Schultz D. Encyclopedia of the United States Constitution

Подождите немного. Документ загружается.

schools and universities may be legally bound by

what they promise students in their advertising or

student handbooks that may be seen as contrac-

tual promises. Finally, federal funding for private

universities may come with congressional stipula-

tions protecting student rights.

For more information: Foundation for Individ-

ual Rights in Education. FIRE’s Guides to Stu-

dent Rights on Campus. Available online. URL:

http://www.thefire.org. Downloaded May 15,

2008; Johnson, John W. The Struggle for Student

Rights. Lawrence: University of Kansas Press,

1997; Raskin, Jamin B. We the Students: Supreme

Court Cases for and about Students. 2d ed. Wash-

ington, D.C.: CQ Press, 2003.

—Jane G. Rainey

substantive due process

Substantive due process is a constitutional

doctrine that extends the Supreme Court’s role

beyond that of providing due process protection

as a procedural guarantee, to enabling the Court

to review the substance of legislation to determine

whether the law itself, and not just the procedures

followed in its enactment and enforcement, are

constitutional. The signiﬁ cance of extending the

concept of due process protection to the sub-

stance of enacted legislation is that it enables the

Supreme Court to become a virtually equal part-

ner with the legislative and executive branches in

public policy making.

The Fifth Amendment to the United States

Constitution protects the right of individuals not

to be deprived of life, liberty, or property with-

out due process. For the first hundred years of

the United States, the protection offered by the

Supreme Court under the due process clause

amounted to fair notice and hearing only. Chal-

lenges to government action as an infringement of

due process that the Supreme Court was willing

to entertain were limited to charges that proper

legislative procedures had not been followed,

enacted legislation had not been properly pro-

mulgated (made public), or those charged with a

breach of the legislation had not been given a fair

hearing to plead their case. In 1868, the Four-

teenth Amendment was added to the Consti-

tution, requiring the states to provide the same

due process protections imposed on the federal

government under the Fifth Amendment.

In the aftermath of the Civil War, populist

(and later progressive) politics swept the coun-

try, challenging state and local governments to

regulate business more aggressively. Out of this

movement came state consumer and labor protec-

tive measures that made businesses chafe at the

limits placed on their freedom to do business as

they chose. Consequently, businesses felt the need

for a constitutional conceptual framework through

which they could get the courts to take on the role

of examining the substance of legislation to deter-

mine its constitutionality as a check on regulation

of business by elected legislatures. Substantive due

process is the conceptual framework conceived by

big business attorneys to further this end. This

constitutional interpretation of due pro-

cess calls on courts to review the substance of

legislation to determine if an act amounts to an

unconstitutional invasion of businesses’ liberty

under the Fifth and Fourteenth Amendments

and, thus, should be struck down.

Although originally resistant to this expanded

conception of due process, by the 1880s the

Supreme Court had embraced this interpreta-

tion and used it to strike down numerous state

statutes regulating business. Giving credence

to substantive due process as a legitimate inter-

pretation of the Fifth and Fourteenth Amend-

ments put the unelected courts in the position

of second-guessing legislative action by elected

representatives and called into question govern-

ment’s previous and broadly recognized author-

ity to impose regulations on the private sector.

With the institution of substantive due process

as a constitutional norm, the Supreme Court no

longer considered itself blind to the outcomes of

the legislative process.

By the 1930s, with the election of Franklin

D. Roosevelt and his “New Deal,” the Supreme

Court’s almost exclusive protection of business

interests against those of the worker and con-

sumer came to be widely unpopular. Faced with

712 substantive due process

vi+904_EofUSConsti-v2.indd 712 3/20/09 2:18:56 PM

threats to its authority from both the executive

and legislative branches, in 1937 in the case of

WEST COAST HOTEL V. PARRISH (300 U.S. 379, 57

S. Ct. 578 [1937]), the Supreme Court repudiated

the use of substantive due process in behalf of

powerful economic interests but reserved its use

for the protection of the rights of discrete and

insular minorities.

Substantive due process remains a powerful

tool of the Supreme Court in its exercise of judi-

cial review of legislation, securing the Court’s

continuing influence on American politics and

public policy formation.

For more information: Corwin, Edwin S. The

Higher Law Background of American Constitu-

tional Law. Ithaca, N.Y.: Cornell University Press,

1955; O’Brien, David M. Storm Center: The

Supreme Court in American Politics. 7th ed. New

York: W.W. Norton, 2005.

—Phyllis Farley Rippey

supremacy clause

The supremacy clause is found in Article VI of the

United States Constitution.

Under the supremacy clause, the Constitution,

federal laws, and U.S. treaties are the “supreme

law of the land,” and state judges are bound to

uphold the Constitution and laws made pursuant

to it even if they conflict with state laws or the

state constitution.

