn from Article I, Section 2 and

the Fourteenth Amendment equal protec-

tion clause. While the Constitution states that

congressional apportionment of “representatives

and direct taxes shall be apportioned among the

several states . . . according to their respective

numbers,” the equal protection clause has been

the source of making the one person, one vote

principle applicable to states, since the Constitu-

tion vests primary responsibility to allocate leg-

islative districts to states. Second, in American

constitutional law and the politics of representa-

tion, the Supreme Court has been instrumental in

making the one person, one vote principle a cur-

rency in political conversations. It has done so in

a series of landmark decisions rendered between

1960 and 1969 that challenged serious population

inequities on how congressional and state district-

ing were drawn.

Prior to 1960, the Supreme Court did not show

much interest in reviewing state districting and

apportionment practices despite serious com-

plaints of population inequality in congressional

and state legislative districts. Before then, the

Supreme Court had ruled only in one case that

issues of state legislative apportionments were

political questions not appropriate for judicial

resolution. Its position on this matter is reﬂ ected

in the plurality opinion in C

OLEGROVE V. GREEN

(1946), a case in which members of the Illinois

electorate challenged provisions of Illinois law

governing the apportionment of congressional

districts. Illinois voters claimed that, due to sub-

sequent changes in population, the congressional

districts for the election of representatives lacked

approximate equality of population. Three mem-

bers of that Court agreed that equal protection

required the election of congressmen from dis-

tricts that were generally equal in population. Jus-

tice Frankfurter wrote for the 4-3 undermanned

Court majority decision, where he warned against

the judiciary entering a “political thicket” of con-

gressional districting. He viewed the case as one

that did not present justiciable questions. Accord-

ingly, “the basis for the suit is not a private wrong,

but a wrong suffered by Illinois as a polity,”

Frankfurter wrote, and “the remedy for unfair-

ness in districting is to secure State legislatures

that will apportion properly, or invoke the ample

powers of Congress.”

Sixteen years later, the Supreme Court surpris-

ingly entered the very political thicket it previ-

ously deemed not to present justiciable questions

in 1946. Reversing Colegrove in a 6-2 decision in

BAKER V. CARR, 369 U.S. 186 (1962), the Court held

that apportionment issues were indeed reviewable

under the Fourteenth Amendment. More speciﬁ -

cally, that “the mere fact the suit seeks protection

of political right does not mean that it presents a

political question.” This decision reﬂ ected a sig-

niﬁ cant change in the Court’s jurisprudence and

a new development that facilitated the application

of the equality principle of one person, one vote in

subsequent cases. As exempliﬁ ed in Gray v. Sand-

ers (1963), Wesberry v. Sanders (1964), Reynolds

v. Sims (1964), and Kirkpatrick v. Preisler (1969)

discussed below, the principle of one person, one

vote would emerge as a fundamental political

526 one person, one vote

vi+904_EofUSConsti-v2.indd 526 3/20/09 2:17:58 PM

right, empowering citizens to partake in the pro-

cess of self-government.

Pioneering this principle in an 8-1 decision

in Gray v. Sanders, 372 U.S. 368 (1963), the

Supreme Court assuredly equated the concept of

political equality to one person, one vote. The case

involved Georgia’s notorious county unit system

of nominating candidates to statewide ofﬁ ces in

which each county was assigned a unit vote that

had little relation to its population. Invalidating

Georgia’s congressional districts on the grounds

of population inequality, the Court declared that

“[t]he conception of political equality from the

Declaration of Independence, to Lincoln’s

Gettysburg Address, to the Fifteenth, Seven-

teenth, and Nineteenth Amendments can

mean only one thing—one person, one vote.” Said

the Court, “Once the geographical unit for which

a representative is to be chosen is designated, all

who participate in the election are to have an equal

vote—whatever their race, whatever their sex,

whatever their occupation, whatever their income,

and wherever their home may be in the geographi-

cal unit. This is required by the Equal Protection

Clause of the Fourteenth Amendment.” While

the case dealt with the weight of a person’s vote

within a previously designated geographical unit,

the principle of “one person, one vote” announced

would later be extended to subsequent cases exam-

ining constitutional challenges of congressional

redistricting (Wesberry, 1964) and congressional

and state legislative redistricting (Reynolds, 1964).

In these two cases, the Court established deﬁ ni-

tively that the United States Constitution imposed

a fundamental requirement on those charged with

congressional and state legislative redistricting to

approximate their population as “practicable” or

make them as “substantially” equal relative to the

population as possible.

