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trial. The Supreme Court held that any fact that

raises the sentence above the statutory maximum

must be submitted to a jury and be proved beyond

a reasonable doubt—the “elements rule” (Bibas

2001). The only exception to this rule was the

judicial consideration of prior convictions during

a sentencing hearing; that is, after conviction, the

judge could raise the sentence after considering

prior convictions without a jury determination.

Although the state argued that the facts sup-

porting the enhancement penalty were merely

“sentencing factors,” the Supreme Court ruled

that these facts were more akin to “element fac-

tors”—that is, factors attributed to the elements

of the underlying crime—to which the Sixth

Amendment right to jury trial attached. In this

case, the facts given during the sentencing hear-

ing went toward the defendant’s biased purpose,

which went toward proving the defendant’s state

of mind—that is, the mental element of the crime.

Therefore, the defendant’s biased purpose was an

element factor that necessitates protection of the

defendant’s Sixth Amendment right to jury trial.

The jury is therefore required to determine the

facts beyond a reasonable doubt to support the

enhanced sentence.

For more information: Bibas, S. “Judicial Fact-

ﬁ nding and Sentence Enhancements in a World of

Guilty Pleas.” Yale Law Journal 110 (2001): 1,097–

1,185; Levine, A. M. “The Confounding Boundar-

ies of ‘Apprendi-land’: Statutory Minimums and the

Federal Sentencing Guidelines.” American Journal

of Criminal Law 29 (2002): 377–454; Priester, B.

J. “Structuring Sentencing: Apprendi, the Offense

of Conviction, and the Limited Role of Consti-

tutional Law.” Indiana Law Journal 79 (2004):

863–935; Yellen, D. “Saving Federal Sentencing

Reform after Apprendi, Blakely and Booker.” Vil-

lanova Law Review 50 (2005): 163–187.

—Jeremy D. Ball

Arizonans for Ofﬁ cial English v. Arizona

520 U.S. 43 (1997)

In Arizonans for Ofﬁ cial English v. Arizona, the

Supreme Court avoided ruling on whether a law

that mandated all state business be conducted

in English violated either the First Amend-

ment or Fourteenth Amendment of the

Constitution.

Arizonans for Official English v. Arizona

originated in October 1987 when a group named

Arizonans for Ofﬁ cial English began a petition

drive to amend Arizona’s constitution. The orga-

nization aimed to prohibit all government ofﬁ cials

and employees from using languages other than

English in the performance of government busi-

ness. In practice, the legislation targeted Spanish

speakers, a substantial proportion of the state’s

population. Advocates for the measure stated

that record levels of immigration into the United

States threatened to overwhelm assimilation.

They argued that a common language brought

political unity and stability. Opponents viewed

the measure as an attack on illegal immigrants

out of frustration for the nation’s failed immigra-

tion policy.

In November 1988, voters approved the

amendment, entitled “English as the Ofﬁ cial Lan-

guage,” as Article 28 of the Arizona Constitution.

The amendment permitted the use of languages

other than English only to protect public health

and safety, protect the rights of crime victims and

criminal defendants, and comply with federal

law, such as English as a Second Language (ESL)

classes for schoolchildren. Any Arizona resident

or person doing business in Arizona had stand-

ing to bring a suit for enforcement. Arizona thus

became the 21st state to declare English as its ofﬁ -

cial language.

Maria-Kelly Yniguez, a ﬁ rst-year law student

who evaluated medical malpractice claims against

state hospitals for the Arizona Department of

Administration, promptly sued to stop the law.

Yniguez spoke in Spanish to claimants who spoke

only Spanish, and she spoke in a combination of

English and Spanish with bilingual claimants. Yni-

guez maintained that she had a First Amendment

right to ﬁ ll out release-of-claim forms in Spanish.

The state supreme court found that the amend-

ment violated the Fourteenth Amendment’s guar-

antees of equal protection by impinging upon

both the fundamental right to participate equally

32 Arizonans for Ofﬁ cial English v. Arizona

xviii+446_EofUSConsti-v1.indd 32 3/12/09 3:03:45 PM

in the political process and the right to peti-

tion the government for redress. Article 28

unconstitutionally inhibited the free discussion

of governmental affairs by depriving limited- and

non-English-speaking persons from access to gov-

ernment information and by depriving elected

ofﬁ cials and public employees of their ability to

communicate with their constituents and with the

public.

Both the U.S. district court in Phoenix and the

Ninth Circuit majority struck down Article 28

in its entirety. The courts held that the choice of

language alone, independent of any content, was

protected speech that the state could not regulate.

Meanwhile, Yniguez resigned from her state job to

accept a private-sector position.

