Schultz D. Encyclopedia of the United States Constitution

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use, or sell an invention for a speciﬁ c period of

time, generally 20 years—essentially a monopoly

over the invention for a limited time.

In the United States, Congress is given the

power by the United States Constitution, Article

I, Section 8, Clause 8, to grant rights to inven-

tors to “promote the progress of science and use-

ful arts, by securing for limited times to authors

and inventors the exclusive right to their respec-

tive writings and discoveries.” The United States

Patent and Trademark Ofﬁ ce is the agency of the

United States Department of Commerce charged

with the duty of examining patent applications.

There, patent examiners ensure that each patent

application meets with all of the requirements of

the United States Patent Act.

There are three types of patents available in

the United States: utility, design, and plant pat-

ents. The Patent Act, codiﬁ ed in 35 United States

Code §101 et al., deﬁ nes patentable subject matter

for a utility patent and requires that the invention

be useful, novel, and nonobvious.

In order for a patent application to progress

to a patent, the invention must be useful or have

utility. Such utility needs only to be sufficient

to convince one skilled in the art or technology

that the invention has the inventor’s asserted util-

ity (In re Brana, 51 F.3d 1560 [Fed. Cir. 1995]).

An invention claimed in a patent must be new or

novel at the time of invention, meaning, among

other requirements, that the invention was not

known or used by others in the United States or

described in a printed publication anywhere in

the world (35 U.S.C §102). An invention that is not

novel is described as anticipated by the art. Even

if the invention is not anticipated at the time of

invention, the subject matter of the application as

a whole must not be such that it would have been

obvious to a person having ordinary skill in the art

or technology (35 U.S.C §103).

The United States patent system deﬁ nes rights

on a first-to-invent basis, as opposed to almost

entirely the rest of the world, which uses a ﬁ rst-

to-ﬁ le basis. Courts have interpreted the concept

of invention to include conception, diligence, and

reduction to practice (Marhurkar v. C.R. Bard,

Inc., 79 F.3d 1572, 1577 [Fed. Cir. 1996]). If an

inventor works with reasonable diligence to actu-

ally demonstrate that the invention is suitable for

its intended purpose (reduction to practice), then

the inventor may establish rights back to the date

that he or she had such a fully formed thought

(conception) that such thought only need be con-

structed (Brown et al. v. Barbacid et al., 436 F.3d

1376 [Fed. Cir. 2006]).

The Patent Act allows inventors to seek protec-

tion for “any new, original, and ornamental design

for an article of manufacture” (35 U.S.C. §171).

Also, one who “invents or discovers and asexually

reproduces any distinct and new variety of plant”

may be entitled to protection of such as a plant

patent (35 U.S.C. 161).

Philosophical bases for the grant of a patent

include that an inventor is entitled to the fruits of

his or her intellectual labor and that the grant of

such a monopoly fosters technological innovation.

For more information: Durham, Alan L. Pat-

ent Law Essentials: A Concise Guide. Westport,

Conn.: Praeger Press, 2005.

—Nathan H. Cristler

PATRIOT Act (USA PATRIOT Act)

The PATRIOT Act refers to a law and its subse-

quent reauthorization in 2006 that was enacted

to detect terrorist activity after the events of 9/11.

While many believe the act is an important tool

to enhance American security, others argue that

portions of it violate the Constitution.

On September 11, 2001, al-Qaeda terrorists

hijacked four commercial airplanes, using them

to attack the United States, ending in a huge loss

of life and numerous injuries. In the weeks fol-

lowing the terrorist attacks, the U.S. government

took several steps—proactive and preventive mea-

sures—to avoid a repeat of the terrible events that

occurred on September 11.

In addition to providing the president with

unprecedented authorization in the ﬁ ght against

terrorism, Congress took steps to provide law

enforcement and intelligence agencies with

expanded powers for countering terrorist activi-

ties against the United States, both within the

542 PATRIOT Act

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country and abroad. One of the most visible and

perhaps controversial steps taken by Congress was

the passage of the PATRIOT Act, signed into law

by the president on October 26, 2001, only 45 days

after the terrorist attacks in New York and Wash-

ington, D.C.

The Uniting Strengthening America by Provid-

ing Appropriate Tools Required to Intercept and

Obstruct Terrorism Act of 2001 (Public Law 107-

56), more commonly known as the PATRIOT Act,

originated in the House of Representatives as

Bill H.R. 2975 (the PATRIOT Act) and in the Sen-

ate as S. 1510 (the USA Act). These bills passed

through both houses in the early half of Octo-

ber 2001. Due to some unresolved discrepancies

between the original text and previous legislation

on money laundering and intelligence gathering,

the House subsequently passed a clean bill H.R.