Wesberry v. Sanders, 376 U.S. 1 (1964), was

the next case in the Court’s development of the

one person, one vote criterion. It involved a con-

gressional redistricting in the state of Georgia.

Citing the principle articulated a year before in

Gray as authority in a 6-3 decision, the Court

ordered that districts in Georgia be redrawn more

evenly. Holding that gross disparities in Georgia’s

congressional districts were a violation of the U.S.

Constitution, the Court concluded that “Article I,

Section 2 of the Constitution requires that rep-

resentatives shall be chosen by the people of the

several states” and be “apportioned among the

several States . . . according to their respective

Numbers.” Although in this case the Court recog-

nized the impossibility of drawing congressional

districts with mathematical precision, its dictum

revealed the expectation that “as nearly as is prac-

ticable one man’s vote in a congressional election

is to be worth as much as another’s.” Emphasiz-

ing the importance for a universally fair system of

election that incorporates the respect due and the

responsibilities owed to each citizen, the Court

observed further that “no right is more precious

in a free country than that of having a voice in the

election of those who make the laws under which,

as good citizens, we must live.” Other rights, even

the most basic, the Court added, “are illusory if

the right to vote is undermined.”

In Reynolds v. Sims (1964), a related case

decided four months after Wesberry but this time

focusing on state legislative districts alone, the

Supreme Court held that both houses of a state

legislature must be apportioned on the basis of

population equality and that “population” will

hence be the controlling factor in the construc-

tion of legislative districts. Upholding a lower

court decision invalidating Alabama’s legislative

apportionment, the Court observed that the equal

protection clause of the Fourteenth Amendment

requires that a state make an honest and good-

faith effort to construct districts, in both houses

of its legislature, as nearly equal in population as is

practicable. Put differently, the apportionment of

seats and boundary for legislative districts for both

houses of state legislatures had to be arranged so

that the number of inhabitants per legislator in

any one district is substantially equal or roughly

equal to the number of inhabitants per legislator

in any other district in the same state. Indeed, in

Baker v. Carr (1960), a case that in hindsight set

the stage for the development of the concept of

one person, one vote, the Supreme Court also held

that issues relative to state legislative apportion-

ment were appropriate for judicial review.

one person, one vote 527

vi+904_EofUSConsti-v2.indd 527 3/20/09 2:17:59 PM

Until Kirkpatrick v. Preisler, 394 U.S. 526

(1969), a case that challenged a Missouri con-

gressional redistricting plan, there were no clear

standards to achieve the one person, one vote

objectives clearly stated in previous cases. Surely,

Gray, Wesberry, and Reynolds strove to end the

pattern of gross rural overrepresentation and

urban underrepresentation. However, the conclu-

sion that emerged from these cases was that the

principle of proportionality should be practiced

in the strictest way possible to achieve political

equality. But how? The answer was at best unclear,

and perhaps was made deliberately so.

In announcing the one person, one vote rule in

June 1964, the Court left a considerable amount

of flexibility to the lower courts in working out

standards so long as population equality was the

general pattern. Reﬁ ning that rule for Missouri’s

congressional redistricting plan in Kirkpatrick,

the Supreme Court held that states are required

to “come as nearly as practicable to population

equality,” provided that doing so (a) does not

offend the principle of one person, one vote; and

(b) so long as the ratio of representatives to vot-

ers remain equal. Article I, Section 2, the Court

reasoned, requires states to create congressional

districts that provide equal representation for

equal numbers of people with possible minimum

population variances that are unavoidable, despite

good-faith effort and for which a compelling justi-

ﬁ cation can be presented.

In the Court’s view, setting an acceptable mini-

mum range is arbitrary and inconsistent with the

“as nearly as practicable” standard—a rule more

likely to encourage legislators to strive for the min-

imum rather than promote equality. The Court

concluded that even where population variances

among the districts were shown to be unavoidable

despite a state’s good-faith effort to achieve popu-

lation equality, the state must justify each varia-

tion, no matter its size. Lastly, for each contested

redistricting plan to prevail, states must prove that

the population deviation at issue is necessary to

achieve a legitimate state objective.

