Schultz D. Encyclopedia of the United States Constitution

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Tour’s insistence that it could deem walking the

course to be an integral part of the competition.

For more information: Snyder, Brad. A Well-

Paid Slave: Curt Flood’s Fight for Free Agency in

Professional Sports. New York: Viking Adult Press,

2006; White, G. Edward. Creating the National

Pastime: Baseball Transforms Itself. Princeton,

N.J.: Princeton University Press, 1996.

—Steven B. Lichtman

prosecutorial discretion

Prosecutors possess great amounts of discretional

authority—arguably more discretional authority

than any other courtroom actor. The use of this

discretion often raises constitutional issues, espe-

cially in terms of how it affects those accused of

a crime.

Prosecutors possess discretion in many different

ways. First, they possess discretion at the charg-

ing stage. They determine when to ﬁ le a criminal

charge, the degree of seriousness of those charges,

and when to dismiss charges. Second, they have

the discretional authority to enter into plea agree-

ments—also known as “plea bargaining”—and to

decide what consideration to give during these

agreements. Third, prosecutors have the power to

request capital sentencing within statutory consid-

erations. Prosecutors have virtually unfettered dis-

cretion and ultimate power regarding the type(s)

and frequency of charges and plea bargaining.

Throughout the last 30 years, the Supreme

Court has slowly removed discretional authority

from judges—the most recent instances being

Supreme Court decisions in Apprendi v. New Jer-

sey, 530 U.S. 466 (2000), Blakely v. Washington,

542 U.S. 296 (2004), and UNITED STATES V. BOOKER,

543 U.S. 220 (2005). Legislatures have had an

interest in restricting judicial discretion in imple-

menting sentencing guidelines and statutory

ranges to equalize sentences. However, as judges

have experienced a restriction on their discretional

authority, prosecutors have gained discretional

authority. Since prosecutors possess the power

to determine the type of charges to give to par-

ticular defendants, they can undercharge likable

defendants and overcharge unlikable defendants,

ensuring that the unlikable defendants receive a

harsher punishment. The real question, then, is:

“Who is likable and who is unlikable in the eyes of

the prosecutor?”

A major component of the prosecutorial dis-

cretionary power is placed in prosecutors’ power

to negotiate guilty pleas from defendants. When

decision making is restricted, one’s discretionary

power is often displaced to someone else. In this

situation, discretional authority of the judge is dis-

placed to the prosecutor. Studies have indicated

that, due to the restrictions created in sentencing

guidelines, prosecutors have enforced their dis-

cretional authority by engaging in “hidden plea

bargaining” to undermine the rigidity—and, ulti-

mately, the uniformity—of the sentencing guide-

lines by enticing the defendant to engage in a plea

agreement. Ninety-one percent of defendants

plead guilty and, arguably, a majority of these

pleas are a result of some type of plea negotiation.

Researchers have determined that the imple-

mentation of sentencing guidelines has limited

judicial discretion, and some would argue that

the same could be concluded about prosecutorial

discretion.

The restrictive nature of sentencing guidelines

has actually increased prosecutorial discretion at

the time of initial charging practices and charge

bargaining. Because of the discretional authority

of the prosecutor over the decision to decide the

frequency and severity of charges—major deter-

minants of sentencing—the key to sentencing may

very well lie with the prosecutor, not the judge.

Research indicates that there is less structure

associated with prosecutorial discretion than with

judicial discretion. Miehte and Moore (1988) also

indicated that prosecutors possess the ability to

manipulate not only the type of sentence but also

the length of sentence through their discretionary

charging and/or charge-bargaining decisions in

sentencing-guideline states. Many scholars agree

that the goal of obtaining equal justice is cur-

rently threatened by prosecutors, not judges, and

the threat has increased as prosecutorial discre-

tion has increased. Legal scholars such as Stuntz

have indicated that, under a sentencing-guideline

582 prosecutorial discretion

vi+904_EofUSConsti-v2.indd 582 3/20/09 2:18:15 PM

system, the prosecutor “is no longer the price

taker but the price setter.” Although sentencing

guidelines were developed to limit discretion and

unwarranted disparity, it seems that they actu-

ally empower prosecutorial discretion that can

still lead to unwarranted disparity—a phenom-

enon that ought to be avoided with sentencing

guidelines.

