Schultz D. Encyclopedia of the United States Constitution

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not merely freedom from bodily restraint but

also the right of the individual to contract, to

engage in any of the common occupations of life,

to acquire useful knowledge, to marry, establish

a home and bring up children, to worship God

according to the dictates of his own conscience,

and generally to enjoy those privileges long rec-

ognized at common law as essential to the orderly

pursuit of happiness by free men.

McReynolds drew upon this blend of economic

and personal liberty to nullify the Oregon initia-

tive. He held that the law “unreasonably inter-

feres with the liberty of parents and guardians to

direct the upbringing and education of children

under their control,” as well as being an “arbitrary,

unreasonable, and unlawful interference with [the

Society of Sisters’] patrons and the consequent

destruction of their business and property.”

With its reliance on economic and personal

liberty, Pierce exemplifies substantive due pro-

cess. This doctrine holds that certain fundamen-

tal rights constrain government—regardless of

what regulatory procedures government employs.

Although the economic strand of substantive due

process went into judicial eclipse in the late 1930s,

the personal liberty strand remains influential,

albeit controversial, in areas such as child welfare,

contraception, abortion, and sexual preference.

For more information: Ross, William G. Forg-

ing New Freedoms: Nativism, Education, and

the Constitution, 1917–1927. Lincoln: University

of Nebraska Press, 1994; Woodhouse, Barbara

Bennett. “Child Abuse, the Constitution, and

the Legacy of Pierce v. Society of Sisters,” Mercy

Law Review 78 (Spring 2001): 479; ———. “ ‘Who

Owns the Child?’: Meyer and Pierce and the Child

as Property,” William and Mary Law Review 33

(Summer 1992): 995–1,122.

—James C. Foster

plain view doctrine

The plain view doctrine states that an item: (1)

within the sight of a police ofﬁ cer (2) who is legally

in a position to see the item may be seized without

a search warrant, (3) so long as the item is immedi-

ately recognizable evidence subject to seizure. Plain

view is a recognized exception to the search war-

rant requirement of the Fourth Amendment.

For the plain view doctrine to apply, the police

must be “lawfully present.” This means the police

must have a legal right to be where they are when

they observe an item in plain view. This is some-

times referred to as a “valid prior intrusion” (Car-

men, 2006). Some examples of situations in which a

law enforcement ofﬁ cer is lawfully present include

a trafﬁ c stop or the pursuit of a ﬂ eeing suspect.

Under the plain view doctrine, police may

seize an item only if it is “immediately apparent”

that the item is subject to seizure (Hemmens et

al., 2004). This means that the police must have

probable cause that an item is subject to seizure

without conducting any further examination of

the object. While the plain view doctrine does not

allow a police ofﬁ cer to conduct a further search

of an object to determine its incriminating nature,

an ofﬁ cer may use mechanical aids (such as ﬂ ash-

lights) to assist in observing items of evidence, and

alter his or her position to gain a better view.

It was once thought that the discovery of evi-

dence in plain view must be “inadvertent” to sat-

isfy the “immediately apparent” requirement. In

Horton v. California, 496 U.S. 128 (1990), the

Supreme Court held that an item seen in plain

view need not have been discovered inadver-

tently or by accident.

Some courts have expanded the plain view doc-

trine to the senses of smell and touch. These

courts frequently cite United States v. Johns, 469

U.S. 478 (1985), in which the Supreme Court said

in dicta that it was “debatable” whether there is a

privacy interest in a package “reeking of mari-

juana.” It is unclear whether the Supreme Court

currently endorses this expansion of the plain

view doctrine. In MINNESOTA V. DICKERSON, 508

U.S. 366 (1993), the Supreme Court stated that

the plain view doctrine “has an obvious applica-

tion by analogy” to instances involving the discov-

ery of contraband through the sense of touch, but

disallowed a seizure of crack cocaine found during

552 plain view doctrine

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a frisk because the ofﬁ cer manipulated the jacket

containing crack cocaine before determining it

was seizable. It is unclear whether it could ever

be “immediately apparent” that an unseen item is

seizable without some manipulation.

The plain view doctrine is an important, and

logical, exception to the search warrant require-

ment. It allows police ofﬁ cers to seize evidence

without a warrant so long as they are lawfully

present and the item seized is clearly subject to

seizure. Since the police are lawfully present,

requiring them to obtain a warrant before seizing

an item that they have seen and know is subject

to seizure would unnecessarily complicate the

search process without protecting any reasonable

expectation of privacy.

For more information: Carmen, Rolando del.