The supremacy clause was at the center of some

of the most divisive debates in the early Republic.

At issue was the question of who would have the

ﬁ nal say as to whether a federal or state law was

made in pursuance of the Constitution and, there-

fore, entitled to supremacy protection: the federal

government or the states. During the ratiﬁ cation

debates, critics of the Constitution feared that

without a Bill of Rights, the supremacy clause

would result in the destruction of the states. Arti-

cle I, Section 8 of the Constitution gave Congress

the power to “make all Laws which shall be neces-

sary and proper for carrying into Execution” its

powers, and the states feared that Congress would

use the supremacy clause and the necessary

and proper clause to justify any federal law as

supreme over the states.

Another point of contention related to the

supremacy clause was: Who would decide if a

state or federal law, made in pursuance of the

Constitution, would be afforded supremacy sta-

tus? In MARBURY V. MADISON, 1 Cranch (5 U.S.) 137

(1803), Chief Justice John Marshall placed

this prerogative in the Supreme Court by invoking

the clause to strike down Section 13 of the Judi-

ciary Act of 1789 (a federal law), which ordered

the Court to issue writs of mandamus. Marshall

famously wrote, “it is emphatically the province

and the duty of the judicial department to say

what the law is.” If a law violated the Constitu-

tion (the Supreme Law), the Court was obliged to

strike it down.

The Marshall Court also invoked the

supremacy clause to enhance national supremacy

with respect to the states. In McCulloch v. Mary-

land, 4 Wheaton 316 (1819), the Court ruled that

a state tax on the Bank of the United States vio-

lated the supremacy clause. Writing for the Court,

Chief Justice John Marshall argued that all laws

made in pursuance of the Constitution—in this

case, the Bank—were supreme, and therefore

laws repugnant to the Constitution—Maryland’s

tax on non-state banks—violated the supremacy

clause and as such were null and void. Similarly, in

Gibbons v. Ogden, 9 Wheaton (U.S.) 1 (1824), the

Court found that the New York state law giving a

monopoly on steamship travel in New York was an

interference with interstate commerce. The

Court invoked the supremacy clause and made

it clear that a state law that was contrary to the

Constitution, or laws of Congress made in pursu-

ance of the Constitution, was void. In Worcester v.

Georgia, 31 U.S. 515 (1832), Marshall struck down

all Georgia laws governing the Cherokee Indians

on the grounds that the laws violated the federal

laws and treaties in place at the time.

The Supreme Court also clashed with state

courts over the supremacy clause. At issue was

the role, if any, of state judges in interpreting and

enforcing the Constitution. In MARTIN V. HUNTER’S

LESSEE, 14 U.S. 304 (1816), and COHENS V. VIRGINIA,

19 U.S. 264 (1821), the Court answered that ques-

supremacy clause 713

vi+904_EofUSConsti-v2.indd 713 3/20/09 2:18:56 PM

tion in the negative. Accordingly, the supremacy

clause was, as Marshall noted in Cohens, the

“authoritative language of the American people”

and any attempt by state court jurists to interpret

the Constitution or federal laws was subject to

review by the federal judiciary.

As the nation edged toward civil war, the Court

continued to clash with state courts over the

Constitution. In a series of cases involving state-

imposed taxes on state-chartered banks—cases

that focused primarily on whether these taxes

violated the Constitution’s ban on the impair-

ment of contracts (the contract clause)—the

Court used the supremacy clause to its advan-

tage. In Dodge v. Woolsey, 59 U.S. 331 (1855)—a

case where the Court ruled that an Ohio tax on

the state bank violated the contract clause—the

Court argued that the supremacy of the Consti-

tution could be maintained only if there was one

ﬁ nal and authoritative interpreter of constitutional

conﬂ icts between the states and the federal gov-

ernment. Indeed, the supremacy clause would be

“useless” if state court judges had the ﬁ nal say over

the Constitution and laws enacted pursuant to it.

For more information: Bailyn, Bernard, ed. The

Debate on the Constitution: Federalist and Anti-

federalist Speeches, Articles, and Letters during

the Struggle over Ratiﬁ cation. New York: Liter-

ary Classics of the United States, 1993; Rakove,

Jack. Original Meanings: Politics and Ideas in the

Making of the Constitution. New York: Alfred A.

Knopf, 1997.

—Randa Issa

Swann v. Charlotte-Mecklenburg Board of

Education

402 U.S. 1 (1971)

In Swann v. Charlotte-Mecklenburg Board of

Education, the Supreme Court ruled that busing

was a reasonable method of achieving racial inte-

gration in schools. Swann is signiﬁ cant because it

signiﬁ ed that the Supreme Court would not allow

school districts to put off integration any longer. It

also permitted the use of a controversial remedy.