Under the new Supreme Court decisions (i.e.,

Apprendi, Blakely, and Booker), this power is

increased to an even greater extent by limiting

judicial discretion even further, requiring a jury

to ﬁ nd facts beyond a reasonable doubt that might

raise the sentence above the sentencing guide-

line range maximum. This discretion, therefore,

is arguably displaced to the prosecutor, an agent

with virtually unfettered discretionary power prior

to the ruling in Blakely. Although discretion can

be a very useful tool, discretion in the hands of

agents who have free reign on their decision-mak-

ing process can institute dangerous roadblocks to

carrying out justice. Namely, unwarranted dispar-

ity—through individual discrimination or contex-

tual discrimination—is a great possibility.

For more information: Albonetti, C. A. “Pros-

ecutorial Discretion: The Effects of Uncertainty.”

Law & Society Review 21 (1987): 291–313;

Albonetti, C. A., and J. R. Hepburn. “Prosecu-

torial Discretion to Defer Criminalization: The

Effects of Defendant’s Ascribed and Achieved

Status Characteristics.” Journal of Quantitative

Criminology 12 (1996): 63–81; Spohn, C. Thirty

Years of Sentencing Reform: The Quest for a

Racially Neutral Sentencing Process. Washington,

D.C.: National Institute of Justice, 2000; Tonry,

M. Sentencing Matters. New York: Oxford Uni-

versity Press, 1996.

—Amanda Freeman and Jeremy D. Ball

Pruneyard Shopping Center v. Robins 447

U.S. 74

(1980)

In this decision, the United States Supreme Court

ruled that the state of California could interpret

its constitution to protect political protesters

from being evicted from a shopping mall without

running afoul of the property rights of the mall

owner, including those rights protected under the

takings clause of the Fifth Amendment to the

United States Constitution.

Pruneyard permitted the states to carry forward

a body of law that had been taken up, then aban-

doned, by the U.S. Supreme Court. In Amalgam-

ated Food Employees Union Local 590 v. Logan

Valley Plaza, Inc., 391 U.S. 308 (1968), the U.S.

Supreme Court ruled that shopping malls were the

“functional equivalent” of a historical town square.

Accordingly, vital First Amendment interests in

preserving a vibrant political and public sphere, in

the face of increasing replacement of public gath-

ering spaces with private spaces, required that

speakers be permitted to protest in those contexts.

However, in Lloyd Corp. v. Tanner, 407 U.S. 551

(1972), the court de facto overruled Logan, leav-

ing protesters in shopping malls and similar places

with no guarantee of federal constitutional protec-

tion for their political speech.

In Pruneyard, the California court went beyond

the federal rule and held that, under the Califor-

nia constitution, a shopping mall owner could not

exclude citizens who engaged in political activ-

ity. Thereafter, several states, including Colorado

(Bock v. Westminster Mall Co., 819 P.2d 55 [1991])

and New Jersey (New Jersey Coalition v. J.M.B.,

138 N.J. 326, 650 A.2d 757 [1994]), adopted the

California rule.

Other states, such as Massachusetts (Batch-

elder v. Allied Stores Intl., 388 Mass. 83, 445

N.E.2d 590 [1983]), Oregon (Lloyd Corporation

v. Whiffen, 315 Or. 500, 849 P.2d 446 [1993]),

and Washington (Southcenter Joint Venture v.

Natnl. Dem. Policy Committee, 113 Wash.2d 413,

780 P.2d 1282 [1989]), protect citizens gather-

ing signatures for petitions (e.g., for referendum

or recall campaigns) in shopping malls, but not

speakers engaging in ordinary political speech.

Massachusetts’s reasoning is typical: The Mas-

sachusetts Supreme Judicial Court held that the

free speech protection of the Massachusetts con-

stitution is coextensive with that of the federal

constitution. However, Massachusetts contains a

separate provision guaranteeing the right to par-

ticipate in direct democracy such as referenda,

Pruneyard Shopping Center v. Robins 583

vi+904_EofUSConsti-v2.indd 583 3/20/09 2:18:15 PM

and that provision is broad enough to guarantee

a right to solicit signatures in shopping malls. At

least one state (Western Penn. Socialist Workers

1982 Campaign v. Connecticut General Life Ins.

Co., 515 A.2d 1331, 512 P.A. 23 [1984]) applies

something like a “Fairness Doctrine” to pri-

vate landowners: If the landowner invites people

to speak on one side of a political issue, opposing

speakers are protected.