In 1997, the U.S. Supreme Court vacated

the Ninth Circuit decision. It held that the case

should have been dismissed when Yniguez quit

her job because the amendment pertains only to

government employees. Public employees have

constitutional protections such as those provid-

ing freedom of speech, but private employees do

not have constitutional protections. With this

decision, the Court avoided the hotly contested

issue of the constitutionality of English-only

laws.

For more information: Smith, Zachary A.

Politics and Public Policy in Arizona. Westport,

Conn.: Praeger, 2002.

—Caryn E. Neumann

Article I of the U.S. Constitution

Article I of the U.S. Constitution establishes the

legislative branch (known as Congress) of the fed-

eral government. Congress consists of the House

of Representatives and the Senate. The

article establishes the composition, conditions,

and requirements for members of the legislative

branch and their role, powers, and limits. In addi-

tion to outlining the role and scope of powers of

members of each congressional house, Article I

outlines the legislative procedures and delineates

the limits of legislative power at both the federal

and state levels of government.

The House of Representatives

Section 2 of Article I establishes the House of

Representatives, often referred to as the “lower

house,” despite its powers being roughly equiva-

lent to those of the Senate. In some areas, the

powers of the House of Representatives are actu-

ally superior to those of the Senate; for example,

the House of Representatives has sole responsibil-

ity and power to generate revenue bills.

It is within this section of Article I that the

term for ofﬁ ce holders, the electoral process for

elections to this congressional house, qualifi-

cations for those elected, apportionment (the

number of representatives per state), and spe-

ciﬁ c ofﬁ ces within the House of Representatives

itself are established. The article provides for the

election of members to the House of Representa-

tives every second year by the people, with the

provision that if vacancies should occur during

a term, it is left to the governor of the affected

state to issue a writ of election calling for a special

election to be held to ensure representation for

that congressional district. The Constitution also

provides a minimum-age requirement for those

seeking to hold ofﬁ ce within the House; the mini-

mum age is set at 25 years. In addition to this age

requirement, the Constitution’s Article I also out-

lines other qualiﬁ cations, such as residency of the

state that the individual is representing (although,

technically, one does not need to be a resident

of the district one represents, this is mostly the

case in practice), and the representative must also

have been a U.S. citizen for a minimum of seven

years prior to his or her election to the House of

Representatives.

With regard to apportionment, the number

of representatives for each state is dependent on

the size of its population, although each state is

entitled to at least one representative. Originally,

the population of a state was determined accord-

ing to the following guidelines: all “free persons,”

three-ﬁ fths of “other persons” (that is, slaves), and

excluding Native Americans. Women were not

excluded but they could not vote. This “formula”

was not necessarily meant to deny the humanity of

slaves but rather served as a means of limiting the

political power of slave-holding states by reducing

Article I of the U.S. Constitution 33

xviii+446_EofUSConsti-v1.indd 33 3/12/09 3:03:45 PM

their representation within the House of Repre-

sentatives. However, the Fourteenth Amendment,

passed after the Civil War, changed this appor-

tionment provision by removing the three-ﬁ fths

clause, as slavery had been abolished. Today, all

persons of a state—whether voters or not—are

counted with regard to calculating the population

of a state for the purposes of selecting members

to the House of Representatives. This is done

through a population census conducted every 10

years, as provided for by the Constitution.

Section 2 of Article I provides for the House

of Representatives to select the Speaker and other

ofﬁ cers. In this regard, although the Constitution

does not mandate that the Speaker of the House

of Representatives be a member of the House, this

has always been the case. Finally, Section 2 desig-

nates the House of Representatives as having sole

power of impeachment, although impeachments

are tried in the Senate, as discussed in the next

section.

The Senate

Section 3 of Article I establishes the Senate, also

known as the “upper house,” although it is roughly

equal in terms of powers bestowed upon it by the

Constitution. However, the Senate is tradition-

ally viewed as the upper house because there are

fewer senators than representatives and a senator’s

term in ofﬁ ce is longer than that of a represen-

tative’s, thereby providing the average senator

with more influence than perhaps the average

representative.

As in Section 2 for the House of Representa-

tives, Section 3 outlines the composition, selec-

tion process, and qualiﬁ cations for members of the

Senate. With regard to the composition and selec-

tion process, each state is entitled to two senators

to be chosen for a term of six years, provided for

by the Constitution. During the very ﬁ rst meet-

ing of the Senate, senators were divided into three

classes of near-equal size, as each had a different

length of term in ofﬁ ce to allow for staggered rota-

tion in the future: The ﬁ rst class had a two-year

term; the second class, a four-year term; and the

third class, a six-year term. Thereafter, all sena-

tors had six-year terms. This ﬁ rst-meeting “class

system” successfully ensured that every two years,

about one-third of the Senate would be up for

election, thereby preserving stability and continu-

ity within the chamber.

