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with the Act does not give States carte blanche to

engage in racial gerrymandering.” Third, that the

North Carolina redistricting plan at issue did not

violate the rights of white voters because it did not

lead to unfairly diluting or canceling out votes.

To Justice O’Connor, the question of the mean-

ing of the right to vote and the propriety of

race-based state legislation designed to benefit

members of a historically disadvantaged racial

minority group, in this case, involve two of the

most complex and sensitive issues the Court has

faced in recent years. Appearances, she argues,

matter in reapportionment. She sees as suspect

reapportionment plans that include, in one dis-

trict, individuals belonging to the same race, who

otherwise are widely separated by geographical

and political boundaries and who may have little

in common with one another but the color of their

skin. She sees such plans as bearing an uncom-

fortable resemblance to political apartheid. While

it is obvious that Justice O’Connor’s opinion in

this case is tough on race-based classiﬁ cation, she

ﬁ nds plenty of merit in the use of race-conscious

districting if properly validated with a compelling

state interest. Indeed, she carefully observes that

“this Court has never held that race-conscious

decision-making is impermissible in all circum-

stances.” Classifications of citizens based solely

on race, she argues, are by their nature odious

to a free people whose institutions are founded

upon the doctrine of equality. Such classiﬁ cations

threaten to stigmatize persons by reason of their

membership in a racial group and to incite racial

hostility. Even in the pursuit of genuine remedial

objectives, O’Connor continues, “an explicit policy

of assignment by race may serve to stimulate our

society’s latent race-consciousness, suggesting the

utility and propriety of basing decisions on a fac-

tor that ideally bears no relationship to an individ-

ual’s worth or needs.” Thus, state legislation that

expressly distinguishes among citizens on account

of race, she argues, whether it contains an explicit

distinction or is “unexplainable on grounds other

than race, must be narrowly tailored to further a

compelling governmental interest.”

Citing the Court’s 1960 opinion in G

OMIL-

LION ET AL. V. LIGHTFOOT, 364 U.S. 339 (1960), she

observed further that “redistricting legislation that

is alleged to be so bizarre on its face that it is unex-

plainable on grounds other than race demands the

same close scrutiny regardless of the motivations

underlying its adoption.” Thus, although it may

be difﬁ cult to determine from the face of a sin-

gle-member districting plan that it makes such a

distinction, this does not mean that a racial gerry-

mander, once established, should receive less scru-

tiny than other legislation distinguishing citizens

by race. Speaking of the inherent effect of racial

gerrymandering, O’Connor noted that “by perpet-

uating stereotypical notions about members of the

same racial group—that they think alike, share

the same political interests, and prefer the same

candidates,—a racial gerrymander, may indeed,

exacerbate the very patterns of racial bloc voting

that majority-minority districting is sometimes

said to counteract.” Accordingly, Justice O’Connor

continued, it sends to elected representatives the

message that their primary obligation is to repre-

sent only that group’s members, rather than their

constituency as a whole. Limiting its ruling to the

current case, she observed in summary that the

Court “expresses no view as to whether the inten-

tional creation of majority-minority districts, with-

out more, always gives rise to an equal protection

challenge.”

The four dissenting justices took not only dras-

tically different positions but also did so with vigor.

Common to their arguments is the vagueness of

the new equal protection test announced by the

majority decision. Specifically, they questioned

the soundness of the test relative to equal pro-

tection given that no claim of white voting dilu-

tion was made or could be sustained in the case.

For example, Justice White, in a dissent joined by

Blackmun and Stevens, wondered how “given two

districts drawn on similar, race based grounds,”

one became more injurious than the other simply

by virtue of being snakelike, so far as the Constitu-

tion is concerned absent of any evidence of differ-

ential racial impact. According to Justice Souter,

“the majority offered no adequate justiﬁ cation for

treating the narrow category of bizarrely shaped

district claims differently from other districting

claims.” Until today, he argued, “the Court has

672 Shaw v. Reno

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analyzed equal protection claims involving racial

electoral redistricting differently from equal pro-

tection claims involving other forms of govern-

ment conduct.” In light of the history of the Voting

Rights Act and redistricting, Souter asserts, “the

mere placement of an individual in one district

instead of another denies no one a right or ben-

eﬁ t provided to others.” In his view, therefore, the

higher test of strict scrutiny is unnecessary.

The overall effect of Shaw on the Voting

Rights Act of 1965 is worth noting. As designed,

the act requires that jurisdictions consider issues

of race when designing reapportionment plans.

