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of individuals or organizations to have access to

government funding or of governments to uti-

lize a diversity of “subjective” criteria as another

perspective on “free speech” and government

funding.

In 1990, Congress included a “decency stan-

dard,” 20 U.S.C. §954(d) (1), in the reauthoriza-

tion bill for the National Endowment for the

Arts. Senator Jesse Helms, a Republican from

North Carolina, led the fight for this standard

in response to the endowment’s funding of con-

troversial art, such as Robert Mapplethorpe’s

homoerotic photographs and Andres Serrano’s

urine-soaked cruciﬁ x called “Piss Christ.” Senator

Helms described these NEA-funded projects as

“homosexual pornography” and “blasphemy.” The

subsequent Communications Decency Act

and other federal legislation have been enacted

and proposed to provide for the establishment of

a “decency standard” and extend the regulatory

power of Congress.

In N

ATIONAL ENDOWMENT FOR THE ARTS V. FIN-

LEY, 524 U.S. 569 (1998), Justice Sandra Day

O’Connor wrote the 8-1 majority opinion, which

interpreted the 20 U.S.C. §954(d) (1) decency

standard as merely advisory because it provided

one more “consideration” to a host of subjec-

tive factors already utilized by the NEA when it

awards grant funds to artists. “It does not preclude

awards to projects that might be deemed indecent

or disrespectful,” O’Connor said in the majority

opinion. As a result, “the court does not perceive a

realistic danger that it will be utilized to preclude

or punish the expression of particular views.”

O’Connor also noted that the grant-in-aid process

is inherently subjective and that artists are prob-

ably already molding their art to comply with their

perceptions of the agency’s criteria, and therefore

adding additional subjective considerations would

not be affected due to the decency requirement.

“When the government is acting as patron rather

than as sovereign, the consequences of impreci-

sion are not constitutionally severe,” O’Connor

said in the majority opinion.

Justice Antonin Gregory Scalia’s concur-

ring opinion offered a very different understand-

ing that would have substantively changed First

Amendment jurisprudence and, thereby, the

delicate balance between speech rights and gov-

ernment responsibilities. “The operation was a

success, but the patient died,” Scalia said. “What

such a procedure is to medicine, the court’s opin-

ion in this case is to law. It sustains the constitu-

tionality of [the law] by gutting it. . . . The nub of

the difference between me and the court is that I

regard the distinction between abridging speech

and funding as a fundamental divide, on this side

of which the First Amendment is inapplicable.”

He summarizes the complicated issue by sepa-

rating his opinion from the majority’s as well as

that of Congress. “Instead of banning the fund-

ing of such productions absolutely, which I think

would have been entirely constitutional, Congress

took the lesser step of requiring them to be disfa-

vored in the evaluation of grant applications. The

Court’s opinion today renders even that lesser step

a nullity.”

For more information: Marbach, Joseph R.,

Ellis Katz, and Troy E. Smith, eds. Federalism in

America. Westport, Conn.: Greenwood Publish-

ing, 2005; Solove, Daniel J. The Digital Person.

New York: New York University Press, 2004.

—Michael W. Hail and Robert Drew Grey

speech or debate clause

The speech or debate clause of the U.S. Constitu-

tion, found in Article I, Section 6, Clause 1, pro-

tects the independence of members of Congress

by allowing them to perform their constitutional

duties without fear of intimidation, reprisal, or

inappropriate intrusions by the executive or judi-

cial branches of government. Often, the clause

is described as creating a legislative “privilege,”

because it spares legislators from the burdens of

being required to testify about their legislative

work, or alternatively creates a legislative “immu-

nity,” because it also spares legislators from legal

liability for this work.

The speech or debate clause has its origins in

British common law and Parliament’s skirmishes

with the Crown concerning freedom of speech

and legislative independence. These skirmishes,

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including King Charles’s seizure of the legislative

papers of several members of Parliament in 1642,

and the 1686 prosecution of another member for

republishing a committee report critical of King

James II, culminated in the inclusion of a legis-

lative privilege provision in the English Bill

of Rights in 1689. This privilege was justiﬁ ed

not on the grounds of protecting the representa-

tives themselves, but on the basis of serving the

public at large by protecting the independence of

Parliament.

In postcolonial America, analogous legislative

privilege provisions appeared in the constitutions

of many of the original thirteen states, beginning

with Maryland in 1776, as well as in the Articles of

Confederation, which the text of Article I, Section

6, Clause 1 of the Constitution closely followed.

Although the speech or debate clause was included

in the Constitution in 1789 without signiﬁ cant dis-

cussion, Thomas Jefferson explained a decade

later that the clause existed “in order to give to the

will of the people the inﬂ uence it ought to have,”

by freeing the people’s representatives “from the

cognizance or coercion” of the other branches.