Originally, senators were selected by state

legislatures, and in cases of vacancies during a

recess of the legislature, the legislatures could

authorize the state’s governor to make tempo-

rary appointments to the Senate. However, this

selection process changed with the passing of the

Seventeenth Amendment, which provides

for the direct election of senators by their state’s

voters.

There are few stipulations regarding qualiﬁ ca-

tions for becoming a senator, as is the case for rep-

resentatives. The three qualiﬁ cations to become

a Senator are a minimum age of 30 years, U.S.

citizenship for at least nine years prior to winning

an election, and residency in the state that the

or she will represent at the time of winning the

election.

In addition to outlining the establishment of the

Senate, Section 3 also includes clauses that cover

the selection by the Senate of ofﬁ cers such as the

president pro tempore, the majority and minority

leaders, and the majority and minority whips. Sec-

tion 3 also provides that the vice president is to

serve as the president of the Senate but without a

voting right unless a vote is equally divided. In the

absence of the vice president presiding over the

Senate, the president pro tempore takes over the

duties as necessary. The last two clauses of Sec-

tion 3 cover impeachment trials and judgments,

whereby the Senate is granted the sole power to

try impeachments, and in judgments, the Senate

may also disqualify a defendant from holding any

future public ofﬁ ce.

The last six sections of Article I establish fur-

ther guidelines with regard to elections and meet-

ings, procedures, and compensation, privileges,

and restrictions on holding civil ofﬁ ce. Section 7,

referred to as the presentment clause, estab-

lishes the method of making acts of Congress

(congressional bills becoming law). While Sections

8 and 9 enumerate the powers and limits of Con-

gress, respectively, the ﬁ nal section, Section 10,

outlines the limits on the powers of states.

34 Article I of the U.S. Constitution

xviii+446_EofUSConsti-v1.indd 34 3/12/09 3:03:46 PM

For more information: Burnham, James. Con-

gress and the American Tradition. Chicago: H.

Regnery Co., 1959; English, Ross M. The United

States Congress. Manchester, England: Manches-

ter University Press, 2003; Galloway, George B.

History of the House of Representatives. New York:

Thomas Y. Crowell, 1962; Grant, Alan. The Amer-

ican Political Process. New York: Routledge, 2003;

Posner, Richard A. An Affair of State: The Investi-

gation, Impeachment, and Trial of President Clin-

ton. Cambridge, Mass.: Harvard University Press,

1999; Stark, Jack. Prohibited Government Acts: A

Reference Guide to the United States Constitu-

tion. Westport, Conn.: Praeger, 2002.

—Dale Mineshima-Lowe

Article II of the U.S. Constitution

Article II of the U.S. Constitution establishes the

executive branch (consisting of the president and

other executive officers) of the federal govern-

ment. The article is divided into four sections

covering areas relating to the president and the

executive branch, such as the election and term

of the president, the role of the vice president,

presidential powers and responsibilities, and the

issue of impeachment.

The President and Vice President

Section 1 states that executive power shall be

vested in the office of the president during his

term of four years and that the president and a

vice president are to be elected by the electoral

college. This section also outlines how members

of the electoral college are chosen and about their

voting. The electoral college is made up of indi-

viduals selected according to the state legislatures’

procedures, with each state allowed to choose as

many electors to the college as the total number of

representatives and senators the state has in U.S.

Congress. Electors may not include senators, rep-

resentatives, or other federal ofﬁ cers.

With regard to the electoral college’s voting pro-

cedures, originally, electors from each state were

required to make a list of all persons voted for,

listing the number of votes each had received, and

then deliver this list to Congress, where the presi-

dent of the Senate would count it before both

houses of Congress. The individual with the most

votes would then be selected president, with the

individual with the next highest number of votes

as the vice president. In the event of a tie, the Sen-

ate would then select between the tied candidates,

their choice for vice president. This procedure was

replaced (implicitly) by the Twelfth Amend-

ment in 1804. The Twelfth Amendment intro-

duced key changes to the electoral college voting

procedure, endowing each elector now with one

vote for president and another vote for the vice

president. In the case where there is no clear presi-

dential candidate receiving a majority of the votes,

the House then selects from among the top three.

The Senate, in cases where vice presidential can-

didates have an equal number of electoral votes,

selects from the two with the highest number of

votes. In addition to the electoral college selection

and voting procedures, Article II also dictates the

date on which electors are chosen: the Tuesday

following the ﬁ rst Monday in November, in the

year before the president’s term is due to expire.

Other aspects covered in detail in Section 1 are

qualiﬁ cations for ofﬁ ce, salary, the oath or afﬁ rma-

tion of the ofﬁ ce, and contingency plans in cases

of vacancies or disabilities during a term in ofﬁ ce.

Qualiﬁ cations for the president and vice president

are that both must be natural-born citizens, at

least 35 years of age by the time of their inaugura-

tion, and inhabitants of the United States for at

least 14 years. The Twenty-second Amend-

ment also prevents the president from serving

more than two terms in ofﬁ ce.