That is, to determine if a standard, practice, or

procedure affecting voting discriminates on the

basis of race, it is necessary to look at the issue

in terms of race. This assumes that when states

adopt redistricting plans, they almost always will

be making decisions with some consideration of

race. While most post-Shaw case decisions adopt

the Shaw doctrine, it is quite clear that the Vot-

ing Rights Act and Shaw decision are contradic-

tory and, if not, are in tension. The act holds that

race should be considered when drawing district

lines, while Shaw holds that decisions should not

be based upon race. Supreme Court rulings since

1990 attempt to resolve this contradiction. While

some rulings argue that “race should not be the

predominant factor in the redistricting process to

the subordination of traditional districting prin-

ciples,” others argue that districts are not nec-

essarily unconstitutional because they have odd

shapes, however bizarre they may be. If race is the

predominant consideration in a districting deci-

sion, the now-prevailing view holds that such a

plan is subject to a strict scrutiny analysis where it

must be demonstrated that it is narrowly tailored

to address a compelling state interest. This leaves

open the question of how to address a compelling

interest or what exactly constitutes an acceptable

compelling state interest. On the basis of these

opinions, the current applicable standards appear

to be that, if race is the predominant consider-

ation in the districting decision, the districts must

be subject to strict scrutiny analysis where the

state must demonstrate that its plan is narrowly

tailored to address a compelling state interest.

For more information: Peacock, Anthony A.

Afﬁ rmative Action and Representation: Shaw v.

Reno and the Future of Voting Rights. Durham,

N.C.: Carolina Academic Press, 1997.

—Marc G. Pufong

Shays’s Rebellion

Shays’s Rebellion (1786–87) was an armed insur-

rection against the government of the United

States and the state government of Massachusetts.

It was this rebellion that prompted many of the

framers to argue for revisions to the Articles of

Confederation when it appeared that the national

government lacked the authority to keep the peace

and order in the country.

The leader of the rebellion was Daniel P. Shays,

who had served as a decorated ofﬁ cer in the Revo-

lutionary War. The war debt was being borne dis-

proportionately by small farmers and landowners

located in the largely barter-based economy of

western and central Massachusetts. These farmers

and landowners were being taxed by the state in

order to pay off war bonds. Faced with mounting

debt and taxes, they had little paper money to use

for payment. Many had to sell their farms and land

at a fraction of their value in order to pay their

debts and/or taxes. Those who could not pay often

had their farms and lands conﬁ scated by the state

and were placed in debtor’s prisons.

Under the leadership of Shays and other local

leaders, groups were organized that initially freed

people from debtor’s prisons. Soon, Shays began to

call for an open rebellion. The “Regulators,” as they

came to be known, took up arms and shut down

debtor’s courts throughout western and central

Massachusetts. Massachusetts militia forces that

were called out to deal with the rebellion often

refused to confront their friends and neighbors.

Hence, the state force, which would normally deal

with such a situation, was ineffective. Also, the

Continental Army had largely disbanded due to

the predisposition against a standing military force.

Therefore, the U.S. government under the Articles

of Confederation could not deal with the rebellion.

The Congress of the Confederation was virtu-

ally powerless in the situation without a standing

Shays’s Rebellion 673

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army and without the power to intervene in state

affairs. This left Massachusetts to deal with the

rebellion. With the state militia largely useless

and with large elements of the population sym-

pathetic to the rebellion, Massachusetts governor

James Bowdoin approved the raising of private

funds in December 1786 to hire 4,400 mercenar-

ies under General Benjamin Lincoln to deal with

the Regulators. Shays responded by ordering his

forces to take the federal arsenal in Springﬁ eld.

On January 25, 1787, two of three rebel regiments

advanced on Springﬁ eld, with the other regiment

planning to attack on January 26. The leader of the

missing regiment had sent a message to the other

two regiments stating that he would postpone his

attack. However, the note was intercepted, thus

ensuring that the rebel force was below strength.

At Springﬁ eld, they were faced by General Wil-

liam Sheppard and 1,200 members of the Mas-

sachusetts militia who had not defected to the

rebellion. Once the ﬁ ghting began, many of the

inexperienced and poorly trained troops of the

rebellion ﬂ ed under ﬁ re. Four rebels were killed

and many were wounded. The rebel force broke

apart, seeing that they were outnumbered. With

the additional 4,400 soldiers from the mercenary

force (earlier legitimized as a part of the Massa-

chusetts militia by the state government) arriving

the next day, the rebel cause was lost. Lincoln’s

force pursued the rebels and defeated them on

February 3, 1787. Ultimately, Shays and most of

his allies were pardoned by John Hancock, the

new governor of Massachusetts.

Shays’s Rebellion helped to expose the weak-

ness of the U.S. government under the Articles of

Confederation. With the rebellion fresh on every-

one’s mind, George Washington came back to the

national stage, and he and others began to plan for

a new nation with a stronger central government,

which ultimately resulted in the adoption of the

U.S. Constitution.

For more information: Gross, Robert A., ed. In

Debt to Shays: The Bicentennial of an Agrarian

Rebellion. Charlottesville: University of Virginia

Press, 1993; Richards, Leonard. Shays’s Rebellion:

The American Revolution’s Final Battle. Philadel-

phia: University of Pennsylvania Press, 2002.