The Swann case is one of a long line of court

cases about school desegregation. The first

major case, B

ROWN V. BOARD OF EDUCATION OF

TOPEKA, KANSAS, 347 U.S. 483 (1954), ruled that

segregated schools violated the equal protec-

tion clause of the Fourteenth Amendment.

The Supreme Court ruled in G

REEN V. COUNTY

SCHOOL BOARD OF NEW KENT COUNTY, VIRGINIA, 391

U.S. 430 (1968), that school districts must take

affirmative action to integrate their schools.

In Swann, the afﬁ rmative action taken by the

district court that oversaw Charlotte-Mecklen-

burg’s desegregation plan was to bus students to

schools that would be racially integrated. The

school district challenged this remedy, but the

Supreme Court upheld it. In his opinion for the

unanimous court, Chief Justice Warren Burger

ﬁ rst established that the federal court system did

have a right to oversee desegregation in schools.

The primary section of the opinion was broken

into four parts. First, Burger argued that the Con-

stitution does not permit a strict racial quota.

However, he upheld the district court’s use of quo-

tas as a starting point, because the lower court had

acknowledged that quotas must be ﬂ exible.

Second, Burger maintained that a district with

a small number of one-race schools (or schools

that were very near to being one-race) was not

necessarily in violation of the Constitution. How-

ever, he also said that those schools should come

under strict scrutiny to determine whether or

not they were related to previous state-supported

dual school systems.

Third, Burger argued that district courts may

alter attendance zones as a means to achieve

desegregation. He reiterated the Green argument

that a simple race-neutral attendance policy, if

it did not achieve integration, was not enough to

comply with Brown. Instead, a district court may

use grouping or pairing of noncontiguous atten-

dance zones in order to achieve integration.

Finally, Burger addressed the use of busing for

integration. Because assigning children to their

neighborhood schools would not create integra-

tion, Burger argued that the district court had the

power to approve a plan that assigned children

farther away. He did acknowledge that there were

limits to the use of busing; for example, he said

there may be a legitimate objection when children

714 Swann v. Charlotte-Mecklenburg Board of Education

vi+904_EofUSConsti-v2.indd 714 3/20/09 2:18:56 PM

were assigned to bus rides so long that their health

and safety might be threatened, or when a long

bus ride infringed upon the educational process.

Ultimately, Swann is most well known for the

Supreme Court’s approval of the use of busing to

create integrated schools. Swann did not say that

busing must be used, only that it may be used.

For more information: Hochschild, Jennifer.

The New American Dilemma: Liberal Democ-

racy and School Desegregation. New Haven,

Conn.: Yale University Press. 1984; Orﬁ eld, Gary.

Must We Bus?: Segregated Schools and National

Policy. Washington, D.C.: The Brookings Institu-

tion, 1978.

—Ryane McAuliffe Straus

Swift & Co. v. United States 196 U.S. 375

(1905)

In Swift & Co. v. United States, the Supreme Court

upheld an injunction against the so-called Beef

Trust in a major federal prosecution under the

Sherman Antitrust Act of 1890. The Swift Court

distanced itself from earlier Court decisions that

had severely limited the applicability of the act, and

in so doing helped expand not only federal antitrust

enforcement, but also Congress’s power under the

commerce clause of the Constitution.

The massive expansion of American industry

in the late 1800s was accompanied by the emer-

gence of “trusts”—combinations of companies

that attempted to gain monopolistic control of

an industry, often through unscrupulous tactics.

As trusts began to threaten vital sectors of the

economy, Congress sought to intervene. But leg-

islators were unsure whether they had constitu-

tional authority to address the problem: Although

Article I gives Congress the power to regulate

interstate commerce, lawmakers had never

before attempted to use this authority to meddle

with the national economy. In spite of this uncer-

tainty, Congress in 1890 passed the Sherman Act,

which purported to ban many forms of anticom-

petitive behavior. It would be up to the courts to

decide how far the act could go toward breaking

up the trusts.

In its ﬁ rst encounter with the Sherman Act, the

Supreme Court gave it a restrictive scope. U

NITED

STATES V. E.C. KNIGHT CO., 156 U.S. 1 (1895),

held that the act could not be used to prevent a

merger between companies engaged in sugar

reﬁ ning because production and manufacturing

activities were inherently local and not a part of

interstate commerce. This ruling chilled federal

antitrust efforts until President Theodore Roos-

evelt took ofﬁ ce in 1901 and attacked the trusts

with renewed vigor.

