Schultz D. Encyclopedia of the United States Constitution

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EVERSON V. BOARD OF EDUCATION, 330 U.S. 1 (1947).

In a series of cases that followed, the Supreme

Court adopted the church/state separation prin-

ciple, but because of changing Court membership,

seemed to apply the principle inconsistently. In

Everson, the Court upheld reimbursing all par-

ents—even those who send their children to reli-

gious schools—for the costs of bus transportation.

But in L

EMON V. KURTZMAN, 403 U.S. 602 (1971),

the Court invalidated laws that supplemented the

salaries of teachers who taught secular subjects in

parochial schools.

In MUELLER V. ALLEN, 463 U.S. 388 (1983), a

case that came closest to touching on the voucher

question, the Court upheld a state law that allowed

parents to deduct the costs of school tuition,

textbooks, and transportation from their taxes.

Though the language of the statute appeared to

be religiously neutral, dissenting justices argued

that its real purpose was to favor religious schools:

Public schools do not charge tuition and religious

schools make up the largest percentage of all pri-

vate school beneﬁ ciaries.

These cases ﬁ nally led up to ZELMAN V. SIMMONS-

HARRIS, 536 U.S. 639 (2002). In a narrow 5-4 deci-

sion the Court upheld a Cleveland, Ohio, voucher

program and ruled that similar programs would be

constitutional as long as government aid was neutral

and provided a “genuine and independent private

choice” among many different kinds of schools.

After Zelman, the constitutional status of

Blaine Amendments at the state level appeared to

be in question. However, the U.S. Supreme Court

left undisturbed a 2003 Florida ruling that inter-

preted that state’s constitution to limit all educa-

tional funding to public schools. This seems to

suggest that, while the establishment clause per-

mits voucher programs, other constitutional provi-

sions do not require them.

For more information: Doerr, Edd, et al. The

Case against School Vouchers. Amherst, N.Y.:

Prometheus Books, 1996; Good, Thomas L., and

Jennifer S. Braden. The Great School Debate:

Choice, Vouchers and Charters. Mahwah, N.J.:

Lawrence Erlbaum Associates, 2000.

—Tim Gordinier

Scottsboro cases

The Scottsboro cases refer to the conviction of

nine young African-American men for the alleged

rape of two white girls in 1931. This incident led

to two decisions by the United States Supreme

Court, Powell v. Alabama, 287 U.S. 45 (1932),

and Norris v. Alabama, 294 U.S. 587 (1935), both

of which were important cases for criminal due

process rights.

The youths, who ranged in age from 15 to 19

years old, were “riding the rails” in the Depres-

sion-era South, hoping to ﬁ nd work in Alabama.

Several of them apparently got into a scuffle

with some white youths. The white boys jumped

from the train and reported the ﬁ ght (which they

described as an assault) to the local sheriff. By the

time the train arrived in Paint Rock, the young

black men were greeted by a white mob, ready for

a lynching. When the posse boarded the train, they

found two young white women dressed in men’s

clothes. It is not clear whether the lynch mob or

the girls ﬁ rst cried “rape,” but the young female

stowaways seemed to conclude it was in their

interest to appear as victims rather than as tramps

who sneaked rides on trains. Although a lynching

was avoided, Ozie Powell, Willie Roberson, Olen

Montgomery, Clarence Norris, Haywood Pat-

terson, Eugene Williams, Roy and Andy Wright,

and Charlie Weems were tied together with a

plow line, taken to the local jail, and charged with

rape—a capital crime.

Surrounded by over 100 National Guard troops,

the nine young men were brought to trial in Scotts-

boro on April 6, 12 days after the incident. A crowd

of about 10,000 people milled about the court-

house, apparently enticed by the lurid accounts

provided by the two alleged victims, Victoria Price

and Ruby Bates. Judge Alfred Hawkins, in a ges-

ture that provided a veneer of legality for the pro-

ceedings, appointed all the members of the local

bar to represent the defendants. By appointing

everyone as counsel, he effectively appointed no

one. Ultimately, the only attorneys defending the

“Scottsboro Boys” were a local, 70-year-old drunk

named Milo Moody and a Tennessee lawyer unfa-

miliar with Alabama criminal law, who appeared

inebriated when the trial began. The young men

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were convicted in four separate trials over a total

of four days. All were found guilty and all but Roy

Wright, who was only 13 years old, were sentenced

to death. The men were convicted in the ﬁ rst and

subsequent trials despite contradictory testimony

by the “victims,” conﬂ icting stories by the accused

men, and the local doctor’s conclusion that the

girls could not have suffered multiple rapes.