The ﬁ rst recorded application of the legislative

privilege in America occurred in Massachusetts in

1808, in the case of Coffin v. Coffin, 4 Mass. 1

(1808). This case, which the U.S. Supreme Court

once called “perhaps the most authoritative case

in this country” concerning the legislative privi-

lege, stands for the proposition that the privilege

should be construed liberally to protect not just

speeches and debates on the ﬂ oor of the legisla-

ture, but “every thing said or done” by a represen-

tative acting in a legislative capacity, whether in or

out of the legislative chamber.

The U.S. Supreme Court has interpreted the

scope and application of the speech or debate

clause about a dozen times, most of them between

1966 and 1979. These cases also established that

the protections of the clause extend well beyond

its literal language, and that it should be con-

strued broadly to foster legislative independence.

For instance, in G

RAVEL V. UNITED STATES, 408 U.S.

606 (1972), the Court explained that the clause

applies to all activities that are “an integral part

of the deliberative and communicative processes

by which Members participate in committee and

House proceedings with respect to the consider-

ation and passage or rejection of proposed leg-

islation or with respect to other matters which

the Constitution places within the jurisdiction of

either House.” Thus, as many subsequent lower

court cases have conﬁ rmed, the clause applies not

only to ﬂ oor debates and votes, but also to meet-

ings, committee hearings, and other congressional

efforts to collect and analyze information relevant

to potential legislation.

In addition, in Gravel the Court held that the

protections of the clause apply not just to the

members of Congress themselves, but also to con-

gressional staff when they are engaged in activi-

ties that would be protected if performed directly

by the members. The Court observed that, in the

modern legislative process, elected representa-

tives depend upon the assistance of a number of

aides who perform acts that would be privileged

if performed by the members. The key question

therefore is whether the activities themselves are

an integral part of the legislative process.

Where the clause applies, its protections are

absolute (meaning they cannot be outweighed by

competing concerns, in the way that many com-

mon law privileges can). However, limits do exist

on the protections that the clause affords. The

Supreme Court has concluded that the clause

does not extend to congressional press releases

or to republications of otherwise protected mate-

rial outside of Congress, to cajoling the executive

branch, or to providing constituent services. The

Court also has held that the clause does not bar

prosecuting members of Congress for bribery or

other unlawful conduct, provided the misconduct

can be proven without inquiring into protected

legislative acts. Thus, if a member is alleged to

have received a bribe to vote in a particular way,

the crime must be proven not by showing how the

member voted or even the motive for an actual

vote, both of which are absolutely privileged, but

by showing that the member agreed to vote in a

particular way in exchange for payment.

In recent years, a variety of lower court deci-

sions have addressed other interpretive problems

under the clause. One of the thorniest issues to

speech or debate clause 693

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arise involves the extent to which the clause bars

congressional employees from bringing suits

against their employers over the terms and con-

ditions of their employment. Lower courts have

raised questions concerning the extent to which

the clause limits the executive branch’s ability to

execute a search warrant of a congressional ofﬁ ce.

But regardless of the particular outcomes of these

cases, the clause will remain a crucial bulwark in

Congress’s defense against judicial and executive

branch encroachments.

For more information: Reinstein, Robert J., and

Harvey A. Silverglate. “Legislative Privilege and

the Separation of Powers.” Harvard Law Review

86, no. 1,113 (1973): 1,135–1,140; Huefner, Steven

F. “The Neglected Value of the Legislative Privi-

lege in State Legislatures.” William & Mary Law

Review 45, no. 221 (2003): 213–309.

—Steven F. Huefner

Standard Oil Co. of New Jersey v.

United States

221 U.S. 1 (1911)

Standard Oil Co. of New Jersey v. United States

was an important antitrust case under the Sher-

man Act that resulted in the breakup of John

D. Rockefeller’s company. Constitutionally, the

case affirmed the power of the federal govern-

ment under the commerce clause to regulate

monopolies.

Standard Oil Company rose to power from the

vertical and horizontal integration of both tech-

nological innovation and market manipulation.

The monopoly of the Cleveland-area oil reﬁ neries

and subordinate chemical products manufactur-

ing led to a leverage of the transportation of those

chemicals and oil products against the railroads.

The success of these actions, resulting in favorable

conditions for Standard Oil, caused a ripple effect

in the markets, thereby driving down the number

of companies able to compete with Rockefeller.

By the mid-1880s, Rockefeller had manipu-

lated the overall reﬁ nery markets and controlled

what was considered to be the majority of reﬁ n-

ery production within the United States and,

relationally, the world. Rockefeller continued his

push into both vertical/horizontal markets until

he controlled the majority of production, distri-

bution, and retail markets. The facts of the case

derived from the power of John D. Rockefeller

and the belief that his large company consisted of

an unnecessary and illegal restraint of trade. The

arguments for Rockefeller failed in 1909 when he

lost a court case when his company, Standard Oil,

was found in violation of the Sherman Anti-trust

Act. The dissolution of the company into smaller

companies was challenged on the grounds that

Rockefeller did not in fact violate the act, but

rather used superior business tactics and technol-

ogy to drive Standard Oil’s market penetrations

through legal market procedures. Challenged was

the right of Congress even to impose such restric-

tions upon American business.

