Schultz D. Encyclopedia of the United States Constitution

Подождите немного. Документ загружается.

(1986): 1–17; Langvardt, Arlen W., and Eric L.

Richards. “The Death of Posadas and the Birth of

Change in Commercial Speech Doctrine: Implica-

tions of 44 Liquormart.” American Business Law

Journal (Summer 1997) 483–559; Richards, Jeff

I. “Is 44 Liquormart a Turning Point?” Journal of

Public Policy & Marketing (Spring 1997): 156.

—K. Thirumaran

postal power

Article I, Section 8 of the Constitution gives

Congress the power to establish post ofﬁ ces. For

much of U.S. history, the federal government

chiefly restricted itself to providing for a mili-

tary, conducting foreign policy, and delivering the

mail. While the military and foreign policy have

attracted considerable scholarly attention, postal

power is largely ignored.

The maintenance of postal facilities has been a

recognized function of the state since the days of

ancient Rome. In the American colonies, the Gen-

eral Court of Massachusetts established the ﬁ rst

mail service in 1639, but only for the transmission

and delivery of foreign mail. A domestic post did not

begin until 1673, when Massachusetts established

one. In 1692, the Lords of Trades and Plantation

created the ﬁ rst postmaster general for America.

Postal facilities expanded over the next decades,

but not by much. However, the mails were seen as

essential to communication. The Continental Con-

gress considered the establishment of postal facili-

ties to be critical to the transmission of intelligence

from one end of the nation to the other. On July 26,

1775, Congress appointed Benjamin Franklin as

postmaster general for the United Colonies. Frank-

ing privileges, or free postage, were almost imme-

diately established for members of Congress and

for the army commanders. Yet Congress viewed

the post as a matter of war policy more than the

exercise of a government function.

The Articles of Confederation limited the

extent of postal power. Congress had the sole right

and power to establish post ofﬁ ces and set postal

rates from one state to another. Rates were only to

cover the expenses of the system. Intrastate postal

facilities were beyond the purview of Congress. At

the creation of the Constitution, the framers were

more concerned with the survival of the nation

than with postal power. With travel extremely dif-

ﬁ cult and likely to remain so, it did not appear that

the mails would ever attract much attention. THE

FEDERALIST PAPERS contain only a single reference

to the power lodged in Congress to establish post

ofﬁ ces and post roads, in No. 42. James Madi-

son, its author, declared the postal power to be a

harmless power that with good management could

produce great public convenience. He noted that

nothing which aids communication between the

states can be deemed unworthy of the public care.

Giving postal power to the federal government

would contribute to prosperity. The anti-Federal-

ists, while concerned about the dangers of power,

did not bother to address postal power.

In succeeding decades, as transportation

improved, the post ofﬁ ce became a critical part

of the U.S. government. The U.S. Supreme Court,

IN RE DEBS, 158 U.S. 564 (1895), upheld broad

congressional power to prevent and punish inter-

ference with the mails. By this point, the postal

power had become generally accepted as critical

to the nation’s ability to conduct commerce and

gather information.

For more information: Rogers, Lindsay. The

Postal Power of Congress: A Study in Constitu-

tional Expansion. Baltimore, Md.: Johns Hopkins

University, 1916.

—Caryn E. Neumann

Powell, Lewis Franklin, Jr. (1907–1998)

Supreme Court justice

Lewis Franklin Powell Jr. was an associate justice

on the United States Supreme Court for the 16-

year period between 1971 and 1987. He was the

103rd justice to serve on the Court. During his

time on the Court, he was known for his moderate

beliefs and ability to create consensus among his

fellow justices.

Powell was born in Suffolk, Virginia, and did both

his undergraduate and law education at Washing-

ton and Lee University, receiving degrees in 1929

and 1931. During World War II, Powell served as a

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colonel in the Army Air Force. His service took him

around the world, and he spent time in England,

North Africa, and Sicily. Toward the end of his ser-

vice, he was also part of a secret team that worked to

decipher encrypted German radio messages.

After the war, Powell returned to private

legal practice and served as the chairman of the

Richmond School Board from 1952 to 1961. This

position was controversial for Powell, as he was

embroiled in the bitter conﬂ ict over segregation

in public schools, which the Supreme Court had

ruled unconstitutional in its 1954 landmark deci-

sion of B

ROWN V. BOARD OF EDUCATION, 347 U.S.

483. Powell later went on to serve as president of

the American Bar Association, a national profes-

sional organization for lawyers.

In 1971, President Richard Nixon nominated

Powell to ﬁ ll the vacancy created by the retirement

of Justice Hugo L. Black. Nixon had sought to

nominate Powell earlier, in 1969, but Powell had

turned him down. The Senate conﬁ rmed Powell

by a vote of 89 to 1 (William Hubbs Rehnquist

was conﬁ rmed as an associate justice on the same

day by a slightly closer vote of 68 to 26.) Conﬁ rmed

at the age of 64, Powell was the oldest person to

be conﬁ rmed in over 40 years (in 1930, Charles E.