Criminal Procedure: Law and Practice. 7th ed.

Belmont, Calif.: Wadsworth/Thomson, 2006; Hem-

mens, Craig, John Worrall, and Alan Thompson.

Criminal Justice Case Briefs: Signiﬁ cant Cases in

Criminal Procedure. Los Angeles: Roxbury, 2004;

Horton v. California, 496 U.S. 128 (1990); Min-

nesota v. Dickerson, 508 U.S. 366 (1993); United

States v. Johns, 469 U.S. 478 (1985).

—Craig Hemmens

Planned Parenthood v. Casey 505 U.S. 833

(1992)

In Planned Parenthood v. Casey, the Supreme

Court rebuffed efforts to overturn ROE V. WADE,

410 U.S. 113 (1973) by upholding restrictions on

abortion as long as they did not unduly burden

women seeking abortions. The signiﬁ cance of this

case is that it upheld the basic ﬁ nding of Roe that

women have a constitutional right to have an abor-

tion while jettisoning the trimester framework for

the undue burden standard.

After the Supreme Court upheld several

restrictions on abortion in WEBSTER V. REPRODUC-

TIVE HEALTH SERVICES, 492 U.S. 490 (1989), Penn-

sylvania passed even a more restrictive abortion

law that required doctors to discuss the risks and

alternatives to abortion, provided for informed

consent, required minors to receive parental or

judicial consent before receiving an abortion,

imposed reporting and public disclosure require-

ments on doctors, and required spousal consent

for abortions. Planned Parenthood immediately

challenged the law, and the Third Circuit upheld

all provisions of the law except for spousal con-

sent. The Supreme Court afﬁ rmed in a 5-4 deci-

sion, even though the justices split into three

camps.

Writing for the plurality, Justices Sandra Day

O’Connor, Anthony M. Kennedy, and David

H. Souter claimed that stare decisis and public

opinion demand that they uphold the essence of

Roe, which is that women have a constitutional

right to an abortion. They claimed that to do oth-

erwise would negatively impact the Court’s legiti-

macy and the nation’s commitment to the rule of

law. However, the Court replaced the trimester

approach with the undue burden test, because

medical technology has changed the point of via-

bility and rendered the trimester approach inef-

fectual. The Court said that an undue burden

exists when a law’s purpose or effect “is to place a

substantial obstacle in the path of a woman seek-

ing an abortion before the fetus attains viability.”

Laws that do not do this must have a rational basis.

The Court concluded by saying that the informed

consent, 24-hour waiting period, and parental

notiﬁ cation have a rational basis but that spousal

notification places an undue burden on women

and is unconstitutional.

Concurring with the result, Justice Blackmun

would maintain the original ruling of Roe and use

strict scrutiny to strike down all provisions.

Surprisingly, he ended his concurrence by noting

his mortality and calling on political forces to ﬁ ght

in the coming elections to ensure that his succes-

sor would be a supporter of abortion rights.

Dissenting, Chief Justice William Hubbs

Rehnquist claimed that stare decisis should

not be controlling, because the plurality rejected

Roe’s holdings that abortion is a fundamental

right, strict scrutiny should apply, and states must

follow the trimester approach. This meant there

was nothing to uphold. Moreover, public opinion

should not be used to justify upholding bad law,

because it would require the Court to uphold

Planned Parenthood v. Casey 553

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discredited principles, such as separate but equal.

In a separate dissent, Justice Antonin Gregory

Scalia rejected the right to an abortion because

the Constitution does not mention the right, and

history shows that states have proscribed it in the

past.

Contrary to many people’s expectations, the

Court refused to overturn Roe and upheld the

right to an abortion while allowing restrictions.

This decision seems to be a good example of the

Court’s “following the election returns.” Polls con-

sistently show that the public supports the general

right to an abortion, but their discomfort with it

leads to support for commonsense restrictions.

For more information: Baer, Judith. A Histori-

cal and Multicultural Encyclopedia of Women’s

Reproductive Rights in the United States. West-

port, Conn.: Greenwood Publishing, 2001; Hull,

N. E. H., and Charles Hoffer. Roe v. Wade: The

Abortion Rights Controversy in American His-

tory. Lawrence: University of Kansas Press, 2001.

—Sean Evans

Plessy v. Ferguson 163 U.S. 537 (1896)

Plessy v. Ferguson was one of the most landmark

civil rights cases in American history. In this

case, the Supreme Court upheld a state law seg-

regating blacks from whites on railroad cars. As a

result of the U.S. Supreme Court’s decision, seg-

regation became the federal government’s de facto

policy toward civil rights and race relations in the

United States for many difﬁ cult decades.