Coincidentally and fortunately, the Interna-

tional Labor Defense (ILD), a communist organi-

zation, had launched a campaign to exploit racial

injustices in the United States and to recruit black

members. They took an interest in the Scottsboro

case and provided legal support for the young men

to appeal their cases. After the Alabama Supreme

Court afﬁ rmed the convictions, the U.S. Supreme

Court reversed that decision by a vote of 7 to 2 in

Powell v. Alabama. The Court held that the young

men’s due process rights under the Fourteenth

Amendment had been violated because the

right to counsel in a capital case is a necessary

component of a fair trial. As the defendants were

indigent, young, uneducated, far from home, and

in fear of their lives, due process demanded that

the state provide adequate counsel. The Powell

Court did not rule that the Sixth Amendment

right to counsel was applicable to the states, as it

would later in G

IDEON V. WAINWRIGHT (1963).

The state of Alabama retried the cases several

times. In December 1933 a jury again found Hay-

wood Patterson and Clarence Norris guilty. Their

ILD attorney, Samuel Leibowitz, appealed on the

grounds that African Americans had been system-

atically excluded from the jury in violation of Neal

v. Delaware (1880). In an unusual procedure, the

members of the Supreme Court examined the

pages of the Jackson County jury selection man-

ual where the names of a few black citizens had

obviously been added after the Scottsboro boys’

trial. In Norris v. Alabama, the Court ruled 8 to

0 that the systematic exclusion of African Ameri-

cans from Alabama juries denied the equal pro-

tection of the law provided by the Fourteenth

Amendment, and reversed Norris’s conviction.

Patterson, Norris, Weems, and Andy Wright

were convicted again. Charges were dropped

against Roy Wright, Eugene Williams, Willie Rob-

ertson, and Olen Montgomery. Ozie Powell was

found guilty of assaulting a deputy sheriff and was

shot in the head while allegedly trying to escape.

The Supreme Court’s decisions prevented the

men’s executions, but altogether they spent close

to one hundred years in prison for a crime that did

not take place.

For more information: Goodman, James. Sto-

ries of Scottsboro. New York: Vintage Books,

1994; Weiner, Mark S. Black Trials: Citizenship

from the Beginnings of Slavery to the End of

Caste. New York: Vintage Books, 2006.

—Mary Welek Atwell

search and seizure

See exclusionary rule; Fourth Amendment.

search warrant exceptions

Search warrant exceptions are those circum-

stances when law enforcement officials do not

need a warrant in order to search an individual

or a place. These searches stand in contrast to the

policy that the Fourth Amendment generally

requires a search warrant for searches.

A search warrant is not required if one consents

to a search (Schneckloth v. Bustamonte, 412 U.S.

218 [1972]); if the search is incident to an arrest

(CHIMEL V. CALIFORNIA, 395 U.S. 752 [1969]); if the

search is limited to looking for weapons (TERRY V.

OHIO, 392 U.S. 1, 19 [1968] [stop and frisk]); if

necessary due to exigent circumstances, (United

States v. Watson, 423 U.S. 411 [1976]) or due

to public safety (New York v. Quarles, 467 U.S.

649 [1984]); if there is a risk of evidence being

destroyed (U.S. v. MacDonald, 335 U.S. 451

[1948]); or if the police are in hot pursuit of a sus-

pect (Warden v. Hayden, 387 U.S. 294 [1967]).

In addition, no warrant is required if items are

in plain view of the police (Arizona v. Hicks 480

U.S. 321 [1987]), or if the items will inevitably be

discovered (Nix v. Williams, 467 U.S. 431 [1984]).

Finally, warrants are not required for searches of

automobiles (Carroll v. United States, 267 U.S.

132 [1925]); border searches (Almeida-Sanchez v.

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United States, 413 U.S. 266 [1973]); or for admin-

istrative inventory searches (Camera v. Municipal

Court, 387 U.S. 523 [1967]).

Conversely, the Supreme Court has stated that

warrants are presumptively always required for

the search of a private home or apartment (K

YLLO

V. UNITED STATES, 533 U.S. 27 [2001]).

The Court has also ruled that there are excep-

tions to the warrant requirement. These exceptions

would be departures from the exclusionary

rule as articulated in Mapp v. Ohio, 367 U.S.

643 (1961). While some would defend the excep-

tions as commonsense applications of the Fourth

Amendment, others counter that the exceptions

are so numerous that they have effectively gutted

the exclusionary rule and the Fourth Amendment

warrant requirements.

For more information: LaFave, Wayne R., Jer-

old H. Israel, and Nancy J. King. Criminal Proce-

dure. St. Paul, Minn.: Thomson/West, 2004.

—Ernest Gomez and David Schultz

Second Amendment

See right to bear arms.

Section 1983

When government ofﬁ cials commit federal consti-

tutional wrongs against individual citizens, these

citizens can sue the government for relief. Such

relief is embodied in 42 U.S.C. § 1983, a statute

that gives citizens the tools to seek redress for

constitutional violations. Section 1983 states that

every person who, under color of any law, subjects,

or causes to be subjected, any citizen of the United

States to the deprivation of any rights, privileges,

or immunities secured by the Constitution and

laws shall be liable to the party injury in an action

at law.