Hughes was conﬁ rmed at age 67).

While on the Court, Powell was known not for

his major contributions to the development of the

law, but rather for his pragmatism and collegiality.

A former clerk called him the intellectual balance

wheel of the Court, mediating the philosophical

extremes and brokering consensus. Data concern-

ing Powell’s service on the Court seem to support

this claim. Powell voted with the majority nearly

90 percent of the time. Ideologically, he tended

to be more conservative than he was liberal, but

not by a tremendous amount (he voted conserva-

tively approximately 60 percent of the time). By

contrast, Justice Rehnquist, who was conﬁ rmed

the same day as Powell, tended to be both more

divisive and more ideological.

Among his major decisions, his concurrence

in REGENTS OF THE UNIVERSITY OF CALIFORNIA V.

BAKKE, 438 U.S. 265 (1978), is perhaps the most

signiﬁ cant. In that case, the Court was divided 4-4

over the constitutionality of a separate admissions

policy for people of color for the medical school

at the University of California at Davis than for

white applicants. While Powell ruled that this pol-

icy did violate the Fourteenth Amendment’s

equal protection clause, he also argued that

race may be one of several factors to consider in an

admissions policy in order to help schools promote

diversity. Powell’s opinion thus was an important

vote upholding the use of race in some affirma-

tive action programs.

A second major opinion was Powell’s providing

the ﬁ fth vote in the 5-4 BOWERS V. HARDWICK, 478

U.S. 186 (1986), decision that upheld a Georgia

law that criminalized same-sex sodomy among

consenting adults. Later, after he left the Court,

Powell told biographers that this vote was the one

he most regretted. Finally, in McCleskey v. Kemp,

481 U.S. 279 (1987), Powell wrote the majority

opinion in a death penalty case upholding a capi-

tal punishment penalty, even though statistical

evidence suggested a racial disparity in how this

sentence was awarded.

Due to increasing health concerns, Powell

retired from the Court in 1987. Justice Anthony

M. Kennedy was confirmed as his successor.

After retiring, Powell remained active in public

life and the legal ﬁ eld, which included occasional

service as a judge on the courts of appeal. Powell

created a signiﬁ cant controversy when, after retir-

ing from the Court, he renounced his votes in two

crucial cases. Powell stated that he should have

opposed a death penalty decision and should have

also opposed a state law that banned homosexual

sodomy. He died at the age of 91 in 1998.

For more information: Jeffries, John, Jr. Justice

Lewis F. Powell, Jr. New York: Fordham Univer-

sity Press, 2001.

—Ryan Black

Powell v. McCormack 395 U.S. 486 (1969)

In Powell v. McCormack, the Supreme Court set

limits on Congress’s ability to judge ﬁ tness to serve

of elected members.

Adam Clayton Powell, Jr., was elected to the

New York City Council in 1941 by an American

Powell v. McCormack 563

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Labor Party-City Fusion ticket. (Having the same

name as his minister-father did not hurt.) In 1944,

he received the endorsement of the Democratic,

Republican, and American Labor parties when

he ran for Congress. Powell took his seat as a

Democrat.

In 1956, Powell supported Eisenhower, claim-

ing that the latter had staged a “quiet revolu-

tion” for civil rights, whereas the Democrats

had rejected Powell’s requests for a strong civil

rights plan. Opponents held that he had made a

deal with the Republicans to avoid prosecution on

his income tax. The ﬂ amboyant Powell could not

stay out of trouble, ranging from marital (divorc-

ing Hazel Scott to marry a young member of his

congressional staff, whose salary then escalated)

to ofﬁ cial (taking a junket with Labor Commit-

tee staffers to Paris, calling a Harlem critic a “bag

lady,” and then seeking to evade the defamation

judgment she won against him).

In 1966, Powell won reelection with more than

70 percent of the votes. He had been in the House

22 years. He became chair of the Education and

Labor Committee in 1961. The previous chair, a

South Carolina segregationist, never gave Powell a

chance to chair a subcommittee.

In 1961 and 1962, Powell took some female

staffers with him to study equal job opportuni-

ties for women in Common Market nations. They

used counterpart funds. (In ﬁ ling reports, Powell

listed substantially lower sums than the amounts

he had spent.) He was not the only one going on

taxpayer-funded junkets. Powell was also accused

of misusing funds appropriated for his Education

and Labor Committee (e.g., airline tickets for pri-

vate vacations, payroll padding). (A member of his

staff, a Miss Universe contestant, was his some-

time traveling companion.)

A House subcommittee, chaired by Wayne L.

Hays, had had a cursory investigation of the travel

and payroll charges right after the 1966 election.