3162 on October 24, 2001, incorporating changes

that expanded and amended the previously passed

Foreign Intelligence Surveillance Act

(FISA) of 1978, and also passed on October 26,

2001, the Financial Anti-Terrorism Act. The Sen-

ate agreed to the changes with only one dissenting

voice (Senator Russ Feingold, D-Wisconsin) and

one nonvoting member (Senator Mary Landrieu,

D-Louisiana). The bill was then sent to the presi-

dent and signed into law on October 26, 2001.

In particular, the PATRIOT Act provided

federal ofﬁ cials with sweeping powers for track-

ing and intercepting communications for law

enforcement and intelligence-gathering purposes.

It seeks to close off American borders to foreign

terrorists, to detain and remove those terrorists

already within our borders, and to shut down their

ﬁ nancial resources with expanded money launder-

ing powers. The PATRIOT Act has created new

procedures, penalties, and deﬁ nitions of crimes

to combat domestic and international terrorism.

Despite garnering majority support and quick pas-

sage through Congress, the act was surrounded by

controversy, with those supporting it claiming that

the provisions have not gone far enough to ensure

the United States is protected from future terror-

ist acts. Opponents have argued against the act

on the grounds that it treads heavily on citizens’

civil liberties in the ﬁ ght against terrorism.

For example, the PATRIOT Act has eased gov-

ernment access to conﬁ dential information and

authorizes so-called sneak-and-peak search war-

rants to be issued for “reasonable cause” rather

than “probable cause.” However, there were also

a number of safeguards included within the text

of the act, specifying notification periods and

requirement of authorization for particular provi-

sions on surveillance, wiretaps, and the issuance

of warrants. These safeguards also included pro-

viding additional review, clariﬁ cation, and public

reporting, as checks built into the reforms to avoid

actual or perceived abuse of power.

Due to the impact the act would have on indi-

vidual liberties and the sweeping reforms it imple-

ments, a sunset clause was added, requiring that

Congress take active steps to reassess the act after

its implementation and testing over time. Several

of the surveillance sections of the original act

would have expired on December 31, 2005, but

these were extended until March 10, 2006. Con-

gress reauthorized the PATRIOT Act without

much reform, with President Bush signing it into

law on March 9, 2006, a day before the exten-

sion was due to expire. The reauthorized act has

included a four-year sunset clause on three speciﬁ c

provisions covering attainment of records (such as

library records), use of wiretaps to monitor com-

munications, and secret surveillance of non-U.S.

citizens within the country—all without probable

cause or suspicion—an important reform with

regard to protection of civil liberties and First

Amendment rights.

Although the PATRIOT Act has had a large

impact on First Amendment rights and civil liber-

ties since its passage in 2001, the debate surround-

ing it has also expanded over the past four years

about the balance between security and preemp-

tive measures for combating terrorism versus pro-

tection of individual rights. This is perhaps most

evident in the fact that while only one senator

voted against the original PATRIOT Act in 2001,

during Senate debate in mid-December 2005, a

bipartisan group of 52 senators filibustered the

reauthorization. In the end, 10 senators opposed

the reauthorization of the PATRIOT Act without

substantial reform in early 2006. Moreover, the

PATRIOT Act 543

vi+904_EofUSConsti-v2.indd 543 3/20/09 2:18:03 PM

American Civil Liberties Union has tried

to challenge the act in court, claiming it violates

either the First Amendment freedom of speech

clause or the Fourth Amendment’s protec-

tion against unreasonable searches and seizures.

While some district courts have ruled in favor of

the ACLU, appellate courts have either thrown

the suits out or refused to rule on the issues. For

the most part, core challenges to the PATRIOT

Act have faced mixed success.

For more information: Abdolian, Lisa Finnegan,

and Harold Takooshian. “The USA PATRIOT Act:

Civil Liberties, the Media, and Public Opinion.”

Fordham Urban Law Journal 30 (May 2003):

1,429–1,453; Cole, David. “The Priority of Moral-

ity: The Emergency Constitution’s Blind Spot.”

Yale Law Journal 113 (June 2004): 1,753–1,800;

Etzioni, Amitai. How Patriotic Is the Patriot Act?:

Freedom versus Security in the Age of Terrorism.

New York: Routledge, 2004; Gudridge, Patrick O.,

and Laurence H. Tribe. “The Anti-Emergency

Constitution.” Yale Law Journal 113 (June 2004):

1,801–1,870; Heymann, Philip B. “Civil Liberties

and Human Rights in the Aftermath of September

11.” Harvard Journal of Law & Public Policy 25

(Spring 2002): 441–456.

—Dale Mineshima-Lowe

Payne v. Tennessee 501 U.S. 111 (1991)

In Payne v. Tennessee, the United States Supreme

Court was asked to decide whether the cruel

and unusual punishment clause of the Eighth

Amendment to the United States Constitution

barred the introduction of victim impact testi-

mony during the sentencing phase of a death pen-

alty trial.

