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inferiority, Indians should be considered similar

to Aristotle’s “natural slaves.” In consequence of

their being ruled by passions rather than reason,

Indians were born to be slaves. As men ruled over

women, and adults ruled over children, so infe-

rior races should be subordinated to the will of

superior races. This allowed for the enslavement

of indigenous peoples and Africans.

Puritan settlers in North America took the

same stance as Sepúlveda, and resorted to natu-

ral law to validate the claim that religious conver-

sion could not change the legal status of African

slaves or Indians. Their status would instead be

anchored to biological, and thus inalterable, attri-

butes, which justiﬁ ed hereditary slavery and per-

petual bondage for African Americans and Native

Americans. Because their status was equivalent

to that of a domestic animal or an infant, slaves

enjoyed no legal protection: Only their commer-

cial value shielded them from the structural vio-

lence of a society that regarded them as less than

human. Slavery was described as a necessary evil,

not the result of greed, callousness, or “human

parasitism.”

In 1700, Indians accounted for one-fourth of

all South Carolina’s slaves, and in 1790, when

the Naturalization Act was introduced, which

restricted American citizenship to “free white per-

sons,” nearly one-third of the people living in the

American South were black slaves. The paradox of

a society ﬁ ghting for freedom and for individual

rights and granting juridical personality to cor-

porations, ships, and states, but at the same time

tolerant that 20 percent of the population was

subject to chattel slavery, is epitomized by John

Adams’s protest against the English yoke in 1765:

“We won’t be their Negroes.”

Even though they may have expressed doubts

about the morality of slave ownership, George

Washington, James Madison, and Thomas Jef-

ferson proﬁ ted from it and were evidently pre-

pared to live with it. When Southern delegates

refused to support a government and a Consti-

tution hostile to their economic and political

interests, Northern delegates sought all sorts of

compromises to avoid conﬂ ict. Abolitionist Wil-

liam Lloyd Garrison called the ﬁ nal draft of the

Constitution “a covenant with death, and an agree-

ment with hell.” Indeed, consensus was bought at

the highest price: the constitutional sanctioning

of slavery, an institution irreconcilable with the

libertarian spirit of the Constitution, but comfort-

able with its protection and promotion of private

property and enterprise. These compromises

included passage of the three-ﬁ fths law in Arti-

cle I, Section 2, Clause 3, which determined

how slaves would be counted for the purpose of

states being awarded representatives in Congress.

This clause counted ﬁ ve slaves as the equivalent

of three free individuals. This greatly augmented

the political power of the Southern states. As a

result, 12 out of the ﬁ rst 16 American presidents

were Southern slaveholders, even though, by

1804, slavery had been substantially abolished

in the Northern states, where an inclusive civic

nationalism had taken root.

In addition, the “fugitive slave clause” of Arti-

cle IV of the Constitution prevented slaves who

had escaped and reached an abolitionist state

from being freed. Thus, for all intents and pur-

poses, it may be said that the American Consti-

A 1780s broadside advertising a slave auction

(Library of Congress)

682 slavery and the Constitution

vi+904_EofUSConsti-v2.indd 682 3/20/09 2:18:45 PM

tution protected the peculiar institution and the

Southern caste society until the outbreak of the

Civil War.

In Dred Scott v. Sandford, 60 U.S. (19 How.)

393 (1857), Roger Brooke Taney (1777–1864),

chief justice from 1836 until his death in 1864, a

Catholic and a former slave-owner, played a sig-

niﬁ cant role in furthering the sectional interests of

those who interpreted the meaning of the Consti-

tution as precluding the federal government from

applying restrictions to the citizens’ right to prop-

erty. This would include the property of slaves,

which was protected by the due process clause

of the Fifth Amendment. Echoing Sepúlveda’s

arguments, he maintained that, in 1787, at the

time of the writing of the Constitution, blacks

were not expected to become citizens and to exer-

cise the associated rights, for they were considered

as “a subordinate and inferior class of beings, who

had been subjugated by the dominant race, and,

whether emancipated or not, yet remained subject

to their authority, and had no rights or privileges

but such as those who held the power and the gov-

ernment might choose to grant them.”

This infamous, though formally and historically

not incongruous, decision, which foreshadowed a

future Supreme Court ruling nullifying the abolition

of slavery in the North, strengthened the resolve of

abolitionists. Eight years and over 600,000 casual-

ties afterward, institutional racial slavery and invol-

untary servitude ofﬁ cially ended with the passage

of the Thirteenth Amendment.

Even though slavery was abolished after the

Civil War, freed African Americans faced a vari-

ety of restrictions on employment, housing, and

in politics for another century. It was not until the

Civil Rights movement of the 1950s and 1960s

that many of these laws were abolished or declared

unconstitutional. Since the 1960s, African Ameri-

cans continue to deal with discrimination, and

remedies, such as affirmative action, remain

constitutionally controversial.