In 1865, the United States found itself wounded

by years of war, destruction, and harsh and inhu-

mane treatment of a significant portion of its

population who had formerly lived under slavery.

In order to address these problems, the federal

government began a string of programs known

today as Reconstruction, which involved sending

the U.S. military into defeated Southern states

to rebuild farms and infrastructure, to guarantee

that peace was respected, and to ensure a very

basic protection of freed slaves’ civil rights.

Reconstruction ended in 1877, and the military

was withdrawn as a result, leaving some Southern

states with the ability to pass more repressive leg-

islation than was possible before. The laws that

came about became known as Jim Crow laws,

which prohibited African Americans from using

the same facilities as whites, among other dis-

criminatory practices. As the civil rights struggle

continued, in 1883 the Supreme Court overruled

most of the Civil Rights Act of 1875 by stating that

the Fourteenth Amendment applied only to

the actions of state governments, not to individual

citizens or their businesses.

In Louisiana, a state law was passed that

required separate passenger cars for blacks and

whites on all state railways. In response, a multira-

cial group of concerned citizens organized a small

movement to ﬁ ght the law in New Orleans, a focal

point of the civil rights struggle at the time. The

group persuaded a local, Homer Plessy, who was

only one-eighth black, to purchase a ticket and

place himself in a car reserved for whites. Once he

boarded the train and took his seat, he informed

the conductor of his racial background and was

soon after asked to move to a car reserved for

blacks. Plessy denied this request and the police

were called to place him under arrest.

Plessy and the group of concerned citizens

argued their case all the way to the U.S. Supreme

Court. Plessy and his lawyer, Albion W. Tourgee,

based their case on the argument that Louisiana’s

law denied U.S. citizens all of their privileges and

rights guaranteed by the Constitution, as well as

denying due process and equal protection

of law for all citizens regardless of race. Addition-

ally, they argued that the law implied that blacks

were racially inferior.

The U.S. Supreme Court ruled 7-1, voting to

uphold Louisiana’s segregation law. The over-

whelming majority of the justices rejected Plessy

and Tourgee’s arguments; they claimed that the

law did not violate the Constitution, nor imply the

inferiority of blacks. Interestingly, the only dis-

senting justice, John Harlan, himself a former

slave-owner, wrote that the law violated the Con-

stitution since it was not color-blind and equal,

like the Constitution itself.

In the aftermath of the ruling, segregation was

legitimized and became more widespread. Finally,

554 Plessy v. Ferguson

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in January 1897, Plessy paid the $25 ﬁ ne assessed

to him by the police for refusing to leave his seat

many years earlier.

In 1954, Plessy was overturned by BROWN V.

BOARD OF EDUCATION.

For more information: Fireside, Harvey. Plessy

v. Ferguson: Separate but Equal. Berkeley Heights,

N.J.: Enslow Publishers, 1997; Thomas, Brook.

Plessy v. Ferguson: A Short History with Docu-

ments. New York: Bedford, St. Martins, 1996.

—Arthur Holst

Plyler v. Doe 457 U.S. 202 (1982)

In Plyler v. Doe, the Supreme Court held that state

and local policies that denied children without

legal immigration status (undocumented children)

free public education violated the equal protec-

tion clause of the Fourteenth Amendment.

In 1975, Texas amended its Education Code

so that local school districts were allowed to deny

enrollment of undocumented children or to condi-

tion enrollment upon the payment of full tuition.

Constitutional challenges against the Texas code

as well as local school district policies imple-

menting the code were brought across the state

by parents and guardians of children who were

thus denied public education. These challenges

were eventually consolidated into this case. The

Court had ample precedents, dating back to 19th-

century cases regarding discrimination against

Chinese immigrants, to hold that the Fourteenth

Amendment extended its protection to all persons

who were within the territory of the United States,

regardless of citizenship.

