Schultz D. Encyclopedia of the United States Constitution

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While the District of Columbia now has three

electoral votes, it still lacks representation in Con-

gress; there have been efforts to change the Con-

stitution to allow for this too.

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

Twining v. State of New Jersey 211 U.S. 78

(1908)

In Twining v. State of New Jersey, the Supreme

Court decided that Fifth Amendment protections

do not apply in state courts.

The case involved Twining and Cornell, direc-

tors of a bank in New Jersey, who were indicted

for having knowingly exhibited a false paper to a

state bank examiner with the intent to deceive him

as to the condition of the bank. At the trial, the

defendants called no witnesses and did not testify

in their own behalf. The trial judge commented to

the jury that their refusal to testify should not be

held against them, although the jury could con-

sider the fact that they did not take the stand in

response to a direct accusation. New Jersey, at the

time of this trial, was one of two states that did not

have a provision in its state constitution protecting

individuals from being forced to give self-incrimi-

nating testimony. The defendants were convicted

and sentenced to imprisonment for six and four

years, respectively. The sentence was afﬁ rmed by

the court of errors and appeals.

The case then went to the U.S. Supreme Court.

Until the adoption of the Fourteenth Amend-

ment, the Bill of Rights did not apply to state

courts. The attorneys for the defendants argued

that the charge to the jury constituted a form of

self-incrimination that abridged the defendants’

privileges and immunities as American citi-

zens. They also argued that protection from self-

incrimination is so fundamental that a refusal of

the right is a denial of due process as promised

in the Fourteenth Amendment.

The Supreme Court, in an 8 to 1 ruling,

decided against Twining. Justice William H.

Moody delivered the opinion while John Mar-

shall Harlan dissented. As expected, the

Court rejected the proposition that the Four-

teenth Amendment required states to honor

every right in the Bill of Rights. The Court also

rejected the claim that protection from self-

incrimination is necessary for due process. It did,

however, make the important concession that

the Fourteenth Amendment might safeguard

some of the presumed rights in the Bill of Rights

in state action, not because they are enumerated

in the Bill Rights, but because a denial of them

would be a denial of due process of law. Harlan

argued that protection against self-incrimination

is a right that states should uphold. The Supreme

Court overruled the Twining decision in 1964

when deciding the case of Malloy v. Hogan, 378

U.S. 1 (1964).

For more information: Abernathy, M. Glenn.

Civil Liberties under the Constitution. Columbia:

University of South Carolina Press, 1989; Ban-

aszak, Ronald, Sr. Fair Trial Rights of the Accused:

A Documentary History. Westport, Conn.: Green-

wood Press, 2002.

—Caryn E. Neumann

752 Twining v. State of New Jersey

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753

ﱶﱷﱸ

ultra vires

Ultra vires is a constitutional and statutory con-

cept stating that a speciﬁ c body lacks the authority

to do something.

The central principle of administrative law has

long been that the right of the judicial branch to

review the acts and decisions of public authorities

rests upon the ultra vires rule. This rule holds that

a public body that has been granted powers must

not exceed the powers so granted. The application

of ultra vires consists of nothing other than the

application of the law itself. The courts police those

boundaries that Congress intended should apply

to the discretionary power created by enabling

legislation. The rule of ultra vires reconciles judi-

cial review with constitutional framework, but

it does not protect the Constitution against exter-

nal forces of constitutional change.

The ultra vires rule is an old legal principle that

has its roots in English parliamentary law. The

traditional theory of ultra vires holds that judicial

review of the exercise of statutory power involves

nothing more than the enforcement of parliamen-

tary intention. Review lies on the sole ground that

administrative action is ultra vires, or beyond the

powers granted by Parliament.

Under the U.S. Constitution, the principle of

ultra vires is essentially the same as it is under

English law. An authority will be regarded as act-

ing ultra vires if in the course of doing or deciding

to do something that is intra vires, in the strict

or narrow sense, it acts improperly or unreason-

ably in various ways. These ways include disregard

of the rules of natural justice; unfairness; taking

into account irrelevant considerations; ignoring

relevant considerations; bad faith; attempting to

raise taxation; or interfering with the free exercise

of individual liberties. Essentially, a governmental

body may not do something that it does not have

the legal capacity to do.