For more information: Bush, Michael L. Serf-

dom and Slavery: Studies in Legal Bondage. Lon-

don and New York: Longman, 1996; Graber, Mark

A. Dred Scott and the Problem of Constitutional

Evil. New York: Cambridge University Press,

2006.

—Stefano Fait

Smith v. Allwright 321 U.S. 649 (1944)

In Smith v. Allwright, the Supreme Court ruled

that a political party could not exclude African

Americans. This was an important decision afﬁ rm-

ing the political rights of African Americans over

the First Amendment rights of parties. Smith v.

Allwright is part of what is known as the “White

Primary” cases.

In one-party states, the result of a primary

election amounts to a win in the general election.

Although the Fifteenth Amendment (1870)

protects the right to vote for African Ameri-

cans, most Southern states restricted and limited

that right of black voters only to general elec-

tions. They did so by using different tactics, chief

amongst which was the so-called white primaries.

Thus, since African Americans were denied suf-

frage in primary elections by law, their participa-

tion in general elections was reduced to ratifying

white-approved candidates in the general elec-

tions. For over 30 years, civil rights groups labored

unsuccessfully to strike down white primary elec-

tion laws, but initial litigation seemed to be inef-

fective in reforming an electoral system fraught

with deep and egregious racial discrimination.

The white-only primaries system would collapse

only over a 17-year period—1927 to 1944—during

which the Supreme Court considered four Texas

cases involving statutes that barred blacks from

voting. Among those key cases was Smith v. All-

wright, decided in 1944.

The issue in Smith v. Allwright was whether

a state statute that provided for a private third-

party organization of primary elections by con-

vention constituted a “state action” and therefore

a violation of the Fifteenth Amendment. Writ-

ing for the Court’s 8-1 majority and reversing

Grovey v. Townsend (1935), Justice Reed held

that state statutes providing for a private third-

party organization of primary election for U.S.

senators, congressmen, and state ofﬁ cers consti-

tutes a state action and therefore a violation of

Smith v. Allwright 683

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the Fifteenth Amendment of the U.S. Constitu-

tion. Lonnie E. Smith, an African American, had

sued S. E. Allwright, a county election ofﬁ cial,

challenging a Texas state statute that provided

for a primary election for senators, congressmen,

and state ofﬁ cers to be administered by a private

organization.

In Texas, the Democratic Party, which the

Texas Supreme Court called a “voluntary associa-

tion,” had adopted in a state convention a resolu-

tion permitting white citizens only to participate

in Democratic primary elections. After a failed

attempt to mount a challenge at the district and

Fifth Circuit Court of Appeals, Lonnie Smith

appealed to the Supreme Court. His suit raised

the issue of whether the Texas resolution consti-

tuted a state action and, if so, whether it violated

the Fifth Amendment. Thus, Mr. Smith asked

the Court to consider whether such an indirect

exclusion of the right to vote in primary elections

by a voluntary association violates the Fifteenth

Amendment.

Speaking for the Court’s majority, Justice Reed

reasoned that, even though the Democratic Party

was a voluntary organization, the facts—that

Texas statutes governed the selection of county-

level party leaders, to include Mr. Allwright; that

the party conducted primary elections under state

statutory authority; and that state courts were

given exclusive original jurisdiction over

contested elections—meant that the state had

to guarantee blacks the right to vote in prima-

ries. Thus Allwright, according to the Court, had

engaged in a state action abridging Smith’s right

to vote because of his race. A state, Justice Reed

summed, cannot permit a private organization to

practice racial discrimination in elections.

Setting aside Grovey v. Townsend, 295 U.S.

45 (1941), which had made legal the practice of

“white primary,” the Supreme Court held that

the restrictions against blacks in primary elec-

tions are unconstitutional. The Court observed

that the right of a citizen of the United States

to vote for the nomination of candidates for the

United States Senate and House of Repre-

sentatives in a primary, which is an integral

part of the elective process, is a right secured by

the federal Constitution. This right, the major-

ity argued, “may not be abridged by the State

on account of his race or color.” With specific

reference to the scheme instituted in Texas, the

Supreme Court noted that “whether the exclu-

sion of citizens from voting on account of their

race or color has been effected by action of the

State rather than of individuals or of a political

party is a question upon which the decision of

the courts of the State is not binding on the fed-

eral courts, but which the latter must determine

for themselves.”