A drinking fountain on the county courthouse lawn, Halifax, North Carolina, 1938 (Library of Congress)

Plyler v. Doe 555

vi+904_EofUSConsti-v2.indd 555 3/20/09 2:18:07 PM

But extensive discussion ensued over the appli-

cation of the equal protection clause to the Texas

statute in question. Under the equal protection

clause analysis, the government is given wide lati-

tude in making distinctions and classiﬁ cations in

the course of conducting policy, unless it involves

a suspect classiﬁ cation (such as race) or it touches

upon a fundamental right of a person. In Ply-

ler, the Court had trouble deciding what level of

scrutiny should apply. While the Court rejected

the claim that illegal aliens were a suspect class,

it nonetheless held that the children in this case

were special members of this underclass. They

were brought to the United States as young mem-

bers of their family, and they had no control over

their parents’ decisions to do so. It was unfair to

punish these children for their parents’ acts, just

like it was unfair to discriminate against children

born out of wedlock. And while the Court did not

ﬁ nd that education was a fundamental right, it dis-

tinguished education from other forms of social

welfare legislation where the government had

wide discretion. Citing B

ROWN V. BOARD OF EDUCA-

TION, 347 U.S. 483 (1954), the Court emphasized

that the inestimable toll on the social, economic,

intellectual, and psychological well-being of the

individual in being deprived of education was dif-

ﬁ cult to reconcile with the framework of equality

embodied in the equal protection clause.

For these reasons—special consideration for

children, and special consideration for deprivation

of education—the Court adopted a quasi-suspect

class and quasi-fundamental rights analysis (in the

words of the dissenting opinion), and held that the

denial must be justiﬁ ed by showing that it furthers

some substantial state interest. The Court found

that none of the justifications offered by Texas

withstood this scrutiny. Accordingly, the law was

in violation of the equal protection clause.

The dissenting opinion argued that undocu-

mented status itself was sufﬁ cient justiﬁ cation for

denial of public beneﬁ ts. However, the majority

held that states could act with respect to illegal

aliens when it mirrored federal objectives, and

that in this case it perceived no national policy

that supported depriving undocumented children

of elementary education.

There are important contextual factors behind

the case. The trial courts had found as a matter of

fact that most undocumented children were likely

to stay in the United States permanently through

various forms of legalization. Given this context,

the Court found that deprivation of education

for these children would create a permanent

underclass within the United States and that the

Fourteenth Amendment was meant to prevent

such second-class citizens from emerging. On the

other hand, the Court had been struggling with

school ﬁ nance litigations across the nation, and

had held in San Antonio School District v. Rodri-

guez, 411 U.S. 1 (1973), that education was not

a fundamental right. This is why the Court had

to emphasize that Plyler involved a deprivation of

education, not the relative quality of education, as

in school ﬁ nance cases, in invoking a heightened

scrutiny.

Although Plyler could be narrowly construed

to apply only to the special circumstances of the

case, it has resonated throughout debates over the

rights of immigrants, the role of federal and state

governments, and the manner of judicial inter-

vention. State initiatives (such as Proposition 187,

which sought to deny government services to ille-

gal aliens in California) containing provisions con-

tradicting Plyler have been repeatedly proposed.

Plyler continues to be a guiding case for judicial

scrutiny of such actions.

For more information: Hutchinson, Dennis

J. “More Substantive Equal Protection?: A Note

on Plyler v. Doe.” The Supreme Court Review

1982 (1982): 167–194; Petronicolos, Loucas, and

William S. New. “Anti-Immigrant Legislation,

Social Justice, and the Right to Equal Educational

Opportunity.” American Educational Research

Journal 36, no. 3 (Autumn 1999): 373–408.

—Takeshi Akiba

Poe v. Ullman 367 U.S. 497 (1961)

In Poe v. Ullman, the Supreme Court again dis-

missed a constitutional challenge to Connecticut’s

long-standing yet unenforced 1879 law criminaliz-

ing the use and distribution of contraceptives

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vi+904_EofUSConsti-v2.indd 556 3/20/09 2:18:07 PM

as well as medical advice about their use. The

Court had earlier denied standing to a doctor’s

challenge to the law in Tileston v. Ullman, 318

U.S. 44 (1943). In Poe, two anonymous married

couples who faced possible health complications

from future pregnancies and their physician chal-

lenged the law. None had been arrested or pros-

ecuted, but all argued the law’s existence denied

them liberty without due process of law in viola-

tion of the Fourteenth Amendment.

The Supreme Court again considered the case

nonjusticiable. Justice Felix Frankfurter, writing

for a plurality, called the parties’ fears of crimi-

nal liability “chimerical.” No one had ever been

prosecuted under this law; thus there is a “tacit

agreement” not to enforce it, and “this Court can-

not be umpire to debates concerning harmless,

empty shadows” (508). William J. Brennan, Jr.,

concurred in the judgment, noting that the “true

controversy” would concern the opening of birth

control clinics in the state (509).

