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judicial sentencing. The Court decided that Con-

gress’s delegation of its law-making power to an

independent agency did not violate the separation

of powers clause of the U.S. Constitution.

More recent cases—Blakely v. Washington, 124

S. Ct. 2531 (2004), U

NITED STATES V. BOOKER, 125 S.

Ct. 738 (2005), and United States v. Fanfan, 125 S.

Ct. 738 (2005)—have addressed individual rights

concerns in upward departure decisions within

sentencing guidelines. An upward departure allows

a judge to increase the sentence above the particu-

lar guideline range maximum. Guideline depar-

tures offer the most probable opportunity for the

exercise of discretion and the existence of dispar-

ity because the restrictions on such decisions are

loosely deﬁ ned.

In Blakely v. Washington (2004), the sentence

was raised above the maximum of the prescribed

sentencing guideline range by a preponderance

of the evidence. Relying on precedents set by

Apprendi v. New Jersey, 530 U.S. 466 (2000), the

Supreme Court found that this upward departure

decided by a judge by a preponderance of the evi-

dence violated the defendant’s Sixth Amend-

ment right to a jury trial and the right to have facts

against him be proven beyond a reasonable doubt.

In United States v. Booker (2005), a mandatory

enhancement was applied by the judge in a federal

case. The Supreme Court in United States v. Booker

(2005) considered whether the federal sentencing

guidelines’ mandatory enhancements, which were

based on facts not proven by a jury beyond a rea-

sonable doubt, violated the Sixth Amendment right

to a jury. A case consolidated with Booker, United

States v. Fanfan (2005), considered the possible

remedy if the Court in Booker were to ﬁ nd that

the Sixth Amendment was violated.

The Court examined Congress’s language and

the intent of that language. The federal sentenc-

ing guidelines were mandatory and binding on all

judges and, thereby, operated as a statute because

they “have the force and effect of laws” (United

States v. Booker, 2005, p. 742). The Supreme Court,

therefore, found that these enhancements did vio-

late the right to jury trial protected by the Sixth

Amendment. The Supreme Court in United States

v. Fanfan (2005) suggested that the remedy for this

error was to eliminate the mandatory nature of the

federal sentencing guidelines; the Court ruled that

the guidelines are now simply advisory.

In the ﬁ rst part of the 21st century, the United

States Supreme Court drastically changed the

face of sentencing guidelines. Although the Court

in Mistretta v. United States ruled that the sen-

tencing guidelines did not violate the separation

of powers clause of the United States Constitu-

tion, the Supreme Court later decided that a judge

could not depart above the prescribed guideline

range maximum in state jurisdictions (Blakely v.

Washington, 124 S. Ct. 2531 [2004]) or in the fed-

eral jurisdiction (United States v. Booker, 125 S.

Ct. 738 [2005], and United States v. Fanfan, 125

S. Ct. 738 [2005]).

For more information: Spohn, C. How Do

Judges Decide?: The Quest for Fairness and Jus-

tice in Sentencing. Thousand Oaks, Calif.: Pine

Forge Press, 2002; Stith, K., and J. A. Cabranes,

Fear of Judging: Sentencing Guidelines in the

Federal Courts. Chicago: University of Chicago

Press, 1998; Tonry, M. Sentencing Matters. New

York: Oxford University Press, 1996; Ulmer, J. T.

Social Worlds of Sentencing: Court Communities

under Sentencing Guidelines. Albany: State Uni-

versity of New York Press, 1997.

—Jeremy D. Ball

separation of powers

The phrase separation of powers is generally

representative of the idea that the framers of the

Constitution created three coequal branches of

government. Article I of the U.S. Constitu-

tion defines the legislative branch and creates

two houses of Congress: the House of Repre-

sentatives and the Senate, charging them with

speciﬁ c responsibilities. Article II of the U.S.

Constitution identiﬁ es the executive branch,

naming the president as its leader, while identi-

fying the vice president and executive depart-

ments as members of the branch responsible in

some way for administering the laws. Article III

of the U.S. Constitution identiﬁ es the judi-

cial branch as the Supreme Court and inferior fed-

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eral courts having charge over deciding individual

cases and controversies in law or equity.

However, the phrase “separation of powers” is

not enumerated in the seven articles of the Con-

stitution. So where does the phrase come from?

While proponents look to the writings of the fram-

ers in the Federalist Papers, such as those of James

Madison or Alexander Hamilton, separation

of powers is an idea that emerged centuries before

the Convention of 1787 and has many variations.