Dissenting in Smith, Justice Robert, quoting

Mahnich v. Southern Steamship (1944), disagreed

with respect to what he termed “the Court’s pol-

icy to freely disregard and to overrule considered

decisions and rules of law announced in those

decisions.” This tendency, he noted “seems to . . .

indicate an intolerance for what those who have

composed this court in the past have conscien-

tiously and deliberately concluded, and involves

an assumption that knowledge and wisdom reside

in us which was denied to our predecessors. I shall

not repeat what I there said, for I consider it fully

applicable to the instant decision, which but points

the moral anew.”

In summary, Smith v. Allwright stands for

the proposition that, where a state convention of

Democrats establishes a rule that only whites can

vote in a primary election, such a racial restriction

violates the Fifteenth Amendment prohibition

against denial of right to vote on account of race.

Although the precise rationale for the Smith case

was then unclear, the Court held that (1) under

Texas law, the primary is an integral part of the

election scheme; (2) the running of elections is a

governmental function; and (3) therefore, the run-

ning of primaries is a governmental function, even

where the task of doing so is delegated by the state

to a private party.

These private parties, according to the Supreme

Court, are an agency of the state and are therefore

prevented from excluding blacks from voting in

the primary. Nine years later, in Terry v. Adams,

345 U.S. 461 (1953), extending the Smith prohi-

bition to “pre-primary elections,” the Supreme

Court held that a state action is racially restrictive

684 Smith v. Allwright

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where a “pre-primary” election is held by the Jay-

bird Democratic Association, a group whose can-

didate almost always won the ensuing Democratic

primary, especially when running unopposed.

While there was no majority opinion in Terry, the

prevailing rationale appeared to be that the state,

by inaction, had permitted this unofﬁ cial preelec-

tion to usurp the role of the ofﬁ cial primary elec-

tion, which, under Smith, was itself an integral

part of the election process. Several of the justices

seemed to rely on the fact that the state tolerance

of private discrimination reﬂ ected a purposeful

decision to maintain a racially discriminatory sys-

tem of elections.

Lastly, conceptually it is not clear how broadly

applicable the rationale of the white primary cases

should be understood, since it does not seem likely

that all or most other conduct by political parties

will be deemed to be state actions. For instance,

the selection of party chairmen would probably

not be held to be a public function. Nor is it clear

that discrimination based on grounds other than

race, even in the primary process, would neces-

sarily be held to be state action, since the white

primary cases were founded on the Fifteenth

Amendment, which applies only to racial discrim-

ination. Thus, it is possible that a party that limits

its membership solely to men, or solely to Protes-

tants, might well be found not to be engaged in

state action. In the end, the Supreme Court, in

articulating a “public function” doctrine in Smith

v. Allwright, holds that when a private individual

(or group) is entrusted by the state with the per-

formance of functions that are governmental in

nature, that group or person becomes an agent

of the state and its acts constitute a state action.

The Smith v. Allwright case on white-only pri-

maries, and those cases before, stand for the view

that the exclusion of African Americans from vot-

ing in primary elections violates the Fifteenth

Amendment.

For more information: Ryden, David K. The

U.S. Supreme Court and the Electoral Process.

Washington, D.C.: Georgetown University Press,

2002.

—Mark Pufong

Smith v. City of Jackson 544 U.S. 228 (2005)

In Smith v. City of Jackson, the Supreme Court

upheld a “disparate-impact claim”—a lawsuit

claiming there was unintentional discrimina-

tion—under the Age Discrimination in Employ-

ment Act of 1967 (ADEA). The significance of

Smith v. City of Jackson is that it allows persons

adversely affected by age discrimination at work

to sue their employer under this federal statute,

even when age discrimination was not intended.

However, the Court also ruled that the employees

in Smith failed to prove an adverse affect on older

workers, or that the city’s plan was impermissibly

based on age.

Azel P. Smith and other older municipal police

ofﬁ cers brought this suit against the city of Jack-

son, Mississippi, claiming that a city pay plan dis-

criminated by age. The city had adopted a pay

plan for all city employees in 1998 to “attract and

retain qualiﬁ ed people.” In 1999, the city revised

the plan to bring up starting salaries of police ofﬁ -

cers to the regional average. Ofﬁ cers with less than

ﬁ ve years’ service received proportionately greater

raises than those with more seniority. Most ofﬁ -

cers over age 40 had more than ﬁ ve years’ service.

Thus, salary increases were less generous to police

ofﬁ cers over age 40 than to younger ofﬁ cers. Smith

and other older ofﬁ cers sued the city under the

ADEA in two claims: deliberate age discrimina-

tion by the city against them (a “disparate-treat-

ment” claim) and adverse affect of unintentional

age discrimination by the city’s actions (a “dispa-

rate-impact” claim).

