Schultz D. Encyclopedia of the United States Constitution

Подождите немного. Документ загружается.

in an Age of Terrorism.” Cornell Journal of Law

and Public Policy 12 (2003): 319–372; Dershow-

itz, Alan. Why Terrorism Works. New Haven,

Conn.: Yale University Press, 2002; Klarman,

Michael J. “The Racial Origins of Modern Crimi-

nal Procedure.” Michigan Law Review 99 (2000):

48–97; Langbein, John. Torture and the Law of

Proof: Europe and England in the Ancien Regime.

Chicago and London: University of Chicago Press,

1997; Lokaneeta, Jinee. Legal Discourses on Tor-

ture in Contemporary Liberal Democracies: The

United States and India. Ph.D. dissertation, Uni-

versity of Southern California, Los Angeles, 2006;

Parry, John T. “Escalation and Necessity: Deﬁ n-

ing Torture at Home and Abroad.” In Torture: A

Collection, edited by Sanford Levinson, 145–165.

New York: Oxford University Press, 2004; Peters,

Edward. Torture. New York: B. Blackwell, 1985;

Skolnick, Jerome H. “American Interrogation:

From Torture to Trickery.” In Torture: A Col-

lection, edited by Sanford Levinson, 105–129.

New York: Oxford University Press, 2004; Chafee

Zechariah, Jr., Walter H. Pollak, and Carl Stern.

The Third Degree: Report to the National Com-

mission on Law Observance and Enforcement

(June 1931). New York: Arno Press and New York

Times, 1969.

—Jinee Lokaneeta

treason

Treason is the only crime that is specifically

defined, in Article III, Section 3 of the

Constitution.

Article III, Section 3 of the Constitution

deﬁ nes treason as “levying war against the United

States or giving aid and comfort to an enemy of

the United States.” It also requires that in a trial

for treason the accused must either confess in

open court or the prosecution must produce two

witnesses to an overt act. Since treason is a breach

of the loyalty owed to a country, it can be commit-

ted only by one who owes such loyalty, a citizen

or legal resident of the country. The constitutional

framers chose to place grave restrictions on its

use. In the words of Benjamin Franklin during

the constitutional debates, “Prosecutions for trea-

son were too virulent and perjury too easily made

use of against the innocent.” The Constitution also

gives Congress the power to set the punishment

for treason but restricts the punishment to the

accused. For example, the family of the accused

shall not be “attainted” (lose their civil rights)

as had been the practice in England.

Throughout American history, several notable

individuals have been placed on trial for treason.

For example, in 1807 former vice president Aaron

Burr was acquitted on charges of conspiracy aris-

ing out of allegations that he wanted to form an

independent nation in the middle of what was then

the Louisiana territory. In 1859, John Brown, an

abolitionist, was convicted of treason by the state

of Virginia as a result of his raid at Harpers Ferry,

Virginia, where he had seized a federal arsenal as

part of an effort to help free slaves. During the

Civil War the Congress, citing its war powers,

passed the Confiscation Act of 1862 to “punish

treason and rebellion.” While several lower courts

found activities in support of the Confederacy

treasonous, a general amnesty in 1868 pardoned

all Confederates.

After World War II and during the cold war,

fear of communist spying and inﬁ ltration led to the

prosecution of numerous individuals for espionage

under the Smith Act or other laws. Espionage laws

refer to what is commonly known as spying, and

individuals, whether they are American citizens or

foreigners, can be convicted on these laws, whereas

noncitizens cannot be tried for treason, since they

do not have the required loyalty to the United

States. Finally, it is easier to convict for espionage

than it is for treason. Among notable convictions

for espionage rather than treason were Julius and

Ethel Rosenberg. In 2002, John Walker Lindh, an

American citizen who fought for the Taliban, pled

guilty to conspiracy to murder Americans.

The term treason appears in three other places

in the Constitution: Legislator’s Privilege from

Arrest (Article I, Section 6), impeachment

clause (Article II, Section 4), and the interstate

comity clause (Article IV, Section 2), in each case

beginning a list of offenses, e.g., in the impeach-

ment clause, “treason, bribery or other high

crimes and misdemeanors.”

742 treason

vi+904_EofUSConsti-v2.indd 742 3/20/09 2:19:05 PM

For more information: Hurst, James Willard.

The Law of Treason in the United States: Col-

lected Essays. Westport, Conn.: Greenwood,

1978; Klement, Frank L. Dark Lanterns: Secret

Political Societies, Conspiracy and Treason Tri-

als in the Civil War. Baton Rouge: Louisiana State

University Press, 1984; Melton, Buckner F. Aaron

Burr: Conspiracy to Treason. New York: Wiley,

2002.