With regard to salaries, although there is no

speciﬁ c amount set for the president or vice presi-

dent, Article II states that the president (and by

implication the vice president) shall be compen-

sated for services rendered; however, the amount

of compensation shall remain constant during the

term of office and that no other compensations

may be received during this period.

Before taking ofﬁ ce, the president pronounces

the oath of ofﬁ ce: “I do solemnly swear [or afﬁ rm]

that I will faithfully execute the Office of the

President of the United States, and will to the

best of my Ability, preserve, protect and defend

Article II of the U.S. Constitution 35

xviii+446_EofUSConsti-v1.indd 35 3/12/09 3:03:46 PM

the Constitution of the United States.” And by

convention established by George Washington,

the president ends the oath with “. . . so help me

God.” Normally, the chief justice of the Supreme

Court presides and administers the oath of ofﬁ ce.

The vice president also has an oath of ofﬁ ce, but

unlike the presidential oath, it is not mandated

by the Constitution but rather is prescribed for

by statute. The oaths taken by both the president

and vice president are signiﬁ cant, especially in the

event of vacancy or disability.

The wording of Clause 6 has in the past caused

controversy regarding succession in these events,

the quandary being whether the vice president

became the president or was more of an act-

ing president until an election could be held to

determine a new president. However, the death

of President William Henry Harrison while in

ofﬁ ce and Vice President John Tyler’s assumption

that he had the right to become president in the

wake of Harrison’s death set the precedent that

has since been used by other vice presidents (such

as Andrew Johnson, Harry Truman, and Lyndon

Johnson) to take up the mantle and assume the

role of president for the remainder of the term.

This precedent became solidiﬁ ed with the pass-

ing of the Twenty-fifth Amendment, which

explicitly set out that in cases where the presidency

became vacant due to death, illness, resignation,

or inability, the vice president would then become

the president. In the case of a vice presidential

vacancy, the Twenty-ﬁ fth Amendment also allows

for the president to appoint, with the approval of

both the House of Representatives and the

Senate. The amendment also outlines that when

the president is unable to discharge his duties,

the vice president then becomes acting president.

This allows the president to take control back at

a later point unless two-thirds of both houses of

Congress vote to uphold the ﬁ nding of the vice

president and cabinet.

Presidential Powers

The president is the commander in chief of

the armed forces in the United States. Although

presidents have often deployed troops, the

president cannot declare war—a congressional

power covered in Article I of the U.S. Con-

stitution—and needs congressional support

for deployment. In addition to his or her role as

commander in chief, the president, implicitly

through the Constitution, can create a cabinet

that includes principle officers from different

executive departments for the purpose of provid-

ing the president with advice when called upon

to do so. Other presidential powers provided for

by Article II include the ability to grant pardons

or reprieves (although not in impeachment cases)

and the ability to ratify treaties and make senior-

level and judicial appointments upon the advice

and consent of the Senate; the power to remove

individuals from ofﬁ ce (although this is a power

that Congress has, over time, sought to limit in

various ways). Lastly, the president has the power

to make appointments ﬁ lling vacancies that may

occur during a Senate recess, thereby granting a

commission that would expire at the end of the

next Senate session. A recent example of presiden-

tial use of this particular power was George W.

Bush’s appointment of John Bolton as ambassador

to the United Nations in 2005.

Presidential Responsibilities

The president must deliver regular addresses to

Congress about the “State of the Union,” making

recommendations about measures and issues that

representatives and senators should be aware of

and consider. In addition to his regular addresses,

the president can call Congress into extraordi-

nary sessions as well as call for its adjournment

when both Houses cannot agree upon a date for

adjournment. The president is also the country’s

representative and is responsible for receiving all

foreign ambassadors. Regarding the execution of

the law, the president is responsible for ensur-

ing its faithful execution. Lastly, the president is

responsible for commissioning all United States

ofﬁ cers, including those of the military and for-

eign services.

Impeachment

The final section of Article II provides for the

involuntary removal from ofﬁ ce of the president,

the vice president, civil officers, and executive

36 Article II of the U.S. Constitution

xviii+446_EofUSConsti-v1.indd 36 3/12/09 3:03:46 PM

ofﬁ cers. It stipulates that the House of Represen-

tatives may impeach these ofﬁ cers, and the Senate

tries them.

For more information: Applewood Books.

U.S. Constitution by Founding Fathers. Carlisle,

Mass.: Applewood Books, 2006; Crenson, Mat-

thew, and Benjamin Ginsberg. Presidential Power:

Unchecked and Unbalanced. New York: W. W.