The Swift case itself dealt with the federal

government’s attempt to break up the Beef Trust,

a cartel of meatpacking companies that together

accounted for nearly 60 percent of the national

market in fresh meat. The companies had agreed

to fix their prices and to avoid bidding against

each other, and had jointly negotiated for ille-

gally low shipping rates with railroad compa-

nies. When the New York Herald and Chicago

Tribune brought these arrangements to light in

1902, Roosevelt instructed the Justice Depart-

ment to bring suit under the Sherman Act. The

ﬁ rms, relying in part on the E.C. Knight deci-

sion, argued that the business practices at issue

were purely local and thus beyond the reach of

federal prosecution.

Four new justices had joined the Supreme

Court since E.C. Knight, however, and the Court

ruled unanimously in favor of the federal gov-

ernment. Justice Oliver Wendell Holmes’s

opinion declared that, although the specific

transactions between the companies were indeed

intrastate, they were nonetheless a part of a “cur-

rent” or “stream” of commerce that was irrefutably

interstate in character. Moreover, their effect on

interstate commerce was “direct” and “not acci-

dental, secondary, remote, or merely probable.”

Holmes’s stream-of-commerce theory would later

be employed by the Court to permit expansion

of both the U.S. enforcement power in antitrust

cases speciﬁ cally, and Congress’s power under the

commerce clause more generally.

For more information: Gordon, David. “Swift

& Co. v. United States: The Beef Trust and the

Stream of Commerce Doctrine,” American

Swift & Co. v. United States 715

vi+904_EofUSConsti-v2.indd 715 3/20/09 2:18:57 PM

Journal of Legal History 28, no. 3 (July 1984):

244–279.

—Bruce Huber

symbolic speech

Symbolic speech is conduct or activity expressing

an idea or emotion without the use of words or lan-

guage. Some forms of speech are protected under

the First Amendment to the U.S. Constitution.

Although the description of symbolic speech

seems apparent, there is a difficulty that arises

between speech and action. There is an inherent

relationship between speech and nonspeech com-

munication in certain contexts, and when these

elements are simultaneous in occurrence, gov-

ernment regulation of the nonspeech component

might be justiﬁ ed even if it infringed on speech to

some extent. So, many forms of symbolic speech

and expression are protected by the First Amend-

ment and the free speech clause, while others are

not protected. Over time, the Court has devel-

oped several rules that depend upon certain cir-

cumstances and factors to evaluate what symbolic

speech is protected.

Examination of Chaplinsky v. State of New

Hampshire, 315 U.S. 568 (1942), provides an

explanation for a freedom of speech violation. This

case discusses the First Amendment and asks what

constitutes free speech. Justice Murphy, joined by

unanimous consent, concluded that Chaplinsky’s

use of “ﬁ ghting words . . . tend to incite an imme-

diate breach of the peace.” The Court held that

Chaplinsky’s conduct was not protected by the

First Amendment under the free speech clause.

In this case, Chaplinsky was arrested for verbally

assaulting a police ofﬁ cer.

Later, in U

NITED STATES V. O’BRIEN, 391 U.S.

267 (1968), the 7-1 vote was led by Justice Warren

and concurred in by Justice John Harlan, who

indicated that the mutilation of a Selective Ser-

vice certiﬁ cate was unconstitutional and subject

to punishment because this system ensures the

proper functioning of the United States military

draft. Justice William O. Douglas dissented,

and Justice Marshall did not participate in the

decision of this case.

EXAS V. JOHNSON, 491 U.S. 397 (1989), further

examined the First Amendment’s free speech

clause by ruling on ﬂ ag desecration. In a 5-4 deci-

sion, Justice William J. Brennan, Jr., joined by

Justice Anthony M. Kennedy’s concurrence,

ruled that Johnson’s expressive conduct had a

political nature and this category is protected

under the First Amendment.

Resulting from these rulings, a series of tests

have been established that provide for the cate-

gorization of conduct as protected expression or

symbolic speech. These tests are known as the

strict scrutiny test and the O’Brien (interme-

diate scrutiny) test.

These tests should be understood in the broader

jurisprudence of the Court, and with respect to

the Rehnquist and Roberts Courts, jurispru-

dence regarding symbolic speech has been con-

servatively expressed within the prior free speech

regime and with general support for precedent.

For more information: Anastaplo, George.

Reflections on Constitutional Law. Lexington:

University Press of Kentucky, 2006; Shapiro, Mar-

tin, and Rocco Tresolini. American Constitutional

Law. New York: Macmillan, 1983.

—Michael W. Hail and Erica Allen

716 symbolic speech

vi+904_EofUSConsti-v2.indd 716 3/20/09 2:18:57 PM

717

ﱶﱷﱸ

Taft Court (1921–1930)

The Taft Court refers to the Supreme Court era

under the chief justiceship of William Howard

Taft. It was during this era that the Court con-

fronted many constitutional issues arising out of

the Progressive Era.