Writing for the Court, Chief Justice Edward

White afﬁ rmed the power of Congress under the

Sherman Act to regulate monopolies, ﬁ nding that

restraint of trade did interfere with commerce.

Congress, under the commerce clause, could thus

regulate commerce. However, Justice White also

redeﬁ ned the meaning of the Sherman Act, argu-

ing that it did not ban all combinations of busi-

ness, but only those that were unreasonable and

that restrained trade. The Standard Oil case thus

became famous for its development of what has

become known as the “rule of reason” when it

comes to enforcing antitrust laws.

For more information: Fligstein, Neil. The

Transformation of Corporate Control. Cambridge,

Mass.: Harvard University Press, 1990; Tarbell,

Ida. The History of the Standard Oil Company.

Dover Publication, 2003.

—Ernest Gomez

standing

Under Article III, Section 2 of the United

States Constitution, the judicial power extends

to certain “cases” and “controversies.” Thus, the

federal courts may not offer advisory opinions on

issues that are of only theoretical or abstract inter-

est to the parties in a lawsuit. Rather, the courts

may take jurisdiction only of concrete disputes

694 Standard Oil Co. of New Jersey v. United States

vi+904_EofUSConsti-v2.indd 694 3/20/09 2:18:50 PM

in which the complaining party has suffered an

actual and present injury and will realize a practi-

cal and signiﬁ cant consequence from resolution of

the lawsuit. The doctrine of “standing” has been

derived from this understanding of the limited

constitutional authority of the judiciary.

In the context of public law questions, the

Supreme Court holds that “[o]ne element of

the ‘bedrock’ case-or-controversy requirement

is that plaintiffs must establish that they have

standing to sue,” that is, standing to invoke the

power of a federal court to review the conduct of

government. See M

CCONNELL V. FEDERAL ELEC-

TION COMMISSION, 540 U.S. 93, 225 (2003); see

also Whitmore v. Arkansas, 495 U.S. 149, 155

(1990). (“[T]he doctrine of standing serves to

identify those disputes which are appropriately

resolved through the judicial process.”) Standing

thus requires the plaintiff to have “such a per-

sonal stake in the outcome of the controversy as

to assure the concrete adverseness which sharp-

ens the presentation of issues” (BAKER V. CARR,

369 U.S. 186, 204 [1962]).

To satisfy the constitutional requirements for

standing, a plaintiff must allege a personal stake

in the outcome of the litigation (Sierra Club

v. Morton, 405 U.S. 727 [1972]) in the form of

“some direct injury” that is “real and immedi-

ate” (City of Los Angeles v. Lyons, 461 U.S. 95,

102 [1983]). The injury alleged must be “distinct

and palpable” and not “abstract,” “conjectural,” or

“hypothetical” (Allen v. Wright, 468 U.S. 737, 751

[1984]). Moreover, this “injury in fact” suffered

by the plaintiff must be “fairly traceable to the

defendant’s allegedly unlawful conduct and likely

to be addressed by the requested relief” (Allen v.

Wright, 468 U.S. at 751; see also LUJAN V. DEFEND-

ERS OF WILDLIFE, 504 U.S. 555, 560–61 [1992]). In

sum, there are three interrelated constitutional

components of standing—injury in fact, causa-

tion, and redressability by the courts (Lujan, 504

U.S. at 560–61).

As a prudential matter of judicial self-restraint,

the Supreme Court has further restricted standing

to those cases in which the plaintiff can show that

the interest sought to be protected in the lawsuit

is arguably within the zone of interests to be pro-

tected by the statutory or constitutional provision

upon which the plaintiff depends (National Credit

Union Admin. v. First Nat’l Bank & Trust Co.,

522 U.S. 479, 488 [1998]; Association of Data Pro-

cessing Service Organizations, Inc. v. Camp, 397

U.S. 150 [1970]). However, Congress by legislation

may expressly negate the zone-of-interests test or

expand the zone of interests to more generously

authorize suits against the federal government

(Bennett v. Spear, 520 U.S. 154, 163–65 [1997];

see also Raines v. Byrd, 521 U.S. 811, 820 n. 3

[1997], holding that an explicit grant of authority

by Congress to bring suit “eliminates any pruden-

tial standing limitations and signiﬁ cantly lessens

the risk of unwanted conﬂ ict with the Legislative

Branch”).

Under these standing restrictions, generalized

and abstract grievances about the conduct of the

government are insufﬁ cient to establish the per-

sonal injury required for standing (United States

v. Richardson, 418 U.S. 166, 173–74 [1974]). Thus,

an asserted right to have the government act in

accordance with law is not sufficient, standing

alone, to confer federal court jurisdiction (Allen v.

Wright, 468 U.S. at 754). Nor will the mere asser-

tion of a right “to a particular kind of government

conduct, which the Government has violated by

acting differently,” satisfy the Article III require-

ments for standing (Id., quoting VALLEY FORGE

CHRISTIAN COLLEGE V. AMERICANS UNITED FOR SEPA-

RATION OF CHURCH AND STATE, INC., 454 U.S. 464,

483 [1982]).