The court’s broad review jurisdiction that

applies the principles of good administration to

the decision-making process poses severe prob-

lems for the ultra vires doctrine. It is extremely

difficult to maintain that the broad grounds of

review derive straightforwardly from the will of

Congress, particularly in light of the detached and

complex nature of certain grounds, such as the

rules of natural justice. The doctrine has nothing

to say as to what the court will count as a want

of power in the deciding body, and so of itself it

illuminates nothing. It amounts to no more than

a tautology that the court will strike down what it

chooses to strike down. Additionally, ultra vires is

faulted for its inability to legitimize the extension

of the supervisory jurisdiction beyond the realm

of statutory power.

For more information: Forsyth, Christopher.

Judicial Review and the Constitution. Portland,

Ore.: Hart Publishing, 2000.

—Caryn E. Neumann

undue burden standard

The undue burden standard is a rule to determine

the constitutionality of abortion regulations.

In Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992), the

Supreme Court adopted a new test to determine

the constitutionality of abortion regulations. The

case revolved around the constitutionality of the

1982 Pennsylvania Abortion Control Act, which

included several limitations on abortions, the most

vi+904_EofUSConsti-v2.indd 753 3/20/09 2:19:08 PM

signiﬁ cant requiring a doctor to obtain a woman’s

informed consent by telling her the risks of abor-

tion and childbirth and then waiting at least 24

hours before performing the abortion; a married

woman needed to present a signed statement that

she notiﬁ ed her husband of the planned abortion.

In a joint opinion for herself and Justices David

H. Souter and Anthony M. Kennedy, Justice

Sandra Day O’Connor reafﬁ rmed the Court’s

commitment to upholding its 1973 ruling in R

V. WADE, 410 U.S. 113 (1973), and outlined three

essential factors of Roe. First, women have a right

to have an abortion before a fetus is viable, that is,

before it can live outside the mother’s womb, with-

out “undue interference” from the state. Second,

a state can restrict abortions after the fetus has

become viable as long as it allows exceptions to

protect the mother’s life or health. Third, a state’s

interest in maternal and fetal life commences at

the start of the pregnancy.

The Court explained that because of its legiti-

mate interest in protecting “potential human life,”

a state was not entirely precluded from involv-

ing itself in the abortion decision throughout the

pregnancy, but was forbidden to enact abortion

regulations, which imposed an “undue burden” on

the woman’s choice, only during the pre-viability

stage. It deﬁ ned “undue burden” as a state regula-

tion that places a substantial obstacle in the path

of a woman seeking an abortion during the stage

before the fetus is viable.

The Court explained that it was adopting the

“undue burden” standard to balance its commit-

ment to Roe with the state’s interest in “potential

life.” Under this standard, the Court concluded

that the 24-hour waiting period and the physician’s

lecture to obtain informed consent were permis-

sible regulations because they were not “unduly”

burdensome. However, the Court held that the

provision requiring women to notify their hus-

bands of their intention to have an abortion was

unconstitutional, since it placed an undue burden

on the right of women to choose to have an abor-

tion. The opinion concluded that most women

inform their husbands of a pregnancy, and those

who do not are likely to have a legitimate reason

for refusing to do so; thus the Court believed the

regulation created a “substantial obstacle” for

many women.

Following Casey, the Court relied on the

“undue burden” standard in Stenberg v. Carhart,

530 U.S. 914 (2000), when it struck a Nebraska

abortion law. Speaking for the majority, Justice

Stephen G. Breyer reiterated the “undue bur-

den” standard: that a state may not place an undue

burden on a woman’s right to terminate her preg-

nancy before viability. Based on this standard, the

Court held that the law prohibiting doctors from

performing certain kinds of abortion procedures

was unconstitutional because it unduly restricted

a woman’s ability to receive the most commonly

used method for performing pre-viability abor-

tions, and therefore placed an “undue burden” on

her right of abortion itself.