The Eighth Amendment states: “Excessive bail

shall not be required, nor excessive ﬁ nes imposed,

nor cruel and unusual punishments inflicted.”

Prior to the decision in Payne, in Booth v. Mary-

land, 482 U.S. 496 (1987), and Carolina v. Gath-

ers, 490 U.S. 805 (1989), the Supreme Court had

ruled that victim impact evidence—evidence

concerning a victim’s personal characteristics and

the emotional impact of the crime on the victim’s

family—could not be relied upon by the prosecu-

tion when seeking the death penalty, because it

would create an unacceptable risk that the jury

would impose an arbitrary and capricious death

sentence. In Payne, the Court revisited the issue,

overruled Booth and Gathers, and held that the

Eighth Amendment does not bar the introduction

of victim impact testimony.

The issue arose during the death penalty mur-

der trial of Purvis Payne. Payne brutally killed

a mother and her two-year-old daughter and

attempted to kill her three-year-old son, but the

son survived his wounds. After being found guilty,

Payne sought to mitigate his sentence with evi-

dence of his good personal characteristics. He

called his parents, his girlfriend, and a clinical psy-

chologist to testify that he was a docile, law-abid-

ing man of limited mental abilities who attended

church, did not use drugs and alcohol, and was

good with children. In rebuttal, the prosecution

called the surviving son’s grandmother to testify

about the emotional impact that the murders had

on the victim and his family. Then, during closing

arguments, the prosecutor relied upon that testi-

mony in asking the jury to impose a sentence of

death.

Payne challenged the admission of the vic-

tim impact testimony as a violation of the Eighth

Amendment’s prohibition against cruel and

unusual punishments, relying upon the Supreme

Court’s decisions in Booth and Gathers. However,

the Tennessee Supreme Court rejected Payne’s

claim, concluding that the impact of the crimes on

the surviving victim was relevant to determining

Payne’s blameworthiness and that any violation of

Payne’s constitutional rights was harmless beyond

a reasonable doubt. Thereafter, Payne sought

review in the United States Supreme Court.

The Supreme Court accepted the case in

order to reevaluate its prior decisions. Ultimately,

the court rejected the rule that had prohibited

the introduction of victim impact evidence. The

Court concluded that consideration of the nature

and extent of the harm caused by a particular

crime had always been included in the determi-

nation of the appropriate punishment for a par-

ticular crime. Moreover, the court rejected the

544 Payne v. Tennessee

vi+904_EofUSConsti-v2.indd 544 3/20/09 2:18:03 PM

premise of Booth and Gathers and concluded

that “a State may properly conclude that for the

jury to assess meaningfully the defendant’s moral

culpability and blameworthiness, it should have

before it at the sentencing phase evidence of

the speciﬁ c harm caused by the defendant.” In

reaching this decision, the Court recognized that

the prosecution has a legitimate interest in coun-

teracting the defendant’s mitigating evidence

with evidence about the individual character of

the victim and the impact of the crime on the

victim’s family. Accordingly, victim impact evi-

dence is an integral part of the jury’s sentencing

decision, and its admission does not violate the

Eighth Amendment’s cruel and unusual punish-

ment clause.

For more information: Coyne, Randall, and

Lyn Entzeroth. Capital Punishment and the Judi-

cial Process. Durham, N.C.: Carolina Academic

Press, 2006.

—Mark A. Fulks

Penn, William (1644–1718) Quaker leader,

founder of Pennsylvania

William Penn, founder of the colony of Penn-

sylvania, symbol of religious tolerance, and an

inspirational ﬁ gure in the formation of the U.S.

Constitution, was born on October 14, 1644,

to a wealthy Anglican family living in London.

Although raised as an Anglican, Penn became

a Quaker when he was 22 years old, joining the

Religious Society of Friends. Penn’s conversion

alarmed his father, Admiral Sir William Penn,

whose military prowess had earned his family

fame and extensive property in Ireland, not least

because his son’s new religious afﬁ liation did not

allow him to go to war.

Although Penn never went to war, he did get

into trouble with the law rather frequently as a

result of his religious convictions, nor was he able

to pursue his studies at Oxford. In London, the

Quakers drew the ire of the Lord Mayor for leading

Quaker meetings, resulting in numerous arrests,

but Penn was never convicted. During one of his

self-defended trials, Penn won a landmark case,

which established the precedent of jury nulliﬁ ca-

tion, freeing juries from the views of the judge.

Penn’s continued troubles and the persecution

of Quakers made him look across the Atlantic.

Some Quakers had already established themselves

in America but also faced hard treatment from

Puritans in the Massachusetts colony and in the

Caribbean. Penn, however, was able to negotiate a

land deal with King Charles II, because the king

needed to repay a loan made by Penn’s father. On

March 4, 1681, the king ofﬁ cially granted Penn

land west and south of New Jersey, along the Del-

aware River.