William Howard Taft, born September 15,

1857, in Cincinnati, Ohio, held a number of

positions during his career and in service to his

country prior to fulﬁ lling his lifelong ambition to

become chief justice of the Supreme Court. It was

his upbringing as the son of a lawyer and judge

(Alphonso Taft), who as a prominent Republican

served as secretary of war under President Ulysses

S. Grant, along with Taft’s own career progression

starting with his appointment as assistant pros-

ecutor of Hamilton County in Ohio, that led him

to his post as chief justice. In addition to his ﬁ rst

appointment as assistant prosecutor, Taft was also

appointed local collector of internal revenue in

1882. Five years later saw his further progression

and appointment as a judge to the Ohio Superior

Court, where he sat until 1890, when President

Benjamin Harrison appointed Taft as solicitor gen-

eral of the United States. Two years later President

Harrison appointed Taft as an associate judge for

the newly created U.S. Court of Appeals for the

Sixth Circuit. He became chief judge and held a

post within the Sixth Circuit until 1900. While

serving in this post, Taft also earned a doctor of

laws degree from Yale Law School.

It was perhaps through his work and asso-

ciation with various presidents that Taft rose to

prominence with appointments such as chief civil

administrator to the Philippines, by President

McKinley, in 1900. Later he served as governor-

general of the Philippines from 1901 to 1903,

before himself serving as President Roosevelt’s

secretary of war in 1904. It was because of his

strong beliefs and work ethic that Roosevelt began

to plan for Taft to succeed him as the Republi-

can presidential candidate in 1908. Taft ran and

won the presidency in 1908, despite the fact that

he would have preferred a post as Supreme Court

chief justice instead.

As president, Taft’s style of governing differed

dramatically from that of his predecessor and

mentor. Most signiﬁ cantly, Taft believed in the use

of law and working within its conﬁ nes, rather than

stretching presidential powers as Roosevelt had.

During his presidency, Taft’s accomplishments

included: the establishment of a parcel post sys-

tem, expansion of the civil service, strengthening

of the Interstate Commerce Commission,

the signing into law of The Organic Act of the

Department of Labor—thereby creating the U.S.

Department of Labor—and promoting the enact-

ment of two constitutional amendments in the

form of the Sixteenth Amendment, regard-

ing income tax, and the Seventeenth Amend-

ment, mandating the direct election of senators

by the people. In addition to these, he pursued

what he termed “dollar diplomacy” to further eco-

nomic development of less-developed nations, as

well as using the opportunity to appoint six jus-

tices to the Supreme Court.

Following his reelection defeat in 1913, Taft

went on to serve as Kent Professor of Constitu-

tional Law at Yale Law School and as president

of the American Bar Association. It was in 1921,

with the death of Chief Justice Edward Douglas

White, that President Harding presented Taft

with his lifelong ambition, nominating Taft to

the post of chief justice. Taft’s nomination lacked

vi+904_EofUSConsti-v2.indd 717 3/20/09 2:18:57 PM

any opposition and was unanimously conﬁ rmed

by the Senate. While chief justice of the U.S.

Supreme Court, Taft wrote the opinion in over 250

cases—utilizing a strict constructivist approach to

constitutional interpretation that was his-

torically and contextually based.

Of particular note during his time as chief jus-

tice, the Court examined the question of whether

the First Amendment prosecution and pro-

tections extended to states, and not only to the

federal government. In two particular cases, the

Court decided that the First Amendment did

in fact extend the rights of states to prosecute

individuals inciting violence against the U.S.

government and also extended the protection of

individual rights by states, according to the Bill

of Rights. Prior to these decisions, fewer rights

were conferred by states to individuals than were

protected under the Bill of Rights. Therefore,

through their decisions, the Taft Court high-

lighted the states’ obligations to ensure protection

of individual rights under the First Amendment.

The G

ITLOW V. NEW YORK, 268 U.S. 652 (1925),

case provided the benchmark for future deci-

sions that were to strike down state laws that

violated individual rights protected under the

First Amendment. Later cases, such as Fiske v.

Kansas, 274 U.S. 380 (1927), solidiﬁ ed that posi-

tion and upheld the incorporation doctrine

(which holds that selected provisions of the Bill

of Rights are applicable to states through the due

process clause of the Fourteenth Amend-

ment) as undertaken in Gitlow. Other opinions

of note written by Taft during his tenure as chief

justice include: BAILEY V. DREXEL FURNITURE CO.,

259 U.S. 20 (1922), whereby the 1919 Child Labor

Tax Law was held unconstitutional; MYERS V.