For more information: Guenther, Hilary. “The

Development of the Undue Burden Standard

in Stenberg v. Carhart: Will Proposed RU-486

Legislation Survive?” Indiana Law Review 35

(2001/2002): 1,021–1,044; Mezey, Susan Gluck.

Elusive Equality: Women’s Rights, Public Policy,

and the Law. Boulder, Colo.: Lynne Rienner Pub-

lishers, 2003.

—Susan Gluck Mezey

union dues and political activity

The First Amendment and federal labor laws

limit the use to which unions can put fees col-

lected from objecting nonmembers. In general,

unions can not use fees from objecting nonmem-

bers for political or other purposes unrelated to

collective bargaining (Air Line Pilots v. Miller,

523 U.S. 866 [1998]).

When a union is elected to represent a unit of

employees, the union is permitted, under various

federal and state labor laws, to reach an agreement

with the employer establishing an “agency shop.”

In an agency shop, employees who are union

members must pay union dues, and employees

who are not union members must pay equivalent

fees to the union, in both cases as a condition of

continued employment. Fees from nonmembers

are known as “agency fees” or “fair share” fees.

754 union dues and political activity

vi+904_EofUSConsti-v2.indd 754 3/20/09 2:19:08 PM

Agency fees cannot be greater than the dues the

union receives from union members. The agency

shop is found both in the public sector (govern-

ment employment) and in the private sector. In

the private sector, in industries governed by the

National Labor Relations Act (NLRA) and the

Railway Labor Act (RLA), employers and unions

can also agree to a “union shop.” In a union shop,

employees must theoretically be members of the

union. However, the only aspect of union member-

ship that can be enforced, in a union shop, is the

obligation to pay dues; membership as a condition

of employment “is whittled down to its ﬁ nancial

core” (NLRB v. General Motors, 373 U.S. 734, 742

[1963]). Therefore, the union shop is in practice

almost the same as the agency shop: Despite the

term “union shop,” employees do not really have

to become union members, but can instead pay

what are in effect agency fees (Marquez v. Screen

Actors Guild, 525 U.S. 33 [1998]). The union shop

and the agency shop are both known as “union

security” arrangements.

The Supreme Court has upheld union security

arrangements against constitutional challenges, in

Abood v. Detroit Board of Education, 431 U.S.

209 (1977), upholding agency shop for public-sec-

tor employees and in Railway Employees v. Han-

son, 351 U.S. 225 (1956), upholding union shop

under RLA. But the Court has also limited the

use to which unions can put agency fees. If a pub-

lic-sector union uses agency fees to “contribute to

political candidates” or to “express political views

unrelated to its duties as exclusive bargaining rep-

resentative,” there is a First Amendment violation

of the right of objecting nonmembers to be free of

compelled speech and association (Abood, at 234).

In Air Line Pilots v. Miller, 523 U.S. 866 (1998),

the Court summarized the rules for permissible

agency fees in the public sector: “[A]gency fees

assessed by public-employee unions must (1) be

‘germane’ to collective-bargaining activity; (2) be

justiﬁ ed by the government’s vital policy interest in

labor peace and avoiding ‘free riders’; and (3) not

signiﬁ cantly add to the burdening of free speech

that is inherent in the allowance of an agency or

union shop” (Miller, quoting Lehnert v. Ferris

Faculty Assn., 500 U.S. 507, 519 [1991]).

Similar or identical rules apply to private-

sector employment governed by the NLRA and

the RLA (Communications Workers v. Beck,

487 U.S. 735 [1988]; Miller, 523 U.S. at 872–74).

There is some question whether union security

arrangements in the private sector involve gov-

ernmental action, i.e., whether they are subject

to constitutional challenge by reason of labor

laws that permit them. The Supreme Court has

more readily found governmental action under

the RLA than the NLRA (Hanson, 351 U.S. at

231–232), since the RLA preempts any state law

barring union security arrangements, while the

NLRA allows states to prohibit union security

arrangements through so-called “right to work”

laws. In any event, the Supreme Court has inter-

preted the RLA’s union security provisions to

conform to the First Amendment (Machinists v.