The district court ruled by summary judgment

in favor of the city on both claims. The court of

appeals sent back the “disparate-treatment” case

for more hearings on allegations of deliberate

discrimination. However, it dismissed the unin-

tentional discrimination claim, ruling that “dis-

parate-impact claims are categorically unavailable

under the ADEA.” The Supreme Court afﬁ rmed

the court of appeals, because the older ofﬁ cers did

not set forth a valid disparate-impact claim. How-

ever, the Court ruled that disparate-impact claims

were available under the ADEA.

In an 8-0 decision, Justice John Paul Stevens

wrote for a four-person plurality, joined by Justices

Smith v. City of Jackson 685

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David H. Souter, Ginsburg, and Stephen G.

Breyer. First, Stevens relied on GRIGGS V. DUKE

POWER, 401 U.S. 424 (1971), where the Court ﬁ rst

authorized a disparate-impact claim of uninten-

tional employment discrimination under Title

VII of the Civil Rights Act of 1964. Justice Ste-

vens found that the language of the ADEA was vir-

tually identical to Title VII, except that the ADEA

allowed some types of employment discrimination

based on reasonable factors other than age. Thus,

the ADEA did authorize disparate-impact claims

of unintentional age discrimination like the Griggs

case. Second, however, Justice Stevens’s plurality

opinion found that the older ofﬁ cers did not state

a valid disparate-impact claim in this case. Unlike

the unintentional race discrimination in Griggs,

unintentional discrimination by age may be allowed

when it is based on reasonable factors other than

age. ADEA protections against age discrimina-

tion are more narrow than prohibitions against

race discrimination. The record showed that the

city’s pay plan was based on other reasonable fac-

tors. Finally, for the above reasons, and by Equal

Employment Opportunity Commission (EEOC)

authority and regulation, disparate-impact claims

are available under the ADEA.

In a separate concurring opinion, Justice Anto-

nin Gregory Scalia agreed with the decision

of the plurality, but reasoned the Court should

simply defer to the reasonable view of the EEOC

that disparate-impact claims were available under

the ADEA.

In a separate concurring opinion, Justice San-

dra Day O’Connor (joined by Justices Anthony

M. Kennedy and Clarence Thomas) agreed

with the decision of the plurality, but reasoned

that disparate-impact claims were not available

under the ADEA.

For more information: Langran, Robert W.

The Supreme Court: A Concise History. New

York: Peter Lang, 2004; MacNichol, John. Age

Discrimination: An Historical and Contempo-

rary Analysis. New York: Cambridge University

Press, 2006.

—Bradley Chilton

Smith v. Doe 538 U.S. 84 (2003)

In Smith v. Doe, the Supreme Court ruled that

a state law that required individuals to register

with a sexual offender list after their conviction

for a sex crime did not violate the Constitution’s

ex post facto clause.

This case, originating from Alaska, dealt with

one of the ex post facto clauses of the U.S. Consti-

tution, which contains two such clauses: Article

I, Section 9, Clause 3, and Article I, Section 10,

Clause 1. Article I, Section 9, Clause 3 makes it

illegal for Congress to pass an ex post facto law,

whereas Article I, Section 10, Clause 1 notes that

states shall pass no ex post facto law. This case

focused on the latter clause. Provisions of the

Alaska Sex Offender Registration Act focused on

sex offenders and child kidnappers incarcerated

in the states. The issue in Smith was whether the

registration law for sex offenders was an ex post

facto law.

Two convicted sex offenders in this case, John

Doe I and John Doe II, were convicted prior to

the passage of the Alaska Sex Offender Registra-

tion Act and, by the law, were covered by the act.

They brought suit claiming the act was unconsti-

tutional because it violated Article I, Section 10,

Clause 1 (ex post facto). The district court ruled

against the plaintiffs, and they appealed to the

Court of Appeals for the Ninth Circuit. The court

of appeals reversed the lower court decision, cit-

ing that the act was punitive and therefore violated

the ex post facto clause.

The Court heard oral arguments on November

12, 2002, and announced its decision on March 5,

2003. In a 6-3 decision, which Justice Anthony

M. Kennedy delivered, the Court ruled that the

act was not punitive and did not violate the ex post

facto clause of the Constitution.

The Court reversed and remanded the case. The

three dissenting justices noted the ex post facto

nature of the law. Justice John Paul Stevens

posited that the act could apply only to those indi-

viduals who committed an offense after the effec-

tive date of the act or it would violate the ex post

facto clause. The other two dissenting justices—

Ginsburg and Stephen G. Breyer—added that

686 Smith v. Doe

vi+904_EofUSConsti-v2.indd 686 3/20/09 2:18:47 PM

the act was punitive in nature and its retroactive

aspect violated the ex post facto clause.

For more information: Cann, Steven J. Admin-

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

Publications, 2006.