In Karcher v. Daggett, 462 U.S. 725 (1983), the

Supreme Court went further than before to pro-

vide needed clarity. It placed the burden on states

relative to any contested redistricting scheme that

undermines the one person, one vote principle

or political equality. Speciﬁ cally, the Court con-

cluded that:

States must show with some speciﬁ city that a par-

ticular objective requires the speciﬁ c deviations

in its plan, rather than simply relying on general

assertions. The showing required to justify popu-

lation deviation is ﬂ exible, depending on the size

of the deviations, the importance of the State’s

interests, the consistency with which the plan as

a whole reﬂ ects those interests, and the availabil-

ity of alternatives that might substantively vindi-

cate those interests yet approximate population

equality more closely.

States must show with clear speciﬁ city, rather than

make generalized assertions, the objective they

intend to accomplish for each deviation in their

apportionment and redistricting plans.

The overall effect of the Supreme Court’s reap-

portionment decisions from the 1960s is that they

altered forever the substantive nature of political

representation in the United States. They created

more equity in congressional and state legislative

districting and apportionments by requiring that

states alter their priorities to make the political

process fair and more inclusive. To be sure, the

principle of one person, one vote as developed so

far remains fundamentally one that assures all vot-

ers the right to cast a theoretically equal ballot.

However, to the extent that it matters, it allows

the vote of each citizen to exert an equal inﬂ uence

on the forming of representation regardless of the

constituency in which the citizen votes.

Thus, where the right to vote has been

restricted, the principle is used to advocate uni-

versal suffrage, thereby broadening the electoral

base to include everyone, particularly minorities

and all others who are disenfranchised. Support

for a wide and more equal participation in the

political systems also meant steadfast opposition

to voting schemes that undermined the integrity

of electoral systems. For example, the theoretical

right to vote cannot be realized under electoral

schemes that allow “winner-take-all districts,”

528 one person, one vote

vi+904_EofUSConsti-v2.indd 528 3/20/09 2:17:59 PM

since widespread use of such districts undermines

the validity of votes cast by citizens.

Lastly, within representative political sys-

tems such as the United States, the concept of

one person, one vote is often linked to calls for

more direct democracy, where representatives

are selected through electoral schemes hinged on

making equal representation for equal numbers of

people. Although historically contested, this view

is now settled in American constitutional law and

the Supreme Court’s interpretation of relevant

constitutional provisions. Today, any understand-

ing at odds with Article I, Section 2 and the

equal protection clause that connotes anything

other than one person, one vote is unconvincing.

The Court has said this much, clearly, in its deci-

sions from the early 1960s.

For more information: Bybee, Keith J. Mistaken

Identity: The Supreme Court and the Politics of

Minority Representation. Princeton, N.J.: Princ-

eton University Press, 1998; Dixon, Robert. “The

Court, the People Voting and One Man One Vote.”

In Reapportionment in the 1970s Rights. Berkeley

and Los Angeles, Calif.: University of California

Press, 1971; Grofman, Bernard, and Chandler

Davidson, eds. Controversy in Minority Voting:

The Voting Rights Act in Perspective. Washington,

D.C.: Brookings Institute, 1992; Guinier, C. Lani.

“[E]racing Democracy: The Voting Rights Cases.”

Harvard Law Review 108 (1994): 109–137; Levin-

son, Sanford. “Gerrymandering and the Brooding

Omnipresence of Proportional Representation:

Why Won’t It Go Away?” UCLA Law Review 33

(1985): 257–281.

—Marc G. Pufong

original jurisdiction

Original jurisdiction refers to cases that Article

III of the U.S. Constitution gives to the

Supreme Court to hear directly and not on appeal.

These cases include disputes involving ambassa-

dors and where states are parties, among other

types of cases. Cases on original jurisdiction are

far less than 1 percent of all the cases the Court

hears.

The United States Constitution provides

original and appellate jurisdictional rules under

Article III, and Congress has several important

jurisdictional powers. The Constitution provides

the federal courts with original jurisdiction in

Article III. Section 2 provides that the Supreme

Court has original jurisdiction “in cases affecting

ambassadors, other public ministers and consuls,

and those in which a state shall be a party.” The

Supreme Court usually hears cases upon appel-

late review from a lower federal court or a state

supreme court. The cases or controversies listed

in Article III, Section 2 allow for petitioners to

bypass lower courts and have the Supreme Court

hear the dispute from the ﬁ rst instance. The Judi-

ciary Act of 1789 outlined original jurisdiction

and allowed the Court to have original and exclu-

sive jurisdiction in disputes between states. For all

other Section 2 disputes, the Court has original

but concurrent jurisdiction.