Quickly, Penn worked to assure that his colony

became a successful venture. He composed the

colony’s “Frame of Government” which estab-

lished a democratic governmental structure based

on representation, religious tolerance, and a fair

legal system. He publicized his colony throughout

Europe, attracting numbers of Dutch Quakers,

French Huguenots, and German Lutherans to his

promise of religious freedom.

Penn, William 545

This painting shows William Penn negotiating a

treaty with Native Americans.

(Library of Congress)

vi+904_EofUSConsti-v2.indd 545 3/20/09 2:18:03 PM

Beginning in 1682, Penn came to America and

established the plans for his capital city of Phila-

delphia. Soon after, he traveled inland, making

treaties with local Native American tribes and

even learning native languages. Penn’s treatment

of the Natives was unlike that of any other English

colony, leading to fair payment for the land, fair

trials in disputes between Natives and colonists,

and a lengthy period of peace. Additionally, Penn

received praise from European intellectuals like

Voltaire for his fair treatment of the Natives and

his religious-tolerance principle.

The colony developed rapidly, but Penn did

not earn enough money from his colony to pay

his debts in England (caused by mismanagement

by a ﬁ nancial adviser), forcing him to return to

England in 1684. He returned to America brieﬂ y

in 1699, but passed most of the remainder of his

life facing his economic difﬁ culties in England.

After suffering a stroke in 1712, Penn passed

away six years later in Ruscombe, England, as

a poor man. His accomplishments however,

inspired the Founding Fathers to build upon his

principles of religious tolerance and separation

of powers, ultimately espousing them in the U.S.

Constitution.

For more information: Kroll, Steven, and Ron-

ald Himler. William Penn: Founder of Pennsylva-

nia. New York: Holiday House, 2000; Soderlund,

Jean R. William Penn and the Founding of Penn-

sylvania: 1680–1684. Philadelphia: University of

Pennsylvania Press, 1983.

—Arthur Holst

Pennsylvania v. Nelson 350 U.S. 497 (1956)

In Pennsylvania v. Nelson, the Supreme Court

held by a 6-3 vote that federal antisedition leg-

islation preempted the prosecution of a commu-

nist under a state sedition law. The case aroused

great interest because, when Nelson was decided,

42 states had such laws. In addition, critics of the

Court’s school desegregation case, BROWN V.

BOARD OF EDUCATION, 347 U.S. 483 (1954), saw

Nelson as another instance of the Court’s intrud-

ing on states’ rights.

Steve Nelson, a Communist Party organizer,

was convicted of violating the Pennsylvania Sedi-

tion Act, which made it illegal to threaten the

overthrow of the federal government or of Penn-

sylvania’s government. The Pennsylvania Supreme

Court reversed on preemption grounds, point-

ing out that Nelson had not uttered a “single word

. . . against the Government of Pennsylvania.”

The United States Supreme Court affirmed.

Writing for the majority, Chief Justice Earl War-

ren noted the many federal laws targeting sedi-

tion, including the Smith Act (1940), the Internal

Security Act of 1950, and the Communist Control

Act (1954). Although none of these acts directly

excluded state prosecutions, taken together, they

demonstrated a congressional intent to “occupy

the field” of sedition law. Chief Justice Warren

added that state sedition laws posed “a serious

danger of conﬂ ict” with federal antisedition laws.

Here he drew on testimony from FBI director J.

Edgar Hoover, who—writing in 1940—stressed

the importance of “meeting the spy or saboteur”

with the “experienced men” of the FBI.

Chief Justice Warren pointed to another dan-

ger. Unlike the Smith Act, which left the power

to prosecute in the hands of government ofﬁ cials,

the Pennsylvania law let private individuals ﬁ le

charges. Other laws criminalized mere mem-

bership in subversive organizations—unlike the

Smith Act, which explicitly rejected this basis of

liability. The concern with the scope of sedition

laws foreshadowed Yates v. United States, 354

U.S. 298 (1957), which interpreted the Smith Act

narrowly to exclude statements that abstractly

advocated the overthrow of the government.

Justice Reed, joined by Justices Burton and

Minton, dissented. Justice Reed argued that none

of the laws passed by Congress explicitly rejected

state regulation of sedition. Nor should the court

preempt based on “[m]ere fear . . . of possible dif-

ﬁ culties.” Finally, Justice Reed rejected the notion

that state ofﬁ cials were “less alert to ferret out . . .

subversion.”

The reaction to Nelson was quite negative.

States felt a threat both to their ability to ﬁ ght sub-

version and to their dignity. There was widespread

agreement among scholars, the media, and federal

546 Pennsylvania v. Nelson

vi+904_EofUSConsti-v2.indd 546 3/20/09 2:18:04 PM

legislators themselves that Congress had never

intended to overrule state sedition laws. Repre-

sentative Howard Smith, author of the Smith Act,

proposed legislation limiting preemption of state

legislation to those situations where Congress

explicitly stated its intent to occupy the ﬁ eld. The

legislation was reported out of the House and

Senate but never brought to a vote.