The Pruneyard doctrine is one of a handful of

legal protections for speech interests against pri-

vate economic interests. Other such protections

include the Noerr-Pennington doctrine, which

insulates political activists from certain busi-

ness torts; the fair use doctrine, which privileges

certain communicative uses of copyrighted and

trademarked material; and the actual malice rule,

which privileges speech about public ﬁ gures from

most defamation claims. Pruneyard, however,

is particularly distinctive as a constitutional doc-

trine that requires private parties to surrender a

portion of their traditionally sacrosanct private

property rights.

Pruneyard represents a distinct analytic per-

spective on the relationship of political constitu-

tional rights to private property rights. Its closest

relative along that dimension is S

HELLEY V. KRAE-

MER, 334 U.S. 1 (1948), which forbade the states

from enforcing racially restrictive covenants in

land, notwithstanding the private property rights

of the landowners, because the state could not be

a participant in racial discrimination. Pruneyard

similarly subjects private property rights to con-

stitutional checks, this time in the interest of pre-

serving a vibrant political public sphere. Thus, it is

likely to become increasingly important as more

and more public sphere communication is carried

out in spaces controlled by private economic inter-

ests, whether physically (as in shopping malls) or

virtually (as on privately owned Internet servers,

or using privately owned cultural artifacts such as

trademarks).

Pruneyard’s relatives are also becoming more

important. For example, the Noerr-Pennington

doctrine was originally developed in the context

of antitrust law to protect businesses lobbying for

advantageous government action. Now, solitary

citizens and grassroots groups frequently use it

to defend “SLAPP Suits” (“Strategic Lawsuits

Against Public Participation”), which are brought

by land developers and others in order to deter

grassroots political opposition to their commercial

projects.

For more information: Berger, Curtis. “Prune-

yard Revisited: Political Activity on Private

Lands.” New York University Law Review 66, no.

633 (1991).

—Paul Gowder

public forum

The U.S. Supreme Court has declared that the

free speech clause of the First Amendment to

the U.S. Constitution includes a “public forum

doctrine” that allows people to use public prop-

erty for free speech activities.

The public forum doctrine has its origin in the

historical fact that, before the existence of mod-

ern mass media, citizens would meet and engage

in public discussion on the streets, sidewalks, and

parklike areas of town squares. People would read

the latest news posted on a wall or in a newspaper,

share other news by word of mouth, and debate

the issues involved in the news. According to the

public forum doctrine, all government-owned

(public owned) property can be divided into three

types. First, a “traditional public forum” is govern-

ment property that has historically been used for

public gatherings and discussions. The Supreme

Court regularly lists parks, streets, and sidewalks

as public forums. Although the Court has never

declared that those are the only types of govern-

ment property that are traditional public forums,

the Court has never declared that any other gov-

ernment property meets the deﬁ nition of a tradi-

tional public forum. In other words, whether other

types of property can be considered a traditional

public forum is an open question.

The second type of government property is a

“designated public forum.” This occurs when gov-

ernment intentionally sets aside some type of gov-

ernment property for use as a public forum. For

example, a bulletin board, a room, or an atrium

584 public forum

vi+904_EofUSConsti-v2.indd 584 3/20/09 2:18:16 PM

might be designated for use by the public as a

forum.

The third and ﬁ nal type of government prop-

erty is all other government property; that is,

property that is neither a traditional public forum

nor a designated public forum is simply not a pub-

lic forum. For example, office space in govern-

ment buildings is not a public forum while in use

by government workers; neither are courtrooms

or legislative assemblies while in session, as well

as public school classrooms during classtime. As

another example, in the Court’s most recent pub-

lic forum case titled I

NTERNATIONAL SOCIETY FOR

KRISHNA CONSCIOUSNESS (ISKCON) V. LEE, 505

U.S. 672 (1992), the Court declared that publicly

owned airport terminals are not public forums.