The Supreme Court has long held that “stand-

ing to sue may not be predicated upon an interest

of the kind . . . which is held in common by all

members of the public” (Schlesinger v. Reservists

Comm. to Stop the War, 418 U.S. 208, 220 [1974]).

However, the Court has clarified that, where a

harm is sufﬁ ciently concrete and speciﬁ c—espe-

cially if it implicates fundamental rights,

such as voting—standing may be found, even if

the asserted harm is widely shared by other citi-

zens (Federal Election Comm’n v. Akins, 524 U.S.

11, 22–24 [1998]). Nonetheless, abstract or indef-

inite harm, such as a common concern that the

government obey the law, remains insufﬁ cient for

standing.

standing 695

vi+904_EofUSConsti-v2.indd 695 3/20/09 2:18:50 PM

For more information: Aman, Alfred C., Jr., and

William T. Mayton. Administrative Law. 2d ed.

St. Paul, Minn.: West Group, 2001; Pierce, Rich-

ard J., Jr., Sidney A. Shapiro, and Paul R. Verkuil.

Administrative Law and Process. 4th ed. St. Paul,

Minn.: West Group, 2004.

—Gregory C. Sisk

Stanford v. Kentucky 492 U.S. 361 (1989)

In Stanford v. Kentucky, a divided Supreme Court

clarified the minimum age of defendants eligi-

ble for capital punishment by deciding that

offenders could be sentenced to death for murders

that they committed after their 16th birthday. The

Court previously ruled against applying capital

punishment to offenders aged 15 and younger.

The Stanford decision set the constitutional stan-

dard for capital punishment until it was overruled

by the Court’s 2005 decision in Roper v. Sim-

mons (543 U.S. 441), which forbade executions for

offenders whose capital crimes were committed

before they reached the age of 18.

In the course of robbing a gas station of 300

cartons of cigarettes and a small amount of cash,

17-year-old Kevin Stanford abducted, raped, and

murdered the young woman who worked at the

gas station. Because of the seriousness of his crime

and his record of previous offenses, Stanford was

sent from juvenile court to regular court to be

tried as an adult. After a trial, he was convicted

of murder and sentenced to death. Stanford’s

attorney appealed his sentence by claiming that

the execution of a juvenile would violate the U.S.

Constitution’s Eighth Amendment prohibition on

cruel and unusual punishments.

Stanford’s attorneys argued that American

society’s standards no longer regarded the death

penalty as a permissible punishment for juveniles.

However, Justice Antonin Gregory Scalia’s

opinion on behalf of a five-member majority of

the Supreme Court disagreed. In Justice Scalia’s

view, the varying minimum ages in states’ death

penalty statutes did not establish the existence of a

national consensus against the execution of offend-

ers for murders committed when under the age of

18. In a dissenting opinion on behalf of four of the

Court’s nine justices, Justice William J. Bren-

nan, Jr. argued that the application of the death

penalty to anyone under the age of 18 should be

considered as cruel and unusual punishment and

prohibited by the Eighth Amendment.

The decision by the deeply divided Supreme

Court permitted the application of capital pun-

ishment to 16- and 17-year-old murderers in

those states whose death penalty laws did not set

a higher minimum age. The Stanford decision

spurred opponents of capital punishment to ﬁ le

additional legal challenges. They sought to remove

the United States from the short list of countries

that executed juvenile offenders—Iran, Pakistan,

Saudi Arabia, Yemen, Nigeria, Democratic Repub-

lic of Congo, and China—none of which at that

time were rights-protecting democracies that are

typically aligned with American values and poli-

cies. When the Supreme Court revisited the issue

in Roper v. Simmons (2005), Justice Anthony

M. Kennedy, a member of Justice Scalia’s Stan-

ford majority, changed his position and provided

the ﬁ fth vote for a new majority that ruled against

capital punishment for juveniles.

For more information: Haines, Herbert G.

Against Capital Punishment: The Anti-Death

Penalty Movement in America, 1972–1994. New

York: Oxford University Press, 1996; Savage, David

G. Turning Right: The Making of the Rehnquist

Supreme Court. New York: John Wiley & Sons,

1992.

—Christopher E. Smith

Stanley v. Georgia 394 U.S. 557 (1969)

In Stanley v. Georgia, the Supreme Court ruled

that individuals have a First Amendment right

to possess and view pornographic materials in

their homes.

Federal and state agents, armed with a warrant

to search Robert Stanley’s home for evidence of

illegal bookmaking, seized and viewed three ﬁ lms

that they deemed “obscene.” Stanley was then

charged and convicted of violating a Georgia law

that made it a crime to “knowingly have posses-

sion of . . . obscene matter.”