Street, 367 U.S. 740, 749 [1961]), and it has inter-

preted the NLRA’s union security provisions to

conform to its interpretation of the RLA (Beck,

487 U.S. 735).

To some extent, public-sector unions actually

have greater leeway than private-sector unions in

using the fees of objecting nonmembers for polit-

ical purposes. The line between prohibited polit-

ical activities and permitted bargaining-related

activities is “somewhat hazier” in the public sec-

tor (Abood, 431 U.S. at 236), because public-sec-

tor unions “often expend considerable resources

in securing ratiﬁ cation of negotiated agreements

by the proper state or local legislative body”

(Lehnert, 500 U.S. at 520). Even in the public

sector, however, unions may not use agency fees

for “legislative lobbying or other political union

activities outside the limited context of contract

ratification or implementation” (Lehnert, 500

U.S. at 522).

If a union spends dues money for purposes

that cannot be charged to objecting nonmembers,

it must reduce the agency fees paid by objecting

nonmembers below the level of dues. For exam-

ple, if 80 percent of a union’s expenditures are for

purposes that are germane to collective bargain-

ing and 20 percent are for purposes that are not

germane, the agency fee the union charges to non-

members can be only 80 percent of dues. “[T]he

union dues and political activity 755

vi+904_EofUSConsti-v2.indd 755 3/20/09 2:19:08 PM

union bears the burden of proving the proportion

of chargeable expenses to total expenses” (Leh-

nert, 500 U.S. at 524).

The agency-fee regime imposed by the Court

under the First Amendment is an opt-out regime.

A public-sector union must provide certain infor-

mation to nonmembers explaining the agency fee

(Teachers v. Hudson, 475 U.S. 292 [1986]), but

having provided the required information, the

union need not reduce any nonmember’s agency

fee below the level of union dues unless the non-

member objects to the use of his fee for nonbar-

gaining purposes. As this encyclopedia goes to

press, the Supreme Court is considering whether

states that permit the agency shop, for state and

local employees, may impose on public-sector

unions a considerably more onerous method of

administering agency fees. In Davenport v. Wash-

ington Education Assn., 551 U.S. ___ (2007), the

Supreme Court of Washington struck down, as

violative of the First Amendment, a state law that

required unions to obtain the afﬁ rmative consent

of nonmembers before using their agency fees for

political purposes. The Supreme Court reversed

this decision, holding that it does not violate a

union’s First Amendment rights to receive non-

union members’ consent before spending their

money on election activities.

For more information: Higgins, John E. The

Developing Labor Law. Washington, D.C.: BNA

Books, 2006.

—Mark S. Stein

United Jewish Organization v. Carey 430

U.S. 144

(1977)

The Supreme Court, in United Jewish Organiza-

tion v. Carey, held that the use of racial criteria

in drawing voting district lines to comply with

Section 5 of the Voting Rights Act (VRA)

was permissible under the Fourteenth and

Fifteenth Amendments. The holding in UJO

made all race-conscious redistricting to advantage

minority voters constitutionally permissible for

over a decade and a half.

Under Section 5 of the Voting Rights Act,

states or political subdivisions with a history of

discrimination must obtain preapproval for any

voting changes from the attorney general of the

United States. The attorney general approves

only changes that do “not have the purpose and

[would] not have the effect of denying or abridging

the right to vote on account of race or color.”

The attorney general’s determination that New

York’s 1972 redistricting plan resulted in certain

districts in Brooklyn that failed to meet the bur-

den of Section 5 led to the litigation in UJO. In

particular, the attorney general objected to the

lack of state senate and state assembly districts

with substantial nonwhite majorities of at least

65 percent, the percentage deemed necessary to

secure an opportunity for minorities to elect their

candidates of choice. In response to these objec-

tions, in 1974 the state of New York revised the

redistricting plan and created additional districts

with substantial nonwhite majorities. The revised

plan split a community of Hasidic Jews, previously

located entirely in one district, into two separate

state senate and assembly districts in which they

constituted a smaller minority of the population.