When the Supreme Court hears an original

jurisdiction case, it acts similarly to a trial court.

The chief justice appoints a special master to hear

evidence and compose factual ﬁ ndings. The Court

will issue an opinion after reviewing the report of

the special master and hearing oral arguments.

The Court treats the report of the special master

in a similar fashion as it does an appealed lower

court ruling, and procedurally issues a ﬁ nal opin-

ion in the case as accepting, modifying, or reject-

ing the recommendations of the special master as

reported. Unlike other disputes, original jurisdic-

tion cases offer no opportunity for appeal, because

the United States Supreme Court is the highest

judicial authority.

Chief Justice John Marshall gave the ﬁ rst

interpretation of original jurisdiction for the Court

in MARBURY V. MADISON, 5 U.S. 137 (1803), and in

the majority opinion he outlined that original juris-

diction could not be enlarged or restricted by Con-

gress. Original jurisdiction has limited fungibility

with regard to jurisdictional questions. As legal

scholar Herbert Johnson has noted, “Unfortunately

for Marbury, the Constitution does not give this

original jurisdiction to the Supreme Court, and the

question then becomes whether Congress can do

so in the absence of a constitutional grant.”

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In the case of Utah v. United States, 394 U.S.

89 (1969), the Court restricted its own origi-

nal jurisdiction powers in a per curiam opinion

by stating, “Our original jurisdiction should be

invoked sparingly.” The Court has also explained

that original jurisdiction is not a mandate on the

Supreme Court to hear every case involving a dis-

pute between two states. In Texas v. New Mexico,

462 U.S. 554 (1983), Justice William J. Bren-

nan, Jr. explained the unanimous opinion of

the Court and offered this statement: “We have

consistently interpreted 28 U.S.C. 1251(a) as pro-

viding us with substantial discretion to make case-

by-case judgments as to the practical necessity

of an original forum in this Court for particular

disputes within our constitutional original juris-

diction.” The standard for accepting original juris-

diction cases was determined in Illinois v. City

of Milwaukee, 406 U.S. 91, 93 (1972), where the

Court decided the appropriateness of the claim by

examining (1) the “seriousness and dignity of the

claim” and (2) the “availability of another forum

where there is jurisdiction over the named par-

ties, where the issues tendered may be litigated,

and where appropriate relief may be had.” If relief

can be provided in another forum, then the Court

has routinely refused to hear original jurisdiction

cases to “avoid impairing its ability to administer

its appellate docket.”

For more information: Johnson, Herbert. Amer-

ican Legal and Constitutional History. London:

Austin & Winfield, 1994; Marbach, Joseph R.,

Ellis Katz, and Troy E. Smith, eds. Federalism in

America. Westport, Conn.: Greenwood Publish-

ing, 2005; Wood, Gordon. The Creation of the

American Republic 1776–1787. New York: W.W.

Norton & Co., 1969.

—Michael W. Hail and Brian Weber

original package doctrine

The original package doctrine was one rule

fashioned by the Supreme Court to determine

if states could regulate the shipment of goods

without violating the commerce clause. The

doctrine, although it is no longer used, was ﬁ rst

pronounced in Brown v. Maryland, 12 Wheat

419 (1827).

The Constitution of the United States granted

Congress the power to regulate commerce with

foreign nations, the Indian tribes, and between

the states (Article I, Section 8, Paragraph 3). It

also gave to Congress the power to supervise the

importing and exporting of goods (Article I, Sec-

tion 10) and forbade states from taxing imported

goods without congressional approval.

In Brown v. Maryland, the Maryland state

legislature had enacted a law that required all

importers to spend $50 for a license before they

could handle or sell foreign articles or commodi-

ties. In contrast, no such license fee was required

of merchants handling only domestic goods. Alex-

ander Brown and other importers refused to pay

the license fee. He and the other importers took

the $100 ﬁ ne to the Court of Appeals of Maryland

and then to the United States Supreme Court.

Chief Justice John Marshall delivered the

Court’s opinion. He reasoned that Maryland had

every right to tax goods that had become commin-

gled with domestic goods. However, as long as the

goods were in their original package in the ware-

house of the importer and still the property of the

importer, they could not be taxed, because the tax

would be a duty on imports, speciﬁ cally forbidden

by the Constitution.