The occupation of the field test survived to

remain a pillar of federal preemption doctrine.

Meanwhile, Nelson remains noteworthy as the

moment during the Cold War when the Court

began to return to the libertarian approach that

dominated the 1930s and 1940s.

For more information: Belknap, Michael R.

Cold War Political Justice: The Smith Act, the

Communist Party, and American Civil Liber-

ties. Westport, Conn.: Greenwood Press, 1977;

Caute, David. The Great Fear: The Anti-Com-

munist Purge under Truman and Eisenhower.

New York: Simon & Schuster, 1978; Hunt, Alan

Reeve. “State Control of Sedition: The Smith Act

as the Supreme Law of the Land.” Minnesota Law

Review 41 (1958): 287–332.

—Robert A. Kahn

Penry v. Lynaugh 492 U.S. 302 (1989)

In Penry v. Lynaugh, the Supreme Court ruled

that a jury should be instructed to consider men-

tal retardation as a mitigating circumstance dur-

ing the sentencing phase of a trial. The Court also

held that the execution of the mentally retarded

did not violate the Eighth Amendment’s prohibi-

tion against cruel and unusual punishment.

On October 22, 1979, Pamela Carpenter was

raped, beaten, and stabbed with a pair of scissors

in her home in Livingston, Texas. Although she

later passed while receiving medical treatment

at the hospital, Pamela was able to describe her

assailant to the local sheriff. Penry, who had just

been released on parole after being convicted on

another rape charge, matched the description.

Two local sheriffs apprehended the suspect and,

while in custody, Penry confessed to the crime

and was charged with capital murder.

At trial, Penry was found competent to stand

trial, even though a psychologist had testiﬁ ed that

Penry was mentally retarded and had the men-

tal age of a 6½-year-old. Penry raised an insan-

ity defense, arguing that he suffered from brain

damage and moderate retardation, but the jury

rejected his claim and found him guilty of capital

murder. During the penalty phase, the jury was

not instructed that it could consider the mitigating

circumstances of Penry’s mental retardation, and

he was sentenced to death. Penry appealed to the

Texas Court of Criminal Appeals, which rejected

his claim and afﬁ rmed his conviction. The federal

district court then denied his habeas corpus

petition, and the court of appeals afﬁ rmed. The

Supreme Court partially afﬁ rmed and partially

reversed the lower court’s decision, holding that,

although the jury should have been instructed to

consider Penry’s mental deﬁ ciencies during the

sentencing phase, the Eighth Amendment did not

categorically prohibit the execution of the men-

tally ill.

Justice Sandra Day O’Connor wrote the

opinion of the Court, in which Justices Wil-

liam J. Brennan, Jr., Marshall, Blackman and

John Paul Stevens joined, with respect to the

first issue raised by Penry. In her opinion, she

argued that the Texas death penalty statute was

applied unconstitutionally, because the jury was

not allowed to consider Penry’s mitigating circum-

stances during the sentencing phase of his trial.

O’Connor went on to argue that, although the jury

should have considered his mental retardation and

history of abuse, this decision would not create a

new rule requiring juries to always consider men-

tal retardation and child abuse before imposing

the death penalty.

Justice O’Connor also wrote the opinion of the

Court with respect to Penry’s second claim, in

which Chief Justice William Hubbs Rehnquist

and Justices White, Antonin Gregory Scalia,

and Anthony M. Kennedy joined. O’Connor

argued that the execution of the mentally retarded

does not violate the Eighth Amendment, because

opinion surveys and state statutes did not estab-

lish the required societal consensus banning such

practice. Although a “national consensus against

Penry v. Lynaugh 547

vi+904_EofUSConsti-v2.indd 547 3/20/09 2:18:04 PM

execution of the mentally ill may someday emerge

reﬂ ecting the ‘evolving standards of decency that

mark a maturing society,’ ” at the time Perry was

brought before the Court, Justice O’Connor could

not ﬁ nd sufﬁ cient consensus to rule such practice

unconstitutional.

In two separate concurring opinions, Justice

Brennan (joined by Marshall) and Justice Stevens

(joined by Blackmun) agreed with O’Connor that

the jury should have been instructed to consider

those mitigating circumstances but argued that

the Eighth Amendment did prohibit the execution

of the mentally retarded.

Justice Scalia authored the last concurring

opinion, which Chief Justice Rehnquist and Jus-

tices White and Kennedy joined. Although Scalia

agreed with O’Connor concerning the constitu-

tionality of the death penalty, he argued that the

jury should not be required to consider these

mitigating factors when considering whether to

impose the death penalty.