696 Stanford v. Kentucky

vi+904_EofUSConsti-v2.indd 696 3/20/09 2:18:51 PM

The U.S. Supreme Court overturned Stanley’s

conviction unanimously. Writing for ﬁ ve justices,

Justice Thurgood Marshall held that “[w]hatever

may be the justiﬁ cations for other statutes regulat-

ing obscenity, we do not think they reach into the

privacy of one’s own home. If the First Amend-

ment means anything, it means that a State has

no business telling a man, sitting alone in his own

house, what books he may read or what ﬁ lms he may

watch. Our whole constitutional heritage rebels at

the thought of giving government the power to con-

trol men’s minds.” The majority emphasized that its

holding protected only the possession of reading

materials and ﬁ lms, and not items such as narcotics

and stolen goods. Justice Hugo Black agreed with

the result, but concurred separately because his

absolutist interpretation of the First Amendment

did not accord government any power to prohibit

allegedly “obscene” materials. The remaining three

justices (Stewart, William J. Brennan, Jr., and

White) voted to overturn Stanley’s conviction on

the Fourth Amendment ground that the search

warrant for evidence of bookmaking did not autho-

rize the seizure of pornographic ﬁ lms.

The Court has generally continued to follow

Stanley’s rule protecting the private possession

of obscene materials. In 2002, for instance, six

justices struck down a federal law criminalizing

the possession of “virtual” child pornography

generated with computers; seven justices struck a

similar provision banning sexually explicit ﬁ lms

using youthful-looking adult actors (Ashcroft v.

Free Speech Coalition, 535 U.S. 234 [2002]). In

1990, however, six justices created an exception

to the Stanley doctrine by upholding an Ohio law

that banned the possession of pornographic pho-

tographs of actual children (Osborne v. Ohio, 496

U.S. 913 [1990]).

For more information: Nowak, John E., and

Ronald D. Rotunda. Principles of Constitutional

Law. St. Paul, Minn.: Thomson/West, 2005.

Stanton, Elizabeth Cady (1815–1902) activist

Elizabeth Cady Stanton was a 19th-century politi-

cal activist who worked hard for equal rights for

women, including the constitutional right to

vote.

Stanton was born in Johnstown, New York, on

November 12, 1815. Through political activism,

writing, and lecturing she would become one of

the best-known advocates for woman suffrage

and women’s rights in the United States. Stanton

would not only emerge as a major influence in

shaping the movement toward the eventual rati-

ﬁ cation of the Nineteenth Amendment (1920)

providing federal protection for women’s right to

vote, but also, in the years following the Civil War,

she would participate in critical national debates

surrounding the Fourteenth (1868) and Fifteenth

(1870) Amendments. When Stanton died in New

York on October 26, 1902, she left behind a letter

she was preparing to send to President Theodore

Roosevelt in an effort to persuade him to support

the right of women to vote.

Stanton proved herself to be one of the bold-

est and most independent of the suffragists of her

generation. Eschewing the more moderate stances

of women’s rights advocates who were uncomfort-

able with critiques of the institution of marriage

and with questioning organized religion’s relation-

ship to gender inequality, Stanton embraced con-

troversial dress reforms, shocked her colleagues

by demanding less restrictive divorce laws, and

published The Woman’s Bible to refute what she

regarded as mainstream uses of Christian doctrine

to perpetuate women’s subordination to men.

Though she died before the Nineteenth

Amendment was ratiﬁ ed, Stanton’s contribution

to the cause of woman suffrage would be hard to

exaggerate. She was a primary organizer of the

Seneca Falls Convention (July 19–20, 1848), the

ﬁ rst formally organized women’s rights convention

in the United States. She also wrote the Decla-

ration of Sentiments adopted at Seneca Falls. In

composing the Declaration of Sentiments, Stanton

modeled her language upon the U.S. Declara-

tion of Independence (1776) and, like many

19th-century American thinkers, she grounded

her political principles in her interpretation of the

logical implications of the work of English legal

theorist William Blackstone (1723–1780).

After pronouncing that “all men and women

Stanton, Elizabeth Cady 697

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are created equal” and possess the “inalienable

rights” of “life, liberty, and the pursuit of happi-

ness,” Stanton’s declaration proceeded to identify

a number of ways in which “absolute tyranny” had

been exercised by men over women. Speciﬁ cally,

the Declaration of Sentiments outlined discrimi-

nation in economic fields, education, marriage

and divorce laws, and in political rights. The dec-

laration concluded with resolutions calling for a

reform of laws that placed women in “inferior”

positions relative to men and for the “sacred right

to the elective franchise.” Including an explicit

demand for the actual right to vote was so con-

troversial in 1848—even among women’s rights

advocates—that the suffrage resolution was the

only section of the Declaration of Sentiments to

fail to win unanimous support among Seneca Falls

Convention delegates. Stanton would later become

a leader in the National Woman Suffrage Associa-

tion, an organization that worked for the proposal

and ratiﬁ cation of a federal amendment—rather

than merely state and local laws—guaranteeing

women the right to vote.