Norton, 2007; Grant, Alan. The American Politi-

cal Process. New York: Routledge, 2003; Posner,

Richard A. An Affair of State: The Investigation,

Impeachment, and Trial of President Clinton.

Cambridge, Mass.: Harvard University Press,

1999; Stark, Jack. Prohibited Government Acts:

A Reference Guide to the United States Consti-

tution. Westport, Conn.: Praeger, 2002; Sunstein,

Cass R. The Declaration of Independence and

the Constitution of the United States of America.

Washington, D.C.: Georgetown University Press,

2003.

—Dale Mineshima-Lowe

Article III of the U.S. Constitution

Article III of the U.S. Constitution speciﬁ es the

authority given to the judicial branch. Section 1

states:

[T]he judicial Power of the United States shall

be vested in one supreme Court, and in such

inferior Courts as the Congress may from time

to time ordain and establish. The Judges, both of

the supreme and inferior Courts, shall hold their

Ofﬁ ces during good Behavior, and shall, at stated

Times, receive for their Services, a Compensa-

tion, which shall not be diminished during the

Continuance in Ofﬁ ce.

This section describes the general structure of

the federal judiciary: one supreme court that over-

sees the decisions of several lower courts, with

the actual number of lower courts determined by

Congress. Section 1 also stipulates that all federal

judges possess life tenure, provided they serve

during good behavior. Thus, federal judges can

be removed from ofﬁ ce only by impeachment,

which is spelled out in Article II of the U.S.

Constitution, Section 4. Additionally, federal

judges shall receive monetary compensation for

their work, and these salaries cannot be reduced

while the judges remain in ofﬁ ce. Taken together,

these last two provisions (life tenure and no reduc-

tion in salary) are designed to provide federal

judges with a certain degree of independence to

insulate them from external political inﬂ uences.

Section 2 describes the types of jurisdictions

(in other words, legal authority) available to the

federal courts and, in particular, the U.S. Supreme

Court. It states that judicial authority shall extend

to all cases, in law and equity, arising under the

Constitution, the laws of the United States, and

any obligations imposed by international treaties.

Cases involving the “law” of the United States are

relatively self-explanatory, since they occur most

frequently and exemplify the typical court action.

The term law essentially refers to a norm, rule,

or regulation governing society that, if violated, is

punishable by a recognized authority (such as the

government). Cases arising under equity are simi-

lar with the primary exception pertaining to the

type of legal remedy involved. In an equity suit,

litigants can request judges to issue orders (writs)

telling other individuals to perform a specific

action or cease performing a speciﬁ c action. Thus,

suits of equity can be used to prevent a potential

wrong from occurring, such as asking a judge to

issue an injunction to stop the demolition of a

house. In contrast, suits in law involve determin-

ing the appropriate remedy for events that have

already occurred, such as suing for ﬁ nancial com-

pensation after a house has been demolished.

Section 2 also describes the difference between

original jurisdiction and appellate juris-

diction and speciﬁ es which cases belong in which

category (for the Supreme Court). Original juris-

diction refers to the legal authority to conduct a

trial (that is, where the case is heard originally). In

contrast, appellate jurisdiction refers to the legal

authority to review a decision from a lower court

(that is, to hear a case on appeal). Section 2 indi-

cates that in cases affecting foreign ofﬁ cials (such

as ambassadors or consuls) and suits between two

or more states, to name just a few categories, the

Article III of the U.S. Constitution 37

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Supreme Court will possess original jurisdiction.

In all other instances, the Supreme Court will pos-

sess appellate jurisdiction. Though Congress pos-

sesses the authority to alter the Supreme Court’s

appellate jurisdiction through the passage of spe-

ciﬁ c statutes, only a constitutional amendment can

change the Supreme Court’s original jurisdiction.

This important distinction and clariﬁ cation of law

was handed down in the case M

ARBURY V. MADISON,

5 U.S. (1 Cranch) 137 (1803), by Chief Justice John

Marshall. At issue in this case was the nomina-

tion of William Marbury to a position as justice of

the peace for the District of Columbia.

According to the Judiciary Act of 1789,

which helped establish the first lower federal

courts, the Supreme Court was provided with the

authority to issue writs of mandamus (an order

directing the government to do something) to

government officials under its original jurisdic-

tion. In writing one of the most important and

widely recognized opinions for the Supreme

Court, Marbury v. Madison, Chief Justice Mar-

shall stated that, since the original jurisdiction

of the Supreme Court was specified in Article

III of the Constitution, Congress could not alter

this jurisdiction through the passage of an ordi-

nary statute; rather, a constitutional amendment

was required. In stipulating this provision, Mar-

shall declared unconstitutional Section 13 of the

Judiciary Act of 1789—the section including the

writ of mandamus in the Court’s original jurisdic-

tion—and consequently established the power of

judicial review.