—William Lester

Shelley v. Kraemer 334 U.S. 1 (1948)

In Shelley v. Kraemer, the U.S. Supreme Court

unanimously (6-0) declared state court enforce-

ment of private, racially restrictive covenants

unconstitutional under the Fourteenth Amend-

ment’s equal protection clause.

The restrictive covenants reviewed by the

Supreme Court were private agreements among

property owners that identiﬁ ed particular racial

groups to which property owners or occupants must

belong. The covenant reviewed in the Missouri

case excluded “people of the Negro or Mongolian

Race,” while, in the Michigan case, the covenant

allowed only “those of the Caucasian race.”

In the Missouri case, Shelley (who was African

American) was sued by Kraemer (who was Cau-

casian) for purchasing property in Kraemer’s St.

Louis neighborhood. Kraemer sought to nullify

the sale on the grounds that it violated the area’s

racially restrictive covenant. The trial court ruled

for Shelley, declaring that the racially restric-

tive covenant was not in effect at the time Shel-

ley purchased the property, since it covered only

47 of the 57 properties in the designated area.

The Supreme Court of Missouri reversed the

trial court’s decision. In the Michigan case, the

trial court had upheld and enforced the racially

restrictive covenant against the African-American

property purchaser, and the Supreme Court of

Michigan afﬁ rmed the trial court’s decision.

In Shelley v. Kraemer, the U.S. Supreme Court

confronted for the ﬁ rst time the constitutionality

of private restrictive covenants, as well as state

judicial enforcement of such contracts. The opin-

ion of the Court relied on its earlier nulliﬁ cations

of state and local legislative acts that sought to

limit the fundamental property rights of racial

minorities. It held that the acts of the state judi-

ciary, as a branch of state government, were sub-

ject to the Fourteenth Amendment’s prohibitions

against discriminatory state action with regard to

674 Shelley v. Kraemer

vi+904_EofUSConsti-v2.indd 674 3/20/09 2:18:43 PM

property rights. Thus, the enforcement of racially

restrictive private agreements, through the state’s

judicial process, violated the Fourteenth Amend-

ment’s guarantee of equal protection of the laws.

Given its disposition of the state judicial enforce-

ment question, the Court explicitly declined to

decide the constitutionality of the covenants

themselves. Yet, by eliminating the possibility of

judicial enforcement, the Court’s decision in Shel-

ley effectively nulliﬁ ed such private covenants.

Seventeen amicus curiae briefs were filed in

support of the petitioners, including those by the

solicitor general of the United States, the Ameri-

can Civil Liberties Union, and the National

Bar Association; three amicus curiae briefs

were ﬁ led in support of the respondents. Future

Supreme Court justice Thurgood Marshall, then

legal director for the National Association for the

Advancement of Colored People (NAACP), repre-

sented the petitioners. Shelley was the culmina-

tion of the NAACP’s decades-long campaign to

dismantle the legal framework that enforced hous-

ing discrimination. The NAACP’s legal strategy in

the Shelley case—the development of ideal test

cases, coordination of amicus curiae briefs, and

use of social science data—would be duplicated in

subsequent civil rights litigation campaigns.

For more information: Vose, Clement. Cau-

casians Only. Berkeley: University of California

Press, 1959.

—Jinney S. Smith

Sheppard v. Maxwell 384 U.S. 333 (1966)

Sheppard v. Maxwell is the 8-1 decision wherein

the Supreme Court reversed and remanded the

conviction of Dr. Sam Sheppard for the second-

degree murder of his wife. Justice Tom Clark

wrote the opinion, holding that the massive,

pervasive, and prejudicial publicity surrounding

Sheppard’s case prevented him from having the

fair trial assured by the due process clause of

the Fourteenth Amendment. The Sheppard

case is famous as the basis for the television series

and the movie The Fugitive.

The brutal murder of Marilyn Sheppard on July

4, 1954, in a suburb of Cleveland, Ohio, had led to

an avalanche of media attention. From the outset,

newspapers and broadcast stations focused on the

husband, osteopathic surgeon Sam Sheppard, as

the prime suspect. Between the crime and Shep-

pard’s conviction, the local papers ran stories that

ﬁ l l e d ﬁ ve volumes. The coverage included many

front-page editorials asserting Sheppard’s guilt.

Potential jurors had been subjected to an inces-

sant message that a lying, cheating Sheppard had

killed his wife and that his privileged family were

using their inﬂ uence to protect him. The trial, con-

ducted by a judge running for reelection, began

two weeks before he faced the voters.

In addition to the pretrial publicity, the Court

cited a number of errors in the trial itself. The

names and addresses of potential jurors were

released to the press, which published them. All

veniremen received letters and phone calls about

the case before jury selection began. During the

trial, jurors’ photographs and personal informa-

tion were continuously shown in the news media.