Under the public forum doctrine, the type of

speech regulations the First Amendment allows to

regulate government property depend on whether

the property is a traditional or designated public

forum, or is not a public forum. If a speech regu-

lation involves a traditional public forum, the gov-

ernment must show a “compelling” justiﬁ cation for

any limits placed on free speech activities within

that forum. Also, the government may not dis-

criminate on the basis of the subject matter of the

speech or the viewpoint of the speaker. As a prac-

tical matter, this means that few restrictions may

be placed on speech in a traditional public forum,

other than regulations to maintain public safety

and order, known as “time, place, and manner”

restrictions. For example, a person driving a car

at 3:00 a.m. in a residential neighborhood using

an electronic megaphone to ask people to support

a particular presidential candidate is using a pub-

lic street, but the government may nevertheless

prohibit even political speech done in this manner

and at this time and place.

If the government designates property to be

used as a public forum, the government again

must show a “compelling” reason for limiting free

speech, and may enact time, place, and manner

restrictions. In addition, the government may

enact regulations to preserve the nature of the

forum, even including limiting the subject mat-

ter of the speech if necessary, but government

still may not discriminate against any single view-

point among the topics it allows for discussion. For

example, if government creates a bulletin board

for use as a public forum, a regulation can restrict

the size and number of ﬂ yers any one person or

group may post, but may not prohibit only Demo-

crats or only pro-environment groups from post-

ing ﬂ yers. Or, if a public school district generally

opens a classroom for meetings by after-school

student groups, the school district may restrict the

number of people that may be in the room accord-

ing to the ﬁ re code, but the government may not

prohibit only a religious group or only a gay and

lesbian rights group from using the room.

However, if government sponsors a public

debate on the death penalty, the government may

prohibit a person from speaking who wants to dis-

cuss abortion and taxes, because that is not the

designated purpose of the forum.

Finally, in government property that is not

a public forum, the government can enact any

restrictions on speech as long as those restrictions

are “reasonable.” Generally, this means that gov-

ernment acting as a property manager may restrict

any speech activities that are incompatible with

the government property functioning as its pri-

mary use. In other words, government has broad

leeway to regulate property that is not a public

forum for its intended use as something other

than a forum for public discussion.

The Court’s most recent description of the pub-

lic forum doctrine in ISKCON has led many com-

mentators as well as the dissenting justices in the

ISKCON case to criticize the Court’s narrowing of

the deﬁ nition of traditional public forums to seem-

ingly include nothing other than parks, streets,

and sidewalks. Critics argue that in a modern era

where town squares are disappearing or do not

serve as a primary meeting place for public discus-

sion, other types of government property (such as

airport terminals or government-leased shopping

malls) must be recognized as “traditional” public

forums to be used by people to directly confront a

mass audience in person.

Otherwise, only those individuals or groups

who can afford the use of the mass media will be

able to communicate their ideas directly to a large

audience, a concept that runs contrary to the basic

public forum 585

vi+904_EofUSConsti-v2.indd 585 3/20/09 2:18:16 PM

purpose of the free speech clause: promoting

robust public discourse. For this reason, several

state supreme courts have interpreted the free

speech provisions of their respective state consti-

tutions as creating state public forum doctrines

more protective of free speech than the federal

public forum doctrine. For example, a few state

supreme courts have decided that even some pri-

vately owned property within their states, such as

large indoor shopping malls, are public forums to

a limited degree.

For more information: Volokh, Eugene. The

First Amendment: Problems, Cases and Policy

Arguments. New York: Foundation Press, 2001.

—Rick A. Swanson

586 public forum

vi+904_EofUSConsti-v2.indd 586 3/20/09 2:18:16 PM

587

ﱶﱷﱸ

racial proﬁ ling

Racial proﬁ ling refers to the practice of stopping

individuals or suspected criminals based upon

their race or skin color.

Racial proﬁ ling involves the claim that police

are detaining individuals in trafﬁ c enforcement

simply because of their race or skin color. Often-

times, the pretext for the stopping is the claim that

the individual ﬁ ts some proﬁ le of a person wanted

for a crime, or individuals are stopped in their car

on the basis that they have committed a minor

trafﬁ c infraction.