Section 1983 suits are most notably against

police ofﬁ cers who have violated an individual’s

Fourth Amendment rights (Tennessee v. Gar-

ner, 471 U.S. 1 [1985]). Such violations can occur

in the form of false arrests and excessive force.

When a citizen believes that a municipality was

also liable in a constitutional violation, he or she

can sue that entity as well. The landmark case on

this subject is M

ONELL V. DEPARTMENT OF SOCIAL

ERVICES, 436 U.S. 658 (1978). In Monell, the

Supreme Court held that a municipality should

be treated as a person for the purpose of Section

1983 claims. As such, claims against a munici-

pality for constitutional violations are commonly

called Monell claims.

Over the years, the courts have deﬁ ned what

actions a city can be held liable for. A municipal-

ity is liable for a policy in place (Pembaur v. City

of Cincinnati, 475 U.S. 469 [1986]) or deliberate

indifference to a common situation (City of Can-

ton v. Harris, 489 U.S. 378 [1989]). Additionally,

an entity can be liable when a supervisor with ﬁ nal

decision-making authority authorizes an agent to

act (City of St. Louis v. Praprotnik, 485 U.S. 112

[1988]).

Complicating Section 1983 lawsuits for plaintiffs

is the afﬁ rmative defense of qualiﬁ ed immunity.

Qualiﬁ ed immunity can shield individual ofﬁ cers

or ofﬁ cials from any constitutional liability. Munic-

ipalities are not able to use the qualiﬁ ed immunity

defense, however (Owen v. City of Independence,

445 U.S. 622, 657 [1980]). Typically, courts decid-

ing Section 1983 lawsuits deal with the issue of

qualiﬁ ed immunity ﬁ rst. After a period of discov-

ery into the defendant ofﬁ cial’s actions, the defen-

dant will most likely move for summary judgment,

claiming that, as a matter of law, he or she is not

liable and is shielded from the relief requested by

the plaintiff. The basis of this summary judgment

claim would be qualiﬁ ed immunity.

The court will then begin a two-step inquiry

into the defendant’s claims. First, viewing the

facts in the light most favorable to the plaintiff, the

court will ask whether there is a constitutional vio-

lation (Saucier v. Katz, 533 U.S. 194, 201 [2001]).

Note that the constitutional right must be estab-

lished at the time of the act. If there was a viola-

tion, the court will next proceed to the question of

whether the ofﬁ cial deserves immunity from such

a violation. The standard is whether it would have

been clear to a reasonable ofﬁ cer that his conduct

was unlawful in the situation he confronted (id.

at 202).

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How the court decides the claim against the

ofﬁ cer or ofﬁ cial is determinative—in some part—

of how the court will rule on the Monell claims

against the city. If the court ﬁ nds no constitutional

violation (the ﬁ rst part of the inquiry), then the

court will dismiss the Monell claim against the

locality (City of Los Angeles v. Heller, 475 U.S.

796 [1986] [per curiam]). However, if the court

ﬁ nds a constitutional violation, but rules that the

ofﬁ cers are deserving of qualiﬁ ed immunity, then

the Monell claim against the city may proceed and

is not barred.

Typically, along with Fourth Amendment viola-

tions, plaintiffs may also allege other violations. For

instance, it is common to see allegations of equal

protection clause violations. For example, after

a police ofﬁ cer shoots and kills an unarmed indi-

vidual, the plaintiff (normally a family member of

the decedent) will sue the ofﬁ cer for the shooting

(the Fourth Amendment violation, as the ofﬁ cer

has seized the individual by shooting), sue the city

for a policy—or lack thereof—in place that relates

to the officer’s actions (the Monell claim), and

then allege that there was discriminatory motive

behind the shooting (i.e., a racial discrimination

claim under the equal protection clause).

While the Fourth Amendment and related

qualified immunity inquiry is purely objective,

the equal protection claim is subjective, meaning

that the Court must look into the thoughts and

mindset of the ofﬁ cials at the time of the alleged

constitutional violation.

For more information: Chemerinsky, Erwin.

Federal Jurisdiction. New York: Aspen Publish-

ers, 2003; Lewis, Harold S., Jr., and Elizabeth J.

Norman. Civil Rights Law and Practice. St. Paul,

Minn.: West Group, 2001.

—Jason A. Abel

seditious libel

Seditious libel is a legal term that describes the

crime of criticizing the government and public

ofﬁ cials.

The concept was ﬁ rmly a part of English com-

mon law in the 17th century and earlier, but its

status in the United States has been the subject

of great debate and much commentary. Under

En glish common law, the aim of the law of sedi-

tious libel was to prevent criticism that would bring

ridicule and thereby undermine the authority of

the Crown. Under the English approach, the truer

the libelous statement, the more harm it might do;

as a result, truth was not a valid defense.