This case is significant for the dissenting

opinions by Justices William O. Douglas

and John Marshall Harlan. Douglas found

standing, asking “What are these people—doc-

tor and patients—to do? Flout the law and go to

prison? Violate the law surreptitiously and hope

they will not get caught?” (513). He found that

the law violated the free speech rights of the doc-

tor and a right to privacy of the married couple

that “emanates from the totality of the constitu-

tional scheme under which we live,” including the

Third Amendment (521).

Harlan also found standing, claiming the mar-

ried couples are saved only by “the whim of the

prosecutor” (536). On the merits, Harlan argued

that constitutional liberty protected by the Four-

teenth Amendment is not reducible to the spe-

ciﬁ c protections stated in the Bill of Rights;

rather, it is “a rational continuum which, broadly

speaking, includes a freedom from all substantial

arbitrary impositions and purposeless restraints”

(543). He admits that the right of marital privacy

“most manifestly is not an absolute.” Nevertheless,

the novel nature of Connecticut’s broad law con-

stitutes an “imminent threat to the privacy of the

households of the State” (552, 553).

Justice Hugo Black dissented without opin-

ion. Justice Potter Stewart also brieﬂ y dissented

from the dismissal, stating “I in no way imply that

the ultimate result I would reach on the merits of

these controversies would differ from the conclu-

sions of my dissenting Brothers” (555).

Four years later, in G

RISWOLD V. CONNECTICUT,

381 U.S. 479 (1965), the Court would hear a chal-

lenge from a physician who was convicted for dis-

tributing contraceptives. By a 7-2 vote, the Court

struck the law. Douglas wrote the majority opin-

ion, articulating a constitutional right to marital

privacy based on penumbra formed by emanations

from the several of the ﬁ rst 10 amendments. Har-

lan wrote a concurring opinion that reiterated his

argument in Poe. Black—joined, surprisingly, by

Stewart—dissented.

For more information: Garrow, David J. Liberty

& Sexuality: The Right to Privacy and the Mak-

ing of Roe v. Wade. New York: Macmillan, 1994;

Johnson, John W. Griswold v. Connecticut: Birth

Control and the Constitutional Right of Privacy.

Lawrence: University of Kansas Press, 2005.

—Frank J. Colucci

police civil liability

Police civil liability is granted to citizens under

the Constitution both directly and indirectly from

actions by the government that are determined

to be illegal or wrongful in nature. Generally, the

more common claims for relief come from the

protections derived under the First, Fourth,

Sixth, and Fourteenth Amendments, indi-

vidually or in sum. Intrusion by the government

or its agents can be challenged by both criminal

and civil action, if it is deemed that the conduct

of the ofﬁ cer was committed “under color of law.”

In more common terms, the officer must have

been acting in an official government capacity

and retained the authority of the state in his/her

actions.

Unreasonable intrusions into the privacy of

persons, even with a compelling government rea-

son, is generally deemed an unacceptable prac-

tice. In Katz v. United States, one of the most

police civil liability 557

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notable Fourth Amendment cases in criminal law,

the Court questioned whether there were protec-

tions included against unreasonable searches and

seizures that required the police or agents of the

government to obtain a search warrant in order

to wiretap a public pay phone and record the per-

sonal and private conversations of the accused. The

decision offered that Katz was entitled to Fourth

Amendment protection for his conversations. This

concept of accepted protections and police liabil-

ity grew further, as the courts reviewed aspects

of the amendments that included violations of

42 U.S.C. 1983 (Section 42 of the United States

Code, a law banning the violation of the consti-

tutional rights of individuals) and other rights of

the accused.

In Paul v. Davis, 424 U.S. 693 (1976), Davis

sought civil restitution under the Fourteenth

Amendment’s protections for the actions of Paul,

the Louisville police chief, for the distribution of a

ﬂ yer identifying Davis as a “shoplifter.” The court

ruled against relief and stated privacy and liberty

under the due process clause was not violated,

which further narrowed the interpretation of

when relief could be instituted.

In Barnes v. Gorman, 536 U.S. 181 (2002),

Gorman sued police ofﬁ cials in Kansas for puni-

tive damages due to alleged discrimination against

him on the basis of his disability, which was pro-

hibited within the Americans with Disabilities Act

of 1990 (ADA) and the Rehabilitation Act of 1973

(RA). In a conservative opinion and to further the

stare decisis, Justice Antonin Gregory Scalia

wrote that, because punitive damages could not

be awarded in private suits brought under Title VI

of the Civil Rights Act of 1964, it is within

precedent that similar restrictions be followed for

suits brought under the ADA and the RA. There-

fore, through the above examples, it should be

understood that there are speciﬁ cities of the cases

that must be considered in totality of the circum-

stances, and that relief is not deemed an automatic

response to a suit.