The origins of profiling are rooted in four

events. First, the practice of proﬁ ling goes back to

the middle of the 20th century, when it was used

to create sketches or psychological descriptions of

individuals in a crime that had already been com-

mitted. In these cases, specialists did the proﬁ l-

ing. Second, in the 1960s and 1970s, proﬁ les were

created to detect potential airplane hijackers (sky-

jackers) and then drug couriers. Third, the land-

mark case, T

ERRY V. OHIO, 392 U.S. 1 (1968), which

gave police the authority to stop and frisk indi-

viduals, expanded the discretionary authority of

law enforcement ofﬁ cials to approach individuals

suspected of engaging in illegal activity. Finally,

in cases such as WHREN V. UNITED STATES, 517 U.S.

806 (1996), the Supreme Court has given the

police broad powers to stop, detain, and search

individuals during routine trafﬁ c stops if they are

suspected of engaging in illegal activity. According

to the Court, so long as the police observe some

illegal activity, such as speeding or a failure to sig-

nal a turn, they are permitted to stop and perhaps

search individuals and their vehicles.

Evidence that racial profiling exists began to

appear in the media in the middle to late 1990s

when newspapers revealed that the New Jersey

State Police were using racial proﬁ les to stop and

detain motorists. Since then, statistics gathered in

other areas, such as New York City, Denver, Min-

neapolis and St. Paul, Minnesota, south Florida,

and Maryland, as well as in other cities and states,

demonstrate that people of color are disproportion-

ately more likely to be stopped than are whites.

Those who point to proﬁ ling say that the issue

raises important legal questions regarding racial

discrimination. These issues may arise out of either

the equal protection or due process clauses

of the Fourteenth Amendment. In fact, racial

proﬁ ling is sometimes referred to as “driving while

black.” The singling out of individuals based solely

upon their race or skin color is unconstitutional.

The statistics on who is stopped by the police are

pointed to as evidence of either de jure or de facto

discrimination or racial proﬁ ling.

Others deny that the statistics reveal discrimi-

nation, that these stops are not motivated by

race but are simply a sign of aggressive policing

and efforts to apprehend criminals. Police are

thus stopping individuals on the basis of reason-

able suspicion that a crime has been committed,

or that the person stopped is a criminal. In fact,

in Brown v. City of Oneonta, 195 F.3d 111 (2d

Cir. 1999), a federal court ruled that in some cases

race could be used as a reason to justify an inves-

tigatory stop.

While racial proﬁ ling has focused mostly on

police stops, other statistics reveal that whites

and people of color are treated very differently

in the entire criminal justice system. For exam-

ple, not only are people of color more likely to be

stopped, they are also more likely to be detained

longer, and searched. Statistics indicate that

vi+904_EofUSConsti-v2.indd 587 3/20/09 2:18:16 PM

more than 70 percent of the searches produce no

illegal substances. Overall, this means that the

initial stopping of people of color makes it more

likely that they will face additional interaction

with the criminal justice process. All of these

instances could be considered examples of racial

proﬁ ling.

For example, whites are more likely to be

offered bail than people of color. Whites are

much less likely to receive prison than people of

color, and whites are much less likely to be prose-

cuted—and more aggressively—for drug offenses

than are people of color.

Prior to the terrorist attacks of 2001, racial pro-

ﬁ ling appeared to be under attack in the United

States. However, since the events of 9/11, public

opinion is mixed. There are indications that indi-

viduals who are Muslim or who look like they are

from Arab countries are detained or discrimi-

nated against, especially when it comes to ﬂ ying

on airplanes.

Overall, racial proﬁ ling or racial disparities

exist on several levels in the criminal justice sys-

tem, raising questions regarding explanations and

possible remedies for this different treatment.