While Marbury establishes relatively clear

deﬁ nitions for the Court’s original jurisdiction,

its appellate jurisdiction is somewhat less clear,

in particular regarding the circumstances under

which Congress may limit or remove appellate

jurisdiction. Perhaps the leading decision out-

lining Congress’s authority over the Supreme

Court’s jurisdiction is E

X PARTE MCCARDLE, 74

U.S. (7 Wall.) 506 (1869). This case, arising in

the aftermath of the U.S. Civil War, involved

the arrest of McCardle for publishing libelous

materials. McCardle ﬁ led a petition for habeas

corpus to challenge his trial before a military

commission. Fearing that the Supreme Court

might declare the Reconstruction Acts unconsti-

tutional, Congress revoked the Court’s appellate

jurisdiction—in a somewhat controversial man-

ner—one year prior to McCardle’s case reaching

the justices.

Speaking on behalf of a unanimous Court,

Chief Justice Salmon P. Chase stated that the jus-

tices “are not at liberty to inquire into the motives

of the legislature. We can only examine into its

power under the Constitution; and the power to

make exceptions to the appellate jurisdiction of

this Court is given by express words.” Yet, the

Court acknowledged three years after McCardle

that Congress’s authority to make exceptions to

its appellate jurisdiction was not without limits.

In United States v. Klein, 80 U.S. (13 Wall.) 128

(1872), the Supreme Court countered an attempt

by Congress to eliminate the president’s authority

to issue pardons. Since this authority is explicitly

granted to the president by the Constitution, the

justices stated that Congress’s attempt to limit his

jurisdiction was unconstitutional because it was a

“means to an end” for an impermissible action.

Currently, several attempts exist in Congress

to limit the appellate jurisdiction of the Supreme

Court and the general jurisdiction of the lower

courts. The Defense of Marriage Act (2004)

contains language that states: “No court created

by Congress shall have any jurisdiction, and the

Supreme Court shall have no appellate jurisdic-

tion, to hear or decide any question pertaining to

the interpretation of [marriage].” Additionally, the

House of Representatives has passed legisla-

tion that includes language limiting the jurisdic-

tion of federal courts in hearing cases involving

the phrase under God in the Pledge of Allegiance,

in response to the initiatives leading to the case

Elk Grove Unified School District v. Newdow,

542 U.S. 1 (2004).

Also linked to this section of Article III are

additional requirements that must be met before

federal judges will hear cases. First, there must

be an actual case or controversy. This means that

courts will not decide cases in the abstract (and

will not issue advisory opinions). Instead, a spe-

cific event or action is necessary that caused a

particular injury (either in law or equity) to one of

38 Article III of the U.S. Constitution

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the litigants (parties to the case). Second, the case

must be brought under the appropriate jurisdic-

tion, either original or appellate. Third, the case

must be appropriate for a judicial resolution (in

other words, the case must be justiciable). Some

issues are better left to the legislative or execu-

tive branches of government, and the judiciary is

hesitant to issue decisions in cases that present a

political question. If a court states that an issue

presents a political question, it will dismiss a case

and not rule on the merits of the dispute.

In the case B

AKER V. CARR, 369 U.S. 186

(1962), Justice William J. Brennan, Jr., spe-

ciﬁ cally identiﬁ ed examples of issues that present

political questions: foreign affairs (reserved for

the executive branch), the duration of hostilities

(reserved for the legislative branch), validity of

enactments (reserved for the legislative branch),

status of American Indian tribes (reserved for

the executive branch), and the appropriate form

of government (reserved for the legislative and

executive branches). Finally, the litigant bring-

ing the dispute must be able to demonstrate legal

standing. This is a requirement that the party

must show the occurrence of a specific injury

that is linked to the litigant being sued. If any

of these requirements, called “threshold issues,”

are not met, then the case will be dismissed and

the federal court will not rule on the merits of

the dispute.

Article III also speciﬁ es several requirements

for criminal trials: “The Trial of all Crimes, except

in Cases of Impeachment, shall be by Jury; and

such Trial shall be held in the State where said

Crimes shall have been committed; but when

not committed within any State, the Trial shall

be at such Place or Places as the Congress may

by Law have directed.” This statement requires

jury trials for all crimes except impeachment.

Though the jury requirement is also listed in the

Sixth Amendment, the framers of the Constitu-

tion felt so strongly about the right to trial

by jury that they originally placed the require-

ment in Article III. This clause also stipulates that

criminal trials will be held in the state where the

offense occurred. Consequently, courts in Ohio,

for example, cannot hold trials for crimes commit-

ted in Kentucky. However, if the criminal offense

cannot be isolated to a particular state (such as

smuggling drugs across multiple state lines), then

Congress has the authority to stipulate where the

trial will occur.