Additional police liability falls under violations

of 42 U.S. §1983, further making available other

civil rights remedies, if clearly there is a vio-

lation of a statute that has conferred substantive

rights to the citizen and is not just a congressio-

nal declaration of policy. In addition, the statute

must not expressly foreclose the use of a civil

rights remedy. In order to recover, the officer

must have been acting under the color of law, and

it must be proven that the ofﬁ cer’s conduct was

not only the cause in fact of injuries or damages

and the proximate cause (it was reasonable and

foreseeable that the ofﬁ cer’s actions could have

caused the damage) of constitutional or statutory

loss. The ﬁ nal aspect of considering whether or

not the police acted in proper manner, and thus

are eligible for a defense, lies in the understand-

ing related to a police ofﬁ cer’s reasonable belief as

measured objectively that his actions were allow-

able under the law and that he had utilized all

available information.

Relief is granted for violations of the statutes

for recovery of out-of-pocket expenses sustained

as a result of the defendant’s conduct, such as in

the case of medical expenses, lost wages or lost

earnings, losses of potential or future income,

and for damages suffered from pain and suffer-

ing, emotional distress, humiliation, and injury to

reputation. If the conduct by the ofﬁ cer was reck-

less or egregious, then punitive damages may be

awarded as well as attorney’s fees.

For more information: Kappeler, Victor. Criti-

cal Issues in Police Civil Liability. Long Grove,

Ill.: Waveland Press, 2006.

—Ernest Gomez

police interrogations

See MIRANDA V. ARIZONA.

police power

Police power is the power of states to make laws

to protect the health, safety, welfare, and mor-

als of their inhabitants. While the 50 different

states have inherent police power, neither the

federal nor local governments have this author-

ity. The federal government must rely upon its

commerce clause power to perform police

power–type functions, while local governments

558 police interrogations

vi+904_EofUSConsti-v2.indd 558 3/20/09 2:18:08 PM

may receive this authority from their respective

states.

Police power is the general power of state gov-

ernments to act on behalf of their citizens. Police

power, eminent domain, and taxation are the

basic three powers of state governments. In the

case of police power, it is the authority used by

states to build schools; to enact health codes, con-

struction codes, and criminal laws; and to regulate

a host of other activities. As stated by Chief Justice

John Marshall in G

IBBONS V. OGDEN, 22 U.S. 1

(1824), of police powers:

They form a portion of that immense mass of leg-

islation which embraces everything within the

territory of a State not surrendered to the Gen-

eral Government; all which can be most advan-

tageously exercised by the States themselves.

Inspection laws, quarantine laws, health laws

of every description, as well as laws for regulat-

ing the internal commerce of a State, and those

which respect turnpike roads, ferries, &c., are

component parts of this mass.

States do not need to have police power granted

to them in their own constitutions. Instead, it is

assumed that every state has inherent policing

authority.

However, the federal government does not

have inherent police power authority. Instead, its

power to act in this area is located in the com-

merce clause, according to the Court in New

York v. Miln, 36 U.S. 102 (1837). There is a ten-

sion between the authority of Congress to regu-

late commerce and the police power authority of

states. While Congress has the general authority

to regulate commerce, necessitating that states

refrain from discriminating against it, there are

some situations where state police power func-

tions may permit the state to interfere with it. For

example, while states cannot enact taxes or other

laws to discriminate against goods imported from

other states in order to protect their own prod-

ucts, they may enact laws out of health or safety

concerns, even if those laws in effect make it more

difﬁ cult to import out-of-state goods. This is the

justiﬁ cation that Michigan and New York gave in

RANHOLM V. HEALD, 544 U.S. 460 (2005), in their

effort to prevent the shipment of out-of-state wine

into their state. The Supreme Court ruled that

this type of legislation exceeded the police power

authority of the states and instead discriminated

against interstate commerce.

Conversely, in cases such as P

RINTZ V. UNITED

STATES, 521 U.S. 898 (1997), and Lopez v. United

States, 514 U.S. 549 (1995), the Supreme Court

invalidated laws regulating handgun possession,

ruling that Congress had exceeded its commerce

clause authority to act in areas traditionally rel-

egated to states under their police power.

Finally, while states’ police power has tradition-

ally extended to protect the health, safety, welfare,

and morals of their people, some have argued that

this authority to regulate morality is archaic, or

that the rights of personal privacy limit states’

ability to regulate, in the areas of sexual behavior,

for example.

For more information: Barros, D. Benjamin.