Overall, Penry made it clear that the Court

was not willing to create a new rule prohibit-

ing the execution of the mentally retarded until

a larger national consensus against such practice

could be shown. It would take another 13 years

for the Court to rule that the “evolving standards

of decency” were sufﬁ cient, and in 2002 the Court

ruled in A

TKINS V. VIRGINIA that the Eighth Amend-

ment to the Constitution prohibited the execution

of the mentally retarded.

For more information: Latzer, Barry. Death

Penalty Cases: Leading U.S. Supreme Court

Cases on Capital Punishment. Woburn, Mass.:

Butterworth-Heinemann, 1998.

—Katherine M. Miller

people with disabilities

The Americans with Disabilities Act (ADA),

enacted on July 26, 1990, is the nation’s most far-

reaching attempt to combat discrimination on the

basis of disabilities. The law emerged out of the

disability rights movement of the 1970s and 1980s

and was intended to establish a “national mandate”

to end discrimination against people with disabili-

ties and to guarantee that the federal government

would play a major role in enforcing the law.

In enacting the ADA, Congress guaranteed

civil rights protection to persons with dis-

abilities in employment, in the delivery of state

and local government services, including public

transportation, in public accommodations, and

in telecommunications. At the time of its pas-

sage, Congress estimated that there were at least

43 million people with disabilities in the United

States and that this number would increase as

the population aged. The law allowed individu-

als complaining of discrimination to sue private

businesses as well as state and local governments.

Although Congress had enacted laws to protect

the rights of disabled persons in the past—the

Architectural Barriers Act of 1968; the Urban

Mass Transportation Act of 1970; the Rehabili-

tation Act of 1973; the Education of All Handi-

capped Children Act of 1975, later amended and

renamed the Individuals with Disabilities Educa-

tion Act; the Air Carrier Access Act of 1986; and

the Fair Housing Act Amendments of 1988—it

was not until the ADA was passed that the nation

adopted a comprehensive approach to combating

discrimination on the basis of disabilities, produc-

ing a law that drew on well-established principles

of civil rights guarantees.

In the late 1960s, people with disabilities began

to be recognized as a civil rights group, follow-

ing in the path of women and racial minorities.

For the most part, however, their claims were not

based on constitutional rights, but on federal laws

enacted by Congress.

The ﬁ rst major piece of disability rights legis-

lation was the 1973 Rehabilitation Act. Its most

important provision was Section 504, which pro-

hibits discrimination in federally assisted pro-

grams on the basis of disability. Shortly after

the passage of the Rehabilitation Act, Congress

enacted the Education of All Handicapped

Children Act (EAHCA) in 1975; in 1990, it was

renamed the Individuals with Disabilities Educa-

tion Act (IDEA). The heart of the bill was a grants-

in-aid program that required states to allocate

signiﬁ cant resources for the education of children

with disabilities if they wished to receive federal

548 people with disabilities

vi+904_EofUSConsti-v2.indd 548 3/20/09 2:18:05 PM

funding; they could avoid the requirements of

the act by refusing the federal funds. Subsequent

amendments to the EAHCA expanded the state’s

responsibility to children from birth to 21, guar-

anteed a wide range of educational and support

services, and speciﬁ ed that all children were cov-

ered, whether they lived at home or in a foster

care or institutional setting.

During the 1980s and 1990s, Congress contin-

ued to enact laws affecting the rights of people

with disabilities. Perhaps the most comprehensive

legislation predating the ADA was the Fair Hous-

ing Act Amendments (FHAA) of 1988, amending

the 1968 Fair Housing Act (FHA). The 1968 FHA

prohibited discrimination in the sale and rental of

public and private housing on the basis of race,

religion, and national origin. The 1988 FHAA

extended the law to include discrimination based

on disability in selling, renting, ﬁ nancing, zoning,

new construction design, and advertising.

During the 1970s, there had been a good deal

of support for ending discrimination against peo-

ple with disabilities, in part fueled by the disabil-

ity community’s association with the ideology and

rhetoric of the Civil Rights movement. Through-

out the 1980s, disability rights groups became

adept at political mobilization, demanding equal-

ity for people with disabilities, reminiscent of the

earlier struggles for civil rights. By the end of the

decade, as disability advocates became convinced

that Section 504 was inadequate to achieve their

goal of removing barriers to their full participa-

tion in society, they began to press members of

Congress to enact a successor to Section 504.

It became increasingly clear that more com-

prehensive legislation was needed when, in 1985,

the United States Supreme Court decided City

of Cleburne v. Cleburne Living Center, 473 U.S.

432 (1985), a case establishing the boundaries of

the equal protection guarantee of the Four-

teenth Amendment for people with disabilities.

In this case, the Court held that the Constitution

permitted states latitude in enacting laws based

on disability, merely requiring them to act ratio-

nally. Although the plaintiffs succeeded in chal-

lenging the zoning regulation, the Court ruled

that laws based on disability were consistent with

the Fourteenth Amendment as long as they were

reasonable.