(Ironically, a few years later, Hays was accused of

having his mistress on his congressional payroll.

As Powell said in his defense, “He who is without

sin should cast the ﬁ rst stone.”) Powell was then

investigated by a Select Committee, chaired by

Emanuel Celler. (Later it was learned that Celler

had written clients of his law ﬁ rm on his Judiciary

Committee stationery. Subliminal message: Pay

my ﬁ rm; I can do a lot for you.)

The Select Committee heard from Powell’s by-

then estranged wife, who acknowledged that she

had not done much staff work and that Powell, not

herself, took the money. The Select Committee

recommended that Powell be seated but censured

and ﬁ ned $40,000. Others said he should be seated

but expelled on a two-thirds vote. It was easier to

exclude him by majority vote. In fact, more than

two-thirds voted to exclude Powell (307 to 116).

The House was nominally Democratic. In

fact, a coalition of conservative Republicans and

Democrats was in control. The Select Commit-

tee’s recommendation was rejected (222 to 202),

and the House voted Powell’s exclusion. In April

1967, Powell won a special election to ﬁ ll his seat

but waited till the outcome of the Supreme Court

appeal. He won the regular election in 1968. In

1969 the Supreme Court (in Chief Justice Earl

Warren’s last decision) ruled (7-1) that Powell

had been removed from Congress illegally. He

returned to the House but without his senior-

ity or his committee chairmanship. Since a ﬁ xed

amount was withheld from his paycheck each

month to pay the ﬁ ne, Powell announced he was a

part-time congressman. He spent most of his time

away from Washington.

In 1970, the Supreme Court refused to hear a

second Powell case in which he requested $55,000

in back salary for the two years that he had been

excluded, recovery of a $25,000 ﬁ ne imposed on

him when he was seated in 1969, and reestablish-

ment of his House seniority.

For more information: Dionisopoulos, P. Allen.

Rebellion, Racism & Representation: The Adam

Clayton Powell Case and Its Antecedents. Dekalb:

Northern Illinois University Press, 1970; Hamil-

ton, Charles V. Adam Clayton Powell, Jr.: The

Political Biography of an American Dilemma.

New York: Atheneum, 1991; Haygood, Wil. King

of the Cats: The Life and Times of Adam Clay-

ton Powell, Jr. New York: Houghton Mifﬂ in, 1993;

Jacobs, Andy. The Powell Affair: Freedom Minus

One. Indianapolis, Ind.: Bobbs-Merrill, 1973;

564 Powell v. McCormack

vi+904_EofUSConsti-v2.indd 564 3/20/09 2:18:10 PM

Weeks, Ken M. Adam Clayton Powell and the

Supreme Court. New York: Dunellen, 1971.

—Martin Gruberg

Preamble to the Constitution

The Preamble to the United States Constitution,

while notable for its prose, has no legally binding

effect. The Preamble reads, “We the People of the

United States, in Order to form a more perfect

Union, establish Justice, insure domestic Tran-

quility, provide for the common defense, promote

the general Welfare, and secure the Blessings of

Liberty to ourselves and our Posterity, do ordain

and establish this Constitution for the United

States of America.”

The purpose of the Preamble is to introduce

the Constitution and the rationale behind it.

Although the Preamble does not grant or inhibit

power, the phrase “We the People” represents

one of the Constitution’s core values—the idea

that power emanates from the people. One of the

most profound changes in the history of the con-

stitutional order involved the transfer of sovereign

authority from a single monarch to the people as

a whole. During their struggle for independence

from England, the colonists contended with an

overzealous king and Parliament, and the framers

of the Constitution were determined not to repeat

history. Through the Preamble, the Constitution

and all laws stemming from it embodied the fun-

damental will of the people.

The phrase “We the People” was a point of

contention throughout early American history

between the states and the federal government,

in particular, the scope of federal judicial power

over the states. Did the phrase mean “We the

People” of the Union or “We the People” of the

states? During the early years of the Republic,

the United States Supreme Court invoked “We

the People” as a Union as a means of consolidat-

ing federal power. In MCCULLOCH V. MARYLAND, 4

Wheaton 316 (1819), the Court upheld the power

of the Congress to incorporate a national bank on

the grounds that the Union was formed by the

people as a whole and, as such, the people of one

state (Maryland) had no right to impose their will

(by taxing a national institution) on the whole. In

ARTIN V. HUNTER’S LESSEE, 14 U.S. 304 (1816), and

COHENS V. VIRGINIA, 19 U.S. 264 (1821), the Mar-

shall Court argued that state courts do not

have ﬁ nal interpretive authority over the Consti-

tution, which was a product of one people. There-

fore, any state laws repugnant to the Constitution

were void.