The ﬁ nal section of Article III—Section 3—

specifies the requirements necessary to bring

charges of treason against individuals. The

framers of the Constitution were concerned that

the charge of treason could be used to imprison

political opponents, and they therefore provided a

speciﬁ c deﬁ nition of treason and listed particular

requirements that must be met in order to bring

this charge.

For more information: Rakove, Jack N. Original

Meanings: Politics and Ideas in the Making of the

Constitution. New York: Knopf Publishing, 1997;

Simon, James F. What Kind of Nation: Thomas

Jefferson, John Marshall, and the Epic Struggle

to Create a United States. New York: Simon and

Schuster Adult Publishing, 2003.

—Kirk A. Randazzo

Ashcroft v. ACLU 542 U.S. 656 (2004)

Ashcroft v. ACLU was the last in a series of cases

seeking to protect children from obscenity on

the Internet. The decision blocked enforcement

of the Child Online Protection Act (COPA), 47

U.S.C. Section 231 (1998).

The development of the Internet permitted

information and pictures to be published on any

computer anywhere in the world and made avail-

able to anyone. Pornographers quickly estab-

lished themselves as a major presence on the

Internet, making obscenity available to unsuper-

vised children. Congress, in response, adopted

the Communications Decency Act (CDA) of

1996, which was signed by President Bill Clin-

ton. CDA made the “knowing” transmission of

“obscene or indecent” messages to any recipient

under 18 years of age a felony with ﬁ nes and/or a

prison sentence. The CDA provided that access

for adults could be allowed by several mecha-

nisms including the use of a credit card as adult

identification. Attorney General Janet Reno

Ashcroft v. ACLU 39

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was enjoined, however, from enforcing the act

in Reno v. ACLU, 521 U.S. 844 (1997), which

became known as Reno I.

In response, Congress passed COPA the follow-

ing year, which was signed by President Clinton.

Again the law was challenged by the American

Civil Liberties Union (ACLU) and others. A

case was begun in Philadelphia that led to a fed-

eral district judge declaring COPA unconstitu-

tional. On appeal, the U.S. Court of Appeals for

the Third Circuit also declared COPA unconsti-

tutional, but on different grounds. The Supreme

Court issued its opinion in 2002 by which time

Reno II had been renamed Ashcroft v. ACLU,

or Ashcroft I, for the new attorney general, John

Ashcroft. Supporting the government’s case were

conservative groups such as the Center for Law

and Justice.

The Supreme Court returned Ashcroft I to the

U.S. court of appeals for further decisions in light

of several issues. Among these were the fact that

the law was drawn close to the decision in M

ILLER

V. CALIFORNIA, 413 U.S. 15 (1973), and other simi-

lar decisions. However, on remand, the court of

appeals upheld the district court’s injunction

on the grounds that COPA was not tailored tightly

enough to prevent adults from being denied access

to lawful material, even if objectionable for chil-

dren and for other reasons.

The case then returned to the Supreme Court,

which issued its ruling on June 29, 2004. The

Court held COPA to be unconstitutionally broad.

The decision stressed the use of adult-controlled

ﬁ lters for blocking access to adult-content materi-

als. The Court’s position was that the least restric-

tive means of access were those needed, otherwise

there might be a chilling effect upon freedom of

speech on the Internet.

For more information: Drucker, Susan J. J. Real

Law @ Virtual Space: The Regulation of Cyber-

space. Cresskill: New Jersey Hampton Press,

2005; Thomas, Lisa M. Children’s Online Protec-

tion Act (Copa) and an Overview of Select Cases:

The Over-Arching Issues You Need to Know. Bos-

ton: Aspatore Books, 2006.

—Andrew J. Waskey

Ashwander v. Tennessee Valley Authority

297 U.S. 288 (1936)

In Ashwander v. Tennessee Valley Authority,

the Supreme Court ruled that Congress had not

exceeded its constitutional authority in establish-

ing the Tennessee Valley Authority (TVA).

The TVA was initially a government-led corpo-

ration established to better the lives of the deni-

zens of the Tennessee Valley, a region of rivers

that ﬂ owed through the state of Tennessee. The

original mission of the TVA was to aid in national

defense, specifically through the production of

munitions materials. Soon the TVA was simulta-

neously developing enough hydroelectric power

to support the region while supplying the energy

needed to perform the munitions production. In

addition, the TVA and its presence provided con-

trol and navigational assistance to river trafﬁ ckers

as well as control and implementation of new engi-

neering models to alleviate the dangerous yearly

ﬂ ooding that was plaguing the lower river plains.

The TVA entered into a contract with the Ala-

bama Power Company for transmission lines from

the area of the Wilson Dam—where the United

States owned the underlying territory, substa-

tions, and auxiliary properties, some of which

are the basis for the construction of the Wheeler

Dam—and for the excess supply of power that

the TVA had available. The Alabama Power Com-

pany, a privately owned public company, had its

preferred stockholders bring suit on behalf of the

overall shareholders against the TVA so as to block

the TVA from acquiring a large portion of the Ala-

bama Power Company’s plant and equipment. The

claim was that the actions entitled within the con-

tract were injurious to the corporate interests of

the company as a whole and should be annulled.