As a result of wide-ranging lobbying efforts by

disability rights advocates, Congress enacted the

ADA, a wide-ranging law, banning discrimination

on the basis of disabilities in employment (Title

I), in the delivery of state and local government

services, including public transportation (Title

II), in public accommodations (Title III), and in

telecommunications (Title IV). Title V consists

of miscellaneous provisions, including attorneys’

fees, alternative dispute resolution, retaliation,

consistency with state laws, and insurance under-

writing. The law deﬁ nes a disability with a broad

stroke, classifying “an individual with a disability”

as a person with “a physical or mental impairment

that substantially limits one or more of the major

life activities” of an individual. The second part

of the deﬁ nition, “has a record of such an impair-

ment,” refers to an individual “who has a history

of, or has been misclassiﬁ ed as having, a mental or

physical impairment that substantially limits one

or more major life activities.” The third, “regarded

as,” prong applies to individuals who have no sub-

stantially limiting impairments but are treated as

if they do, or their substantially limiting impair-

ments result from the attitudes of others.

For more information: Fleischer, Doris Zames,

and Frieda Zames. The Disability Rights Move-

ment: From Charity to Confrontation. Philadel-

phia: Temple University Press, 2001; Mezey, Susan

Gluck. Disabling Interpretations: Judicial Imple-

mentation of the Americans with Disabilities Act.

Pittsburgh: University of Pittsburgh Press, 2005;

O’Brien, Ruth. Crippled Justice: The History of

Modern Disability Policy in the Workplace. Chi-

cago: University of Chicago Press, 2001; Percy,

Stephen L. Disability, Civil Rights, and Public

Policy. Tuscaloosa: University of Alabama, 1989.

—Susan Gluck Mezey

peremptory challenges

Peremptory challenges refer to the right that par-

ties are given during jury selection to remove

potential jurors without being required to offer a

peremptory challenges 549

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reason. These challenges have come under consti-

tutional scrutiny in the last few years because of

allegations they are used in a racially biased fash-

ion or on account of gender.

The process of jury selection is known as voir

dire, which means “to speak the truth” in French.

In the process of selecting a jury, each side in a trial

wishes to remove jurors who are biased against

their client, and they also seek to ﬁ nd jurors who

will be sympathetic towards their client. Potential

jurors, also known as veniremen, who are removed

based on the sole discretion of the attorney (usually

with the consent of his or her client) are excused

through a process called peremptory challenges

or peremptory strikes during jury selection. Other

jurors who are removed for a particular reason by

the judge are excused based on a cause challenge.

Usually, this is because of an obvious reason, such

as that the potential juror is related to a party or

the potential juror states that he or she cannot be

fair and impartial in this case. There is no maxi-

mum number of cause challenges.

One concern with the use of peremptory chal-

lenges is using them due to bias. In the South,

prior to the civil rights era of the 1950s and

1960s, it was not uncommon for all-white juries

to convict African Americans of crimes. This was

the case in the famous Scottsboro case of the

1930s. In B

ATSON V. KENTUCKY, 476 U.S. 79 (1986),

the Supreme Court ruled that race was an imper-

missible basis for using a peremptory challenge

by the state against an African-American juror.

Other United States Supreme Court cases have

further solidified this decision. Among others,

Edmonson v. Leesville Concrete Co., 500 U.S.

614 (1991), applied Batson to juries in civil trial,

and Georgia v. McCollum, 505 U.S. 42 (1992),

extended Batson to disallow the discriminatory

use of a criminal defendant’s own peremptory

strikes based on race. Later, in J.E.B. V. ALABAMA,

511 U.S. 127 (1994), the high court applied Bat-

son to gender.

Many critics of peremptory challenges see

their potential abuse as so great that they advo-

cate eliminating them or turning the process of

jury selection over to the presiding judge. Former

Associate Justice of the United States Supreme

Court Thurgood Marshall made this argument

in his concurring opinion in the Batson case, in

fact. Many attorneys feel, however, that peremp-

tory strikes are absolutely necessary to ensure a

fair trial.

For more information: Klarman, Michael J.

From Jim Crow to Civil Rights: The Supreme

Court and the Struggle for Racial Equality. New

York: Oxford University Press, 2004; Mauet,

Thomas A. Trial Techniques. 4th ed. Frederick,

Md.: Aspen Publishing, Inc., 1996.

—Maria Collins Warren

Philadelphia v. New Jersey 437 U.S. 617

(1978)

The Supreme Court ruled on the case of the City

of Philadelphia v. New Jersey that New Jersey’s

waste importation restriction laws were unconsti-

tutional, because they violated the Constitution’s

commerce clause by discriminating against

another state’s goods.