For more information: Derbyshire, John. “In

Defense of Racial Proﬁ ling: Where Is Our Common

Sense?” National Review 53 (February 19, 2001);

Heumann, Milton, and Lance Cassak. Good Cop,

Bad Cop: Racial Proﬁ ling and Competing Views

of Justice. New York: Peter Lang Publishing, 2003;

N.A. “Civil Rights Commission Cites Improper Use

of Racial Proﬁ ling by New York City Police.” Jet 98,

no. 4 (July 3, 2000): 4–5; Walker, Samuel, et al. The

Color of Justice: Race, Ethnicity, and Crime in

America. Belmont, Calif.: Wadsworth, 2000.

—David Schultz

Linda Sarsour, a social activist for the Arab American Association of New York, speaks to representatives from

the FBI’s Counter Terrorism Division’s Joint Task Force and Immigration and Customs Enforcement in a discus-

sion about post-9/11 relations on June 2, 2005, in New York City.

(Robert Nickelsberg/Getty)

588 racial proﬁ ling

vi+904_EofUSConsti-v2.indd 588 3/20/09 2:18:16 PM

racial quotas

Racial quotas are ﬁ xed numbers or percentages of

a particular race or a select grouping of races that

need to be present within either a student body or

place of employment. In R

EGENTS OF THE UNIVERSITY

OF CALIFORNIA V. BAKKE, 438 U.S. 265 (1978), the

Supreme Court ruled that racial quotas used for

the purposes of hiring or admissions decisions to

schools violated the Fourteenth Amendment.

Racial quotas were fashioned in an effort to

implement affirmative action programs in the

1960s and 1970s. The ﬁ rst mention of afﬁ rmative

action was in Executive Order 10925 signed by

President John F. Kennedy in 1961. At this time,

it was not a program, but only a description of the

type of outreach or recruiting action that needed

to be taken to prevent employment discrimi-

nation based on race. What was created at that

time was the Committee on Equal Employment

Opportunity. This committee, which was created

for the purpose of eliminating discrimination in

hiring practices, was only the start of legislation

supporting afﬁ rmative action. From 1961 to 2003,

there have been a total of 19 acts, orders, or laws

created supporting afﬁ rmative action.

The Office of Federal Contract Compliance

began to gather data on the racial makeup of ven-

dors in 1972 in order to ensure that federal con-

tractors were complying with antidiscrimination

laws. Out of these efforts to police compliance

emerged quotas. One way to show nondiscrimi-

nation was to have hiring policies that recruited

solely on the basis of race. Thus, hiring quotas

were initiated. Eventually, schools began to con-

sider race in admissions, with some setting up spe-

cial admissions policies for people of color.

The case that has been a benchmark in how

racial quotas should be addressed is the Bakke

case. This case is Regents of the University of

California v. Bakke, 438 U.S. 265 (1978). Allan

Bakke had been rejected twice because he failed

to meet the requirements set by the University of

California medical school at the Davis campus.

The admissions program used by the University

of California was found to be operating as a racial

quota. This program was considered to be in vio-

lation of the law, in that it took race into account

in making admissions decisions. While this would

seem to settle the issue of the use of racial quo-

tas, it did not. For while the racial quotas that this

university was using were considered in violation

of the law, it did not consider all racial quotas to

be illegal; the judgment of the Supreme Court

stated that only “those racial classiﬁ cations that

would violate the Equal Protection Clause

if employed by a State or its agencies” are pro-

hibited. Those uses, according to Justice Lewis

Powell, would be when race alone is used as an

admissions criterion. Race could be used as one of

several criteria if the goal were to promote educa-

tional diversity. This decision was upheld further

by the University of Michigan cases in 2003. There

were two cases: G

RATZ V. BOLLINGER, 539 U.S. 244

(2003), and GRUTTER V. BOLLINGER, 539 U.S. 306

(2003). The Gratz case dealt with the undergradu-

ate program, the Grutter case with the graduate

program. The law school (graduate) program was

constitutional because it was a highly individual-

ized, holistic review of each applicant’s ﬁ le, rather

than a rigid formula. The undergraduate points

scheme, by contrast, was a non-individualized,

mechanical system and therefore not constitution-

ally acceptable because it looked more like a ﬁ xed

racial quota system.

Finally, in Parents Involved in Community

Schools v. Seattle Sch. Dist. No. 1, ___U.S.___

(2007), the use of race in school assignment and

attendance plans was struck down as unconstitu-

tional, in part because of the quota-like aspect to

race when determining school compositions and

attendance.