Members of the Hasidic Jewish community

in Brooklyn challenged the 1974 redistricting

plan, arguing that: (a) it diluted the value of

each plaintiff’s franchise for the sole purpose of

achieving a racial quota in violation of the

Fourteenth Amendment, and (b) assigned them

to districts solely on the basis of race, which

diluted their voting power in violation of the

Fifteenth Amendment. Justice White, writing

for a majority of the Court, held that the delib-

erate use of race in this case was permissible

under the Constitution because its use did not

represent a “racial slur or stigma with regards

to whites or any other race.” Hasidic Jews, who

were grouped into the category of whites by

the Court, were not deprived of access to the

political process by the plan, and their voting

strength was not diluted as demonstrated by the

fact that 70 percent of the districts continued to

be majority white in a county that was 65 per-

cent white. The Court concluded that in light of

756 United Jewish Organization v. Carey

vi+904_EofUSConsti-v2.indd 756 3/20/09 2:19:09 PM

the unfortunate reality of racial bloc voting, the

plan was necessary “to achieve a fair allocation

of political power between white and non-white

voters in [Brooklyn].”

Chief Justice Warren Burger dissented,

contending that the redistricting in this case was

analogous to that in G

OMILLION V. LIGHTFOOT, 364

U.S. 339 (1960), in which the Court found the

drawing of district lines solely on the basis of race

(i.e., “racial gerrymandering”) unconstitutional

under the Fifteenth Amendment. He argued that

the way to address past race-based reapportion-

ment in favor of whites was not to require more

race-based reapportionment in favor of minority

groups, but instead to require race-neutral redis-

tricting. Allowing for continued racial gerryman-

dering, Chief Justice Burger concluded, “puts the

imprimatur of the State on the concept that race

is a proper consideration in the electoral process.”

After UJO, the Justice Department aggres-

sively pursued a policy under Section 5 of ensur-

ing that minorities, and primarily blacks, had the

opportunity to elect candidates of their choice

by requiring that states or subdivisions with a

history of discrimination draw districts with sub-

stantial nonwhite populations. As a result of the

policy, blacks and other minorities were elected

to state and federal ofﬁ ces at a rate greater than

at any point in American history. In 1993, the

Supreme Court in SHAW V. RENO, 509 U.S. 630

(1993), implicitly repudiated part of the hold-

ing in UJO and placed constitutional limits on

the ability of states to draw majority-minority

districts.

For more information: Guinier, Lani. “Groups,

Representation, and Race Conscious Redistrict-

ing: A Case of Emperor’s Clothes.” Texas Law

Review 71, no. 7 (1993): 1589–1642; Issacharoff,

Samuel. “Groups and the Right to Vote.” Emory

Law Journal 44, no. 869 (1995): 882–884; Sherry,

Suzanne. “Selective Judicial Activism in the Equal

Protection Context: Democracy, Distrust and

Deconstruction.” Georgetown Law Journal 73,

no. 89 (1984): 103–105.

—Jonathan Cooper and Bertrall Ross

United States Term Limits, Inc. v. Thornton

514 U.S. 779 (1995)

In United States Term Limits, Inc. v. Thornton,

the Supreme Court struck down an Arkansas law

that limited the number of times a person could

be elected to the U.S. Senate as well as the num-

ber of times a person could be elected to the U.S.

House of Representatives. A closely divided

court (5-4) concluded that Arkansas’s term limits

added qualiﬁ cations for ofﬁ ce to those expressed

in the U.S. Constitution, and were therefore

unconstitutional and could not be enforced. The

majority expressed no objections to limitations on

congressional terms per se, saying only that such

restrictions, like the Twenty-second Amend-

ment limiting presidential terms, would have to

be incorporated with an amendment to the Con-

stitution that enforced uniform and similar stan-

dards throughout the entire nation.

By the 1980s the notion of legislative term lim-

its—a given candidate should not serve an indeﬁ -

nite amount of time in a particular office—had

gained national political credibility and signiﬁ cant

organizational support. (See the Twenty-second

Amendment, approved in 1951, which limited pres-

idential terms.) Groups who were frustrated with

ever increasing reelection rates of members of both

houses of the U.S. Congress, as well as with what

they saw as greater “professionalization” in state

legislatures, began advocating term limits for all of

these ofﬁ ces. The movement was jump-started in

1990 when three states, Colorado, California, and

Oklahoma, were the ﬁ rst to approve term limits

for their respective state legislators. Other states

quickly followed suit and set term limits for their

state and U.S. congressional legislators. By 1994

21 states had passed some form of term limitation

on their state or federal legislators.