The common theme is that governmental func-

tions are not concentrated in a single authority

but those responsibilities, along with the political

power associated with them, are dispersed among

branches of government. By so doing, this encour-

ages individual liberty—freedom from govern-

ment oppression (commentators refer to this as

ancient or ordered liberty) and freedom to enjoy

the benefits of and participate in an organized

society (modern liberty). Philosophers such as

Aristotle, Montesquieu, Locke, and Constant are

often quoted when discussing these ideas. While

there are many permutations of separation of

powers, commentators tend to fall into two basic

schools of thought about what the phrase means:

formalists and functionalists.

Generally, formalists view the fact that the

framers drafted three distinct articles with enu-

merated duties as an implicit signal that the three

branches are to behave in “watertight compart-

ments.” Justice Southerland represented this view

in 1928 when he said, “It may be stated then, as

a general rule inherent in the American consti-

tutional system, that, unless otherwise expressly

provided or incidental to the powers conferred,

the Legislature cannot exercise either executive

or judicial power; the judiciary cannot exercise

either executive or legislative power. The exis-

tence in the various Constitutions of occasional

provisions expressly giving to one of the depart-

ments powers which by their nature otherwise

would fall within the general scope of the author-

ity of another department emphasizes, rather than

casts doubt upon, the generally inviolate character

of this basic rule.” A simpliﬁ ed characterization of

this view is: The legislature makes, the executive

executes, and the judiciary construes the law.

On the other side of the understanding of sepa-

ration of powers are the functionalists. Function-

alists suggest that the framers must have rejected

the idea of “watertight compartments” because

of the lack of the phrase “separation of powers”

in the Constitution. Instead, as articulated by

Justice Oliver Wendell Holmes’s dissent in

that same 1928 case: “The great ordinances of the

Constitution do not establish and divide ﬁ elds of

black and white. Even the more speciﬁ c of them

are found to terminate in a penumbra shading

gradually from one extreme to the other. . . . To

make the rule of conduct applicable to an indi-

vidual who but for such action would be free from

it is to legislate—yet it is what judges do whenever

they determine which of two competing principles

of policy shall prevail. . . . It does not seem to need

argument to show that however we may disguise

it by veiling words we do not and cannot carry out

the distinction between legislative and executive

action with mathematical precision and divide the

branches into watertight compartments. . . .”

Instead, as Justice Joseph Story suggests of

functionalists: “When we speak of a separation of

the three great departments of government, and

maintain that that separation is indispensable to

public liberty, we are to understand this maxim in

a limited sense. It is not meant to afﬁ rm that they

must be kept wholly and entirely distinct, and have

no common link of connection or dependence,

the one upon the other, in the slightest degree.

The true meaning is, that the whole power of one

of these departments should not be exercised by

the same hands which possess the whole power

of either of the other departments; and that such

exercise of the whole would subvert the principles

of a free Constitution. Indeed, there is not a single

constitution of any state in the Union, which does

not practically embrace some acknowledgement of

the maxim, and at the same time some admixture

of powers constituting an exception to it.”

One of the primary examples of the function-

alist theory at work is the advent of the admin-

istrative agency. While housed in the executive

branch to administer the day-to-day activities of

those who are regulated, as well as to create rules

that govern their behavior, Congress provides

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the funds and the legislative authority for these

bodies to execute those duties. The courts ensure

that the administration of the law neither unduly

encroaches upon nor curtails the liberties of those

being regulated.

This then gives rise to the argument that the

framers embraced the principle of checks and

balances rather than an exclusive separation of

powers. Support for this position is found in the

framers’ enumeration of many speciﬁ c methods by

which one of the branches can curtail the activi-

ties of another branch. For example, the executive

can veto legislation, while the veto can be over-

ridden by the Congress; the Supreme Court can

declare a particular act unconstitutional, while

Congress can regulate the manner in which cases

come before federal courts.

One can conclude that, so long as government

is focused on providing for only as much govern-

ment as is appropriate (a political question) and

on ensuring to the most practical degree the over-

all public’s health, safety, and welfare by using its

enumerated powers, then individual liberty can

be maximized by each separate branch discharg-

ing its respective responsibilities concomitant

with the checks and balances put in place by the

framers.

For more information: Breyer, Stephen. Active

Liberty: Interpreting Our Democratic Constitu-

tion. New York: Knopf, 2005; Brown, Rebecca.

“Separated Powers and Ordered Liberty.” Univer-

sity of Pennsylvania Law Review 139, no. 1513

(1991): 315–320; Elliott, E. Donald. “Why Our

Separation of Powers Jurisprudence Is So Abys-

mal.” George Washington Law Review 57, no. 506

(1989): 515–518.