—James R. Fox

treaty

A treaty is a formal, solemn, binding agreement

between nations. The U.S. Constitution refers to

treaties in several places, making them part of the

law. The term “convention” is often used when

the treaty involves several nations—a multilateral

treaty. Nations also conclude agreements that fall

short of the status of treaty, agreements that do

not have the formal status that comes from the

process of ratification. Generally, according to

the Vienna Convention on the Law of Treaties, all

international agreements are, more or less, bind-

ing on the parties to the agreement, pacta sunt

servanda (agreements must be served).

Treaties have been a part of statecraft at least

since biblical times and were common among the

Greek city-states. The United States, under the

Articles of Confederation, had negotiated treaties

that were viewed as critical to sustaining inde-

pendence from England and to avoiding involve-

ment in European wars that would be detriment

to the new nation. The delegates to the Consti-

tutional Convention agreed that keeping the

commitments made in treaties was important to

the new country’s standing in the world, while

some delegates worried that treaties might be

used as a tool to disadvantage certain of the states,

particularly in matters of trade.

The Constitution in Article II, Section

2, Clause 2 divides the power to make treaties

between the president, who negotiates, and the

Senate, which gives its “advice and consent” and

must “concur” in the treaty by a two-thirds major-

ity. Consent and two-thirds concurrence autho-

rizes the president to ratify a treaty, though the

term ratiﬁ cation does not appear in the Constitu-

tion. The Senate’s advice was sought by President

Washington, but it became clear that involving the

Senate in the initial development of treaties was

cumbersome, and the practice was dropped. Even

so, presidents often consult with members of the

Senate about treaty negotiations. Congress may

urge the president to a certain course through res-

olutions. Senate concurrence in a treaty may come

with conditions or reservations, forcing the presi-

dent to inform the other parties of such conditions

and, in some cases, renegotiate the agreement. To

avoid this in the conclusion of trade agreements,

several presidents have been given a “fast track”

authority wherein the Congress promises a timely

up or down vote on agreements with no conditions

or changes.

The United States enters into several other

kinds of international agreements that do not fol-

low the Senate ratiﬁ cation process. The Congress,

by simple majority of both houses, may authorize

the president to conclude an international agree-

ment in areas where Congress has power to legis-

late (congressional-executive agreements). Trade

agreements often take this form. The president is

also competent to enter into international agree-

ments that are within the sphere of executive

power (sole executive agreements), such as an

agreement to base U.S. troops in a foreign country

(a Status of Forces Agreement), within his power

as commander in chief. For purposes of inter-

national law, all these agreements produce bind-

ing international obligations.

Article VI, Clause 2 of the Constitution declares

that treaties made by the United States (along

with the Constitution and laws made by Con-

gress) are the “supreme Law of the Land.” This

provision grew out of the conﬂ ict between state

law and the Jay Treaty that ended the Revolution-

ary War. State laws in direct conﬂ ict with com-

mitments made by the United States threatened

to undermine the peace (W

ARE V. HYLTON, 3 U.S.

199 [1796]). By making treaties part of the law

of the land, the Founders introduced the idea of

the self-executing treaty, i.e., treaties would have

domestic legal application just like any other legis-

lative act. But not all provisions of all treaties are

treaty 743

vi+904_EofUSConsti-v2.indd 743 3/20/09 2:19:05 PM

self-executing. Often treaties require additional

legislation. The Jay Treaty contained self-execut-

ing provisions (state laws in conﬂ ict with the obli-

gation under the treaty to honor debts were void),

but provisions requiring the United States to make

certain payments required congressional authori-

zation of the funds.

The judicial power created by Article III

of the U.S. Constitution includes cases aris-

ing under treaties made by the United States.

Because treaties are equivalent in status to other

laws made by Congress, conﬂ icts inevitably arise.

Courts will go to great lengths to interpret a treaty

to make it consistent with other laws. In cases

where it is impossible to reconcile a treaty with

another law, the newer provision will prevail. In

many instances the Supreme Court has refused

to answer questions that flow from treaties by

invoking the political question doctrine, i.e., the

question presented is not a legal question but a

matter for the executive or legislature to decide.

Such questions include whether a foreign govern-

ment has the authority to enter into a particular

agreement (Doe v. Braden, 57 U.S. 635 [1853])

or whether a treaty has lapsed because a foreign

party has lost its sovereign independence (Clark

v. Allen, 331 U.S. 503 [1947]).

The Constitution is silent on the question of

termination of treaties. Treaties often contain

provisions for their termination by notice to the

other party. The Senate’s power to concur in the

making of treaties might imply a role in termina-

tion, but the practice has varied considerably. In

one instance Congress passed an act terminating

a treaty, the treaty with France of 1778 (Bas v.