The American colonies confronted the status

of seditious libel early on. The New York printer,

John Peter Zenger, was charged with seditious

libel and tried by a jury in 1735; he was accused of

printing articles written by others in the New York

Weekly Journal that were critical of New York

governor William Cosby. Zenger’s lawyer argued

to the jury that truth should be a defense, that

Zenger couldn’t be punished because the printed

information about Governor Cosby was true. The

jury acquitted Zenger, effectively establishing the

principle that truth should be recognized as a

defense to libel.

When the new constitution was drafted in 1787

and modified by the Bill of Rights in 1791,

the guarantees of freedom of speech and free-

dom of the press became important consider-

ations in determining the status of seditious libel.

However, the existence of First Amendment

protections did not deter the Congress from pass-

ing the Sedition Act of 1798. The law made it a

crime, punishable by ﬁ nes and imprisonment, to

engage in “false, scandalous and malicious” writ-

ing about the president or Congress or to write or

utter statements that would bring them into “con-

tempt or disrepute.” Although ostensibly aimed

at curtailing the actions of French immigrants to

the United States, the law was largely politically

driven, a means for the Federalists in power at the

time to undercut their Republican opposition.

Some 25 citizens were prosecuted and many of

them convicted under the law. Most of them were

Republican newspaper editors. When Thomas

Jefferson was elected president in 1800, end-

ing the Federalist control, he pardoned all those

who had been convicted and persuaded Congress

to repay their ﬁ nes. There was no test, however, of

whether the Sedition Act could pass muster under

the First Amendment, and the act expired.

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It would take more than 160 years for the

Supreme Court in NEW YORK TIMES V. SULLIVAN,

376 U.S. 254 (1964), to make clear that the Sedi-

tion Act could not satisfy First Amendment stan-

dards. Justice William J. Brennan, Jr., writing

for the majority, described “a broad consensus” of

modern commentators who found that the Sedi-

tion Act violated the First Amendment.

Before the Supreme Court’s repudiation, the

issue of seditious libel had appeared again in U.S.

history. Congress passed the Sedition Act of 1918

during World War I, again making it a crime to

write or profess views that would foster disloyalty

or opposition to the military. Many prosecutions

ensued.

While there have been no new laws speciﬁ cally

punishing seditious libel in the United States since

World War I, laws like the Smith Act of 1940, pun-

ishing advocacy of or teaching about the overthrow

of the U.S. government, bear some resemblance

and have remained the subject of controversy for

decades.

For more information: Mayton, William T.

“Seditious Libel and the Lost Guarantee of a

Freedom of Expression.” Columbia Law Review

84, no. 1 (January 1984): 91–142; Smolla, Rodney

A., and Melville B. Nimmer. Smolla and Nimmer

on Freedom of Speech. New York: Clark Board-

man Callaghan, 1996.

—Stephen Wermiel

Selective Service System v. Minnesota

Public Interest Research Group

468 U.S.

841

(1984)

In Selective Service System v. Minnesota Pub-

lic Interest Research Group the Supreme Court

upheld a law requiring male students aged 18 to

26 to register for the draft.

The act, under Title IV of the Higher Educa-

tion Act of 1965, required that male students,

ages 18–26, who failed to register for the draft be

denied federal ﬁ nancial aid for school. In addition,

the act required applicants for ﬁ nancial aid to sub-

mit a statement denoting compliance with the act.

In addition, a presidential proclamation made it a

criminal act if a male did not register for the draft

within 30 days of his 18th birthday. Students who

had not registered for the draft ﬁ led suit, asking

the federal district court to prohibit the enforce-

ment of Section 12 (f). The district court agreed on

the grounds that the regulations set forth by Sec-

tion 12 (f) of the act are unconstitutional because

they serve as a bill of attainder (a legislative

act that prescribes a form of punishment without

the due process of a trial; see Black’s Law Dic-

tionary) and that the act violated the right against

Fifth Amendment self-incrimination.

In a 6-2 decision, delivered by Chief Justice

Warren Burger, the Court found the law con-

stitutional because a student was not actually

required to accept ﬁ nancial aid, thereby reliev-

ing an applicant of being in a position to sign a

statement attesting to having or not having reg-

istered for the draft and consequently avoiding

self-incrimination. Since a student who has not

registered for the draft is bound to know that

he will be denied Title IV aid, he is in no sense

under any “compulsion” to seek that aid and has

no reason to make any statement to anyone as to

whether or not he has registered. As to a late reg-

istrant, since the law does not require him to dis-

close to his educational institution whether or not

he registered late, he is not required to disclose

any incriminating information in order to become

eligible for aid.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—Dan Krejci

semi-suspect class

Semi-suspect class refers to a classiﬁ cation of sex

or gender that is examined by the courts with

analysis greater than a rational basis but less than

strict scrutiny. The classiﬁ cation of gender as

a semi-suspect class means that not all usages of

sex will be invalidated by the Supreme Court.