—Cleveland Ferguson III

September 11 attacks and the Constitution

The terrorist attacks of September 11, 2001, forever

changed the United States. Within weeks of these

attacks, Congress passed the Authorization for

the Use of Military Force (Public Law 107–40)—

directing the president to “use all necessary and

proper force against those nations, organizations,

or persons he determines planned, authorized,

committed, or aided the terrorist attacks”—and

the PATRIOT Act (Public Law 107–56) designed

to “deter and punish terrorist acts in the United

States and around the world.” With these pieces

of legislation from Congress, combined with the

presidential authority as commander in chief

listed in Article II of the U.S. Constitution,

the federal government enacted new programs

and initiatives to combat global terrorism. At the

outset, many of these initiatives were viewed as

necessary to protect the national security of the

United States. However, as time progressed, these

same programs and initiatives received additional

scrutiny, and questions arose pertaining to the

nature of constitutional authority and the protec-

tion of civil liberties.

In the several months immediately following

the September 11 attacks, the federal government

detained thousands of individuals in the United

States who might have been linked to, or might

have possessed information about, the terrorists’

plot. One such individual was Rabih Haddad,

accused of operating an Islamic charity and fun-

neling contributions to suspected terrorist organi-

zations. Haddad’s family, friends, and the media

sought to attend his hearing, but were informed

that the proceedings were closed to the public and

the press. This procedure raised constitutional

questions about whether Haddad could receive a

fair, impartial, and unbiased hearing without pub-

lic scrutiny. Writing for a unanimous panel, Sixth

District Court of Appeals Judge Keith stated,

“The public’s interests are best served by open

proceedings. A true democracy is one that oper-

ates on faith—faith that government ofﬁ cials are

forthcoming and honest, and faith that informed

citizens will arrive at logical conclusions. This is a

vital reciprocity that America should not discard

in these troubling times. Without question, the

events of September 11, 2001, left an indelible

mark on our nation, but we as a people are united

in the wake of the destruction to demonstrate to

the world that we are a country deeply commit-

ted to preserving the rights and freedoms guar-

anteed by our democracy” (Detroit Free Press v.

Ashcroft, 303 F. 3d 681 [2002]). Following these

664 September 11 attacks and the Constitution

vi+904_EofUSConsti-v2.indd 664 3/20/09 2:18:40 PM

statements, the panel affirmed the lower court

decision and supported the civil liberties chal-

lenge to the government.

In contrast to this decision is a ruling by the

Third Circuit. The case was a response by New

Jersey newspapers to repeated denials by the

immigration courts of docket information and

access to deportation hearings. According to the

majority opinion, written by Judge Becker, “This

case arises in the wake of September 11, 2001, a

day on which American life changed drastically

and dramatically. The era that dawned on Sep-

tember 11, and the war against terrorism that has

pervaded the sinews of our national life since that

day, are reﬂ ected in thousands of ways in legis-

lative and national policy, the habits of daily liv-

ing, and our collective psyches. Since the primary

national policy must be self-preservation, it seems

elementary that, to the extent open deportation

hearings might impair national security, that secu-

rity is implicated in the logic test” (North Jersey

Media Group, Inc. v. Ashcroft, U.S. App. LEXIS

21032 [2002]). The Third Circuit ruled against

civil liberties, concluding that the federal govern-

ment had justiﬁ ed its request for secret deporta-

tion hearings, given the importance of preserving

national security.

These two cases demonstrate the confusion

facing federal judges as they attempt to resolve

immigration and deportation disputes. On the one

hand, judges are ordering public trials consistent

with the practice before September 11. However,

some other judges acknowledge that the terrorist

attacks changed many aspects of the law and, con-

sequently, in the name of national security, some

trials must be closed to public scrutiny.

While the cases involving secret deportation

hearings received a fair amount of media cover-

age, the vast share of public attention focused

on the war on terror and, in particular, on the

detainment of individuals labeled “enemy com-

batants.” The ﬁ rst of these cases, R

ASUL V. BUSH,

542 U.S. 466 (2004), focused on complaints

brought on behalf of individuals detained in

Guantánamo Bay, Cuba. As the record indicates,

the petitioners were citizens of Australia and

Kuwait and were captured by the U.S. military

during its armed confrontation with the Taliban

regime in Afghanistan. They brought habeas

corpus suits against the United States in protest

of an executive order authorizing the indeﬁ nite

detention of individuals suspected of terrorist

actions. Writing for the majority, Justice John

Paul Stevens ruled in favor of the detainees at

Guantánamo Bay. He stated that the individuals

“have never been afforded access to any tribu-

nal, much less charged and convicted of wrong-

doing; and for more than two years they have

been imprisoned in territory over which the

United States exercises exclusive jurisdiction.”

Justice Stevens concluded that these individuals

therefore were entitled to bring their disputes

before U.S. courts to challenge the “enemy com-

batant” label.

Smoke billows from the World Trade Center’s twin

towers after they are struck by commercial airliners

that had been hijacked by terrorists.