—Dan Krejci

Souter, David H. (1939– ) Supreme Court

justice

David H. Souter became an associate justice of the

U.S. Supreme Court on October 9, 1990, after a

career in the state attorney general’s ofﬁ ce and in

the state courts of New Hampshire. He replaced

William J. Brennan, Jr., on the Supreme

Court.

He was born in Melrose, Massachusetts, on

September 17, 1939, but he spent much of his

youth in the small New Hampshire town of

Weare, where his grandparents lived. He gradu-

ated from Harvard University, earned a degree at

Oxford University as a Rhodes scholar, and then

received his law degree at Harvard Law school.

After two years in private practice, he joined the

state attorney general’s ofﬁ ce headed by Warren

B. Rudman, who would later become a U.S. sen-

ator and Souter’s chief advocate for a Supreme

Court seat. In 1976, Souter succeeded Rudman

as New Hampshire attorney general. In 1978 he

became a state court judge and in 1983 a justice

of the state supreme court. Just eight weeks after

taking a seat on the U.S. Court of Appeals for the

First Circuit in May 1990, Souter was nominated

by President George H. W. Bush to succeed Jus-

tice Brennan on the Supreme Court.

Souter’s nomination was intended by the ﬁ rst

president Bush to add to a growing conservative

majority under the leadership of Chief Justice

William H. Rehnquist. But Souter disap-

pointed conservatives and proved to be the mod-

erate, independent thinker that his friends, like

Rudman, expected him to be. He became a con-

sistent member of the Court’s moderate-to-liberal

wing, which included Justices John Paul Ste-

vens, Ruth Bader Ginsburg, and Stephen G.

Breyer, and which from time to time attained

a Supreme Court majority with the support

of Justice Sandra Day O’Connor or Justice

Anthony M. Kennedy.

Souter’s views came through most strongly

when he felt that the Supreme Court majority was

manipulating history to achieve incorrect results.

Thus, he dissented strongly from a number of deci-

sions curtailing the ability of Congress to regulate

interstate commerce or ﬁ nding that Congress

was encroaching on the power of state govern-

ments. In one such dissent, he relied on the intent

of the Constitutional Convention to argue

forcefully that the Court was wrong to restrict the

ability of Congress to open up the states to citizen

lawsuits for damages. The case, Seminole Tribe

of Florida v. Florida, 517 U.S. 44 (1996), ruled

that Congress could not use its commerce power

to waive the Eleventh Amendment, sovereign

immunity of the states. Citizens should be able to

“enforce federal rights in a way that Congress pro-

vides,” Souter wrote.

He objected to a number of rulings that he said

were breaking down the separation of church and

state under the First Amendment. Writing for

the majority in MCCREARY COUNTY V. AMERICAN

CIVIL LIBERTIES UNION, 545 U.S. 844 (2005), Souter

held unconstitutional the display of the Ten Com-

mandments in two Kentucky courthouses. He

used the occasion to defend the Court’s decades-

old test for church-state separation in LEMON V.

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

He was highly critical of the limitations placed

by the Court on the use of race to draw legislative

districts to try to increase minority representation.

He played a lead role in preserving women’s access

to abortion in Planned Parenthood v. Casey,

505 U.S. 833 (1992), and then voted to retain that

access in subsequent cases.

Throughout his tenure on the Court, Souter

has remained an enigma. He rarely makes public

appearances or gives interviews and prefers to lead

a cloistered life that he believes is most appropriate

for a Supreme Court justice. While by all accounts

he interacts well with his fellow justices and is well

liked and respected, he has no interest in being a

Souter, David H. 687

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visible ﬁ gure in Washington and believes that the

views of justices should be voiced through their

written opinions.

For more information: Yarbrough, Tinsley E.

David Hackett Souter: Traditional Republican on

the Rehnquist Court. New York: Oxford Univer-

sity Press, 2005.

—Stephen Wermiel

South Carolina v. Katzenbach 383 U.S. 301

(1966)

In South Carolina v. Katzenbach, the Supreme

Court upheld Congress’s authority to enforce the

Fifteenth Amendment’s ban on racial discrim-

ination in voting. This broadening of congressional

powers occurred largely within the framework of

voting-rights measures adopted during the 1960s,

for which the amendment’s historical context is

worth appreciating to understand the Court’s rul-

ing in South Carolina v. Katzenbach.

Historically, Reconstruction-era efforts by

Congress to eradicate racial discrimination in

voting in the South were only marginally success-

ful, and most enacted statutory provisions were

repealed in 1894. Meanwhile, many Southern

states enacted literacy tests and other tests that

were often used to deny blacks the franchise. The

Fifteenth Amendment was theoretically available

for relief in these situations, but litigation under

it was generally time consuming and difficult.