Although government distinctions based on

race have been held to be suspect and, in the

absence of a compelling state interest, uncon-

656 Selective Service System v. Minnesota Public Interest Research Group

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stitutional, sex is only a semi-suspect classifica-

tion. Until 1974, sex-based distinctions received

even less protection under the Fourteenth

Amendment.

That amendment forbids a state from deny-

ing “any person within its jurisdiction the equal

protection of the laws.” However, because laws

generally make distinctions, the courts have held

that, most of the time, such distinctions merely

have to be rational attempts to achieve legiti-

mate governmental interests. For example, DWI

laws will not be declared unconstitutional even

though they discriminate against heavy drinkers

who drive, nor will income taxes be thrown out

because the rich pay more than the poor. On the

other hand, since the Fourteenth Amendment

was passed to give full rights to the newly freed

slaves, race-based distinctions would be consid-

ered suspect and treated with strict scrutiny. In

Strauder v. West Virginia, 100 U.S. 303 (1880),

the Supreme Court ruled in favor of a challenge

to a law limiting juries to whites but also declared,

without giving any reasons, that states could bar

women, non–citizens, or the less educated from

jury service. From the passage of the post–Civil

War constitutional amendments until the mid-

20th century, the Supreme Court upheld numer-

ous state laws that claimed to protect women from

the dangers of jobs varying from lawyer to bar-

tender by banning them from such occupations.

In the 1960s, as support for women’s equal-

ity led to both federal and state laws against sex

discrimination, the time seemed ripe to recon-

sider whether sex should be considered a suspect

classiﬁ cation. Led by Ruth Bader Ginsburg, the

American Civil Liberties Union Women’s

Rights Project brought a series of cases for that

purpose. In the breakthrough case of Reed v.

Reed, 404 U.S. 71 (1971), the Supreme Court for

the ﬁ rst time used the equal protection clause to

overturn a law. However, because it found this

statute, giving preference to men over women as

executors of their children’s estates, to be irratio-

nal, the Court did not reach the issue of whether

sex should be inherently suspect. Frontiero v.

Richardson, 411 U.S. 677 (1973), presented the

issue more directly. Advocates argued that sex

should be suspect because it is an immutable

characteristic, there is a long history of sex dis-

crimination, and sex generally bears no relation

to ability. Opponents noted that, unlike people

of color, women were not a minority and could

therefore use the political process to accomplish

their goals. Although the Court declared the law

unconstitutional, only four of the nine justices

believed that sex-based classiﬁ cations should be

suspect. Another four found the law irrational

but preferred to leave the issue of declaring gen-

der-based classiﬁ cations subject to the political

process, pointing to the equal rights amendment

that had passed Congress and was pending state

approval. That proposed constitutional amend-

ment would eventually fall short of the required

approval by 38 states.

However, the Court would ultimately find a

compromise that has been termed semi-suspect

classifications. C

RAIG V. BOREN, 429 U.S. 190

(1976), created a middle tier in which “classiﬁ ca-

tions based on gender must serve important gov-

ernmental objectives and must be substantially

related” to their achievement. Even under this

test, later cases upheld draft registration for males

but not females and statutory rape laws that pun-

ished only males who had sexual relations with

underaged females. By 1996, although Ruth Bader

Ginsburg had become a Supreme Court justice,

she was still unable to require a compelling state

interest to justify sex-based distinctions. However,

in United States v. VA, 518 U.S. 515 (1996), she

further tightened the middle-tier test, writing for

the Court that an “exceedingly persuasive justiﬁ -

cation” was required. Thus despite moving most

of the way toward becoming a suspect class, sex

remains semi-suspect.

For more information: Rierson, Sandra L.

“Race and Gender Discrimination: A Historical

Case for Equal Treatment Under the Fourteenth

Amendment.” Duke Journal of Gender Law and

Policy 1 (1994): 89–117; Sullivan, Kathleen. “Sym-

posium on Constitutional Law: Constitutionaliz-

ing Women’s Equality.” California Law Review 90

(May 2002): 735–764.

—Bruce E. Altschuler

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Senate

Along with the House of Representatives,

the United States Senate makes up the Congress

and the legislative, or lawmaking, branch of the

United States. The founders considered the legis-

lative branch to be critical to republican freedoms.

It would give the people a voice in controlling the

government, yet also check the whims of a capri-

cious populace through its structure. The Sen-

ate is the more aristocratic branch of the two.

It is more stable due to the six-year terms of its

members who, until 1913, were appointed by

the various state legislatures. The structure of

the Senate is laid out in Article I of the U.S.

Constitution.

For the Senate, Article I states that it will share

legislative power with the House, and the two

together will have all legislative power for the fed-

eral government. Senators are to be elected every

six years, and one must be 30 years old to serve

in the Senate, which is midway between the age

requirements for the House (25) and the president

(35). A potential senator must have been a citizen

of the United States for nine years and be a resi-

dent of the state from which he or she is elected

from as well.