(Shaw/Getty)

September 11 attacks and the Constitution 665

vi+904_EofUSConsti-v2.indd 665 3/20/09 2:18:40 PM

A second case involved allegations by the fed-

eral government against Jose Padilla, a U.S. citi-

zen apprehended at Chicago’s O’Hare airport for

potentially conspiring with the al-Qaeda terrorist

network. During the course of a grand jury inves-

tigation in New York, President Bush signed an

executive order directing Secretary of Defense

Rumsfeld to designate Padilla an “enemy com-

batant.” Rumsfeld complied and Padilla was sent

to a military detention facility in South Carolina.

His attorney brought a habeas corpus suit against

Rumsfeld to challenge the president’s authority

to designate U.S. citizens as “enemy combatants.”

Chief Justice William Hubbs Rehnquist’s

opinion overturned an appeals court decision that

had invalidated the executive order (R

UMSFELD V.

PADILLA, 542 U.S. 426 [2004]). However, this was

accomplished by claiming that Padilla ﬁ led his law-

suit against the wrong party. Rehnquist indicated

that the habeas corpus statute, passed by Congress

over 100 years earlier, speciﬁ cally indicated that

lawsuits should proceed against the individual in

immediate custody. As such, Commander Marr of

the South Carolina military detention facility, not

Secretary Rumsfeld, was Padilla’s custodian and

the proper respondent to the habeas petition.

The third case decided that same year by the

Supreme Court involved the detention of a U.S.

citizen, taken from the ﬁ eld of combat in Afghani-

stan. Yaser Hamdi was seized by Northern Alli-

ance forces and turned over to the U.S. military

shortly after Congress adopted a resolution entitled

the Authorization for the Use of Military Force to

the president. Writing on behalf of the majority

in the case of HAMDI V. RUMSFELD, 542 U.S. 507

(2004), Justice Sandra Day O’Connor rejected

the government’s claim that federal courts had no

authority to review the status of American citizens

labeled “enemy combatants.” She stated, “we have

long made clear that a state of war is not a blank

check for the President when it comes to the rights

of the Nation’s citizens.”

Another “enemy combatant” case involved

another detainee at Guantánamo Bay, Cuba. Fol-

lowing the Supreme Court’s decision in Rasul

v. Bush, the federal government established a

series of military tribunals where detainees could

challenge the “enemy combatant” status. Yet,

because these tribunals were established under

military regulations, many of the constitutional

safeguards that would otherwise operate in civil-

ian courts did not exist. Salim Ahmed Hamdan

was captured in Afghanistan and transported to

Guantánamo Bay. Because of his close afﬁ liation

to Osama bin Laden, President Bush announced

that Hamdan was an “enemy combatant.” In

challenging this classiﬁ cation, Hamdan and his

military-appointed attorney encountered sev-

eral signiﬁ cant obstacles placed by the military

tribunal. Consequently, he ﬁ led a habeas corpus

petition in federal court for a determination of his

status. In writing for the majority, Justice Stevens

announced that these military tribunals violated

both the Uniform Code of Military Justice and

aspects of international law that are codiﬁ ed in

the Geneva Conventions (Hamdan v. Rumsfeld,

126 S. Ct. 2749 [2006]). He noted that, “even

assuming that Hamden is a dangerous individual

who would cause great harm or death to innocent

civilians given the opportunity, the Executive

nevertheless must comply with the prevailing rule

of law in undertaking to try him and subject him

to criminal punishment.”

These cases indicate that the status of “enemy

combatant” places individuals in a constitutional

limbo, and the Supreme Court has had difﬁ culty

announcing clear deﬁ nitions of the rights and priv-

ileges afforded to these individuals. The justices

seem to state that the federal government can-

not bypass the fundamental protections afforded

by the Constitution, but they also allow the gov-

ernment tremendous leeway in the handling of

“enemy combatants.”

The terrorist attacks of September 11, 2001,

may have profoundly altered certain aspects of the

Constitution. At this point in time, it is extremely

difficult to determine precisely which aspects

have changed. Since we rely on judges to interpret

the Constitution, their opinions are essential to

help clarify its meaning. In the two areas of secret

deportation hearings and “enemy combatants,”

the courts have issued mixed, and sometimes

contradictory, opinions. And more constitutional

questions keep emerging. For example, the news

666 September 11 attacks and the Constitution

vi+904_EofUSConsti-v2.indd 666 3/20/09 2:18:40 PM

media recently announced a program from the

National Security Agency to eavesdrop on com-

munications in the United States without a search

warrant or judicial oversight. Advocates of civil

liberties claim this program is a violation of the

Fourth Amendment, while the other side of the

debate claims the program is essential to protect

the national security of the United States by pre-

venting future terrorist attacks. Which side is cor-

rect? Only federal judges (and ultimately Supreme

Court justices) can decide, from a constitutional

standpoint.