Even when states or counties were ordered by the

courts to eliminate one discriminatory practice

or another, they were often able to devise some

new scheme by which to perpetuate racial dis-

crimination in voting. Initial statutory efforts by

Congress in 1957, 1960, and 1964 proved largely

ineffective. Thusly, Congress enacted the Voting

Rights Act of 1965 for the express purpose

of eradicating racial discrimination in voting by

dealing with it prophylactically rather than on a

case-by-case basis. The most important aspect of

the act, from the perspective of Congress’s power

to enforce the Fifteenth Amendment, was its

treatment of literacy tests and other voter eligibil-

ity standards.

Brieﬂ y, the act suspended, for a period of ﬁ ve

years, literacy and similar voting tests in any state

or political subdivision from which the following

administrative ﬁ ndings were made as of Novem-

ber 1964: (a) the jurisdiction maintained or had

used a “test or device” for voter eligibility (includ-

ing not only literacy tests, but also requirements of

good moral character or knowledge of particular

subject matter); and (b) less than 50 percent vot-

ing-age residents were registered to vote. Accord-

ingly, these ﬁ ndings were not judicially reviewable.

The only way a jurisdiction found to fall within the

act’s prohibitions could escape coverage was by

obtaining a declaratory judgment from the federal

district court for the District of Columbia

conﬁ rming that it had not used tests or devices

for the purpose of racial discrimination in the pre-

vious ﬁ ve years. Thus, the statutory scheme pro-

vided was one of administrative fact ﬁ nding, with

no requirement that those ﬁ ndings include dis-

criminatory intent. Only thereafter did the juris-

diction have the right to seek judicial review in

Washington, in a proceeding in which it, not the

federal government, bore the burden of proof.

Thus, in South Carolina v. Katzenbach (1966),

the state of South Carolina invoked the Supreme

Court’s original jurisdiction under Article

III, Section 2 and sought to have the Court rule

on the constitutionality of the various provisions

of the Voting Rights Act of 1965, which prohib-

its the use of “tests” as a qualiﬁ cation for voting.

South Carolina contended that this act was a viola-

tion of the Tenth Amendment that prohibits Con-

gress from passing legislation that violates states’

rights to implement and control elections. Reject-

ing South Carolina’s claim that the Voting Rights

Act of 1965 prohibitions violated the state’s Tenth

Amendment rights and writing for an 8-1 court,

Chief Justice Warren broadly construed the power

of Congress to enforce the Fifteenth Amendment

and ruled that any “rational means” could be used

to enforce the act’s ban on racial discrimination

in voting. In doing so, the Court upheld the lower

courts’ decisions and rejected South Carolina’s

argument that Congress may do no more than to

forbid violations of the Fifteenth Amendment in

general terms.

688 South Carolina v. Katzenbach

vi+904_EofUSConsti-v2.indd 688 3/20/09 2:18:48 PM

The task of fashioning speciﬁ c remedies or of

applying them to particular localities, the chief

justice reasoned, must necessarily be left to the

courts. The decision observed that difﬁ culties pre-

viously encountered with the case-by-case judicial

enforcement of the amendment amply justified

the remedies chosen by Congress. Thus, according

to Chief Justice Warren, where there is evidence

of racial discrimination in voting, the particular

scheme chosen by Congress to ban tests or devices

(coinciding with less-than-50 percent registration)

satisﬁ es the rationality standard. The use of tests

or devices therefore furnishes a clear means of

carrying out racial discrimination, and low regis-

tration ﬁ gures were, indeed, an obvious symptom

of such discrimination. In the end, South Caro-

lina v. Katzenbach demonstrated that Congress’s

enforcement power under Section 2 of the Fif-

teenth Amendment permits it to outlaw practices

that the Court would not on its own ﬁ nd to vio-

late Section 1 of that amendment. Congress, the

Court reasoned, is authorized to enforce the pro-

hibitions of the Fifth Amendment by appropriate

legislation. Congress therefore has full remedial

powers to effectuate the constitutional prohibi-

tion against racial discrimination in voting. Cit-

ing Chief Justice John Marshall in yet another

speciﬁ c legislative authorization in the Constitu-

tion, Chief Justice Warren noted that “this power,

like all others vested in Congress, is complete in

itself, may be exercised to its utmost extent, and

acknowledges no limitations, other than are pre-

scribed in the Constitution.”

In a more decisive concurring opinion, Justice

Fortas reiterated the view that the Fifth Amend-

ment is an unequivocal command to the states and

the federal government that no citizen shall have

his right to vote denied or abridged because

of race or color. This amendment, Justice Hugo

Black argued, unmistakably gives Congress

speciﬁ c powers to go further and pass appropri-

ate legislation to protect the right to vote against

any method of abridgment, no matter how subtle.