Like many 19th-century women’s rights advo-

cates, Stanton was also an abolitionist. After the

Civil War, Stanton and her friend and colleague

Susan B.Anthony (1820–1906) worked unsuc-

cessfully for the inclusion of woman suffrage

provisions in the Fourteenth and Fifteenth

Amendments. When Republican leaders resisted

Stanton’s efforts as injurious to what they regarded

as the more pressing cause of African-American

civil rights and suffrage, Stanton publicly

opposed the Fourteenth and Fifteenth Amend-

ments. Stanton’s quandary—the choice between

supporting deeply flawed amendments as the

best that could be hoped for in post–Civil War

America or insisting that woman suffrage was not

subject to negotiation and was no longer to be

delayed—illustrates the tensions between move-

ments to expand constitutional protections during

the Reconstruction period.

For more information: Gurko, Miriam. The

Ladies of Seneca Falls: The Birth of the Woman’s

Rights Movement. New York: Schocken Books,

1974; Ryan, Barbara. Feminism and the Women’s

Movement: Dynamics of Change in Social Move-

ment Ideology and Activism. New York: Rout-

ledge, 1992; Stanton, Elizabeth Cady. Eighty

Years and More: Reminiscences 1815–1897. Bos-

ton: Northeastern University Press, 1993.

—Ellen Grigsby

state tax incentives and interstate

commerce

State governments frequently offer tax reduc-

tions to businesses as an incentive to locate or to

remain within the state. Some scholars warn that

states are engaged in a “race to the bottom” as

each one offers greater incentives, thereby reduc-

ing the tax revenues that fund government ser-

vices. Certain state tax incentive programs have

been found to violate the commerce clause of

the U.S. Constitution, which is intended to create

a free trade area between and among the states.

A tax incentive violates the commerce clause

when it has the effect of providing lower tax rates

to in-state businesses than those imposed on out-

of-state ventures. Because such tax incentives do

not directly conﬂ ict with congressional legisla-

tion under the commerce clause, they are said

to violate the “dormant” or “negative” commerce

clause.

In COMPLETE AUTO TRANSIT, INC. V. BRADY, 430

U.S. 274 (1977), the Supreme Court articulated

a four-part standard for taxes challenged under

the commerce clause. A tax provision will survive

commerce clause scrutiny when it “is applied to

an activity with a substantial nexus to the taxing

State, is fairly apportioned, does not discriminate

against interstate commerce, and is fairly

related to the services provided by the State.” In

the decades since this decision, the Court has fre-

quently revisited the issue of state tax incentives.

The Supreme Court struck down a New York

tax incentive in Westinghouse Electric Corp. v.

Tully, 466 U.S. 388 (1984). The challenged law

provided credits against the corporate franchise

tax for exports shipped from a regular place of

business within the state. The Court found that

the law had a discriminatory effect on interstate

commerce and violated the commerce clause

698 state tax incentives and interstate commerce

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because it was designed to coerce businesses to

locate in New York. In Bacchus Imports, Ltd.

v. Dias, 468 U.S. 263 (1984), the Court struck

down a similar Hawaii law, providing tax exemp-

tions from the state liquor tax for certain locally

produced beverages. The Supreme Court ruled

that the exemption discriminated against inter-

state commerce by providing a direct commercial

advantage to in-state businesses.

Four years later in New Energy Co. of Ind. v.

Limbach, 486 U.S. 269 (1988), the Court con-

sidered an Ohio fuel sales tax law that provided

offsetting credits for ethanol sales. Out-of-state

ethanol producers were eligible for the credit if

their home state granted reciprocal treatment to

Ohio ethanol producers. A unanimous majority of

the Court held that this provision clearly discrimi-

nated against interstate commerce. The majority

opinion, authored by Justice Antonin Gregory

Scalia, observed that while discriminatory tax

provisions violate the dormant commerce

clause, direct government subsidies to in-state

businesses do not, because they are not based on

the state’s regulatory powers.

The most recent commerce clause challenge

to a state tax incentive program arose in D

AIM-

LERCHRYSLER V. CUNO, 126 S. Ct. 1854 (2006).

Although the Sixth Circuit Court of Appeals

found that portions of the challenged tax incen-

tives discriminated against interstate commerce,

the Supreme Court rejected the case because the

plaintiffs did not have proper standing to chal-

lenge the tax incentive law. The issue is almost

certain to appear on the Court’s docket again,

however, as state and local governments continue

to offer new tax incentives in response to the pres-

sure to recruit and retain more businesses.

For more information: Enrich, Peter D. “Saving

the States from Themselves: Commerce Clause

Restraints on State Tax Incentives for Busi-

ness.” Harvard Law Review 110, no. 377 (1996):

390–393; Gillette, Clayton P. “Business Incen-

tives, Interstate Competition, and the Commerce

Clause.” Minnesota Law Review 82, no. 447

(1997): 478–492; Hellerstein, Walter, and Dan T.

Coenen. “Commerce Clause Restraints on State

Business Development Incentives.” Cornell Law

Review 81, no. 4 (1996): 789–878.

—Joshua A. Kimsey

Stevens, John Paul (1920– ) Supreme Court

justice

John Paul Stevens was nominated to the Supreme

Court by President Gerald Ford, and began his

tenure on the nation’s highest court on December

19, 1975. He replaced William O. Douglas on

the Court.