For more information: Cohen, David B., and

John W. Wells, eds. American National Security

and Civil Liberties in an Era of Terrorism. New

York: Palgrave Macmillan, 2004; Whitehead, John

W., and Steven H. Aden. “Forfeiting ‘Enduring

Freedom’ for ‘Homeland Security’: A Constitu-

tional Analysis of the USA PATRIOT Act and the

Justice Department’s Anti-Terrorism Initiatives.”

American University Law Review 51 (August

2002): 1,081–1,133.

—Kirk A. Randazzo

Serrano v. Priest 487 P.2d 1241 (1971)

In Serrano v. Priest, in a 6 to 1 decision, the

California Supreme Court held that the state’s

school ﬁ nance system violated the Fourteenth

Amendment to the U.S. Constitution.

Like school ﬁ nance systems in virtually all states

in the late 1960s, California’s system relied heavily

on local property taxes to fund education. Thus,

property-rich districts could tax at low rates and

spend at high levels, while property-poor districts

had to tax at high rates and spend at low levels.

The Serrano reform lawyers attacked this sys-

tem as discriminatory. Following the logic of the

U.S. Supreme Court’s equal protection clause

jurisprudence, they argued that district wealth

was a “suspect classiﬁ cation” (just like race), and

that education was a “fundamental right” (just like

the right to vote). The California high court

agreed. The state bore a heavy burden of justiﬁ ca-

tion for its ﬁ nance policies, which the high court

found that it could not meet.

Serrano was a landmark case, for it was the ﬁ rst

time that a court had invalidated a state’s school

finance policies as unconstitutional. While the

California court’s interpretation of the federal

equal protection clause would not survive the

U.S. Supreme Court’s decision in San Antonio

v. Rodriguez (1973), Serrano itself survived as a

central part of a national trend that saw reformers

challenging school ﬁ nance policies in state courts

on state constitutional grounds.

In Serrano II, 557 P.2d 929 (1976), in a 4 to 3

decision, the California Supreme Court reafﬁ rmed

its earlier ruling, this time by relying on its own

constitution’s equal protection provisions. The high

court also afﬁ rmed a trial court ruling requiring

that “wealth-related disparities” (that is, differ-

ences in local spending attributable to unequal

property tax bases) in per pupil expenditures for

basic education across school districts be reduced

to “less than $100.00” within six years (557 P.2d

929, at 940, nt. 21). The dissenters in Serrano II

argued that relying less on local property taxes and

making the state pick up more of the tab might

well undermine overall public support for educa-

tion (557 P.2d 929, at 964, Clark, J., dissenting).

In June 1978, less than a year after the legis-

lature had passed a new ﬁ nance law, California

voters endorsed Proposition 13, a state constitu-

tional amendment adopted through the initiative

process. Proposition 13 placed strict limits on the

ability of local governments and school districts to

raise local revenues by rolling back assessments

to 1 percent of value. Over the next several years,

the state came to ﬁ nance about 80 percent of the

total costs for public education. In 1986, a state

appellate court found that the state had complied

with Serrano. It determined that wealth-related

revenue differences had been reduced to “insig-

niﬁ cant amounts” for 93 percent of all school dis-

tricts (Serrano III, 226 Cal. Rept. 584, at 614 [Ct.

of App., 2nd App. Dist., Div. Two] [1986]).

Current observers generally agree that much

more equality in tax rates and spending across

districts was achieved. However, there was much

more leveling down than leveling up. Serrano, in

conjunction with Proposition 13, also produced

a precipitous decline in overall public support

Serrano v. Priest 667

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for education spending. Although California had

ranked among the top 10 states in per pupil spend-

ing in the late 1960s, it placed among the bottom

10 states in that late 1990s.

For more information: Elmore, Richard F., and

Milbrey W. McLaughlin. Reform and Retrench-

ment: The Politics of California School Finance.

Cambridge, Mass.: Ballanger Publishing, 1982;

Martin, Isaac. “Does School Finance Litigation

Cause Taxpayer Revolt?” Law and Society Review

40, no. 4 (September 2006): 525–558; Schrag, Peter.

Final Test: The Battle for Adequacy in America’s

Schools. New York: New Press, 2003; Sonstelie,

Jon, Eric Brunner, and Kenneth Ardon. For Bet-

ter or For Worse?: School Finance Reform in Cali-

fornia. Public Policy Institute of California, 2000.

Available online. URL: http://www.ppic.org/main/

publication.asp?i=65. Accessed 15 May 2008.