UNITED STATES, 272 U.S. 52 (1926), providing the

president of the United States with the power to

unilaterally dismiss executive appointees who had

been conﬁ rmed by the Senate; and OLMSTEAD V.

UNITED STATES, 277 U.S. 438 (1928), the majority

ruling delivering the opinion that the Fourteenth

Amendment’s proscription on unreasonable

search and seizures did not cover wiretaps.

Prior to his retirement in 1930, Taft success-

fully argued for the construction of the Supreme

Court building on the basis that, as part of a sepa-

rate branch of government, the Court needed to

distance itself from Congress, and thereby needed

its own facilities rather than chambers located

within the basement of the Capitol building. Taft,

however, was not to witness the building’s comple-

tion in 1935.

Taft retired on February 3, 1930, as chief jus-

tice due to ill health. He was succeeded as chief

justice by Charles Evans Hughes, whom Taft him-

self had appointed to the U.S. Supreme Court

during his tenure as president. Taft died a little

over a month after his retirement from the Court,

on March 8, 1930, due to heart failure. As of 2006,

he remains the only person to have held positions

in both the executive and judicial branches of the

United States government, as well as the honor of

leading both branches during his tenure in each.

For more information: Pringle, Henry F. The

Life and Times of William Howard Taft. New York:

Farrar & Reinhart, 1939; The Supreme Court His-

tory. “Taft Court (1921–1930).” Available online.

URL: http://www.supremecourthistory.org/02_

history/subs_history/02_c10.html. Accessed May

15, 2008; Taft, William Howard. The Collected

Works of William Howard Taft. Edited by David

H. Burton. Athens, Ohio: Ohio University Press,

2001 (6 of 8 volumes have been published); “Biog-

raphy of William Howard Taft.” Available online.

URL: www.whitehouse.gov/history/presidents/

wt27.html. Accessed May 15, 2008.

—Dale Mineshima-Lowe

takings clause

The takings clause of the Fifth Amendment pro-

vides government—both national and state—with

the power to take private property under the con-

cept of eminent domain, even if the owner does

not consent. The takings clause reads, “nor shall

private property be taken for public use, without

just compensation.” This provision of the U.S.

Constitution is intended both to empower govern-

ment—by allowing government to take property—

and to protect property owners from government

abuse through the requirements that takings are

718 takings clause

vi+904_EofUSConsti-v2.indd 718 3/20/09 2:18:57 PM

limited to public uses and that the owner receive

just compensation.

When drafted and ratiﬁ ed, the takings clause

was a largely uncontroversial compromise

between the conﬂ icting values of protecting pri-

vate property rights and the expressed need for a

vigorous national government. During the Revo-

lutionary period and beyond, Americans increas-

ingly deﬁ ned economic liberty as a central value.

English common law, transferred to the American

colonies, allowed government to take land as long

as compensation was paid and government had

a public purpose for the taking. But these con-

cepts were ignored at times. In some colonies,

unimproved land required no compensation at

all. Similarly, the idea of public purpose could be

deﬁ ned broadly. It was not unusual for states to

permit eminent domain proceedings that allowed

land to be taken by private enterprises in order to

encourage the growth of local industries as well

as privately owned highways or other infrastruc-

ture improvements. By the time of the Revolution,

these practices were in decline, and the constitu-

tions of Vermont and Massachusetts included tak-

ings provisions that explicitly limited government

power. Other states, including Virginia, wrote

the common law limits on takings into state laws.

Many leading Americans of the founding period

saw the need for economic growth and believed

that the power of eminent domain was a powerful

tool to encourage such growth.

During the early history of the Republic, the

takings clause of the Fifth Amendment applied

only to the national government. This position

was upheld by the Supreme Court in the 1833

decision, B

ARRON V. MAYOR AND CITY COUNCIL OF

BALTIMORE (32 U.S. 243). Except for cases where

the federal government was taking land, Barron

left landowners subject to the various provisions of

state law. The original states, as they revised their

state constitutions, and new states, as they entered

the Union, typically included takings provisions.

But the states, wanting to encourage economic

development while being short of funds, often

took narrow interpretations of these provisions.

In Chicago, Burlington, and Quincy Railroad

Company v. Chicago, 166 U.S. 226 (1897), the

Court changed its mind on the application of the

takings clause to the states. The Court reasoned

that the due process clause of the Fourteenth

Amendment, ratiﬁ ed in 1868, included a protec-

tion against uncompensated takings.

With the power—and the protections—of

eminent domain well established, the interpreta-

tion of the takings clause has centered on three

questions in the 20th and 21st centuries: What is

a taking? What is public use? What is just com-

pensation? The last question is the most easily

explained. Generally, when government wishes

to acquire property from a private owner, govern-

ment ofﬁ cials negotiate a price with the property

owner. If a price is not agreed upon, government

ofﬁ cials can assert the power of eminent domain

and make what it believes is a fair market value

offer. Property owners may go to court and chal-

lenge the government’s offer. A judge will decide

on what compensation—price—is due the prop-

erty owner. However, the property owner cannot

challenge the taking of the property.