Justice Stevens was born on April 20, 1920, in

Chicago, Illinois. He earned a B.A. from the Uni-

versity of Chicago and his D.J. from Northwestern

University School of Law. He served his country

in the navy during World War II. His first pro-

fessional exposure to the United States Supreme

Court was as a law clerk to Justice Wiley Rut-

ledge during the 1947 term. He served in various

capacities in the U.S. government before becom-

ing a member of the federal judiciary. These prior

employments include: associate counsel to the

House of Representatives Judiciary Com-

mittee and as a member of the attorney general’s

National Committee to Study Antitrust Law. He

served as a judge on the Seventh Circuit Court

of Appeals from 1970 to 1975 before he took his

place on the Supreme Court.

Following his appointment to the High Court,

Stevens was widely perceived as a moderate or a

pragmatist in the same vein as Lewis Powell

or Harry Blackmun. However, as the Court has

shifted further away from the liberal Warren

Court to the less liberal Burger Court to the

extremely conservative Rehnquist and Roberts

Courts, Stevens has increasingly moved to the

left of the Supreme Court ideological spectrum.

As a liberal member of the Court he tends to vote

against the conservative majority and often dis-

sents in non-unanimous decisions.

For much of his time on the Supreme Court,

Justice Stevens has been the most senior associate

justice. Due to his opposition to the “core” group

of conservative justices on the Rehnquist Court

(Chief Justice William Hubbs Rehnquist

and Associate Justices Clarence Thomas and

Stevens, John Paul 699

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Antonin Gregory Scalia), he has been able

to assign most of the opinions of the Supreme

Court in which the core conservatives were not

joined by the swing justices Anthony M. Ken-

nedy and Sandra Day O’Connor. Indeed,

from 1994 to 1999, Stevens was the only associate

justice on the Court to assign a majority opinion.

In the 2000 and 2001 terms, associate justices

also assigned opinions, but Stevens still assigned

25 of 28 opinions that Chief Justice Rehnquist did

not. In other words, while Justice Stevens was the

most liberal justice on the 1994–2005 Supreme

Court, he was able to inﬂ uence its opinions due

to his role as senior-most associate justice. Given

the recent appointment of two conservative mem-

bers to the Supreme Court, Chief Justice John

G. Roberts, Jr., and Associate Justice Samuel

Alito, it is likely that Stevens will continue to

assign opinions, when he is in the majority and

the Chief Justice is not, on a regular basis. He

will also dissent in many cases in which a group

of justices more conservative decide cases he dis-

agrees with. This will allow him to inﬂ uence the

Supreme Court decisions and the understanding

of the U.S. Constitution in a similar fashion as he

did during his time on the Rehnquist Court.

Stevens’s opinions have contributed to the cur-

rent understanding of the Constitution in various

areas, as in two recent developments in his jurispru-

dence: his role in the death penalty question and

in questions of standing with “enemy combatants.”

Justice Stevens has long been concerned about

the application of the death penalty. In A

TKINS V.

VIRGINIA (2002), he penned the opinion for a 5-4

decision in which the death penalty for mentally

retarded murderers amounted to cruel and

unusual punishment, prohibited by the Eighth

Amendment. He also used that opinion to note

that he believed that the death penalty for juve-

nile offenders was also unconstitutional. The ﬁ rst

subsequent juvenile death penalty cases coming to

the Court failed to convince a majority to side with

Stevens’s belief, despite his best efforts. However,

in 2005, Justice Anthony M. Kennedy sided with

Stevens and four other justices, and in Roper v.

Simmons (2004), the death penalty for juveniles

was deemed unconstitutional. While it was Ken-

nedy who altered his opinion, and ultimately wrote

the Court’s opinion, it was Stevens who put the

issue on the national screen again and who worked

to sway his brethren’s view of the issue.

Stevens has also affected the understanding of

the rights of enemy combatants in the current war

on terror. In RASUL V. BUSH (2003), Stevens, writ-

ing for the Court, found that courts in the United

States have the power to hear cases brought by for-

eign nationals captured abroad and held in Guan-

tánamo Bay, Cuba. Stevens and the Supreme Court

dismissed the government’s claim that enemy

combatants, who were not captured in the United

States and were not held in place where the United

States is considered sovereign, had no right to relief

in U.S. courts. Rasul, along with some other cases

rooted in the war on terror, such as HAMDI V. RUMS-

FELD (2003) and Hamdan v. Rumsfeld (2005), the

latter of which was also written by Stevens, forms

the basis for the understanding of questions in

civil liberties and separations of power in the

still new, post-9/11 constitutional landscape.

For more information: Amann, Diane Marie.

“John Paul Stevens, Human Rights Judge,” Ford-

ham Law Review 74 (2006): 1,569–1,606; Jacobi,

Tonja. “The Judicial Signaling Game: How Judges

Shape Their Dockets.” Supreme Court Economic

Review. Paper presented at the annual meeting of

the American Political Science Association, Phila-

delphia Marriott Hotel, Philadelphia, Pa., Aug.