Tingy, 4 U.S. 37 [1800]). Congress has also autho-

rized the president to terminate treaties, and pres-

idents have acted on their own. An example of the

latter was President George W. Bush’s withdrawal

of the United States from the Anti-Ballistic Mis-

sile Treaty. Originally made with the Soviet Union

by President Richard Nixon in 1972 with Sen-

ate concurrence, four former states of the Soviet

Union, including Russia, succeeded to the treaty

at the Union’s breakup. The succession was con-

ﬁ rmed by a memorandum of understanding nego-

tiated by the Clinton administration but never

submitted to the Senate. In 2001 President Bush

notiﬁ ed Russia that the United States would with-

draw from the treaty in six months as required by

the treaty’s termination clause.

The United States government made treaties

with various of the Native American tribes, though

they were not sovereign nations possessing terri-

tory. Chief Justice John Marshall confirmed

the practice in Cherokee Nation v. Georgia, 30

U.S. 1 (1831). Concluding treaties with Indian

tribes ended with the Indian Appropriation Act of

1871, which reafﬁ rmed existing treaties, though

over the years these treaties have been more hon-

ored in the breach.

For more information: Aust, Anthony. Modern

Treaty Law and Practice. New York: Cambridge

University Press, 2000; Johnson, Loch K. The

Making of International Agreements: Congress

Confronts the Executive. New York: New York

University Press, 1984; United States Senate,

Committee on Foreign Relations. Treaties and

Other International Agreements: the Role of the

United States Senate. Washington, D.C.: U.S.

Government Printing Ofﬁ ce, 2001.

—James R. Fox

Turner Broadcasting System v. Federal

Communications Commission

520 U.S.

180 (Turner II)

(1997)

In Turner Broadcasting System, Inc. v. Federal

Communication Commission (Turner II), the

Court afﬁ rmed the must-carry provisions of the

Consumer Protection and Competition Act of

1992, mandating that cable television operators

give free carriage to all local television broadcast

stations. The Court found that the law did not

impermissibly infringe upon cable system opera-

tors’ free speech rights. Deferring to Congress’s

fact-ﬁ nding between Turner I and Turner II, the

Court held that the regulations were content-

neutral and deserved only intermediate scrutiny

under the First Amendment.

In Turner Broadcasting System v. Federal

Communications Commission (Turner I), 512

U.S. 622 (1994), Congress argued that the ratio-

744 Turner Broadcasting System v. Federal Communications Commission

vi+904_EofUSConsti-v2.indd 744 3/20/09 2:19:05 PM

nale for the must-carry rules was: (1) preserving

the benefits of local television service, (2) pro-

moting the widespread dissemination of informa-

tion from diverse sources, and (3) promoting fair

competition in the video marketplace. Thus Con-

gress believed that the provisions were content-

neutral. The Court agreed, ﬁ nding no attempt by

the provisions to distinguish between favored and

disfavored speech. Thus the Court held that the

appropriate constitutional standard for the act was

intermediate scrutiny.

Using the framework set forth in U

NITED STATES

V. O’BRIEN, 391 U.S. 367 (1968), the Court reiter-

ated that “[a] content neutral regulation will be sus-

tained under the First Amendment if it advances

important governmental interests unrelated to the

suppression of free speech and does not burden

substantially more speech than necessary to further

those interests.” Nevertheless, the Court remanded

the case to allow Congress to provide factual evi-

dence as to whether the provisions would survive

the O’Brien test. After approximately 18 months

of fact-ﬁ nding, the lower court again granted sum-

mary judgment in favor of the government.

In Turner II, the Court’s 5-4 majority afﬁ rmed

summary judgment for the government, holding

that the record was sufﬁ ciently developed to apply

O’Brien and meet the intermediate scrutiny stan-

dard. For four members of the majority (Anthony

M. Kennedy, David H. Souter, John Paul

Stevens, and William Hubbs Rehnquist),

the fact that cable operators used their market

power to exclude local broadcast stations from

carriage, thus limiting broadcasters’ ability to

compete for local advertising revenues, was a key

factor in their reasoning given that 40 percent of

U.S. households depended on off-air broadcasting.

The cable operators had a strong economic incen-

tive in opposing these provisions.

Justice Stephen G. Breyer, concurring in

part, provided the fifth vote under a different

rationale. He held that under the O’Brien test it

was sufﬁ cient that the must-carry provisions were

intended “to assure over-the-air ‘access to a multi-

plicity of information sources.’ ”

The dissent, led by Justice Sandra Day

O’Connor, believed in both cases that Congress’s

rationale for the must-carry rules required using

strict scrutiny because the law was not content

neutral. Citing the same facts, Justice O’Connor

found that Congress made value judgments about

a diversity of viewpoints which, in her argument,

went directly to content and thus the must-carry

provisions needed to be invalidated. These issues

will reemerge if there is an attempt to apply the

must-carry provisions to digital signals in 2009.

For more information: Aaron, Harris J. “I

Want My MTV: The Debate over Digital Must-

Carry.” Boston University Law Review 80, no.