Although the judge suggested that the jurors not

read or listen to comments on the case, he made

no effort to enforce such rules. The jury was

sequestered only during deliberations, but even

then they were allowed to make phone calls.

The justices found that “bedlam reigned in the

courthouse” during Sheppard’s trial. Although the

bar is intended to provide clients and counsel some

privacy to confer and to keep papers, 20 report-

ers were allowed to set up cameras and to take

notes inside the bar, crowding the counsel tables

and the jury box. Almost every available seat in

the courtroom was assigned to newsmen, leaving

only two rows for the defendant’s and the victim’s

families. Reporters moved in and out of the room

at will, causing distraction and confusion. By giv-

ing the press “absolute free reign,” the judge “lost

his ability to supervise the environment.”

In addition, police ofﬁ cers, attorneys, and wit-

nesses made frequent statements to the newspa-

pers and radio reporters alleging evidence and

repeating gossip against Sheppard. Although

witnesses were barred from the courtroom

Sheppard v. Maxwell 675

vi+904_EofUSConsti-v2.indd 675 3/20/09 2:18:43 PM

before they testiﬁ ed, the papers printed verbatim

accounts of each day’s proceedings, allowing wit-

nesses to know exactly what had been said.

The Supreme Court found that the judge could

have avoided such a “carnival atmosphere.” He

had the option of granting a change of venue or a

continuance. He might have set stricter rules for

the media in the courtroom, limiting their num-

bers and their access to the principals in the case.

He should have insulated the witnesses and con-

trolled the gossip, information, and speculation

issued by ofﬁ cials. He could have prohibited extra-

judicial statements by lawyers and sequestered the

jury. Ultimately, because the trial court did not

protect Sheppard from prejudicial publicity and

did not control disruptive inﬂ uences in the court-

room, the justices granted his habeas petition and

released him from custody. Sheppard was retried

and acquitted.

Sheppard v. Maxwell set some ground rules for

courts’ responsibility for decorum in a high-proﬁ le

case. They held that defendants need not demon-

strate speciﬁ c prejudice if, as in this instance, the

totality of the circumstances raised the probability

of prejudice. The case is also famous as the inspi-

ration for a 1960s television series, The Fugitive,

as well as a 1990s movie of the same name.

For more information: Schuetz, Janice E., and

Kathryn Holmes Snedaker. Communication and

Litigation: Studies of Famous Trials. Carbondale:

Southern Illinois University Press, 1988.

—Mary Welek Atwell

Sherman, Roger (1721–1793) Legislator and

jurist

Roger Sherman is one of the most significant

Founding Fathers because of his political career,

which included serving as U.S. senator from Con-

necticut as well as a signer of the Declaration

of Independence, and his political thought,

including his authorship of the Connecticut

Compromise (or Great Compromise) at the Con-

stitutional Convention in Philadelphia.

Roger Sherman was born on April 19, 1721, in

Newton, Massachusetts, near Boston. The family

moved to Stoughton, Massachusetts, while Roger

was very young, and it was in Stoughton that Roger

was inﬂ uenced during his formative educational

years by his Harvard-educated church minister,

the Reverend Samuel Danbar. Sherman married

Elizabeth Hartwell and had seven children. He

was by trade a cobbler and merchant, and later an

attorney, being admitted to the bar of Litchﬁ eld,

Connecticut, in 1754.

Roger Sherman’s political career included

service as a justice of the peace; election to the

General Assembly, representing New Milford,

Connecticut, 1755 – 58, 1760 –61; commissary

for the Connecticut Troops, 1759; election to

represent New Haven in the Connecticut legis-

lature, 1760–80; judge of the Superior Court of

Connecticut, 1766–89; election to Continental

Congress, 1774–75; and election to represent

Connecticut in Congress 1776–81, 1783–84. He

was a distinguished member of the Constitutional

Convention, 1787, and was elected U.S. senator for

Connecticut, 1791–93. Roger Sherman was on the

Committee of Five that drafted the Declaration

of Independence, and he served in the Continen-

tal Army and held several distinguished posts of

political leadership that established him among

the Founding Fathers’ generation as a man of

character, trust, and steady, pragmatic leadership.

Roger Sherman is signiﬁ cant because he was

the author of the Connecticut Compromise that

served as a foundation for the original federal-

ism in the Constitution of 1787. After the conven-

tion, Roger Sherman joined other Federalists in

advocating for ratiﬁ cation of the new constitution,

and his leadership led Connecticut to be one of

the early states to ratify. In fact, as Donald Lutz

has noted, “Roger Sherman . . . was one of the

most highly regarded men in Connecticut.”