Each state in the United States has two sena-

tors, as laid out in Article I, Section 3. Originally

these senators were appointed by the state legisla-

tures. However, the Seventeenth Amendment

changed the selection process for senators to a

direct election, making the body somewhat more

democratic. Elections are held every two years,

and one-third of the body is up for reelection in

each cycle. The vice president is the presiding

ofﬁ cer of the body; however, in modern practice

it is rare for vice presidents to actively preside.

According to the Constitution, the vice president

votes only in the case of a tie. Though the presi-

dent pro tempore is the presiding ofﬁ cer in the

vice president’s absence, the real power lies with

the leadership of each party, who occupy positions

that are not speciﬁ ed in the Constitution.

The formal powers of the Senate are quite

numerous. Many of the formal powers are checked

by powers of other branches or by the House of

Representatives. The primary formal power of the

Senate is the ability to make laws. Lawmaking is

not a simple process. Passing a law requires much

more than just a simple majority assent of the Sen-

ate. Both houses must pass a bill with identical

language, and the president must sign the bill. If

the president vetoes the bill, a two-thirds majority

of both houses must vote to override the bill.

While the House has the power to impeach

the president or other executive or judicial ofﬁ -

cials according to Article I, the Senate may then

vote by two-thirds majority to convict or acquit

the subject of the impeachment. This is a strong

check on the other branches, and on the House as

well. There are a number of other powers granted

to the House and the Senate jointly, such as the

establishment of the post ofﬁ ce, the regulation of

commerce (which leads to an important implied

power), and the ability to raise armies and declare

war. The Senate also advises and consents on both

treaties and executive appointments. This function

provides a check on the executive branch and the

judicial branch as well, since federal judges and

justices are appointed. Finally, in the event that

no presidential ticket receives enough electoral

votes to win, the Senate selects the vice president

of the United States. To do that, a candidate must

receive a majority vote of the senators.

Both bodies also have a number of restrictions

placed on them. They are forbidden from grant-

ing patents of nobility, for example, or from pass-

ing bills of attainder, making ex post facto laws,

or suspending the writ of habeas corpus, which

demands that the state produce a prisoner and

show cause as to why he or she is being held.

The Senate has a number of implied powers.

These are powers not expressly mentioned in the

Constitution, but which later courts have found are

in some way necessary or appropriate to support a

constitutional function of the Senate. The classic

example of an implied power is the creation of a

national bank. In McCulloch v. Maryland, 17 U.S.

316 (1819), the Court ruled that the creation of a

bank was appropriate to support the powers of the

Congress to appropriate and to maintain an army.

Due to the reserved powers clause, Congress may

not interfere in state matters where it is not explic-

itly granted jurisdiction by the Constitution.

658 Senate

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However, in GIBBONS V. OGDEN, 17 U.S. (4

Wheat) 316 (1819), the Court ruled that the com-

merce clause allowed the regulation of almost

all business transactions, since practically all trade

had an effect on interstate commerce. This

power was conﬁ rmed and expanded in W

ICKARD V.

FILBURN, 317 U.S. 111 (1942), and in KATZENBACH

V. MCCLUNG, 379 U.S. 294 (1964). At present, the

commerce clause allows the Congress to intervene

in a wide variety of issues, including civil rights,

the environment, and bureaucratic regulation.

Though originally an aristocratic body of sorts,

the Senate is an integral part of the republi-

can system of the United States. Along with the

House, it funnels the desires of the people into

workable legislation, and provides a check on the

other branches of the government.

For more information: Dodd, Lawrence C., and

Bruce Oppenheimer. Congress Reconsidered. 8th

ed. Washington, D.C.: CQ Press, 2005; Mason,

Alpheus Thomas, and Donald Grier Stephenson,

Jr. American Constitutional Law. 12th ed. Upper

Saddle River, N.J.: Prentice Hall, 1999.

—Matthew W. Barber

Seneca Falls Resolution

The Seneca Falls Resolution of 1848 was one of

the first major documents in the United States

advocating for the equal rights of women. The

resolution had a major constitutional impact.

Seneca Falls, New York, was chosen to hold

the ﬁ rst women’s rights convention in the United

States on July 18–19, 1848. This convention has

generally been considered the birthplace of the

American feminist movement and the inaugura-

tion of women’s struggle to cast their ballot in the

United States.

The Seneca Falls Convention was conceived

during the World Anti-Slavery Convention in Lon-

don in 1840. In the course of the congress, there

was a fierce debate on whether women should

be allowed to attend. Finally, it was decided that

women would be excluded from the convention as

ofﬁ cial delegates. It was at this time that Lucre-

tia Mott, a veteran campaigner for both the abo-

litionist and women’s cause, met Elizabeth Cady

Stanton, a woman who was 22 years Mott’s junior

but had already shown her determination by par-

ticipating in women’s rights events and by marry-

ing a ﬁ ery abolitionist. The two women started to

lay plans to organize a convention in the United

States to debate the issue of women’s rights and

women’s liberation.