Arkansas was among these states. This case

grew out of a challenge to its 1992 referendum

approving term limits for state legislators and U.S.

House and Senate candidates. Speciﬁ cally at issue

was Amendment 73, which denied ballot access to

candidates for the U.S. House of Representatives

who had served three or more terms (6+ years)

and to candidates for the U.S. Senate who had

United States Term Limits, Inc. v. Thornton 757

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served two or more terms (12+ years). The Arkan-

sas ban stipulated that candidates who had served

longer than those speciﬁ ed periods would not be

eligible to have their names placed on ballots for

reelection to those ofﬁ ces.

Almost immediately after its passage, this amend-

ment was challenged by an Arkansas citizen, Bob-

bie Hill, who made the general argument that these

congressional term limits took away her right to

return to ofﬁ ce a candidate of whom she approved

and wanted to continue serving in office. Spe-

ciﬁ cally claiming that these new restrictions were

unconstitutional, she was joined in her suit by the

Arkansas League of Women Voters. Various state

ofﬁ cials, party organizations, and U.S. Term Lim-

its, Inc., a think tank and advocacy group that had

been actively involved in the Arkansas referendum,

defended the state’s limits. They argued that these

limits were nothing more than a regulatory decision

that was consistent with the Constitution’s “Times,

Places and Manner” provisions (the elections clause

of Article I, Section 4) which mandated state

administration of elections for federal ofﬁ cials.

The Supreme Court was faced with a judgment

as to whether these term limits were additional

qualiﬁ cations to those speciﬁ ed in the Constitu-

tion or merely an appropriate procedural activity.

In a detailed and historically revealing opinion

that reviewed previous and unsuccessful attempts

to exclude members from House and Senate

ofﬁ ces, Justice John Paul Stevens said, “Amend-

ment 73 is an indirect attempt to accomplish what

the Constitution prohibits Arkansas from accom-

plishing directly. . . . [an] effort to dress eligibility

to stand for Congress in ballot access clothing.”

The Court’s decision in this case terminated

the state-by-state strategy of limiting congressio-

nal terms, one that had piggy-backed on initiatives

limiting state legislators. The Court said an amend-

ment would be required to do that. The legacy of

Thornton and the Court’s subsequent decisions to

allow state term limits to stand when applied to

state legislatures has left 18 states with various lim-

its on members of their legislatures and the U.S.

Constitution silent about congressional ones. For

the U.S. House and U.S. Senate, the qualiﬁ cations

speciﬁ ed by the framers are still in place.

For more information: Peery, George. “A Time

Line of Term Limits.” In State and Local Govern-

ment, 2000–2001, edited by Thad L. Beyle, 88–

92. Washington, D.C.: Congressional Quarterly,

2000; Will, George. Restoration: Congress, Term

Limits, and the Recovery of Deliberative Democ-

racy. New York: Free Press, 1992.

—George Peery

United States Trust Company v. New Jersey

431 U.S. 1 (1977)

In United States Trust Company v. New Jersey, the

Supreme Court ruled that the contract clause

prohibited the repeal of a covenant between New

York and New Jersey. The signiﬁ cance of the case is

that it is one of the few cases in recent times to use

this clause of the Constitution to invalidate a law.

In 1962, the states of New Jersey and New York

agreed to limit the Port Authority of New York and

New Jersey’s ability to use revenues and reserves

pledged as security for consolidated bonds in order

to subsidize rail passenger service. This was good

for the bondholders, yet in 1974 both New York

and New Jersey passed statutes effectively repeal-

ing the 1962 agreement.

The appellant in this case sued in New Jer-

sey Superior Court under the claim that “the

1974 New Jersey statute impaired the obligation

of the States’ contract with the bondholders in

violation of the Contract Clause of the United

States Constitution.” The contract clause in this

case involved Article I, Section 10, Clause 1,

which prohibits the states from passing a law

“impairing the Obligation of Contracts.” The

New Jersey Superior Court dismissed the com-

plaint, concluding that repeal of the 1962 statute

was within the purview of New Jersey’s police

power and therefore not in violation of the con-

tract clause of Article I, Section 10. The New

Jersey Supreme Court afﬁ rmed the lower court’s

decision.