States’ rights advocates invoked the Preamble

to support their contention that the Constitution

was “ordained and established” by “We the Peo-

ple” of the states, and if the federal government

exceeded its constitutional authority, the states

as representatives of the people, not the federal

courts, had the right to police the boundaries of

federal power. The idea of “We the People” of the

states was invoked by South Carolina during the

Nullification Controversy in the 1830s to

justify the right of one state to nullify a federal

law it felt was in contradiction to the Constitu-

tion. Similar logic was used by the South to justify

secession from the Union. The Constitution was a

compact among the people of the several states,

and as sovereign and independent entities, the

states had the right to leave the Union if the fed-

eral government (created by the states) exceeded

its authority.

The issue of secession and the sanctity of the

Union was finally put to rest by the Supreme

Court in Texas v. White, 74 U.S. 700 (1868), a

case involving the federal government’s pre-War

sale of bonds to Texas. The Court afﬁ rmed that

the Constitution created “an indestructible Union,

composed of indestructible States” (725). “We the

People” as a Union was indissoluble.

For more information: Bailyn, Bernard, ed. The

Debate on the Constitution: Federalist and Anti-

federalist Speeches, Articles, and Letters during

the Struggle over Ratiﬁ cation. New York: Literary

Classics of the United States, 1993.

—Randa Issa

preemption

The doctrine of preemption is used by courts to

decide whether a federal statute, based on a valid

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vi+904_EofUSConsti-v2.indd 565 3/20/09 2:18:10 PM

exercise of the constitutional powers of Congress

and the supremacy clause, supersedes a valid

state law addressing the same subject. In making

a decision, courts will articulate the meaning of

federalism by deﬁ ning the limits on federal and

state power.

Whether a federal law will invalidate a state

law addressing the same subject is guided by two

principles created by the Supreme Court. First, a

court will try to avoid ﬁ nding that a federal law

preempts state law, because it will presume that

state and federal law can coexist, and that Con-

gress will tolerate any tension created by its stat-

utes and state law. In Silkwood v. Kerr-McGee

(1984), the Court decided that Congress was will-

ing to allow any conﬂ icts created by the Atomic

Energy Act that regulated nuclear safety and a

state law that permitted the punitive damage

award for radiation injuries.

Second, a court will consider the subject of

the state and federal laws. If the case involves a

subject traditionally reserved to the states, such

as health and safety regulation, preemption is less

likely. In Silkwood, a state award of punitive dam-

ages against a manufacturer of atomic fuel rods for

its failure to protect its employees from radiation

hazards was not preempted by the Atomic Energy

Act. If, however, the case involves a subject del-

egated to the national government, such as foreign

relations, bankruptcy, patents, trademarks, and

immigration, preemption is more likely. In Crosby

v. National Foreign Trade Council (2000), a fed-

eral statute imposing sanctions on Myanmar for its

human rights abuses preempted a Massachusetts

statute barring state agencies from purchasing

goods from any company that did business with

Myanmar, because it intruded upon the ability of

the president to speak with one voice in foreign

affairs.

The Supreme Court has created two tests to

decide preemption cases: congressional intent

and actual conflict. When Congress expressly

declares its intention to displace state law, a court

will find that federal law has preempted state

law. Since this rarely happens, courts have had

to determine whether congressional action has

by implication superseded state law. When a con-

gressional statute creates a pervasive and detailed

regulatory scheme, addresses a field in which

the federal interest is dominant, or creates an

agency and grants it regulatory powers, a court is

inclined to ﬁ nd that these actions indicate a con-

gressional intent to preempt the ﬁ eld. San Diego

Buildings and Trades Council v. Garmon (1959)

held that the National Labor Relations Act pre-

empted a state tort law action for damages based

on a union’s organizing activity, because Congress

had bestowed labor policymaking on the National

Labor Relations Board.

Where Congress has not expressly or impliedly

intended to preempt state law, a court will ﬁ nd

preemption if there is an actual conﬂ ict between

the federal and state laws that makes compliance

with both laws physically impossible or frustrates

the achievement of the purpose of the federal law.

McDermott v. Wisconsin (1913) held that the fed-

eral Food and Drug Act preempted the Wisconsin

syrup labeling rules, because out-of-state syrup

producers could not physically comply with the

federal law without violating the state law.

In Silkwood, the Supreme Court relied on both

intent and conﬂ ict theories to ﬁ nd that the Atomic

Energy Act did not preempt state tort law recov-

ery for nuclear radiation injuries. First, the Court

held that Congress, in creating the Atomic Energy

Commission, did not intend to so completely

occupy the ﬁ eld of nuclear safety that it foreclosed

state negligence and strict liability remedies for

persons injured by nuclear incidents. Second, the

Court held there was no actual conﬂ ict between

federal and state civil remedies. It was not physi-

cally impossible for Kerr-McGee to pay both fed-

eral ﬁ nes and state punitive damage awards, nor

did the state punitive damage remedy frustrate

the desire of Congress to encourage nuclear power

development.