The women’s rights conference was postponed

until 1848 when the two women met again and out-

lined the details of the convention, which was to be

the ﬁ rst of its kind in the United States. Stanton

designed an invitation that was published in the

Seneca County Courier, presenting the conference

as a place “to discuss . . . the social, civil and reli-

gious condition and rights of women.” The conven-

tion was planned only for women, but men were

allowed to stay. In fact, several men, among them

the former slave Frederick Douglass, attended the

convention at Seneca Falls. Stanton designed and

presented the Declaration of Sentiments and Res-

olutions. Following the style of the Declaration

of Independence, Stanton paraphrased some

of the most famous passages of that foundational

American document and rewrote them according

to women’s vindications. As a result, the Declara-

tion of Sentiments contained assertions such as “we

hold these truths to be self-evident; that all men

and women are created equal” and “the history of

mankind is a history of repeated injuries and usur-

pations on the part of man toward woman.” The list

of grievances included the deprivation of vote, the

civil death of married women, the lack of educa-

tional opportunities, and the taxation of unrepre-

sented single women. This document was followed

by 11 resolutions, among them the radical proc-

lamation that it was the duty of women to obtain

for themselves the right to vote. Although only

about 100 people signed the resolution on wom-

en’s suffrage, the suffrage resolution was passed,

inaugurating a struggle that would culminate 72

years later in the Nineteenth Amendment to

the United States Constitution. The Seneca Falls

Convention encouraged other women such as

Susan B. Anthony and Lucy Stone to follow Mott

and Stanton’s example and organize other women’s

conferences, among them one in New York State,

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where former slave Sojourner Truth would deliver

her famous speech Ain’t I a Woman?

From 1850 until the Civil War, American

women’s rights leaders and activists organized

several other meetings and designed a program

of lectures, petitions, and public acts. The wom-

en’s rights movement gained supporters among

prominent men such as Walt Whitman, Ralph

Waldo Emerson, and William Lloyd Garrison.

Slowly, women started to gain some legal rights,

for instance the right of married women to control

their own property.

The culmination of the activist women’s rights

struggle came with the Nineteenth Amendment,

proposed on June 4, 1919, and eventually ratiﬁ ed

on August 18, 1920. The Nineteenth Amendment

to the U.S. Constitution reads: “The rights of citi-

zens of the United States shall not be denied or

abridged by the United States or by any state on

account of sex.” When American women were

allowed to vote, only one of the signers of the Sen-

eca Falls Declaration in 1848, Charlotte Woodson,

had lived long enough to vote for the ﬁ rst time.

For more information: Cohen, Philip N.

“Nationalism and Suffrage: Gender Struggle in

Nation-Building America.” Signs 21, no. 3 (1996):

707–727; Lander, Meta. “The Woman Movement.”

The Ladies’ Repository 5, no. 5 (1870): 383–386;

Stanton, Elizabeth Cady. Eighty Years and More:

Reminiscences 1815–1897. New York: T. Fisher

Unwin, 1898. Available online. URL: http://www.

gutenberg.org/etext/11982. Accessed 14 May

2008.

—Laura Gimeno-Pahissa

sentencing and proportionality

A primary objective of modern criminal sentenc-

ing is to ensure that sentences imposed on con-

victed criminals be proportionate to the type and

severity of offense that they have committed. The

concept of proportionality ﬁ nds some theoretical

support in the retributivist theory of punishment,

which has as an object the imposition of criminal

sentences that are directly proportionate to the

seriousness of the offense and the “blameworthi-

ness” of the defendant. This theory, also known

as “just deserts,” attempts to impose punishments

that offenders deserve—nothing more and noth-

ing less.

Proportionality has found its way into constitu-

tional scrutiny of criminal sentences. Two aspects

of the Eighth Amendment to the United States

Constitution are linked to proportionality. The

excessive ﬁ nes clause of the Constitution precludes

courts from imposing excessive ﬁ nes in conjunc-

tion with a criminal sentence. The Supreme Court

has viewed this clause as a form of proportionality

review. In United States v. Bajakajian, 524 U.S.

321 (1998), the Supreme Court held that propor-

tionality is the “touchstone” of the excessive ﬁ nes

clause and that criminal ﬁ nes or forfeitures must

be proportionate to the gravity of the offense in

question. The difﬁ culty lies in determining when

a particular fine or forfeiture is “excessive” and

thus disproportionate. In Bajakajian, the Court

declined to provide a precise test for dispropor-

tionality, but did indicate that for a ﬁ ne or forfei-

ture to be unconstitutional it must be “grossly”

disproportional to the gravity of the offense.

The second aspect of the Eighth Amendment

that is linked to proportionality review is the

cruel and unusual punishment clause. The

Supreme Court has, over time, come to believe

that a criminal sentence of incarceration (or

death) may be so disproportionate to the gravity

of the offense as to be cruel and/or unusual. An

early articulation of this position was in Weems v.