27, 2003. Available online. URL: http://www.all-

academic.com/meta/p61999_index.html. Down-

loaded May 15, 2008; Sickels, Robert Judd. John

Paul Stevens and the Constitution. University

Park: Pennsylvania State University Press, 1988;

Thai, Joseph T. “The Law Clerk Who Wrote

Rasul v. Bush: John Paul Stevens’s Inﬂ uence from

World War II to the War on Terror.” Virginia Law

Review 92 (2006): 501–553.

—Tobias T. Gibson

Stone, Harlan Fiske (1872–1946) Supreme

Court justice

Harlan Fiske Stone is one of only three individ-

uals to serve as both an associate justice and as

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vi+904_EofUSConsti-v2.indd 700 3/20/09 2:18:52 PM

chief justice. He was born on October 11, 1872, in

Chesterﬁ eld, New Hampshire. In 1890 he entered

Amherst College, where he studied science and

philosophy. As a student he demonstrated a devel-

oping command of public speaking and debate.

After graduating from Amherst, Stone moved to

New York City to attend Columbia Law School in

1895, from which he graduated in 1898.

Between 1905 and 1916, Stone worked as a prac-

ticing attorney and as a teacher at Columbia Law

School. With brief interludes of private practice,

he continued teaching until February 21, 1923,

when he resigned. On April 1, 1924, President Cal-

vin Coolidge, a classmate at Amherst with Stone,

appointed him attorney general in order to restore

confidence in the Justice Department after the

scandals of Harding’s administration. Nominated

to the Supreme Court to replace Justice Joseph

McKenna, he was sworn in on March 2, 1925.

In the area of economic regulation, Stone was

usually in the minority when Justice Roberts and

the “four horsemen” (Butler, McReynolds, Suther-

land, and Van Devanter) opposed the New Deal

legislation of Roosevelt’s ﬁ rst administration. He

believed that it was not the role of the Court to

pronounce upon the wisdom of legislation, only its

constitutionality.

In 1937, Stone included a footnote (footnote 4)

in the opinion in United States v. Carolene Prod-

ucts Co. (1938) that has been hailed as an early

expression of the “preferred freedoms doctrine.”

The doctrine gives greater protection to civil

liberties than to economic freedoms. He was

sole dissenter in the ﬁ rst Jehovah’s Witnesses ﬂ ag

saluting case. On June 12, 1941, Stone was nomi-

nated by President Franklin D. Roosevelt to the

office of chief justice of the Supreme Court, to

replace Charles Evans Hughes. He took the oath

of ofﬁ ce as chief justice on July 3, 1941.

During World War II, Stone was in the majority

in the Japanese removal cases (Hirabayshi [1943]

and Korematusu [1944]) as well as the German

saboteurs case (Ex parte Quirin, et al., 1942).

Stone’s tenure as chief justice was probably the

most divisive in the Court’s history. He favored

open debate in a battle of ideas; this leadership

style too often produced clashing egos between

those seeking to protect civil liberties and those

seeking to give the government power to deal with

the problems of a wartime era. Stone died April

22, 1946, in Washington, D.C. He suffered a mas-

sive cerebral hemorrhage while reading in open

court his dissenting opinion in Girouard v. United

States and died later that day.

For more information: Mason, Alpheus. Harlan

Fiske Stone: Pillar of the Law. New York: Viking

Press, 1956; Renstrom, Peter G. The Stone Court:

Justices, Rulings, and Legacy. Santa Barbara,

Calif.: ABC-CLIO, 2001; Unofsky, Melvin I., and

Herbert A. Johnson. Division and Discord: The

Supreme Court under Stone and Vinson, 1941–

1953. Charleston: University of South Carolina

Press, 1997.

—Andrew J. Waskey

Stone Court (1941–1946)

The Stone Court began on July 3, 1941, when Har-

lan Fiske Stone (1872–1946) was sworn in as the

12th chief justice of the Supreme Court to suc-

ceed Charles Evans Hughes, who had retired. It

ended with Stone’s unexpected death from a cere-

bral hemorrhage on April 22, 1946, while he was

reading an opinion from the bench.

Serving on the Stone Court when it was formed

were Justices Owen J. Roberts (appointed by Pres-

ident Warren G. Harding, 1930), Hugo L. Black

(appointed by President Franklin D. Roosevelt,

1937), Stanley F. Reed (appointed by Roosevelt,

1938), Felix Frankfurter (appointed by Roos-

evelt, January 1939), William O. Douglas

(appointed by Roosevelt, April 1939), Frank Mur-

phy (appointed by Roosevelt, 1940), and James F.

Burns (appointed by Roosevelt, 1940). Because

Stone was serving as an associate justice at the

time of his accession to chief justice, his seat came

open. It was ﬁ lled on July 11, 1941, by Robert H.

Jackson.

The first addition to the Stone Court was

Wiley B. Rutledge (February 1943), who replaced

James F. Byrnes (resigned October 1942). The

only other addition was Harold H. Burton, who

was appointed by President Harry S. Truman in

Stone Court 701

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