Overall, preemption decisions are a matter of

statutory interpretation. A court will ask whether

the federal law addresses a subject matter tradi-

tionally delegated to Congress, whether Congress

intended to permit state regulation of the subject,

and if it did not, whether the federal and state laws

conﬂ ict. In answering these questions, a court will

scrutinize the text of the federal statute, examine

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vi+904_EofUSConsti-v2.indd 566 3/20/09 2:18:10 PM

its legislative history, and then determine the prac-

tical effect of its implementation on the state law.

For more information: Sullivan, Kathleen, and

Gerald Gunther. Constitutional Law. 15th ed.

New York: Foundation Press, 2004; Tribe, Lau-

rence. American Constitutional Law. 3d ed. New

York: Foundation Press, 2000.

—William Crawford Green

presentment clause

The presentment clause of the United States

Constitution is located in Article I, Section 7. It

provides the fundamental guidelines for passing

federal legislation, which involve both chambers

of Congress as well as the president. Speciﬁ cally,

this clause requires every bill or resolution passed

by a majority vote by the House of Represen-

tatives and the Senate to be presented to the

president for his signature or veto. In instances

where the president approves of the legislation,

the bill or resolution is enacted into law. Bills or

resolutions vetoed by the president are required to

be returned to their chamber of origin, where the

veto may be overruled by a two-thirds vote in each

chamber. In short, this clause requires legislation

passed in both chambers of Congress to be pre-

sented to the president for his approval or veto.

The primary consequence of the presentment

clause concerns the significant involvement of

the president in the legislative process. While the

Constitution generally constructs a federal sys-

tem based on separated powers among the three

branches of government, this clause provides that

the legislative process is one that involves both the

legislative and executive branches.

Contrary to other constitutional provisions that

have provided the basis for controversy, debate,

and adjudication, the presentment clause has been

mostly noncontroversial throughout American his-

tory. As this clause clearly speciﬁ es what types of

legislation require presentation to the president,

the president’s limited options to approve or veto

legislation, and the legislative process necessary to

override instances of presidential vetoes, a notice-

able lack of ambiguity often leads to different

conceptualizations regarding the original intent

of the framers. However, in recent decades

the presentment clause has been the basis of the

controversy over the increased use of the legis-

lative veto, the line-item veto, and presiden-

tial signing statements.

Legislative vetoes are statutory provisions

that authorize either or both houses of Congress,

or speciﬁ c committees or subcommittees from

either or both houses, to approve or disapprove

of certain bureaucratic decisions, actions, or poli-

cies. By coupling the delegation of authority to

bureaucratic agencies with veto provisions, Con-

gress can utilize bureaucratic expertise and pro-

vide latitude in administrative decision making

while reserving veto powers over certain admin-

istrative actions. This particular oversight device

allows Congress to take actions that are legisla-

tive in function without presidential approval,

as required by the presentment clause. First

adopted in 1932, congressional use of the legisla-

tive veto substantially increased in the 1970s and

1980s in association with the growth of the fed-

eral bureaucracy. In 1983, however, the Supreme

Court declared the legislative veto unconstitu-

tional in INS v. Chadha, 462 U.S. 919 (1983), by

declaring that legislative veto provisions violated

prescribed policy-making procedures that the

Constitution stipulated as necessary in the legis-

lative process—namely, the presentment clause.

Despite this ruling, Congress has continued the

practice of including various types of legislative

veto provisions in legislation.

The presentment clause has also been part of

the debate over the presidential use of the line-

item veto. As part of the Republican “Contract

with America” following the 1994 elections in

which the Republicans assumed congressional

majorities in both chambers, Congress passed

the Line-Item Veto Act of 1996 (2 U.S.C. § 683).

This legislation empowered the president to strike

out certain provisions of appropriations bills as a

means toward ﬁ scal responsibility. The constitu-

tional permissibility of this act was challenged in

CLINTON V. CITY OF NEW YORK, 524 U.S. 417 (1998),

wherein the Supreme Court ruled that the line-

item veto violated the legislative process stipulated

presentment clause 567

vi+904_EofUSConsti-v2.indd 567 3/20/09 2:18:11 PM

by the Constitution, which necessitated bicameral

passage and presentment to the president.

Yet another issue concerns the applicability of

presidential signing statements to the presentment

clause. Modern presidents have increased the

frequency of attaching statements when signing

approved legislation into law. Signing statements

are generally used to provide instructions to execu-

tive branch ofﬁ cials regarding the president’s pre-

ferred means of policy implementation, to identify

provisions that possibly violate the Constitution,

or simply as rhetorical devices. As the afﬁ xation

of presidential statements to approved legislation

is not mentioned in Article I of the U.S. Con-

stitution, some argue that this practice violates

the presentment clause.