Sherman not only authored the critical com-

promise that brought forth a new constitution and

deﬁ ned a new American form of government the

federalists termed “federalism,” but he also gave

his political support to ratiﬁ cation in Connecticut

and New England. As M. E. Bradford remarked,

“It was as much Sherman’s constitution as Madi-

son’s or Wilson’s.” Otherwise, Connecticut would

have voted a resounding “no.” Sherman under-

676 Sherman, Roger

vi+904_EofUSConsti-v2.indd 676 3/20/09 2:18:44 PM

stood and articulated a state-centered federal-

ism as a guarantor of the rights of the people and,

unlike fellow Federalist Alexander Hamilton,

Sherman held that the states protections under

the Connecticut Compromise were a continuation

of states’ rights under the Articles of Confedera-

tion. Thus, Sherman was a limited-government,

small-state Federalist who played a crucial role in

deﬁ ning the new constitutions and governments

of the United States.

For more information: Bradford, M. E. A Wor-

thy Company. Marlborogh, N.H.: Plymouth Rock

Foundation, 1982; Collier, Christopher. Roger

Sherman’s Connecticut. Middletown, Conn.:

Wesleyan University Press, 1971; Lutz, Donald

S. “Connecticut.” In Ratifying the Constitution.

Lawrence: University Press of Kansas, 1989;

Walker, David B. The Rebirth of American Fed-

eralism. Chatham, N.J.: Chatham House, 1995;

Wood, Gordon. The Creation of the American

Republic. New York: W.W. Norton, 1969.

—Michael W. Hail

shopping malls and the First Amendment

Protests and political activities at shopping malls

oftentimes raise First Amendment issues, ask-

ing whether these commercial places are public

squares or private property.

As commercial and social activity has moved

from public property (such as town squares) to

private property, speakers’ need to reach audi-

ences for their political, religious, or social mes-

sages has come into increasing conﬂ ict with the

property rights of the owners of shopping malls,

along with company-owned towns, grocery stores,

and the like.

The United States Supreme Court began con-

sidering the issue with Marsh v. State of Ala-

bama, 326 U.S. 501 (1946). Marsh concerned

not a shopping mall, but a company-owned town.

Objecting to the speech of a protestor, the town

owners attempted to have the speaker convicted

of criminal trespass. After considering the injury

to the public sphere from the replacement of tra-

ditional public fora for free speech with private

property, the Court held that the criminal trespass

law could not be applied to bar this speech. In

Amalgamated Food Employees Union Local 590

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

the Court extended the Marsh doctrine to cover

shopping malls as the “functional equivalent” of a

historical town square. However, in Lloyd Corp.

v. Tanner, 407 U.S. 551 (1972), the Court de facto

overruled Logan.

Most of the action today is centered in state

courts. After Lloyd, the federal courts became

unreceptive to the First Amendment claims of

most speakers seeking to enter private property

in order to reach an audience for their political

messages. In response, state courts, starting with

California, began extending protection under the

free speech and petition clauses of their state con-

stitutions. A significant minority of states have

followed California’s lead and adopted rules pro-

tecting some political speakers or petitioners, in

some private property, from eviction or civil and

criminal penalties for trespass. In PRUNEYARD

SHOPPING CENTER V. ROBINS, 447 U.S. 74 (1980), the

U.S. Supreme Court ruled that these state protec-

tions do not violate the takings clause of the

Fifth Amendment to the United States Constitu-

tion. The Supreme Court ruling in Pruneyard is

very signiﬁ cant in the Fifth Amendment context:

It permitted the state of California to undermine

the right to exclude, traditionally one of the most

signiﬁ cant property rights, for the beneﬁ t of the

public in general and without any compensation

under the takings clause. Consequently, this body

of jurisprudence has continuing relevance to the

very active law of regulatory taking, the

hotly contested notion that state regulation that

significantly impairs a private property owner’s

use of his or her property has suffered a Fifth

Amendment “taking,” for which she or he is owed

compensation.

At the state level, several state courts have

ruled under their own constitutions that shopping

malls are public and that free speech rights apply.

For more information: Epstein, Richard. “Tak-

ings, Exclusivity, and Speech: The Legacy of

Pruneyard v. Robins.” University of Chicago Law

shopping malls and the First Amendment 677

vi+904_EofUSConsti-v2.indd 677 3/20/09 2:18:44 PM

Review 64 (1997): 21–56; Michelman, Frank.

“The Common Law Baseline and Restitution for

the Lost Commons: A Reply to Professor Epstein.”

University of Chicago Law Review 64 (1997):

57–69.

—Paul Gowder

Sixteenth Amendment

Often referred to as the “income tax amendment,”

the Sixteenth Amendment went into effect in

1913.

The amendment was a deliberate overturning

of the U.S. Supreme Court’s 1895 decision in POL-

LOCK V. FARMERS’ LOAN & TRUST CO., 157 U.S. 409

(1895). In Pollock, the Court ruled that taxes upon

rents and proﬁ ts of real estate and upon returns

from investments of personal property were in

effect direct taxes upon the property from which

such income arose, imposed by reason of owner-

ship; and that Congress could not impose such

taxes without apportioning them among the states

according to population, as required by Article

I, Section 2, Clause 3 and by Section 9, Clause 4

of the original Constitution.