—Michael Paris

Seventeenth Amendment

The Seventeenth Amendment, adopted on May

31, 1913, provides for popular election of United

States senators. Prior to this, senators had been

selected by action of their respective state legisla-

tures, not by direct voter participation. With this

amendment, the Constitution’s original Article

II, Section 3 language of “chosen by the legisla-

tures thereof” was replaced with the more demo-

cratic “elected by the people thereof.”

The successful passage and adoption of the

Seventeenth Amendment is attributable as much

to Progressive Era attitudes toward greater

democratization and public participation, as to

less well-known but just as significant changes:

the increased importance of the Senate and the

growing power of political parties.

In the early days of the republic, the House

of Representatives was popularly viewed and

functioned as the more important chamber. It was

not uncommon for sitting senators to resign their

posts, sometimes with several years remaining in

their terms, to run for House seats. In the run-up

to the Civil War, and even more dramatically fol-

lowing it, the Senate emerged on a parity with the

House or, arguably, as the more important, visible,

and inﬂ uential chamber.

Recognizing the growing inﬂ uence that senators

(and senatorial candidates alike) had within their

states, state party organizations learned that their

senators could further their objectives and rally

local organizations like no other ofﬁ cial. Taking

advantage of this situation, parties began to select,

promote, and organize around particular senato-

rial candidates prior to their ofﬁ cial election by

the legislature. Initially known as “endorsements”

and “canvassing the public,” these tactics short-cir-

cuited the framers’ original selection process and

presaged the modern direct primary. Among early

canvasses, and certainly the best known, was the

1858 Lincoln-Douglas contest wherein Abraham

Lincoln reshaped the Republican Party and won

the popular vote, but lost the Senate seat because

the Illinois legislature remained Democratic and

sent Douglas to Washington.

As the Senate became a body where critical

issues affecting the nation and its future were

shaped, and state political party machines became

more pronounced, the very process of choosing

senators grew more contentious and protracted.

Deadlocks wherein legislatures were completely

unable to agree on a senatorial candidate became

commonplace. Deadlocks had become enough

of a problem by 1866 that Congress passed a

law designed to remedy the situation. The well-

intentioned statute, proscribing daily balloting,

common sessions, and concurrent majorities only

made matters worse.

Between 1891 and 1905, 45 deadlocks were

recorded. They lasted from a week to a record of

114 days, in 20 different states, with states accept-

ing vacancies in the U.S. Senate as a consequence

of their inability to decide. Delaware’s experience

is the most extreme: Between 1899 and 1901 it

had only one senator in Washington, and between

1901 and 1903 it had none. Acrimonious charges

of bribery, corruption, backroom dealing, and

senators beholden to narrow financial interests

clouded these proceedings even further. Modern

journalists and students seeking historical exam-

ples of legislatures acting badly need look no fur-

ther than this pre-Seventeenth Amendment era to

668 Seventeenth Amendment

vi+904_EofUSConsti-v2.indd 668 3/20/09 2:18:41 PM

ﬁ nd wonderfully colorful stories of pandemonium

and bizarre behavior as state legislatures squab-

bled over choosing their U.S. senators.

Throughout the country, multiple strategies

were implemented to respond in one way or another

to these crises. Deadlocks were addressed through

state-by-state reforms. Beginning with Illinois in

1890, several forms of direct senatorial primaries

(advisory in nature and not legally binding upon the

legislature) were approved so that, by 1910, 28 states

had them. In 1901, Oregon added a “pledge” to its

primary regimen, one that required state legislative

candidates to indicate their support for the sena-

torial candidate who won the popular vote. Other

states followed suit. In 1900, the national Demo-

cratic Party initiated quadrennial presidential plat-

form advocacy of a constitutional amendment for

direct election of senators. The GOP joined the

chorus in 1908. By 1910, more than 30 states (at

that time, more than the sufﬁ cient three-fourths

necessary to approve a constitutional amendment)

had asked Congress to call a national convention on

the subject or to pass an amendment to that effect.

Responding to these local pressures, the House

of Representatives had, between 1893 and 1902,

considered such an amendment ﬁ ve times and had

twice passed them with the necessary two-thirds

majority, only to have them ignored in the Senate.

A decade later, in a Senate changed by the

attitude of members who had themselves been

selected by these reformed and more popular

forms of elections, the House for the third time

sent a direct election amendment to the Sen-

ate; following a difﬁ cult Senate resolution of yet

another fraudulent senatorial election, the Senate

quickly ratiﬁ ed the new amendment. The states

that had long been “ahead” of the Congress on

this issue promptly gave their approval and the

amendment became law.

For more information: Haynes, George H. The

Senate of the United States. New York: Russell &

Russell, 1960; Hoebeke, C. H. The Road to Mass

Democracy: Original Intent and the Seventeenth

Amendment. New Brunswick, N.J.: Transaction

Publishers, 1995.