At its core, the presentment clause provides for

a considerable role for the president in the legis-

lative process. Although it has not been the sub-

ject of serious controversy for much of American

history, modern political phenomena such as leg-

islative vetoes, the line-item veto, and presiden-

tial signing statements have all raised interesting

questions regarding what policy-making actions

and procedures require presentment to the presi-

dent as stipulated by the Constitution.

For more information: Eskridge, William

N., and John Ferejohn. “The Article I, Section

7 Game.” Georgetown Law Journal 80 (1992):

523–564; Korn, Jessica. “The Legislative Veto

and the Limits of Public Choice Analysis.” Politi-

cal Science Quarterly 109, no. 5 (1994): 873–894;

Spitzer, Robert J. “The Constitutionality of the

Presidential Line-Item Veto.” Political Science

Quarterly 112, no. 2 (1997): 261–283.

—Michael John Berry

presidential pardoning power

Article II, Section 2 of the United States Consti-

tution states that the president “shall have power to

grant Reprieves and Pardons for Offenses against

the United States, except in Cases of Impeach-

ment.” The pardon is a power that can be traced

to the monarchy in England. This power, which has

been made available to the U.S. president, is prob-

ably the most imperial of his powers. The presi-

dent is able to grant a pardon to people who have

committed crimes or offenses against the United

States, except in cases of impeachment. Impeach-

ment is virtually the only limitation that has been

placed on the president by the Constitution. Other

than impeachment, the president essentially has

unlimited power when it comes to granting par-

dons, and this power has the potential for abuse.

The Supreme Court has mentioned that abuse of

this power could make the president susceptible

to judicial review and even impeachment.

When the president grants someone a reprieve,

the sentence is simply reduced and does not take

away guilt. For instance, a death sentence may

be reduced to a term of life imprisonment rather

than execution. A presidential pardon relieves the

accused of guilt in addition to the punishment.

When a person is granted a presidential pardon,

all of their rights are immediately restored, and it

is as if nothing had ever occurred.

In Federalist 74, Alexander Hamilton

made the argument that there are certain occa-

sions where it is important for the president to

have pardoning power. Hamilton stated that “in

seasons of insurrection or rebellion, there are

often critical moments when a well-timed offer

of pardon to the insurgents or rebels may restore

the tranquility of the commonwealth.” While the

power of pardon in England was granted to the

monarch and offenses were deemed to be made

against the monarch, in the U.S. crimes were

made against the government and its laws and not

simply the president. However, Alexander Ham-

ilton argued that the legislative branch was not

ﬁ t for this power, because the president would be

better suited to act more quickly and with national

and other interests in mind.

An example of the value of granting pardoning

power to the president was during Reconstruc-

tion after the Civil War. The United States did not

immediately calm down, and it took a long time

for the two sides to get along. The people of the

South eventually became a part of the political

process again; they were given back their voting

rights; and many even went on to hold federal

political ofﬁ ces.

568 presidential pardoning power

vi+904_EofUSConsti-v2.indd 568 3/20/09 2:18:11 PM

The ﬁ rst presidential pardon was granted by

George Washington in 1792. President Washing-

ton attempted violence and demands in order to

end the Whiskey Rebellion, but nothing worked

until he handed out presidential pardons. The

number of pardons granted has fluctuated over

time. After the Civil War, Presidents Abraham

Lincoln and Andrew Jackson granted amnesty

to about 200,000 people. In Ex parte Garland, 71

U.S. 333 (1866), the Supreme Court upheld the

broad scope of these pardons. President Harry

Truman granted pardons to about 1,500 people,

and in 1952, he restored civil rights to about

9,000 peacetime deserters.

Presidential pardons have also created a great

deal of controversy over time. One of the more

famous presidential pardons was the one granted

to Richard Nixon by President Gerald Ford.

Shortly after taking over the presidency from

Nixon, President Ford granted Richard Nixon a

full pardon. The controversy did not surround the

fact that President Ford granted Nixon a pardon,

but rather the timing of the pardon: Nixon’s par-

don was granted before charges were even ﬁ led.

It was suspected that Ford’s pardoning of Nixon

was a major factor in his loss to Jimmy Carter in

1976. Moreover, while some questioned the con-

stitutionality of this pardon, in Murphy v. Ford,

390 F. Supp. 1372 (D. Mich. 1975), a federal dis-

trict court judge upheld it, noting that the power

is “unlimited” except for impeachment.

Presidents have continued issuing pardons.