Overall, the Supreme Court has made it clear

that the use of hard or ﬁ xed racial quotas is a viola-

tion of the equal protection clause, and it appears

to be moving toward arguing that the Constitution

does not permit any use of race, even for remedial

purposes.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993; Skrentny, John David. The

Ironies of Afﬁ rmative Action: Politics, Culture,

and Justice in America. Chicago: University of

Chicago Press, 1996; Weiss, Robert J. “We Want

racial quotas 589

vi+904_EofUSConsti-v2.indd 589 3/20/09 2:18:17 PM

Jobs”: A History of Afﬁ rmative Action. New York:

Garland Publishing, 1997.

—Anne D. Reynolds

Rasul v. Bush 542 U.S. 466 (2004)

In Rasul v. Bush, the United States Supreme

Court ruled that aliens being held in conﬁ nement

at the American military base at Guantánamo

Bay, Cuba, were entitled to have a federal court

hear challenges to their detention under the fed-

eral habeas corpus statute. This decision rep-

resented an important limit upon the authority of

the United States government to detain individu-

als captured as a result of the “war on terrorism”

initiated by the president of the United States

after the attacks on the United States on Septem-

ber 11, 2001.

On September 11, 2001, al-Qaeda terrorists

hijacked four commercial airplanes and used them

in several attacks against the United States. Sub-

sequently, Congress authorized the president to

use all “necessary and appropriate force” against

any persons, organizations, and nations that aided

or supported these acts of terrorism. The presi-

dent then used this authorization to send troops

to Afghanistan against al-Qaeda and the ruling

Taliban regime that had supported them.

This military action led to the capture of

approximately 640 non-Americans who were then

relocated to the United States military base at

Guantánamo Bay, Cuba, where they were being

held indeﬁ nitely and without access to legal coun-

sel or access to the federal courts. Among those

detained, claiming innocence and wishing to be

freed, were Shaﬁ q Rasul and Fawzi Khalid Abdul-

lah Fahad Al Odah, neither of whom were U.S.

citizens.

Relatives of these two individuals ﬁ led actions in

U.S. District Court for the District of Colum-

bia, challenging the detentions. First the federal

district court and then the court of appeals for the

District of Columbia dismissed the cases, claim-

ing that the courts lacked jurisdiction to hear the

challenges. In both of these cases, relatives of the

detainees sought habeas corpus review. Habeas

corpus is the constitutional right of individuals to

have a judge review the reasons why a person has

been detained.

Habeas corpus is the legal means that indi-

viduals may use to challenge what they believe

to be an illegal imprisonment by requesting that

the person holding them explain to a judge the

reasons for their conﬁ nement. Both Article I,

Section 9, Clause 2 of the Constitution, as well as

28 United States Code section 2241, provide for

habeas review. While the law is well established

that American citizens being held in the United

States are entitled to habeas corpus review, there

seemed to be some uncertainty regarding whether

noncitizens held at Guantánamo Bay enjoyed

habeas review.

One issue is the status of Guantánamo Bay itself

and whether it is sovereign territory of the United

States. In 1934 Cuba granted the United States

a lease to Guantánamo Bay so long as the base

was being used. In turn, the United States recog-

nized Cuba’s sovereignty over Guantánamo Bay.

Second, in Johnson v. Eisentrager, 339 U.S. 763

(1950), the Supreme Court had ruled that aliens

detained outside the United States are not entitled

to habeas review. Thus, President George W. Bush

and his administration argued that they had legal

authority to detain aliens at Guantánamo Bay,

Cuba, indeﬁ nitely without granting them access

to the courts to contest their conﬁ nement.

The United States Supreme Court granted cer-

tiorari to the relatives after they lost in the court

of appeals. The Court, with Justice Paul Ste-

vens writing the majority opinion, ruled 6-3 that

the courts did have jurisdiction to hear the case

and that the detainees did have a right to federal

habeas review.