885 (2000); Hazlett, Thomas W. “Digitizing

‘Must-Carry’ under Turner Broadcasting v. FCC

(1997),” Supreme Court Economic Review 8,

no. 141 (2000); Winder, Laurence H. “The Red

Lion of Cable and Beyond: Turner Broadcasting

v. FCC.” Cardozo Arts and Entertainment Law

Journal 15, no. 1 (1997).

—Cleveland Ferguson III

Twelfth Amendment

The Twelfth Amendment was ratiﬁ ed in 1804; it

provides that members of the electoral col-

lege shall cast separate votes for president and

vice president of the United States. The purpose

of the amendment grew out of the disputed elec-

tion of 1800.

In 1800 Thomas Jefferson ran for president

of the United States as a member of the Demo-

cratic-Republican Party against John Adams,

a member of the Federalist Party. Jefferson had

selected Aaron Burr as his vice presidential run-

ning mate. When the members of the electoral

college voted, they followed the procedures of

Article II, Section 1, which required them to

vote for two persons; presumably one person

would become president, the other the vice presi-

dent. In the ﬁ rst three presidential elections this

did not appear to create too much of a problem.

However, under strong political party and par-

tisan voting, the electors of 1800 cast an equal

number of votes for both Jefferson and Burr,

thereby producing a tie. Since no candidate had

a clear majority of the electoral votes, Article II

Twelfth Amendment 745

vi+904_EofUSConsti-v2.indd 745 3/20/09 2:19:06 PM

required the House of Representatives to

select the president. After 35 ballots, the deadlock

between Jefferson and Burr was broken, and the

former became the third president of the United

States while the latter became his vice president.

To prevent this problem in the future, Congress

adopted the Twelfth Amendment in 1803 and it

was ratiﬁ ed in 1804.

The presidential election of 1824 is the only

one since the passage of the Twelfth Amendment

where Congress has selected the president. Here,

while Andrew Jackson had the plurality of popular

and electoral votes, he did not win the presidency.

Instead, the House of Representatives selected

John Quincy Adams to be president.

The Twelfth Amendment’s real purpose is lim-

ited to presidential elections. Its need was a result

of the emergence of political parties in the United

States, something the original framers of the Con-

stitution did not either anticipate or desire.

For more information: Kelly, Alfred, Winfred

Harbinson, and Herman Belz. The American

Constitution: Its Origins and Development. New

York: W.W. Norton, 1991.

—David Schultz

Twentieth Amendment

The Twentieth Amendment was ratiﬁ ed in 1933,

and it changed the dates for both the inaugura-

tion of the president and the vice president of the

United States and the beginning of the new Con-

gress following an election. The purpose of the

amendment was to eliminate the long gap in time

between elections and the swearing in of new

ofﬁ cials.

Prior to the Twentieth Amendment, Congress

did not begin its new session after an election

until the following March, and a new presiden-

tial term, according to the Twelfth Amendment,

did not commence until March 4. The reason

for this long gap between the election and tak-

ing ofﬁ ce was due in part to the long time once

necessary to travel to Washington, D.C. However,

with improved transportation, this traveling time

became a matter of hours, resulting instead in a

lame duck Congress unable to act from November

to March. This gap especially became a problem

following the election of Franklin D. Roosevelt

during the Great Depression. After his victory

in 1932, the solutions he proposed to address the

problems facing the national economy, such as the

banking crisis, had to wait until he was president

in March, nearly four months after the election.

To prevent this gap in the future Senator George

Norris from Nebraska proposed the Twentieth

Amendment.

The Twentieth Amendment moved the inaugu-

ration of the president from March 4 to January

20, and it moved the date for the start of the new

Congress to January 3.

For more information: Kelly, Alfred, Winfred

Harbinson, and Herman Belz. The American

Constitution: Its Origins and Development. New

York: W.W. Norton, 1991.

—David Schultz

Twenty-ﬁ fth Amendment

The Twenty-ﬁ fth Amendment provides for a pro-

cess of presidential succession in the event of the

death, incapacity, or resignation of the president

or vice president. The amendment was proposed

in 1965 and ratiﬁ ed in 1967.

Article II of the U.S. Constitution pro-

vides for the vice president to assume the duties

of the president if the latter is unable to perform

them. Throughout American history the death

or illness of the president has resulted in the

vice president taking over. When William Henry

Harrison died after serving as president for little

more than a month in 1841, his vice president,

John Tyler, became president. When Abraham

Lincoln was assassinated in 1865, his vice presi-

dent, Andrew Johnson, took over. However, when

James Garﬁ eld was shot in 1881, he lingered in a

coma for two months before he died, leaving open

the question of who was in charge as president.

Similarly, after President Woodrow Wilson had a

stroke in 1919, questions about who was in control

were also raised. The Twenty-ﬁ fth Amendment is

meant to address these concerns.