In 1973, the government of the state of New

Jersey passed a law forbidding the importation

of waste “solid or liquid which was originated or

was collected outside of the territorial limits of

the State.” For New Jersey, this law carried great

importance, as the state was seen regionally and

nationally as a receiving center for garbage and

waste originating from nearby states, especially

New York and Pennsylvania. The law was passed

in order to counteract what was seen as an unac-

ceptable amount of waste being disposed of within

the state boundaries of New Jersey.

Almost immediately, this new law caused seri-

ous logistical waste disposal issues for cities near

New Jersey, such as New York and Philadelphia,

that had traditionally shipped their waste to land-

ﬁ ll operators located there. As a result, cities and

landﬁ ll operators began to sue the state of New

Jersey in order to challenge the constitutionality

of the law. The major case was spearheaded by the

city of Philadelphia.

A positive verdict for the city was received from

the original trial, because the judge was convinced

that the law violated the commerce clause of the

550 Philadelphia v. New Jersey

vi+904_EofUSConsti-v2.indd 550 3/20/09 2:18:05 PM

Constitution by restricting interstate trade. The

ruling was soon challenged by the state of New

Jersey, leading to a case in the Supreme Court of

New Jersey. The state supreme court reversed the

original verdict, claiming that the law had other

beneﬁ ts, which outweighed the minor interstate

commercial issues related to the law. In their

decision, the court stated that the public health

of the citizens of New Jersey and the protection

of the state’s environment was more important

than absolute protection of the commerce clause.

In response, the city of Philadelphia’s legal team

decided to appeal the decision of the state supreme

court to the U.S. Supreme Court.

The U.S. Supreme Court accepted the appeal,

and arguments began on March 27, 1978. The

Court delivered its decision roughly three months

later on June 23, 1978, overturning the Supreme

Court of New Jersey’s reversal of the original deci-

sion. Justice Potter Stewart wrote the 7 to 2 major-

ity opinion, rejecting New Jersey’s claims that waste

was not a matter of interstate commerce, since

it believed it to be “worthless.” Stewart stated that

this argument was false and was not an exception

to the commerce clause, since waste has an eco-

nomic value, whether it is positive or negative. Ulti-

mately, New Jersey’s 1973 waste restriction law was

overturned as unconstitutional for discriminating

against products from another state and violating

interstate commerce clauses and precedents.

Justice William Hubbs Rehnquist wrote

the dissenting opinion, arguing that products that

may cause public health issues should fall subject

to quarantine laws, which prohibit exportation

and importation of harmful products. Neverthe-

less, New Jersey has since tried to ﬁ nd other ways

to cope with its waste importation issues and high

population density, promoting waste reduction

efforts in Philadelphia and creating waste inciner-

ators in numerous counties throughout the state.

For more information: Corwin, Edward S. The

Commerce Power Versus States’ Rights. Princeton,

N.J.: Princeton University Press, 1936; Schwartz,

Bernard. A History of the Supreme Court. New

York: Oxford University Press, 1993.

—Arthur Holst

Pierce v. Society of the Sisters of the Holy

Names of Jesus and Mary

268 U.S. 519

(1925)

Pierce v. Society of the Sisters of the Holy Names

of Jesus and Mary is a U.S. Supreme Court

decision upholding economic and personal lib-

erty against government regulation. As such,

two major strands of the constitutional doctrine

known as substantive due process intersect

in the judgment. Pierce also is doubly ironic, ﬁ rst,

because of its origins and, second, because of its

author.

Pierce originated in a challenge to a 1922 ini-

tiative measure adopted by Oregon voters. The

Oregon compulsory public school law required

all children under 16 to be educated in pub-

lic schools. What spawned this mandate was an

incongruous—not untypical American—mix of

aspirations and anxieties: populist support for

universal education, civic literacy, and curricular

reform commingled with bias, bigotry, and fear

of the Red Menace. Groups supporting the initia-

tive included Scottish Rite Masons, the American

Legion, the Federation of Patriotic Societies, and

the Ku Klux Klan, which had close to 15,000 Ore-

gon members in the 1920s and controlled the state

legislature during that decade.

A primary target of the compulsory public

school movement was Catholic parochial educa-

tion. Appellant Walter M. Pierce, 16th governor

of Oregon, personified the blend of intolerance

and ideals underlying the Oregon law. The Roman

Catholic Church, Pierce believed, was “an author-

itarian institution bent upon subverting demo-

cratic thought and human progress.” He also

believed that public school education could teach

even Catholic children to be good Americans.

From these thorny circumstances came a decision

afﬁ rming fundamental rights.

Justice James C. McReynolds wrote the unani-

mous opinion. More bigoted than Governor Pierce,

McReynolds was an unlikely champion of liberty.

Nevertheless, in his Pierce, opinion, McReynolds

deﬁ ned “liberty” expansively. In Pierce, McReyn-

olds relied on a decision he had authored two

years previously, Meyer v. Nebraska, 262 U.S. 390,

where he had written that liberty was

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