United States, 217 U.S. 349 (1910), in which the

Supreme Court adopted the notion that an espe-

cially lengthy prison sentence can be cruel because

of its excessive length. The Supreme Court pro-

ceeded to exercise proportionality review in the

context of capital punishment in the 1970s and

originally utilized the notion of proportionality to

invalidate the death penalty in all circumstances.

Later, the Court utilized a proportionality review

to invalidate the death penalty for rape (COKER V.

GEORGIA, 433 U.S. 584 [1977]) and for felony mur-

der in circumstances in which the defendant did

not actually kill the victim nor intend for him to be

killed (Enmund v. Florida, 458 U.S. 782 [1982]).

In addition, the Court has found the death pen-

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alty disproportionate for the mentally retarded

offender (ATKINS V. VIRGINIA, 536 U.S. 304 [2002])

and the offender under the age of 18 (Roper v.

Simmons, 543 U.S. 551 [2005]).

The Court has found it more difﬁ cult to apply

a proportionality review to modern noncapital

offenses. While the Court has tended to consis-

tently accept the notion that a disproportionate

sentence does violate the cruel and unusual pun-

ishment clause, it has not reached a consensus as

to an objective standard by which to deﬁ ne dispro-

portionality. In R

UMMEL V. ESTELLE, 445 U.S. 263

(1980), the Court did not ﬁ nd disproportionate a

Texas sentence of life imprisonment for a fairly

minor offense by a repeat offender. In 1983, how-

ever, the Court found a sentence of life imprison-

ment without parole disproportionate for writing

a bad check, even if the defendant was a repeat

offender (Solem v. Helm, 463 U.S. 277 [1983]).

Later, the Court refused to ﬁ nd life imprisonment

without parole as disproportionate for possess-

ing more than 650 grams of cocaine (Harmelin v.

Michigan, 501 U.S. 957 [1991]). It was in Harme-

lin that Justice Antonin Gregory Scalia artic-

ulated a different view of the cruel and unusual

punishment clause as it relates to the concept of

proportionality. Scalia contended, after an exten-

sive review of history, that the Eighth Amendment

contains no proportionality guarantee. In EWING V.

CALIFORNIA, 538 U.S. 11 (2003), the Court chose

not to follow Scalia’s strict position, but did back

away from a broad notion of proportionality by

asserting that the Eighth Amendment doesn’t

require strict proportionality but prohibits only

“grossly disproportionate” sentences.

Ultimately, the Constitution does demand

some degree of proportionality between the sen-

tence imposed and the crime committed, but it

is extremely difﬁ cult to ascertain in the abstract

when a disproportionality of constitutional dimen-

sions would arise. Rather, the Supreme Court

seems content to engage in a “case by case” analy-

sis with the aim of invalidating only those criminal

sentences that are “grossly” disproportionate.

For more information: Berkson, Larry Charles.

The Concept of Cruel and Unusual Punishment.

Lexington, Mass.: Lexington Books, 1975; Hirsch,

A. Von. Censure and Sanctions. New York: Oxford

University Press, 1993.

—Bryan H. Ward

sentencing guidelines

More than 35 years ago, judges made sentencing

decisions on a case-by-case basis. This discre-

tionary system of punishment often could lead to

discrimination. Legislatures, therefore, called for

reforms to sentencing policies. Sentencing reforms

were developed to reduce discretion, which, argu-

ably, led to reduced discrimination.

In order to provide a fairer system of justice,

Judge Frankel called for more control over dis-

cretionary decisions of judges. In the mid-1970s,

Judge Frankel suggested that a separate admin-

istrative agency be created to develop new sen-

tencing rules to realize this goal—the sentencing

commission.

Minnesota answered the call by developing the

ﬁ rst sentencing commission, which was created in

1978 and followed by the ﬁ rst set of sentencing

guidelines in 1980. Judges Frankel’s suggestion

was realized at the federal level with the advent

of the Sentencing Reform Act of 1984. Sentenc-

ing guidelines are deﬁ ned by a matrix of sentence

lengths. The particular sentence is determined

by the cross-section of prior criminal history

and severity of the current offense. A particular

defendant’s sentence can vary depending on the

combination of the prior criminal history and the

severity of the current offense.

It has been well documented that sentencing

reforms have created a system that is more deter-

minate and more punitive. The objective behind

these sentencing reforms was to limit judicial dis-

cretion and provide uniformity in sentencing deci-

sions to avoid potential discrimination.

The United States Supreme Court first

addressed the constitutionality of sentencing

guidelines in MISTRETTA V. UNITED STATES, 488 U.S.

361 (1989). Mistretta addressed whether Congress

violated the separation of powers clause in the

United States Constitution by creating the United

States Sentencing Commission, which oversees

sentencing guidelines 661

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