746 Twentieth Amendment

vi+904_EofUSConsti-v2.indd 746 3/20/09 2:19:06 PM

Section 1 of the Twenty-fifth Amendment

makes it clear that when the president dies or is

removed from ofﬁ ce, the vice president becomes

president. Section 2 allows for the president to

nominate, subject to confirmation by majority

votes in both houses of Congress, a person to

become vice president if there is a vacancy in that

ofﬁ ce. Sections 3 and 4 set up procedures to allow

the president to transfer power temporarily to the

vice president if health or other reasons preclude

the president from performing these duties.

The Twenty-ﬁ fth Amendment was used almost

immediately upon its ratiﬁ cation. In 1973, when

Vice President Spiro Agnew resigned, President

Richard Nixon named House of Represen-

tatives member Gerald Ford to become vice

president. After Nixon resigned in 1974 and Ford

became president, he selected former New York

governor Nelson Rockefeller to become vice presi-

dent. In both cases, Congress voted to support the

nominations.

Finally, Presidents Ronald Reagan and George

W. Bush temporarily transferred power to their

vice presidents during medical emergencies.

For more information: Kelly, Alfred, Winfred

Harbinson, and Herman Belz. The American

Constitution: Its Origins and Development. New

York: W.W. Norton, 1991.

—David Schultz

Twenty-ﬁ rst Amendment

In 1933, the American people, by congressio-

nal vote and state ratiﬁ cation in special conven-

tions, repealed the Eighteenth Amendment.

Like the Eighteenth Amendment, the Twenty-

ﬁ rst Amendment was passed with great rapidity,

much more quickly than its supporters expected

or its opponents feared. Repeal of the Eighteenth

Amendment had been considered an impossibil-

ity, as likely as a sparrow carrying a rocket ship

to the moon, according to Senator Sheppard of

Texas. The American people did not remove any

reference to intoxicating liquor from the Constitu-

tion. Instead they included a second section to the

Twenty-ﬁ rst Amendment, which read: “The trans-

portation or importation into any State, Territory,

or possession of the United States for delivering or

use therein of intoxicating liquors, in violation of

the laws thereof, is hereby prohibited.”

National prohibition was considered to have

failed because it did not provide for effective

regulation of alcoholic beverages. Americans

rejected what was in effect a regulatory vacuum

from 1920 to 1933, during which time alcoholic

beverages were distributed and sold illicitly.

Almost everyone wanted the repeal of national

prohibition to lead not to alcoholic beverage

deregulation but to better, more effective regu-

lation under the leadership of the states, which

would encourage and foster what was called at the

time, by Franklin Roosevelt, among others, “true

temperance.” National prohibition was rejected

as ineffective because it was too extreme. Mod-

eration, more limited expectations, and more

nuanced demands would, it was expected, serve

to better effect.

The Democratic platform of 1932 called for

repeal. The Republican platform was equivocal,

advocating, much like many members of Con-

gress when submitting Prohibition to the states in

1919, only that the people have the opportunity

to reconsider the matter. It also called for contin-

ued federal authority to prevent the return of the

saloon. While many writers criticized Prohibition

for replacing, for the worse, the saloon with the

speakeasy, it was yet commonly asserted that the

disappearance of the saloon was an unequivocal

achievement of national Prohibition. While deﬁ ni-

tions of a “saloon” were varied, the general con-

sensus described an institution that, for the proﬁ t

motive, pursued the sale of alcoholic beverages

and had been largely immune from regulation, or

at least effective regulation, and had been active

politically in opposition to the implementation of

such regulation.

Why was Section 2 added to the Twenty-ﬁ rst

Amendment? It is sometimes asserted that its

drafters meant Section 2 only to protect dry states

from dormant commerce clause invalida-

tion of laws establishing restrictions on importa-

tion of alcoholic beverages. The Supreme Court

has always rejected this view. Even when it has

Twenty-ﬁ rst Amendment 747

vi+904_EofUSConsti-v2.indd 747 3/20/09 2:19:06 PM

found that particular state statutes were not saved

by the Twenty-first Amendment, it has always

interpreted the amendment as intended to pro-

tect state laws other than Prohibition. In addition,

state laws arguably in conﬂ ict with federal statutes

are not summarily dismissed, but are evaluated

with the recognition that both the Twenty-first

Amendment and the commerce clause are in the

Constitution. Certainly there was speciﬁ c mention

in the congressional discussions of 1932 about the

need to protect dry states. There was also discus-

sion on the importance of protecting state law in

general and letting states take the lead in regu-

latory efforts. The particular example should not

negate the general concern. Moreover, even a

desire to protect dry states is somewhat broader in

scope than one might suppose. As Charles Merz

observed of the state of law in 1917, before passage

of the Eighteenth Amendment: “Thirteen of the

twenty-six ‘dry’ states pre-Prohibition permitted

some receipt and delivery of out-of-state intoxicat-

ing liquors.” What they did not permit was sales

within the states, instead implementing what

Merz described as a “system of regulation.” In his

Proclamation of the Adoption of the Twenty-ﬁ rst

Amendment, President Roosevelt called “speciﬁ c

attention to the authority given by the Twenty-ﬁ rst

Amendment to the government to prohibit trans-

portation or importation of intoxicating liquors

into any state in violation of the laws of such state.”