In Leisy v. Hardin, 135 U.S. 100 (1890), the

Court ruled that goods in interstate shipments

could not be regulated by a state until the original

package had been delivered to the consignee and

the original package had been broken open.

The Court used the original package doctrine

to prevent the states from imposing an ad valorem

tax on imported goods and on goods imported

from one state into another in domestic inter-

state commerce. When “dry” states tried to

prevent the importation of alcohol into their bor-

ders, they were blocked by the original package

doctrine, which viewed liquor as still in interstate

commerce even though being consumed locally

out of its original container.

Beginning in the 1940s, the Supreme Court

began to limit the scope of the doctrine. By

the 1950s, it allowed states to tax raw materials

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imported for manufacturing, arguing that they

immediately became an essential part of the

manufacturing process. In Michelin Tire Corp.

v. Wages, 423 U.S. 276 (1976), the Court allowed

Gwinnett County, Georgia, to tax goods imported

from France and Nova Scotia, even though still

in their original packages. In Limbach v. Hooven

& Allison Co., 466 U.S. 352 (1984), the Court

expressly announced the death of the original

package doctrine. It allowed Ohio to impose a tax

on imported ﬁ bers used for tire cordage even when

stored in their original package, before the pack-

age was opened for spinning into tire cordage.

For more information: Corwin, Edward S. The

Commerce Power Versus States’ Rights. Princeton,

N.J.: Princeton University Press and London: H.

Milford, Oxford University Press, 1936; Ribble, F.

D. G. State and National Power over Commerce.

New York: Columbia University Press, 1937.

—Andrew J. Waskey

overbreadth doctrine

The overbreadth doctrine is a legal concept used

to evaluate laws that may restrict First Amend-

ment free speech rights.

The Supreme Court has used the overbreadth

doctrine in cases to overturn laws that hinder free

expression of ideas. The overbreadth doctrine, on

the surface, appears simplistic in nature, yet is

rather ingenious in its application. This doctrine

stipulates that if a law is written in an overbroad

fashion, then the law faces the possibility of being

overturned, even if the law, according to Black’s

Law Dictionary, “prohibits acts that may legiti-

mately be forbidden.” Two cases provide exam-

ples of how the Court applies the overbreadth

doctrine.

The ﬁ rst case is BROADRICK V. OKLAHOMA, 413

U.S. 601 (1973). This case involved three appel-

lants who were employees of the state of Okla-

homa. The state of Oklahoma ﬁ led charges against

these state employees for violating Section 818 of

the Oklahoma Merit System of Personnel Admin-

istration Act. According to Paragraph 6 of this act,

no classiﬁ ed state employee “shall directly or indi-

rectly, solicit, receive, or in any manner be con-

cerned in soliciting or receiving any assessment

. . . or contribution for any political organization,

candidacy or other political purpose.” Paragraph 7

of this act states that no employee shall be a mem-

ber of “any national, state or local committee of a

political party.” In other words, an Oklahoma state

employee may not be involved in politics “except

to exercise his right as a citizen privately to express

his opinion and . . . vote.”

In a 5-4 decision, written by Justice White, the

Court upheld the law under the First Amendment

of the Constitution. The Court noted:

Although such laws, if too broadly worded, may

deter protected speech to some unknown extent,

there comes a point where that effect—at best

a prediction—cannot, with conﬁ dence, justify

invalidating a statute on its face and so prohib-

iting a State from enforcing the statute against

conduct that is admittedly within its power to

proscribe. To put the matter another way, par-

ticularly where conduct and not merely speech

is involved, we believe that the overbreadth

[emphasis added] of a statute must not only be

real, but substantial as well, judged in relation

to the statute’s plainly legitimate sweep. It is our

view that 818 is not substantially overboard and

that whatever overbreadth may exist should be

cured through case-by-case analysis of the fact

situations to which its sanctions, assertedly, may

not be applied.

The Court stressed two key points to this doctrine

of overbreadth. A law that focuses on conduct and

not mere speech must (1) be real and (2) be sub-

stantial. In this case, the Court determined that

the law focused on conduct and not merely speech

and that the law was not substantial enough to

be overbroad. However, the Court appears to

have left the issue open with the comment “that

whatever overbreadth may exist should be cured

through case-by-case analysis.”

The second case, Board of Airport Com-

missioners v. Jews for Jesus, Inc., 482 U.S. 569

(1987), revolved around a resolution that had been

adopted by the Board of Airport Commissioners

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