While some have argued that this amendment

was never properly adopted, these ideas have

largely been dismissed, and the constitutionality

of federal income taxes is not seriously in doubt.

For more information: Kelly, Alfred H., Win-

fred A. Harbison, and Herman Belz. The Ameri-

can Constitution: Its Origins and Development.

New York: W.W. Norton, 1991.

—David Schultz

Sixth Amendment

The Sixth Amendment is among the original 10

in the Bill of Rights that amended the Con-

stitution in 1791. This amendment, as proposed

originally by James Madison and subsequently

modiﬁ ed in Congress prior to its adoption, pro-

vides several protections to individuals who are

accused of crimes. These rights include the right

to a speedy and public trial by jury the right

to be informed of the crimes one is accused of

committing, the right to confront witnesses and

compel individuals to testify for you, and the

right to have legal assistance in the preparation

and conduct of the trial. While originally the Bill

of Rights did not apply to the states, the United

States Supreme Court has selectively incorpo-

rated all of the Sixth Amendment protections

through the Fourteenth Amendment to the

individual states.

The right to jury trial dates back to English

common law. This right also extends to defendants

facing criminal charges at the state level, accord-

ing to the Supreme Court in DUNCAN V. LOUISIANA,

391 U.S. 145 (1968). However, that right appears

to apply only to serious offenses, and not petty

ones, according to Williams v. Florida, 399 U.S.

23 (1968), with “petty” deﬁ ned as those punish-

able by six or less months of incarceration. Simi-

larly, in Williams, the Court also ruled that a jury

need not always consist of 12 individuals and that

in some cases, according to Taylor v. Louisiana,

419 U.S. 522 (1975), less than a unanimous verdict

would be sufﬁ cient for a conviction so long as large

segments of the population are not excluded from

participation in the jury. In BATSON V. KENTUCKY,

476 U.S. 79 (1986), the Court ruled that exclud-

ing individuals from serving on juries simply on

account of their race was a violation of a defen-

dant’s Sixth Amendment rights. Subsequently, this

rule was applied to the exclusion of women from

juries.

Determinations of when and whether one has

had a speedy trial are often difﬁ cult. Many if not

most defendants want a quick trial to resolve their

innocence, but in some cases time may be needed

to secure witnesses or prepare a case. In Barker v.

Wingo, 407 U.S. 514 (1972), the Court was asked

to determine what constituted a speedy trial for

Sixth Amendment purposes. Here the Court

refused to impose a ﬂ at ﬁ xed-time period, instead

offering a balancing test. The Court said that, if

a trial did not occur within six to eight months,

it would assume the delay was prejudicial unless

one could show that it was occurring due to fac-

tors such as overcrowded courts, the needs of the

defense to prepare, or other reasons such as look-

ing for witnesses. All these factors would be bal-

678 Sixteenth Amendment

vi+904_EofUSConsti-v2.indd 678 3/20/09 2:18:44 PM

anced and weighed to determine if a speedy trial

had occurred.

The Sixth Amendment also guarantees to

defendants public trials. In some cases, defen-

dants may wish the trial closed to avert publicity

that could result in a mistrial. Pretrial or trial pub-

licity can often prejudice a case, making it impos-

sible to have a fair deliberation. Balancing the

right of a defendant to have a fair and open trial

versus the right of the press to cover it often cre-

ates problems. In S

HEPPARD V. MAXWELL, 384 U.S.

333 (1966), the case that inspired the 1960s televi-

sion series and the 1990s movie The Fugitive, the

Supreme Court ruled that extensive media cover-

age of the murder trial of Sam Sheppard violated

his Sixth Amendment rights. Similarly, in Gannett

v. DePasquale, 443 U.S. 368 (1979), the Supreme

Court ruled that the closing of a pretrial hearing

to the media, at the request of the defendant, to

prevent excessive publicity, was not a violation of

the Sixth Amendment. This decision raised such a

cry that one year later, in Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555 (1980), the Court

effectively overturned Gannett, ruling that the

media has a First Amendment right to cover

criminal trials.

The rights to receive notice of the accusations

one is facing as well as to confront witnesses also

date back to English common law. In United States

v. Cruikshank, 92 U.S. 542 (1876), the Court

stated that accusations cannot be vague and must

be stated with enough detail and particularity that

defendants know the reasons why they are facing

criminal charges. The Sixth Amendment right to

question witnesses implicates what is known as the

confrontation clause. This clause prevents

the government from using anonymous sources

to convict someone of a crime. It makes it pos-

sible for the defense to cross-examine and ques-

tion witnesses to ensure the truth or relevancy

of their testimony. However, does that right to

confrontation require a direct face-to-face cross-

examination? In the case of defendants charged

with sexually molesting or committing other

crimes against children, this direct confrontation

might intimidate witnesses who are minors. In

response, states in the 1980s passed laws allowing

for minors to testify through closed-circuit televi-

sion or from behind screens. In Coy v. Iowa, 487

U.S. 1012 (1988), and again in Maryland v. Craig,

497 U.S. 836 (1990), the Court upheld these trial

procedures, with Justice Sandra Day O’Connor

declaring in the latter case that the Sixth Amend-

ment does not require a direct face-to-face con-

frontation. Justice Antonin Gregory Scalia,

joined by William J. Brennan, Jr., Marshall,

and John Paul Stevens, dissented, with Scalia

taking a literal view of the confrontation clause

and arguing that the intent of it was to permit

exactly this type of cross-examination.