He did not limit such state laws to prohibitory

statutes.

In 1917, Congress had passed the Reed Amend-

ment, prohibiting importation of alcoholic prod-

ucts into a state that prohibited manufacture and

sale within it. This was an attempt to deny states

the regulatory ﬂ exibility to permit purchases from

out of state but not from within the state. In 1935,

Congress abandoned this rule as antithetical to its

desire to let states create their own systems and to

support them in this effort.

The initial draft of what became the Twenty-

first Amendment included a third section. This

reflected the 1932 platform of the Republican

Party and would have prohibited the saloon and

given the federal government concurrent enforce-

ment authority. This paragraph was deleted fol-

lowing comments from many, Senator Wagner

of New York in particular, that the lesson of the

failure of Prohibition was that the national gov-

ernment should not be taking the lead in alcoholic

beverage policy. Parenthetically, the Twenty-ﬁ rst

Amendment, along with the Webb-Kenyon Act of

1913, and the Federal Alcohol Act of 1935, which

stated that one of its purposes was to help states

enforce the Twenty-ﬁ rst Amendment, all suggest

that there was no intent by either Congress or the

American people to have Congress either explic-

itly, through actions such as the Reed Amend-

ment, or implicitly, through prior regulations such

as the Sherman Act, assert primacy in the regula-

tion of alcoholic beverages and limit the scope of

state regulation.

Almost immediately following passage of the

Twenty-ﬁ rst Amendment, some states began enact-

ing laws that gave special beneﬁ ts to in-state pro-

ducers. These laws were similar to other efforts by

states during the Great Depression to support local

agriculture. From the outset, these laws were con-

troversial, being rejected by some lower courts and

criticized by some commentators. The Supreme

Court, in several decisions written by Justice

Brandeis, upheld such laws, maintaining that the

Twenty-ﬁ rst Amendment permitted discrimination

under the equal protection clause (although

as Justice John Paul Stevens has pointed out,

Brandeis was talking only about economic classi-

ﬁ cations) and that burdens on interstate com-

merce that would otherwise have been prohibited

by the dormant commerce clause were now saved

by the Twenty-ﬁ rst Amendment. No one thought

that these opinions meant that states, for instance,

could ban importation by only blacks or by Jews.

Thus a case like C

RAIG V. BOREN, 429 U.S. 190

(1976), using equal protection analysis to reject a

state law permitting women to purchase alcohol

at a younger age than men, did not mark an end

to general judicial deference toward state alco-

holic beverage regulation. A similar rule had been

upheld by Justice Frankfurter, not on the grounds

that the state could do whatever it wanted, but on

the grounds that what it had done was reasonable.

In GRANHOLM V. HEALD, 540 U.S. 460 (2005),

the Supreme Court rejected the Brandeis deci-

748 Twenty-ﬁ rst Amendment

vi+904_EofUSConsti-v2.indd 748 3/20/09 2:19:07 PM

sions and held that facial discrimination between

in-state and out-of-state wine producers was not

saved by the Twenty-ﬁ rst Amendment and that,

under ordinary first-tier dormant commerce

clause analysis, the states of New York and Michi-

gan had failed to meet their burden of justifying

the differential rules. In and of itself, this marks

only a small restriction of state alcoholic bev-

erage powers, particularly when the Supreme

Court majority in its 5-4 decision had several

times asserted that the three-tier system was

unquestionably valid and that states’ alcoholic

beverage powers under the Twenty-ﬁ rst Amend-

ment remained. Justice Brandeis had not been in

favor of discrimination. He and the Court prob-

ably had been concerned that individual judges’

notions of unjustiﬁ ed protectionist activity would

be the thin edge of the wedge to crippling nascent

state regulation. Brandeis believed strongly both

in state regulation and in regulation of alcoholic

beverages, with the consumption of which he

had little sympathy. The Supreme Court’s recent

decision could be explained as a reflection of

the abandonment of any need to have a kind of

infant regulatory structure doctrine in which even

questionable state laws were upheld to give state

lawmaking a chance. State alcoholic beverage reg-

ulation now has existed for almost 75 years, and

state regulation presumably is less vulnerable to

judicial nulliﬁ cation than it was at its outset. On

the other hand, the case could be described as one

expressing a certain judicial impatience with the

Twenty-ﬁ rst Amendment. Such an impatience is

expressed by those who do not believe in regula-

tion as a general proposition, by those who think

that alcoholic beverages should not be treated dif-

ferently from other products, either by regulators

or by judges, or by those who believe that, just as

it was unwise to bring intoxicating liquors into the

Constitution through the Prohibition amendment,

it was unwise to repeal that amendment without

completely excising any constitutional reference to

intoxicating liquors.