Departing from the ruling and dissenting from

the majority opinion of the Court, Justice Black

observed that one of the most basic premises upon

which our structure of government was founded

was that the federal government was to have cer-

tain specific and limited powers and no others,

and all other power was to be reserved either “to

the States respectively, or to the people.”

In the end, and by an 8-1 margin, the Supreme

Court swept aside all arguments questioning the

validity of the Voting Rights Act of 1965 in South

Carolina v. Katzenbach. It upheld the lower court’s

decision and rejected South Carolina’s argument

that Congress may do no more than to forbid vio-

lations of the 15th Amendment, a decision that

allowed Congress to adopt enforcement legisla-

tion. While the Voting Rights Act is best known

for attacking racial discrimination against blacks

in the South, another facet of the act dealt with

Puerto Ricans disenfranchised in New York City.

In Katzenbach v. Morgan, 384 U.S. 641 (1966),

the Supreme Court reafﬁ rmed Section 4(e) of the

Voting Rights Act. Relying instead on congres-

sional authority to enforce the equal protec-

tion clause of the Fourteenth Amendment

against New York, Justice William J. Bren-

nan, Jr., speaking for the Court, in a sentence

that evoked stunning possibilities, wrote, “More

speciﬁ cally, 4(e) may be viewed as a measure to

secure for the Puerto Rican community residing

in New York City nondiscriminatory treatment

by government—both in the imposition of voting

qualiﬁ cations and the provision or administration

of governmental service, such as public schools,

housing and law enforcement.”

For more information: Finkelman, Paul. Afri-

can Americans and the Right to Vote. New York:

Garland, 1992; Hasen, Richard. The Supreme

Court and Election Law: Judging Equality from

Baker v. Carr to Bush v. Gore. New York: New

York University Books, 2003.

—Marc G. Pufong and Sean Evans

South Dakota v. Dole 483 U.S. 203 (1987)

In South Dakota v. Dole, the Supreme Court

ruled that the National Minimum Drinking Age

Amendment (23 U.S.C. § 158) is a valid use of

Congress’s spending power under Article I, Sec-

tion 8, Clause 1 of the U.S. Constitution. The Dole

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decision is signiﬁ cant because it details a four-part

test deﬁ ning when Congress can put conditions on

federal funding for state projects.

Conditions are strings attached to a state’s

receipt of federal money. They are very differ-

ent from directives on how to spend the money.

Conditions extend the reach of the federal gov-

ernment into states’ rights by indirectly legislating

what a state can or cannot do in order to receive

funding. The National Minimum Drinking Age

Amendment put a condition on the receipt of fed-

eral highway money. Every state receiving federal

highway funds had to have a minimum drinking

age of 21 before it could receive 100 percent of its

allocation.

In the Dole decision, South Dakota fought

the conditions. The state did not want to change

its drinking age from 19 to 21, but it also did not

want to lose 10 percent of its highway funding. In

the lawsuit, South Dakota asserted that Section 2

of the Twenty-first Amendment of the U.S.

Constitution grants states the power to set mini-

mum drinking ages, and it is unconstitutional for

the federal government to usurp this power with a

condition on its funding.

Chief Justice William Hubbs Rehnquist

wrote the seven-person majority opinion favor-

ing the federal government. Rehnquist focused on

four criteria that a condition must meet to be con-

stitutionally valid. First, the federal funds must be

spent on the general welfare of the public. Sec-

ond, the condition must be unambiguous. Third,

the condition should relate to the federal interest.

Fourth, the condition cannot ask states to engage

in unconstitutional activities. This is referred to

in the opinion as the “independent constitutional

bar.” It is a key issue the Court focused on.

The Court declared that states cannot be

induced to act unconstitutionally, but the Court

agreed that Congress can indirectly induce

state action. Congress can achieve its objectives

through use of its spending power, even if the

Twenty-first Amendment bars it from directly

achieving the same objectives. Congress is barred

by the Twenty-ﬁ rst Amendment from directly tell-

ing a state it must have a minimum drinking age

of 21. Congress is not barred by the Twenty-ﬁ rst

Amendment from telling a state it must have a

minimum drinking age of 21 before it can receive

100 percent of its federal highway funding.

The Court also stated that Congress cannot be

coercive with its conditions on federal funds. This

is a check on Congress’s ability to set conditions

as part of its spending power. But it is not a strong

check because coercion is not deﬁ ned. Dole clari-

fies only that withholding 10 percent of federal

highway funds is not coercive.

Justices William J. Brennan, Jr., and

Sandra Day O’Connor dissented. In Justice

O’Connor’s dissenting opinion, she did not agree

that a state’s drinking age was sufﬁ ciently related

to the federal government’s interest in highway

construction, which is what the funds were going

to be spent on in South Dakota. She agreed that

Congress can attach conditions to its money, but

the conditions have to be reasonably related to

the money’s purpose. Otherwise, “Congress could

effectively regulate almost any area of a State’s

social, political, or economic life.” Her dissent

is important because the Court since Dole has

tended to rule in favor of states’ rights.