“The Police Power and the Takings Clause.” Uni-

versity of Miami Law Review 58, no. 2 (2004):

471–524; Novak, William J. The People’s Wel-

fare: Law and Regulation in Nineteenth-Century

America. Chapel Hill: University of North Caro-

lina Press, 1996; Reynolds, Glenn H., and David

B. Kopel. “The Evolving Police Power: Some

Observations for a New Century.” Hastings Con-

stitutional Law Quarterly 27 (2000): 511–536.

—Kim Mac Innis and David Schultz

Pollock v. Farmers’ Loan and Trust

Company

157 U.S. 429, 158 U.S. 601 (1895)

In Pollock v. Farmers’ Loan and Trust Company,

the Supreme Court invalidated the 1894 income

tax as an unconstitutional direct tax. Two provi-

sions of the Constitution require that direct taxes

must be apportioned among the states accord-

ing to population. The framers anticipated that

most federal revenue would be raised by indi-

rect levies, such as tariff duties and excise taxes.

The apportionment rule limited the power of

Congress to impose direct taxes. Designed to

prevent abuses of taxing authority and to make

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direct taxes geographically fair, the impact of the

apportionment rule turned upon the deﬁ nition

of “direct tax.”

Congress enacted the ﬁ rst income tax in 1862

to help pay for the Civil War. The levy became

increasingly unpopular after the war, and Con-

gress allowed it to expire in 1872. Thereafter, the

Supreme Court in Springer v. United States, 102

U.S. 586 (1881), upheld the levy as applied to pro-

fessional earnings against the contention that it

was a direct tax that had to be apportioned among

the states.

In the 1890s, the Populists spearheaded a drive

to revive the income tax. They argued that an

alternative source of revenue would bring about

tariff reductions and shift more of the national tax

burden to the wealthy. Congress enacted the ﬁ rst

peacetime income tax as part of the Wilson-Gor-

man Tariff Act. The measure imposed a ﬂ at tax

rate on individual incomes above $4,000 a year as

well as a levy on corporate proﬁ ts. It was estimated

that the tax would fall upon less than 1 percent of

the nation’s population, with most taxpayers living

in the Northeast. The 1894 income tax triggered a

bitter public debate. Critics charged that the levy

amounted to class legislation, because it burdened

only one segment of society and constituted a

direct tax that had to be apportioned among the

states according to population.

Charles Pollock, a stockholder of Farmers’ Loan

and Trust Company, sued to prevent the company

from paying the income tax on grounds that the

levy was unconstitutional. This complex case was

argued twice before the Supreme Court, and lead-

ing attorneys appeared for both sides. In April of

1895, Chief Justice Melville W. Fuller, speaking

for the majority, ruled that a tax on income from

land was a direct tax requiring apportionment. He

insisted that the apportionment requirement was

intended to conﬁ ne the use of direct taxation to

extraordinary emergencies. Fuller explained that

this “rule of protection” was “one of the great

landmarks” deﬁ ning the boundary between the

national government and the states, and a safe-

guard of private property (Pollock I, 583). He

also held that the federal income tax on state and

municipal bonds was unconstitutional as a viola-

tion of the doctrine of intergovernmental

tax immunity. In a forceful concurring opinion,

Justice Stephen J. Field pictured the income tax as

a step toward class warfare.

The Court was unable to resolve the validity

of other aspects of the income tax. The case was

reargued in May, when a previously absent justice

was present. Two weeks later, Fuller delivered the

second Pollock opinion, striking down the entire

income tax. He determined that a tax on income

from personal property, such as stocks and bonds,

was also a direct tax that must be apportioned

according to population. This left only an income

tax on earnings. Fuller maintained that the

scheme must be considered as a whole, and that

Congress did not intend a tax on just occupational

earnings. He noted that the Constitution could be

amended to authorize a federal income tax and

that states could tax incomes. Four justices vigor-

ously dissented, arguing that the majority ignored

precedent and inappropriately protected invested

wealth from taxation.

The underlying issue in Pollock was the legiti-

macy of using federal tax power to redistribute

wealth. The Sixteenth Amendment, adopted

in 1913, empowered Congress to levy a federal

income tax, and in effect overturned the Pollock

decisions.

For more information: Ely, James W., Jr. The

Chief Justiceship of Melville W. Fuller, 1888–

1910. Columbia: University of South Carolina

Press, 1995; Fiss, Owen M. Troubled Beginnings

of the Modern State, 1888–1910. New York: Mac-

millan Publishing, 1993; Jensen, Erik M. “Inter-

preting the Sixteenth Amendment (By Way of the

Direct-Tax Clauses),” Constitutional Commentary

21 (2004): 355–404.