The Constitution mentions only two products:

human beings as slaves and intoxicating liquors.

We regret that slavery was ever permitted in the

Constitution, but clearly do not regret that it is

now prohibited. Moreover, this is simply a part of

our history. We may regret that alcoholic bever-

ages were once prohibited by the federal Constitu-

tion, but the majority of us do not regret that this

prohibition has been lifted. Some may think that it

was unwise that repeal did more than end national

prohibition and that Section 2 was included, but

it was. The Constitution, although a living docu-

ment, is not written in invisible ink.

For more information: Nowak, John E., and

Ronald D. Rotunda. Principles of Constitutional

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

—Steve Diamond

Twenty-fourth Amendment

The Twenty-fourth Amendment prohibits the pay-

ing of poll taxes or the paying of any other fees

in order to vote in a federal election. The amend-

ment was passed in Congress in 1962 and ratiﬁ ed

by the states in 1964.

Poll taxes have a long history in the United

States. When the Constitution was ﬁ rst adopted,

many states limited the franchise to property own-

ers. The idea often offered for this stipulation was

that property ownership ensured that voters had

a sufﬁ cient stake or interest in the community to

vote. Others argued that the purpose of property

ownership was to disenfranchise the poor.

During the Jacksonian era of the 19th century,

many states abandoned property ownership as a

criterion for voting and instead substituted a poll

tax in its place. Advocates of the poll tax argued

that it was more democratic than property owner-

ship because it allowed more individuals to vote.

Critics of the poll tax again contended that it dis-

criminated against the poor.

After the Civil War and the passage of the Fif-

teenth Amendment Southern states sought

various means to deny former slaves the right

to vote. They enacted numerous rules, including

poll taxes, literacy tests, and “grandfather laws”

(allowing one to vote only if your grandfather also

voted) as ways to discourage African Americans

from voting. These requirements, adopted mostly

after Reconstruction ended in 1877, were often

Twenty-fourth Amendment 749

vi+904_EofUSConsti-v2.indd 749 3/20/09 2:19:07 PM

called Jim Crow laws. They were effective in dis-

couraging African Americans from voting.

Poll taxes were increasingly under attack during

the Civil Rights movement of the 1950s and 1960s.

The Twenty-fourth Amendment was adopted by

Congress shortly before it passed the Civil Rights

Act of 1964, and it was ratified just before the

Voting Rights Act of 1965 was adopted.

While the Twenty-fourth Amendment banned

poll taxes only in federal elections, the Supreme

Court in Harper v. Virginia Board of Elections,

383 U.S. 663 (1966), declared the use of poll taxes

in state elections to be unconstitutional under the

First and Fourteenth Amendments.

As a result of concerns or beliefs that voter

fraud was a problem, states such as Michigan,

Indiana, Georgia, and Missouri adopted laws

starting in 2004 requiring individuals to produce

a photo identiﬁ cation when voting in person at the

polls. Critics charged that these photo ID laws

were a form of poll tax. As of 2007, only one court,

the Missouri Supreme Court, had ruled that these

laws were an unconstitutional poll tax.

For more information: Keyssar, Alexander. The

Right to Vote: The Contested History of Democ-

racy in the United States. New York: Basic Books,

2001.

—David Schultz

Twenty-second Amendment

The Twenty-second Amendment limits individu-

als to being elected to no more than two terms

as president of the United States. The amendment

was proposed by Congress in 1947 and ratiﬁ ed in

1951.

Beginning with George Washington’s decision

in 1796 not to seek a third time as president of

the United States, no individual sought to run for

a third term until Franklin D. Roosevelt in 1940.

Not only did he decide to run, and then get elected,

but also he ran for a fourth term and was elected in

1944. Because of both the long-standing two-term

tradition and concern that a president would get too

much power if serving for more than two terms, the

Twenty-second Amendment was adopted.

Section 1 of the Amendment prevents a per-

son from being elected president more than two

times. However, the amendment does permit vice

presidents who succeed to the presidency to run

for two additional terms if they have served as

president for less than two years. This means that,

if a president dies after serving more than two

years, the vice president who replaces him or her

can run and get elected to two additional terms.

This means that one can be president for up to 10

years. However, if the president dies before serv-

ing two years, the vice president would be allowed

to finish this term and get elected to one more

four-year term.