Dole is an important case for its four-part test

regarding Congress’s ability to attach conditions to

its funding. It is also important for the dissent’s

discussion of relatedness. The issue could easily

come before the Court again, and it might just go

in favor of the states next time.

For more information: Beer, Samuel H. To

Make a Nation: The Rediscovery of American

Federalism. Cambridge, Mass.: Belknap Press of

Harvard University Press, 1993.

—R. Reid LeBeau

Southern Paciﬁ c Company v. Arizona 325

U.S. 761

(1945)

In Southern Pacific Company v. Arizona, the

Supreme Court ruled that a state law regulating

the length of trains violated Article I, Section 8,

Clause 3 of the commerce clause.

The case addressed the question: Does a law

enacted by the state of Arizona (the Arizona Train

Limit Law of May 15, 1912, Arizona Code Ann.,

690 Southern Paciﬁ c Company v. Arizona

vi+904_EofUSConsti-v2.indd 690 3/20/09 2:18:49 PM

1039, §69–119) place a burden on interstate

commerce, therefore making the law unconstitu-

tional? The Arizona law made it unlawful for any

entity to operate “within the state a railroad train

of more than fourteen passenger cars or seventy

freight cars, and authorizes the state to recover a

money penalty for each violation of the Act.”

The state of Arizona, in 1940, brought suit

in Arizona Superior Court against the Southern

Pacific Company in order to recover penalties

for operating a train of more than 14 cars and a

freight train of more than 70 cars. The South-

ern Paciﬁ c Company admitted to the facts in the

case, yet offered the defense that the Arizona law

“offends against the commerce clause (Article I,

Section 8, Clause 3) and the due process of the

Fourteenth Amendment, and conﬂ icts with

federal legislation.” The Arizona Superior Court

found for the defendant (Southern Paciﬁ c Com-

pany) and the state of Arizona appealed the case

to the Supreme Court of Arizona, which reversed

the decision of the lower court. Southern Paciﬁ c

Company appealed the case to the Supreme

Court. Chief Justice Stone delivered the opinion

of the Court, Justice Rutledge concurred, and Jus-

tice Hugo Black dissented.

The Court determined that the law created a

burden on interstate commerce and imposed a

stiff economic burden on the railroad. Based on

the Arizona law, Southern Paciﬁ c had to operate

more trains in the state and at a cost of several

million more dollars a year. The Court noted

that

The findings show that the operation of long

trains . . . trains of more than fourteen passenger

and more than seventy freight cars, is standard

practice over the main lines of the railroads of

the United States, and that, if the length of trains

is to be regulated at all, national uniformity in

the regulation adopted, such as only Congress

can prescribe, is practically indispensable to the

operation of an efﬁ cient and economical national

railway system.

The Court reversed the decision of the Supreme

Court of Arizona.

Southern Pacific Company v. Arizona is an

important case that found that even though states

may occasionally claim that they are adopting laws

to protect the health, safety, or welfare of their

citizens, these laws may nonetheless violate the

commerce clause.

For more information: Farber, Daniel A., Wil-

liam N. Eskridge, Jr., and Philip P. Frickey. Cases

and Materials on Constitutional Law: Themes for

the Constitution’s Third Century. St. Paul, Minn.:

West Publishing, 1993.

—Dan Krejci

speech and government funding

At least since the expansion of the grant-in-aid

programs of the New Deal and Great Society eras,

there has been a persistent question of the proper

role of government in regulating speech through

federal administrative action. As government

policy and funding expanded in the 20th century

to almost every area of society, the constitutional

balance between questions of free speech rights

for individuals have been increasingly weighed

against government interest in properly regulat-

ing speech.

The Administrative Procedures Act (APA), 5

U.S.C. § 500, of 1946 formally established legis-

lative limits on federal regulatory agencies. The

APA’s primary purpose was to ensure due pro-

cess for citizens affected by the agency regula-

tions. Due process was protected by requiring

publication of rules (552) and providing stan-

dards and procedures (553), uniform hearing

processes (556–557), and judicial review of

ﬁ nal decisions where applicable (702). The indi-

vidual states also followed the federal government

and passed APAs of their own. It is through these

legislative delegations of power that the admin-

istrative agencies developed standards for rule

making, hearing procedures, and judicial review;

through judicial challenges to either legislative or

executive action, the courts have adjudicated the

meaning of “speech” and addressed its protec-

tion from government regulation. However, the

courts have also recognized the substantive rights

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