The answers to the two remaining questions

were clear for much of the 20th century, but have

been the subject of controversy over the last quar-

ter-century. In answer to the question of what is

a taking, the courts have ruled that physical inva-

sions of property are a taking whether government

wishes to acquire the private property for a valid

purpose, such as land to build a new school, or

invades it in some other way, such as ﬂ ooding the

property as part of a ﬂ ood control project. Inva-

sions need not be total, nor physical, to be a taking.

For example, in United States v. Causby, 328 U.S.

256 (1946), the Supreme Court found that when a

new military air base had created so much noise

that it made an adjacent and existing chicken farm

worthless, the federal government was required to

pay compensation in the same way that would be

required were the invasion physical.

The Supreme Court has also recognized that

there are limits to government’s power to regulate

property, while giving government wide discre-

tion to regulate. Federal, state, and local govern-

ments widely regulate land use for a variety of

reasons, including zoning, historic preservation,

and environmental protection. As Justice Oliver

takings clause 719

vi+904_EofUSConsti-v2.indd 719 3/20/09 2:18:58 PM

Wendell Holmes stated in the rule still fol-

lowed today, in Pennsylvania v. Mahon, 260 U.S.

393 (1922), “while property may be regulated to a

certain extent, if regulation goes too far it will be

recognized as a taking.” Since 1987, the Supreme

Court has been more sympathetic to claims of

landowners who argue that government regula-

tion has gone “too far.” In one leading case, Lucas

v. South Carolina Coastal Council, 505 U.S. 1003

(1992), the Supreme Court held that regulations

that precluded a beachfront property owner from

building a home on the property because of con-

cerns about beach erosion were a taking. The

opinion by Justice Antonin Gregory Scalia

was limited to situations where regulation elimi-

nates the total value of the property. In other

recent decisions, the Court has found that even

temporary total takings require compensation, as

do total takings of portions of property. While the

Court has been asked on numerous occasions to

ﬁ nd that the taking that diminishes only part of the

value of property is a taking, it has not done so.

With the 2005 Supreme Court’s decision in

ELO V. CITY OF NEW LONDON, 545 U.S. 469 (2005),

the question of what is public use has been in the

news. In Kelo, the Court found that state and local

governments may use their eminent domain power

to transfer property from one private owner to

another. The decision, built on a 1954 case, Ber-

man v. Parker, 346 U.S. 26 (1954), authorized the

federal government to do the same. Susette Kelo

was one of many homeowners whose land was

taken to clear the way for a large-scale development

intended to buoy the economy of depressed New

London, Connecticut. The public outcry at this

decision was unusual in size and scope. Editorial

pages criticized the decision, and polling showed

widespread opposition to the ruling. In his opinion

of the Court, Justice John Paul Stevens noted

that “nothing in our opinion precludes any State

from placing further restrictions on its exercise

of the takings power.” Since the decision in June

2005, 34 states have enacted laws limiting the use

of eminent domain power. In addition, President

George W. Bush signed an executive order, on the

one-year anniversary of the Kelo decision, limiting

the federal use of the eminent domain power.

For more information: Schultz, David. Prop-

erty, Power, and American Democracy. New

Brunswick, N.J.: Transaction, 1992.

—William R. Wilkerson

Taney, Roger (1777–1864) Supreme Court

justice

Roger Brooke Taney was the chief justice of the

United States Supreme Court for the 28-year period

between 1836 and 1864. He was the 25th justice

and the ﬁ fth chief justice to serve on the Court.

Taney was born in Calvert County, Mary-

land, where his parents owned a tobacco planta-

tion. Taney was educated at Dickinson College

in Pennsylvania. After graduating in 1795, Taney

then read law for approximately two years under

the supervision of Jeremiah Chase, a Maryland

lawyer. Taney’s political career began in state

politics. In 1816 he was elected as a Federalist

to the Maryland state senate. He would serve as

state attorney general before moving to national

politics during the presidency of Andrew Jackson.

Between 1831 and 1834, Taney held positions as

attorney general, acting secretary of war, and,

ﬁ nally, as secretary of the treasury.

Taney was first nominated to the Supreme

Court in 1835, as a replacement to Justice Duvall.

The Senate, in opposition to Taney’s nomination,

indeﬁ nitely postponed the conﬁ rmation vote. Just

one year later, President Jackson again nominated

Taney, this time to ﬁ ll the position of chief justice,

which had been vacated by John Marshall. In

March 1836, the Senate confirmed Taney by a

vote of 29 to 15.