An example of how the Twenty-second Amend-

ment applies dates from the 1960s. In November

1963, when President Kennedy was assassinated,

he had already served for about two-and-one-half

years as president. Lyndon Johnson was his vice

president and he became president. He ran again

and was elected to his own term in 1964, and he

was eligible and planned to run for president again

in 1968 but decided to leave the race after a poor

showing in the New Hampshire primary.

For more information: Kelly, Alfred, Winfred

Harbinson, and Herman Belz. The American

Constitution: Its Origins and Development. New

York: W.W. Norton, 1991.

—David Schultz

Twenty-seventh Amendment

The Twenty-seventh Amendment provides that

pay increases for Congress may not go into effect

until after the next election for members of the

House of Representatives. This amendment

was passed by Congress in 1789 but was not rati-

ﬁ ed until 1992.

When James Madison offered the 10 amend-

ments to the Constitution that came to be known

as the Bill of Rights, Congress also adopted two

other amendments. The Bill of Rights Amendments

passed in 1791. One of them would have stated that

there would be one member in the House of Rep-

resentatives for every 50,000 people. That amend-

ment never was ratiﬁ ed. The other amendment,

750 Twenty-second Amendment

vi+904_EofUSConsti-v2.indd 750 3/20/09 2:19:07 PM

which is the Twenty-seventh, did not immediately

pass. However, there was no time limit on its pas-

sage. While there was no action on the amend-

ment by states for many years, for almost 200 years

states continued to adopt this amendment. In 1978

Wyoming ratiﬁ ed it and Michigan did the same in

1992, giving it the three-quarters vote it needed to

become an ofﬁ cial amendment.

Some may contend that because it took nearly

200 years to adopt this amendment it is not valid,

as it was not adopted in a timely fashion. For exam-

ple, the Equal Rights Amendment, which Congress

proposed in 1972, failed because it did not get the

required three-fourths of states to adopt within

the initial seven years and not in the extension of

three more years, as required by Congress. How-

ever, in Coleman v. Miller, 307 U.S. 433 (1939),

the Supreme Court ruled that it is a prerogative of

Congress to place a time limit on ratiﬁ cation by the

states. If no time limit is placed on its adoption, an

amendment remains available for states to adopt.

The Coleman ruling made the 1992 adoption of

the Twenty-seventh Amendment possible.

For more information: Bernstein, Richard.

“The Sleeper Wakes: The History and Legacy of

the Twenty-Seventh Amendment.” Columbia Law

Review 61 (1992): 497–557.

—David Schultz

Twenty-sixth Amendment

The Twenty-sixth Amendment lowered to 18 the

age of individuals eligible to vote in federal and

state elections. The amendment was proposed by

Congress in 1971 and was ratiﬁ ed by the required

three-quarters of the states in less than four

months.

Student protest during the 1960s demanded

that Congress lower the voting age from the tra-

ditional 21 to 18. In part, these demands were

fueled by arguments during the Vietnam War that

18-year-olds who were old enough to be drafted

could not vote. In response to these demands,

Congress passed the Voting Rights Act of 1970,

which lowered the voting age to 18 in federal,

state, and local elections.

However, in Oregon v. Mitchell, 400 U.S. 112

(1970), the Supreme Court declared the law uncon-

stitutional, holding that Congress lacked the power

to do this since it violated both the Tenth Amend-

ment and Article I, Section 2 of the Constitution.

Four justices ruled that Congress could change the

voting age for all races, four justices said for none.

Justice Hugo Black, the swing vote, ruled that

Congress could lower the voting age in federal but

not state elections. Had this ruling stayed in effect,

individuals from 18 to 20 could have voted in fed-

eral but not state and local elections. In order to

remedy this confusion and to overturn Mitchell,

Congress adopted the Twenty-sixth Amendment.

For more information: Keyssar, Alexander. The

Right to Vote: The Contested History of Democ-

racy in the United States. New York: Basic Books,

2001.

—David Schultz

Twenty-third Amendment

The Twenty-third Amendment grants to the Dis-

trict of Columbia the right to select electors

to vote for president and vice president of the

United States.

Article I, Section 8 of the Constitution called

for the creation of the area that would become

the national capital, Washington, D.C. Yet from

1787 until the second half of the 20th century,

residents of the District of Columbia had no say

in who was elected president of the United states

because Washington, D.C., was not entitled to

any presidential electors. Many thought this was

unfair. In 1960 Congress adopted the Twenty-

third Amendment, which sought to change that.

It gave the District of Columbia the same number

of electoral votes in presidential/vice presidential

elections as the area would be entitled to receive

if it were a state, subject to the stipulation that

it could not have more electoral votes than the

smallest state (three votes). In 1961 the Twenty-

third Amendment was ratiﬁ ed, and residents were

able to select their electors for the ﬁ rst time in the

1964 presidential election between Lyndon John-

son and Barry Goldwater.

Twenty-third Amendment 751

vi+904_EofUSConsti-v2.indd 751 3/20/09 2:19:07 PM