The Court ﬁ rst reviewed the history of federal

habeas corpus law, noting how this right had sig-

niﬁ cantly expanded since its original enactment

in 1789. Justice Stevens noted that the Court

had permitted habeas review in a wide variety of

situations involving presidential detention of indi-

viduals, including those who were deemed enemy

combatants. Second, Stevens examined the status

and extent of the control the United States had over

Guantánamo Bay. The Court found the control to

be so pervasive that, while Guantánamo Bay was

590 Rasul v. Bush

vi+904_EofUSConsti-v2.indd 590 3/20/09 2:18:17 PM

not sovereign territory of the United States, it was

under its jurisdiction, and therefore the ruling in

Eisentrager did not apply. This meant that habeas

review was available to those at Guantánamo Bay,

and all those detained there were entitled to chal-

lenge their detention.

Rasul v. Bush was an important decision. It was

issued the same day as H

AMDI V. RUMSFELD, 542

U.S. 507 (2004), which ruled that an American

citizen could not be held indeﬁ nitely on American

soil without a right to habeas review. Together,

these cases placed signiﬁ cant limits upon the abil-

ity of the president and the government to detain

individuals suspected of being terrorists. The cases

represent a major afﬁ rmation of the right of citi-

zens and noncitizens to challenge their conﬁ ne-

ment, even if they are suspected of being terrorists.

Almost immediately after Rasul was decided, the

United States government was forced to under-

take procedures to permit the Guantánamo Bay

detainees to bring habeas challenges to their

conﬁ nement.

For more information: Adler, David Gray, and

Robert George, eds. The Constitution and the

Conduct of American Foreign Policy. Lawrence:

University Press of Kansas, 1996; Henkin, Louis.

Foreign Affairs and the United States Constitu-

tion. Oxford: Clarendon Press, 1996; Henkin,

Louis. Constitutionalism, Democracy, and For-

eign Affairs. New York: Columbia University

Press, 1990.

—David Schultz

ratiﬁ cation of the Constitution

Ratiﬁ cation of the Constitution refers to the pro-

cess whereby the original thirteen states approved

the document written in 1787 in Philadelphia.

The Constitutional Convention that met

in Philadelphia in 1787 was called by the U.S.

Congress to propose amendments to the Articles

of Confederation. The convention reviewed pro-

posals such as the New Jersey Plan, which

would have essentially followed that congressio-

nal mandate. However, after long and considered

deliberation, the delegates completed their work

with a strong consensus for a new constitution that

would serve as a new compact between the states

and replace the Articles of Confederation. The

Philadelphia Constitutional Convention submit-

ted the new constitution to Congress in 1787, and

Congress voted to forward it to the states for their

consideration and ratification. The ratification

debates that followed in each of the states were

between the Federalists and the Anti-Federalists.

The Federalists supported the new consti-

tution and wrote the Federalist Papers, under

pseudonyms such as Publius, to articulate the

need for and meaning of the new constitution.

The newspapers in each of the states featured

writers who debated the strengths and weak-

nesses of the Articles of Confederation and the

1787 constitution.

Among the controversies that were addressed in

the ratiﬁ cation debates was the fact that the Articles

of Confederation required unanimity to amend,

whereas the Philadelphia Convention required

only nine states to ratify. The Anti-Federalists vig-

orously objected in state after state as ratiﬁ cation

was debated and voted upon. Though victorious in

achieving a rejection vote in Rhode Island on more

than one occasion, the Anti-Federalists witnessed

ratiﬁ cation even in such hard-fought states as Vir-

ginia and New York. The Anti-Federalists provided

crucial interpretive points throughout the debate,

but the Federalists would ultimately prevail, and

the present Constitution serves as an enduring

legacy to their statesmanship.

The ratiﬁ cations in several states were achieved

with “conditions.” For example, “conditional”

approvals were included in Virginia (20) and in

New York (31), and these conditions represented

signiﬁ cant contributions of the Anti-Federalists

to the ultimate design and interpretation of the

Constitution. The deliberations and political com-

promises in the state ratiﬁ cation processes were

signiﬁ cant as contributions that were part of the

immediate amendments, proposed and passed by

the first Congress under the new Constitution,

that became known as the Bill of Rights.

On December 7, 1787, Delaware became the

ﬁ rst state to ratify the new Constitution, with a

unanimous vote in favor. Pennsylvania was second

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