—George Peery

Seventh Amendment

The Seventh Amendment to the Constitution

guarantees individuals a right to a trial by jury

when the value in dispute is in excess of $20. This

amendment is one of the original 10 in the Bill of

Rights, which amended the Constitution in 1791;

it was originally proposed by James Madison.

Both the Sixth and Seventh Amendments were

adopted to provide for jury trials for defendants

facing accusations. However, while the Sixth

Amendment right to a jury trial applies to crimi-

nal trials, the Seventh Amendment involves civil

cases or issues. Additionally, while the Sixth

Amendment has been incorporated in its entirety

to apply to the states, the Supreme Court has

declined to do the same for the Seventh Amend-

ment. This puts it, along with the Second and

Third Amendments, among the only ones that

do not in whole or in part limit state action.

The Supreme Court in Baltimore & Carolina

Line v. Redman, 295 U.S. 654 (1935), declared

that the general purpose of the Seventh Amend-

ment is to preserve the common law right to a

jury trial. Yet in Colegrove v. Battin, 413 U.S. 149

(1973), the Court ruled that this federal right did

not mandate a 12-person jury and that instead a

six-person jury would be acceptable. Finally, even

though the Seventh Amendment does not apply

to state proceedings, state law matters adjudicated

in federal court, such as under diversity juris-

diction, would be required to follow the require-

ments of this amendment.

For more information: Stone, Geoffrey R.,

Richard A. Epstein, and Cass R. Sunstein. The Bill

of Rights in the Modern State. Chicago: University

of Chicago Press, 1992.

—David Schultz

Shapiro v. Thompson 394 U.S. 618 (1969)

In Shapiro v. Thompson, the Supreme Court

ruled that a state’s imposition of a one-year waiting

period for eligibility for welfare beneﬁ ts discrimi-

nated against individuals on the basis of length of

residency and interfered with the fundamental

right to travel from one state to another.

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The 6-3 ruling, written by Justice William

J. Brennan, Jr., was a major first step in the

Supreme Court’s rethinking of the status of gov-

ernment benefits under the Constitution. The

process continued two years later in G

OLDBERG

V. KELLY, 397 U.S. 254 (1970), when the Supreme

Court ruled that cutting off or denying welfare

beneﬁ ts required the protection of due process

notice and a chance to be heard.

The ruling also marked a significant step in

constitutional analysis, as Justice Brennan for the

first time held that government discrimination

in the exercise of a fundamental right required a

“compelling” justiﬁ cation. Brennan imported this

tough standard from free speech analysis and gave

new bite to the equal protection clause.

Shapiro involved the consolidation of cases

from Connecticut, Pennsylvania, and the Dis-

trict of Columbia. Each jurisdiction had a

one-year waiting period for eligibility for welfare

beneﬁ ts, with the Aid for Families with Depen-

dent Children (AFDC) program involved in the

cases. Lower federal courts held the waiting period

unconstitutional, and state ofﬁ cials appealed to

the Supreme Court.

Justice Brennan set the tone for the opinion by

noting that the line between residence in a state

for more than a year and less than a year could

determine arbitrarily which families were able “to

obtain the very means to subsist—food, shelter,

and other necessities of life.”

The Court said the main purpose of the

restriction was to keep poor people from moving

into a state and becoming a burden on the ﬁ scal

resources of the state. Justice Brennan said that

was not a constitutionally valid goal because the

Constitution protects the fundamental rights

of people to travel from one state to another. He

also rejected the argument by states that they

were trying to prevent individuals from relocating

in order to seek higher welfare beneﬁ ts; he said

such a goal was no more valid than would be a ban

on persons moving to a state to take advantage of

a good school system.

The Court also rejected the argument that

Congress specifically encouraged the states to

adopt waiting periods. This portion of the decision

prompted a dissent by Chief Justice Earl Warren,

usually a close ally of Justice Brennan. Warren

argued that Congress speciﬁ cally authorized and

encouraged states to adopt residency periods. He

also warned that the Court’s rejection of welfare

residency waiting periods would have ramifica-

tions for voting, in-state tuition, and the practice

of some professions. Justice Hugo L. Black joined

Warren’s dissent.

Justice John M. Harlan also dissented and

warned that the Court was interfering too much

with state and federal legislative processes. In a

strong critique of what he deemed to be the lib-

eral excesses of the Court, he criticized what he

described as “the current notion that this Court

possesses a peculiar wisdom all its own whose

capacity to lead this Nation out of its present trou-

bles is contained only by the limits of judicial inge-

nuity in contriving new constitutional principles to

meet each problem as it arises.”

For more information: Michelman, Frank I.

“Forward: On Protecting the Poor through the

Fourteenth Amendment.” Harvard Law Review

83, no. 7 (1969): 14–15; Schwartz, Bernard. “How

Justice Brennan Changed America.” In Reason

and Passion: Justice Brennan’s Enduring Inﬂ u-

ence. New York: W.W. Norton, 1997.