Once on the Court, Taney’s efforts were

directed primarily toward refining the expan-

sive legal policy of his predecessor, Chief Justice

John Marshall. Marshall’s legal legacy had left a

series of opinions that vastly expanded the power

of the federal government. MARBURY V. MADISON,

5 U.S. 137 (1803), for example, created judicial

review, which is the power of the judiciary to

assess the constitutionality of laws passed by

Congress. Taney sought not to dismantle national

power, but rather to strike a crucial balance

between state and federal power.

720 Taney, Roger

vi+904_EofUSConsti-v2.indd 720 3/20/09 2:18:58 PM

One example of Taney’s effort to ﬁ nd this bal-

ance is a series of decisions known collectively as

the License Cases, 46 U.S. 504 (1847). At issue in

these cases was whether anti-liquor regulations

passed by Massachusetts, New Hampshire, and

Rhode Island violated the Constitution. Mer-

chants and others against the regulations argued

that only Congress could regulate commerce.

Taney’s opinion rebuked that position, argu-

ing that the states may regulate their own inter-

nal affairs. So long as the states did not ban the

importation of liquor, the regulation of it through

taxes was permissible.

Regardless of his contribution to the con-

tinually developing state–federal power debate,

Taney’s greatest historical legacy will be his

involvement in the Court’s 1857 decision in D

RED

SCOTT V. SANDFORD (60 U.S. 393), which is gener-

ally acknowledged as the most infamous and ill-

regarded decision in the history of the Supreme

Court. In Dred Scott, Chief Justice Taney wrote a

broad opinion holding that the prohibition of slav-

ery in a U.S. territory violated the due process

rights of slaveholders. Most notoriously, Taney

went on to argue that no one who was an African

descendant could ever obtain citizenship in the

United States.

The impact of Dred Scott was wide and severe.

The Court decision was one of the reasons for the

resignation of Justice Curtis later that same year.

While Taney had hoped the decision would pre-

vent conﬂ ict between North and South, it served

only to embolden the opponents of slavery. At the

same time, the decision brought on tremendous

criticism of the Court for delving into so-called

political questions.

In 1864, after nearly 29 years as chief justice,

Taney died in Washington, D.C. His length of

time served makes him the second-longest serving

chief justice in the history of the Supreme Court

(second only to John Marshall). Taney’s position

was ﬁ lled by Chief Justice Salmon P. Chase.

For more information: Freedman, Suzanne.

Roger Taney: The Dred Scott Legacy. Springﬁ eld,

N.J.: Enslow Publishers, 1995; Siegel, Martin.

The Supreme Court in American Life. Vol. 3, The

Taney Court: 1836–1864. Millwood, N.Y.: Associ-

ated Faculty Press, 1987.

—Ryan C. Black

Taney Court (1836–1864)

The Taney Court refers to the period when the

U.S. Supreme Court was under the leadership

of Chief Justice Roger Taney. Under Taney,

the Supreme Court reﬁ ned and developed many

of the legal doctrines ﬁ rst articulated under his

predecessor, Chief Justice John Marshall,

especially in the direction of moving away from

some of the nationalistic ideas that had supported

federal over state power. Instead of thinking of

the Taney Court as reversing Marshall Court

doctrines, it is more accurate to see it as having

rethought them to accommodate states’ rights.

Yet, whatever legal legacy the Taney Court left on

the Constitution, the issue of slavery and the Civil

War overshadowed everything it did.

Most accounts or assessments of the Taney

Court are made in terms of its comparison to the

Supreme Court under Chief Justice John Mar-

shall. The Marshall Court generally represented a

judicial and political philosophy of the Federalist

political party. It was a philosophy that supported

a strong national government in comparison to

states, and it generally favored property rights

over government power. In cases such as GIBBONS

V. OGDEN, 22 U.S. 1 (1824), involving the com-

merce clause; DARTMOUTH COLLEGE V. WOOD-

WARD, 17 U.S. 518 (1819), with the contract

clause; and McCulloch v. Maryland, 17 U.S. 316

(1819), upholding the power of the national gov-

ernment to create a national bank immune from

state taxation, the Marshall Court demonstrated

its commitment to this nationalistic philosophy.

But if the Marshall Court represented the views

of the Federalists, the Taney Court reﬂ ected the

views of President Andrew Jackson and his popu-

list Democratic Party values. This would be a judi-

cial philosophy more supportive of state interests,

property rights, and the interests of corporations

than the Marshall Court.

Serving originally in Andrew Jackson’s cabinet

as secretary of the treasury and attorney general,

Taney Court 721

vi+904_EofUSConsti-v2.indd 721 3/20/09 2:18:58 PM