President Carter issued a pardon to all the indi-

viduals who evaded the draft during the Vietnam

War. During his last hours in office, President

George H. W. Bush granted pardons to six people

from President Reagan’s administration who had

been implicated in the Iran-Contra scandal. Presi-

dent Bill Clinton issued many controversial par-

dons during his tenure in the White House; some

have even referred to this as “pardon-gate.” Some

of Clinton’s pardons had family and campaign ties

to both the president and the First Lady. On his

last day in ofﬁ ce, President Clinton granted 140

pardons. Many presidents have chosen to grant

a few pardons on their last day in office, but

Clinton’s far exceeded previous numbers. One of

President Clinton’s last-minute pardons was for

his half-brother, Roger Clinton, who was serv-

ing a sentence on drug-related charges. In 2007,

President George Bush pardoned Lewis Libby,

the chief of staff for the vice president, after he

had been convicted for perjury. In this case, the

pardon extended only to the prison sentence, but

not to the ﬁ nes.

Today, there is an ofﬁ ce that is in charge of han-

dling pardons. The Ofﬁ ce of the Pardon Attorney

was created by Congress in 1891. It is this ofﬁ ce

that reviews petitions that have been made for

pardons and clemency. The pardon attorney then

makes recommendations to the attorney general,

who then advises the president.

For more information: Dorris, Jonathan T.

Pardon and Amnesty under Lincoln. Westport,

Conn.: Greenwood Press, 1977; Milkis, Sidney

M., and Michael Nelson. The American Presi-

dency: Origins and Development 1776–2002.

4th ed. Washington, D.C.: CQ Press, 2003; More,

Kathleen D. Pardons: Justice, Mercy and the Pub-

lic Interest. New York: Oxford University Press,

1989; Nelson, Michael, ed. Guide to the Presi-

dency. 2d ed. Washington, D.C.: Congressional

Quarterly, 1996; Pederson, William D., and Frank

J. Williams. “America’s Presidential Triumvirate:

Qualitative Measures.” In George Washington.

Foundation of Presidential Leadership and Char-

acter. Westport, Conn.: Greenwood Press, 2001.

—William D. Pederson and

Jacqueline M. Loubet

presidential signing statements

A presidential signing statement is a written

statement made by the president when he signs

a piece of legislation. Presidents James Monroe

and Andrew Jackson each used signing statements

to challenge what they viewed as congressional

encroachment on their executive powers. An 1899

Supreme Court decision recognized that “it has

properly been the practice of the President to

inform Congress by message of his approval of

bills” (La Abra Silver Mining Co. v. United States,

175 U.S. 423). Even so, presidents in the late 19th

presidential signing statements 569

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and early 20th centuries rarely used signing state-

ments, preferring to express their disagreements

with Congress in other ways.

Professor Christopher Kelly grouped presi-

dential signing statements into three categories:

rhetorical signing statements, used to mobilize

political support; political signing statements,

used to interpret legislation and structure its

implementation; and constitutional signing state-

ments, used to point out perceived constitutional

defects in legislation. Walter Dellinger, an assis-

tant attorney general in the Clinton administra-

tion, identiﬁ ed three similar functions in 1993 and

noted that a fourth had recently emerged: the use

of signing statements to create an alternative “leg-

islative history.”

A memo prepared in 1986 by then-Deputy

Assistant Attorney General Samuel Alito,

appointed to the Supreme Court in 2006, sug-

gested that presidents could effectively use signing

statements to address questions of interpretation

and to express what he called “presidential intent.”

The contemporary use of signing statements ﬁ rst

appeared during the Reagan presidency. Presiden-

tial signing statements, routinely published in the

Weekly Compilation of Presidential Documents,

began to be included in the legislative histories

compiled by West Publishing Company for its U.S.

Code Congressional and Administrative News in

1986.

According to the Congressional Research Ser-

vice, President Ronald Reagan issued 276 signing

statements during his eight years in ofﬁ ce (1981–

88). Most of them involved statutory interpreta-

tion, but 71 of them (26 percent) questioned the

constitutionality of at least one provision of the

bill being signed into law. President George H.

W. Bush continued this trend, issuing 214 sign-

ing statements in his single term (1989–92); 146

of them (68 percent) raised constitutional objec-

tions. President Bill Clinton issued 391 signing

statements during his two terms (1993–2000), but

only 105 of them (27 percent) raised constitutional

concerns.

President George W. Bush has used signing

statements more than any previous president. The

Congressional Research Service noted that “the

nature and sheer number of provisions challenged

or objected to indicates that there is . . . a qualita-

tive difference” between the actions of previous

administrations and those of President Bush. Dur-

ing his ﬁ rst term (2001–04), he issued 108 signing

statements. After six years the number had risen

to 149; 127 of them (85 percent) contained at least

one constitutional challenge. By June 2007, the

president had challenged over 1,100 separate leg-

islative provisions, the majority of them on consti-

tutional grounds.