—Stephen Wermiel

Shaw v. Reno 509 U.S. 630 (1993)

In Shaw v. Reno the Supreme Court invalidated

a redistricting plan developed under the Voting

Rights Act to enhance minority representa-

tion, arguing that it violated the Fourteenth

Amendment’s equal protection clause. The

decision was important because it represented a

Rehnquist Court criticism of the use of race to

remedy discrimination in reapportionment issues.

North Carolina is a state where the bulk of the

black population is found in counties covered by

Section 5 of the Voting Right Act of 1965. In 1990,

the state had no black congressional districts, and

the last black member elected to Congress was

during the Reconstruction era. Following the

1990 census, North Carolina acquired its 12th

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congressional seat. In 1991, a congressional plan

enacted by the North Carolina state legislature

created one majority-black district to comply with

Section 5 of the Voting Rights Act, which prohibits

a covered jurisdiction from implementing changes

in a “standard, practice, or procedure with respect

to voting” without federal authorization. This plan

was rejected by the Department of Justice, ﬁ rst on

the grounds that the state failed to demonstrate

that it did not have the purpose or effect of dilut-

ing minority voting strength. This was followed by

suggestions that a second majority black district

be drawn in the southeastern portion of the state.

In response to the Department of Justice’s

order, the state instead produced a new plan with

a second majority-black congressional district else-

where in the state. The lines of the new district

stretched for approximately 160 miles along Inter-

state 85, with much of its length no wider than

the highway’s corridor. Five white residents from

North Carolina ﬁ led suit against the state and the

Department of Justice on the grounds that the

plan unconstitutionally distinguished between

voters according to their race. The two major-

ity-black districts created by the state legislature

constituted, they claimed, an unconstitutional

racial gerrymander in violation of the Fourteenth

Amendment. Furthermore, they said that the two

districts concentrated the majority of black vot-

ers arbitrarily without regard to contiguity, com-

pactness, geographical boundaries, or respect

for political subdivisions for the sole purpose of

creating congressional districts along racial lines

to guarantee the election of two black representa-

tives. A three-judge district court dismissed the

complaint by a 2-1 vote for the following reasons:

(1) lack of subject matter jurisdiction over the fed-

eral government and the state, (2) failure to state

an equal protection claim, since favoring minor-

ity voters is not an invidious discrimination in the

constitutional sense, and (3) the redistricting plan

did not lead to proportional underrepresentation

of white voters statewide.

On certiorari, the Supreme Court was pre-

sented with variations of the same issues. The

ﬁ rst was whether the revised plan, which contains

district boundary lines of dramatically irregular

shape, constituted an unconstitutional gerryman-

dering and therefore presented a cognizable claim

for resolution. The second question was whether

redistricting legislation that is so bizarre on its

face that it is unexplainable on grounds other than

race demands the same close scrutiny given to

other state actions that classify citizens by race.

Summarily, do claims that the North Carolina

legislature created a racially gerrymandered dis-

trict raise a valid constitutional issue under the

equal protection clause, and if so are the stated

objectives narrowly tailored to further a com-

pelling governmental interest? Justice

Sandra Day O’Connor delivered the 5-4 opin-

ion of the Court. Chief Justice William Hubbs

Rehnquist and Justices Antonin Gregory

Scalia, Anthony M. Kennedy, and Clar-

ence Thomas joined, while Justice White ﬁ led

a dissenting opinion in which Justices Blackmun

and John Paul Stevens joined, with Blackmun,

Stevens, and David H. Souter also posting sepa-

rate dissenting opinions.

Writing for the majority in a decision that

reversed and remanded the case to the district

court, Justice O’Connor ruled as follows: First,

that the district court properly dismissed the claim

against the Department of Justice. Second, while

the lack of compactness, per se, is not a constitu-

tional violation, equal protection is violated when

and if a redistricting legislation, though race-neu-

tral on its face, is so extremely irregular that it

cannot rationally be understood as anything other

than an effort by the legislature to segregate vot-

ers into separates districts on the basis of race and

for purposes of voting. This, O’Connor reasoned,

is especially acute when such redistricting is done

without regard for traditional districting princi-

ples, and more importantly, without a sufﬁ ciently

compelling state justiﬁ cation. If, on remand, the

allegations of a racial gerrymander are not con-

tradicted, the Court observed, the district court

must determine whether the plan is narrowly tai-

lored to further a compelling governmental inter-

est. Addressing compliance under Section 5 of the

Voting Right Act of 1965, the Court observed fur-

ther that “a covered jurisdiction’s interest in creat-

ing majority-minority districts in order to comply

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