Finally, the last major right protected by the

Sixth Amendment is the right to counsel. In

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

ruled that the right to counsel applied in special

circumstances to individuals facing criminal tri-

als at the state level. However, it was not until

GIDEON V. WAINWRIGHT, 372 U.S. 335 (1963), that

the Court ruled that defendants were entitled to

free, court-appointed attorneys if they could not

afford their own. This right to counsel under the

Sixth Amendment is one of the rights that indi-

viduals accused of a crime must be informed of

under the Fifth Amendment, when they receive

their Miranda warnings.

Overall, the Sixth Amendment contains numer-

ous protections for defendants facing criminal

charges. The purpose of these protections is both

to protect the innocent and to ensure that every

individual charged with a crime is given a fair trial

to determine guilt or innocence.

For more information: Schwartz, Bernard. A

History of the Supreme Court. New York: Oxford

University Press, 1993.

—David Schultz

Skinner v. Oklahoma 316 U.S. 535 (1942)

In Skinner v. Oklahoma, the Supreme Court

found that Oklahoma’s Habitual Criminal Steril-

ization Act (1935) violated the equal protec-

tion clause of the Fourteenth Amendment to

the United States Constitution. The law provided

that those convicted for the third time of a “felony

Skinner v. Oklahoma 679

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involving moral turpitude” may be subject to ster-

ilization as part of their punishment. This case is

important as part of the politics of eugenics and in

the development of privacy rights.

The Oklahoma statute (Okl.St.Ann. Tit. 57, 171,

et seq.; L.1935, p. 94 et seq.) was part of the eugen-

ics movement, which peaked in the 1930s. This

movement misapplied Mendel’s work on genetics

and Darwin’s theories in an attempt to improve the

race. Sterilization of those deﬁ ned as undesirable

was one of the most common policy approaches. In

a case decided just 15 years before Skinner, B

UCK V.

BELL, 274 U.S. 200 (1927), the Court upheld a Vir-

ginia eugenics law providing for the sterilization of

people with mental deﬁ ciencies.

The Skinner Court rejected the Oklahoma law

without attacking eugenics directly. Writing for the

Court, Justice William O. Douglas found that

the Oklahoma law made distinctions among deﬁ ni-

tions of crimes that did not reﬂ ect intrinsic differ-

ences among the criminal acts. For example, one

of Skinner’s convictions involved stealing chickens.

The law deﬁ ned this as a “felony involving moral

turpitude.” If he had worked on the farm, how-

ever, the crime would have been embezzlement,

which is not a “felony involving moral turpitude”

and thus would not have counted toward the three

convictions leading toward sterilization.

The problem with punishing one group in one

way and another group in a different way was the

punishment itself: sterilization. This denies the

sterilized group what Justice Douglas called “one

of the basic civil rights of man.” He suggested

that procreation and marriage are fundamen-

tal rights and then concluded that the failure

to be consistent among “intrinsically similar” acts

caused an unfair denial of rights. It was an “invidi-

ous discrimination.” Because fundamental rights

are involved, the Court applied the strict scru-

tiny test to the law. This was the ﬁ rst application

of it in an equal protection of the laws case.

This case moved the law one step further in

the process of establishing marriage as a funda-

mental right, a process that reached fruition in

the 1960s and 1970s. Although some people do

not read this case as establishing a right to pro-

create, many Supreme Court justices, when listing

constitutional rights in their opinions, have cited

Skinner as doing exactly that. This makes Skinner

an important case in the evolution of the right to

privacy and in the creation of fundamental rights.

Although the decision was unanimous, Chief

Justice Stone and Justice Jackson wrote concurring

opinions. Chief Justice Stone found the law vio-

lated the due process clause because the statute

did not offer the defendant an opportunity to show

that he or she did not ﬁ t into the class eligible for

sterilization. Justice Jackson found both the due

process and equal protection clauses relevant.

For more information: Kevles, Daniel. In the

Name of Eugenics. Cambridge, Mass.: Harvard

University Press, 1998; Murphy, Walter, James

Fleming, and Sotirios Fleming. American Con-

stitutional Interpretation. 2d ed. Westbury, N.Y.:

Foundation Press, 1995.