The plant and equipment that was purchased

would result in allowing the TVA to provide elec-

tricity to the region and to the private companies

thereby creating a disadvantage for the privately

held companies to compete against the larger and

better-funded Tennessee Valley Authority.

Chief Justice Charles Evans Hughes, who

delivered the opinion for the Court, offered that

the rights observed and understood within the

Constitution allowed for the Congress to alter the

40 Ashwander v. Tennessee Valley Authority

xviii+446_EofUSConsti-v1.indd 40 3/12/09 3:03:47 PM

service offerings of the TVA irrespective of its

original intentions and mission. Speciﬁ cally, the

Court ruled that the authority to sell the electric-

ity produced by the dams was supported by Article

IV, Section 3 of the Constitution. This clause of

the Constitution gives Congress the power to dis-

pose of property belonging to the United States.

For more information: Does Congress Delegate

Too Much Power to Agencies and What Should

Be Done About It? Washington, D.C.: U.S. Gov-

ernment Printing Ofﬁ ce, 2001; Hargrove, Erwin

C. Prisoners of Myth: The Leadership of the Ten-

nessee Valley Authority, 1933–1990. Knoxville:

University of Tennessee Press, 2001.

—Ernest Gomez

Atkins v. Virginia 536 U.S. 304 (2002)

In Atkins v. Virginia, the Supreme Court ruled

that executing mentally retarded individuals vio-

lated the cruel and unusual punishment

clause of the Eighth Amendment. Atkins thus

reversed an earlier decision, P

ENRY V. LYNAUGH, 492

U.S. 302 (1989), which had permitted the execu-

tion of mentally retarded individuals.

At around midnight on August 16, 1996, Daryl

Atkins and William Jones entered a convenience

store, where, at gunpoint, they robbed, abducted,

and murdered Eric Nesbit. For his part in the

crime, the Virginia supreme court sentenced

Atkins to death. The defense argued that because

Atkins was mentally retarded, he could not

receive the death penalty. The Virginia supreme

court rejected this argument, consistent with a

previous U.S. Supreme Court ruling in Penry v.

Lynaugh that stated that the Eighth Amendment

did not prohibit the execution of mentally retarded

persons.

The U.S. Supreme Court granted certiorari in

order to set the standard regarding mental disabil-

ities and the death penalty. In a 6-3 decision based

on the Eighth Amendment’s prohibition against

cruel and unusual punishment, the Court ruled

against the use of the death penalty in cases involv-

ing mentally disabled individuals. The Court’s rul-

ing dealt with the “evolving standards of decency”

approach to Eighth Amendment claims, propor-

tionality, and changes in societal attitudes.

Historically, the Supreme Court has held that

the Eighth Amendment requires that “punish-

ment for a crime must be graduated and propor-

tioned to the offense,” referred to by the Court

as the “proportionality precept.” In recent years,

the Court has employed three standards to deter-

mine if the punishment is proportionate, the ﬁ rst

addressing “whether the mode of punishment was

cruel or unusual when the Bill of Rights was

adopted,” the second addressing if the “evolving

standards of decency that mark the progress of

a maturing society have been violated,” and the

third addressing if the punishment is “excessive.”

These “evolving standards” help to inform

courts of a national consensus regarding the form

of punishment and are arrived at through estab-

lished objective measures. Simply, with time

comes change, and in order for a principle rooted

in a statute or constitution to be capable of wider

application, it needs to be developed within a

broad and nonconstrictive framework, otherwise

“rights declared in words might be lost to reality,”

as stated in Weems v. United States, 217 U.S. 349

(1910). Evolving standards represent a resolution

to the predicament of static definitions within

the Eighth Amendment (as exempliﬁ ed in Trop v.

Dulles, 356 U.S. 86 [1958]).

In Atkins, the Supreme Court observed a

historical trend in state legislation favoring the

elimination of the death penalty as a punishment

for offenders with mental disabilities. This trend

began in 1986, with Georgia enacting a statute

prohibiting the execution of such offenders. In the

following years, 18 more states enacted legislation

forbidding the execution of the mentally disabled.

The Court did not, however, rely on the “raw

numbers” as the signiﬁ cant factor in their ruling;

rather, they justiﬁ ed their decision by reasoning

that the “consistency and direction of change” was

the most signiﬁ cant factor in gauging a national

consensus.

For more information: Church, Lori M. “Man-

dating Dignity: The United States Supreme Court’s

Extreme Departure from Precedent Regarding

Atkins v. Virginia 41

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