Professor Phillip J. Cooper noted that the

administration consistently gave its own execu-

tive powers “the widest possible scope” while

giving legislative powers “the narrowest possible

reading.” President Bush’s signing statements

were characterized by “boilerplate” language

that was not specific to the bill. As the Con-

gressional Research Service report pointed out,

presidential objections were “largely unsubstan-

tive” or “so general as to appear to be hortatory

assertions of executive authority.” The most com-

mon claims of unconstitutional encroachment

involved the president’s power to supervise the

unitary executive, his exclusive authority over for-

eign affairs, his right to control the information

provided by the executive branch to Congress,

his inherent authority to protect national secu-

rity, and his powers as commander in chief. The

concept of the “unitary executive” is particularly

important. Under this theory, as developed by

the Bush administration, the president has exclu-

sive authority over all elements of the executive

branch, including the independent regulatory

agencies initially created by Congress. Relying

on Article II, Section 3 of the Constitution,

which states that the president “shall take care

that the laws be faithfully executed,” the unitary

executive theory also asserts that the president

has independent authority to interpret the law

and to implement his views.

President Bush’s use of signing statements

drew little attention until Congress approved the

McCain Anti-Torture Amendment to the Detainee

Treatment Act in 2005, explicitly prohibiting the

use of “cruel, inhuman or degrading treatment

or punishment.” President Bush ﬁ rst adamantly

570 presidential signing statements

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opposed this provision, then agreed to accept it.

But after publicly signing the bill, he issued a writ-

ten signing statement on December 30, 2005, that

asserted his right to ignore provisions of the bill he

had just signed:

The executive branch shall construe Title X in

Division A of the Act, relating to detainees, in

a manner consistent with the constitutional

authority of the President to supervise the uni-

tary executive branch and as commander in chief

and consistent with the constitutional limitations

on the judicial power, which will assist in achiev-

ing the shared objective of the Congress and the

President, evidenced in Title X, of protecting the

American people from further terrorist attacks.

In spring 2006, Boston Globe reporter Charlie

Savage reported on the president’s frequent use of

signing statements to challenge legislative provi-

sions and transform the meaning of statutory lan-

guage. The Congressional Research Service was

asked to prepare a report on the constitutional

implications of presidential signing statements.

The American Bar Association created a Task

Force on Presidential Signing Statements and the

Separation of Powers Doctrine, which criticized

President Bush’s use of presidential signing state-

ments as “tantamount to exercising the line-item

veto power held unconstitutional by the Supreme

Court.” The General Accountability Ofﬁ ce exam-

ined the impact of Bush’s signing statements on

the implementation of some of the speciﬁ ed pro-

visions and found that several of them had not

been implemented as the law directed.

All of the reports agreed that the issue was

not the use of presidential signing statements per

se, but the frequency with which they were now

being issued and the broad scope of the claims

being made. The Congressional Research Ser-

vice report noted that “the broad and persistent

nature of the claims of executive authority for-

warded by President Bush appear designed to

inure Congress, as well as others, to the belief

that the President in fact possesses expansive and

exclusive powers upon which the other branches

may not intrude.” Administrative spokesmen, in

contrast, asserted that President Bush was simply

making his interpretation of legislation clear, as

previous presidents have done, and asserting his

right—indeed, his obligation—to refuse to imple-

ment unconstitutional provisions. Both sides agree

that the issues raised by these uses of presidential

signing statements have the potential to reshape

core constitutional principles relating to checks

and balances and the separation of powers.

For more information: Cooper, Phillip J.

“George W. Bush, Edgar Allan Poe, and the Use

and Abuse of Presidential Signing Statements.”

Presidential Studies Quarterly 35 (2005): 515–

532; General Accountability Ofﬁ ce [GAO]. Let-

ter Opinion on Presidential Signing Statements

Accompanying the Fiscal Year 2006 Appropria-

tions Acts. Washington, D.C.: GAO, released June

18, 2007. Available online. URL: http://www.gao.

gov/decisions/appro/308603.htm. Accessed May

14, 2008; Halstead, T. J. Presidential Signing

Statements: Constitutional and Institutional Impli-

cations (updated version, document RL33667).

Washington, D.C.: Congressional Research Ser-

vice, released April 13, 2007. Available online.

URL: http://www.fas.org/sgp/crs/natsec/RL33667.

pdf. Accessed May 14, 2008.

—Barbara J. Hayler

presumption of innocence

The presumption of innocence is a bedrock prin-

ciple of criminal law that describes the protection

afforded a criminal defendant during the course of

a prosecution. In essence, it stands for the proposi-

tion that all criminal defendants have the beneﬁ t

of being viewed as innocent until such time as the

prosecution can supply evidence of an appropriate

weight such as to overcome that supposition.

The origins of the presumption of innocence

are not to be found in the Constitution itself, but

rather from time-honored tradition and the com-

mon law. In 1866, the United States Supreme

Court recognized that the presumption of inno-

cence was a recognized principle of common

law, which was “supposed to be fundamental and

unchangeable” (Cumings v. Missouri, 71 U.S. 277

presumption of innocence 571

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