—James Ely, Jr.

Posadas de Puerto Rico v. Tourism

Company of Puerto Rico

478 U.S. 328

(1986)

In Posadas de Puerto Rico v. Tourism Company of

Puerto Rico, the Supreme Court upheld a ban on

the advertising of gambling to residents of Puerto

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Rico. This decision was important regarding what

it had to say about commercial speech.

Posadas de Puerto Rico Associates, consisting

of Condado Holiday Inn Hotel and Sands Casino,

ﬁ led a suit against the Tourism Company of Puerto

Rico, a state regulatory agency. The Posadas, an

American company, obtained a gambling license

to operate in the Condado Holiday Inn Hotel and

Sands Casino. Since 1978, the Posadas de Puerto

Rico had been fined $1500 and again $500 on

two separate occasions by the Tourism Company

of Puerto Rico for transgressing advertisement

restrictions as enshrined in the Gambling Act of

1948, as interpreted by the Tourism Company of

Puerto Rico.

An amendment of the Gambling Act of 1948

(15 R. & R. P. R. § 76a-1[7] [1972]) restricts adver-

tisements by gambling parlors to the public. Any

advertisement promoting a Puerto Rico game of

chance has to be first approved by the Tourism

Development Company. As a result of a one-page

advertisement in the New York Times Magazine

that highlighted the casino as one of its features,

Posadas was found guilty by the state agency. In

another case, workers at the casinos went on strike

and carried pickets suggesting the casino was

closed. The Posadas management then placed a

sign outside the establishment that read: “Casino is

opened.” Additionally, in a correspondence to the

Tourism Company of Puerto Rico, the letterhead

contained the word “casino.” For all of these deeds,

the Posadas de Puerto Rico was issued a series of

ﬁ nes by the Tourism Company of Puerto Rico.

Having paid the ﬁ nes, albeit reluctantly, the

Posadas started a court proceeding at the supe-

rior court to challenge the interpretation of the

Gambling Act of 1948 by the Tourism Company

of Puerto Rico. The Posadas argued that these

advertisement restrictions violated its commercial

speech as protected by the U.S. First Amend-

ment. The superior court ruled that the act was

constitutional. However, the court judged that

the interpretation of the regulations was exces-

sively strict and passed that advertisements are

permissible as long as they are aimed at tourists

and that they could appear even in the mass mar-

ket of Puerto Rico, so long as words like “casino”

were not emphasized. Failing to get a favorable

ruling from the Supreme Court of Puerto Rico,

the Posadas ﬁ led for a review with the Supreme

Court of the United States. The arguments were

heard in April 1986, and the judgment, in July

1986 in favor of the Tourism Company of Puerto

Rico, upheld the decision of the Puerto Rico

Supreme Court.

Justice William J. Brennan, Jr., and Justice

John Paul Stevens, representing two other

judges, dissented on the basis that commercial

speech should be accorded protection by the First

Amendment, as it serves societal interest to have

access to full information on a transaction that is

not illegal. One of the key arguments of the dis-

senting bench was based on the fact that commer-

cial interests are allowed to advertise horse racing,

cockﬁ ghting, and the Puerto Rico lottery, with the

exception of casino gambling. Therefore, the dis-

senting voices of the Court suggested that, since

other forms of gambling advertisements, par-

ticularly the Puerto Rico lottery, are allowed, the

state cannot claim to have a substantial interest

and override the casino’s right to advertise in the

public domain, unless it could be proven that such

advertisements would result in harmful effects on

the society. Justice Stevens in particular opposed

discrimination on the basis that tourists and com-

muters may be entitled to the advertisements but

not the residents themselves.

William Hubbs Rehnquist of the Supreme

Court, presenting the Court’s verdict, opined that

the Puerto Rican government’s interest was sub-

stantial in protecting its residents and that the

freedom of commercial speech was limited from

misleading or fraudulent acts. Advertisements

in any form or manner that are visible or have a

reach to the Puerto Rico populace were deemed

as violating the Gambling Act.

For more information: Biskupic, Joan, and

Elder Witt, eds. Guide to the Supreme Court of

the United States. Washington, D.C.: Congressio-

nal Quarterly Inc., 1997; Kurland, Philip B. “Posa-

das de Puerto Rico v. Tourism Company: ’Twas

Strange, ’Twas Passing Strange, ’Twas Pitiful,

’Twas Wondrous Pitiful,” Supreme Court Review

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