—Douglas C. Telling

Skinner v. Railway Labor Executives’

Association

489 U.S. 602 (1989)

In Skinner v. Railway Labor Executives’ Associa-

tion, the Supreme Court upheld the practice of

mandatory drug tests after an accident, ruling that

they did not violate the Fourth Amendment.

In the case of Skinner (a case that was decided

at the same time as National Treasury Employ-

ees Union v. Raab, 489 U.S. 656 [1989], since

they involved related issues), the Court focused

on the Fourth Amendment issues of search and

seizure. The FRA (Federal Railroad Administra-

tion), in order to improve the safety standards by

which the railroads in the United States operated,

instituted regulations that required the manda-

tory testing of an employee who is involved in cer-

tain types of train accidents. The Railway Labor

Executives’ Association sued, and the federal dis-

trict court concluded that the regulations did not

violate Fourth Amendment rights against unrea-

sonable search. The case was appealed to the U.S.

Court of Appeals for the Ninth Circuit. The court

of appeals reversed the lower court’s ruling, not-

ing that for the search to be valid, some particular

suspicion is essential to validate the search.

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vi+904_EofUSConsti-v2.indd 680 3/20/09 2:18:45 PM

The case was appealed to the Supreme Court.

The Court, in a 7-2 decision with Justice Anthony

M. Kennedy delivering the opinion of the Court,

concluded that the government had a valid inter-

est in protecting the safety of U.S. railways, which

provides a valid exception to the need for probable

cause in searches. According to the Court:

In most criminal cases, we strike this balance

in favor of the procedures described by the

Warrant Clause of the Fourth Amendment . . .

Except in certain well-deﬁ ned circumstances, a

search or seizure in such a case is not reason-

able unless it is accomplished pursuant to a judi-

cial warrant issued upon probable cause . . . We

have recognized exceptions to this rule, how-

ever, “when special needs, beyond the normal

need for law enforcement, make the warrant and

probable-cause requirement impracticable.” . . .

When faced with such special needs, we have

not hesitated to balance the governmental and

privacy interests to assess the practicality of the

warrant and probable-cause requirements in the

particular context . . . The Government’s interest

in regulating the conduct of railroad employees

to ensure safety, like its supervision of proba-

tioners or regulated industries, or its operation

of a government ofﬁ ce, school, or prison, “like-

wise presents special needs beyond normal law

enforcement that may justify departures from the

usual warrant and probable-cause requirements.

In effect, because railroads were a historically reg-

ulated industry and the government had an inter-

est in promoting safety, workers in this industry

had already forfeited some of their expectations of

privacy. Thus, the mandatory drug tests were not

a violation of the Fourth Amendment.

Skinner was an important Fourth Amendment

decision that set a precedent for subsequent court

rulings that permitted mandatory drug tests, for

example, for students in schools.

For more information: Cann, Steven J. Admin-

istrative Law. 4th ed. Thousand Oaks, Calif.: Sage

Publications, 2006.

—Dan Krejci

slavery and the Constitution

Chattel slavery is the extension of market relations

to the human person as a marketable property and

human commodity (res commerciabilis) or legal

tender, outside the domain of mutual obligation.

Slavery was a difﬁ cult and vexing constitutional

question from the time of the writing of the Con-

stitution in 1787, and its aftereffects continue to

raise problems for the United States well into the

21st century.

In 1550, the Spanish king and Holy Roman

Emperor, Charles V, called a halt to military

operations in the New World until the status of

Native Americans, together with the morality

and legality of the Spanish conquest, had been

thoroughly debated. A group of theologians and

jurists was convoked in Valladolid to listen to the

arguments of Bartolomé de Las Casas and Juan

Ginés de Sepúlveda and settle this question once

and for all.

The papal bull “Sublimis Deus,” issued in 1537

by Pope Paul III, had already clariﬁ ed the Holy

See’s official position on the subject. The pope

condemned slavery and the portrayal of Indians

as “dumb brutes created for our service” and inca-

pable of exercising self-government, free will, and

rational thinking, and therefore incapable of receiv-

ing the message of Christ. Las Casas, elaborating

on this bull and on the writings of Francisco de

Victoria, a Dominican professor at the prestigious

university of Salamanca, decried the barbarity of

Spaniards by contrasting it with the meekness,

humbleness, and good-heartedness of the Indians.

Sustained by an unswerving faith in the essential

unity of humankind and by his conviction that a

commitment to global justice was a moral impera-

tive, he argued that Indians were fully capable of

governing themselves and were entitled to certain

basic rights, regardless of the nature of their prac-

tices and beliefs, which should anyhow be under-

stood from an indigenous point of view.

Sepúlveda, who knew very little of the Spanish

colonial subjects, drew on the doctrine of natu-

ral law and on pragmatic realism to marshal

most of the arguments that would later be deployed

by American anti-abolitionists. He explained

that, given their innate physical and intellectual

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