The constitutional question before the Supreme

Court when the case came up on appeal was: Did

the states violate the contract clause? In a 4-3

decision—opinion delivered by Justice Black-

mun—the Court narrowly concluded that the

758 United States Trust Company v. New Jersey

vi+904_EofUSConsti-v2.indd 758 3/20/09 2:19:09 PM

contract clause of the Constitution prohibits the

repeal of the 1962 covenant between New York

and New Jersey. Justice Blackmun noted:

The more specific justification offered for the

repeal of the 1962 covenant was the States’

plan for encouraging users of private automo-

biles to shift to public transportation. The States

intended to discourage private automobile use

by raising bridge and tunnel tolls and to use

the extra revenue from those tolls to subsidize

improved commuter railroad service. Appellees

contend that repeal of the 1962 covenant was

necessary to implement this plan because the

new mass transit facilities could not possibly be

self-supporting and the covenant’s “permitted

deficits” level had already been exceeded. We

reject this justiﬁ cation because the repeal was

neither necessary to achievement of the plan nor

reasonable in light of the circumstances.

The determination of necessity can be consid-

ered on two levels. First, it cannot be said that

total repeal of the covenant . . . was essential; a

less drastic modiﬁ cation would have permitted

the contemplated plan without entirely remov-

ing the covenant’s limitations on the use of Port

Authority revenues and reserves to subsidize

commuter railroads . . . Second, without modi-

fying the covenant at all, the States could have

adopted alternative means of achieving their

twin goals of discouraging automobile use and

improving mass transit . . . Appellees contend,

however, that choosing among these alternatives

is a matter for legislative discretion. But a State

is not completely free to consider impairing the

obligations . . . of its own contracts on a par with

other policy alternatives

Overall, United States Trust Company v. New

Jersey seemed to demonstrate that the contract

clause was not dead and that it might still affect

actions of the government.

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

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

and Materials on Constitutional Law: Themes for

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

West Publishing, 1993.

—Dan Krejci

United States v. American Library

Association

539 U.S. 194 (2003)

In United States v. American Library Association,

539 U.S. 194 (2003), the U.S. Supreme Court found

the Children’s Internet Protection Act (CIPA)

constitutional. CIPA prohibited public libraries

that did not install ﬁ ltering software, designed to

prevent library patrons from accessing obscene

or pornographic material, from receiving fed-

eral funds. A plurality of the Court, Chief Justice

William Hubbs Rehnquist, joined by Justices

Sandra Day O’Connor, Antonin Gregory

Scalia, and Clarence Thomas, held that CIPA

was a valid exercise of congressional spending

that did not raise First Amendment problems;

Justices Anthony M. Kennedy and Stephen

G. Breyer each concurred, ﬁ nding that CIPA’s

restrictions would withstand strict scrutiny or

heightened scrutiny, respectively. The three dis-

senters in the case, Justices John Paul Stevens,

David H. Souter, and Ginsburg, objected that

the ﬁ ltering technology would, in practice, “over-

block” or ﬁ lter “nonobscene material harmful to

children but lawful for adult examination, and a

substantial quantity of text and pictures harmful

to no one.”

The Children’s Internet Protection Act fol-

lowed a series of congressional efforts designed

to regulate pornography on the Internet, includ-

ing the Communications Decency Act of

1996 (struck down as unconstitutional in Reno v.

ACLU, 521 U.S. 844 [1997]), the Child Pornog-

raphy Prevention Act of 1996 (struck down as

unconstitutional in Ashcroft v. The Free Speech

Coalition, 535 U.S. 234 [2002]), and the Child

Online Protection Act (struck down as unconstitu-

tional in ASHCROFT V. ACLU, 542 U.S. 656 [2004]).

The contents of this particular legislation were the

result of several factors. First, the First Amend-

ment, in general, prohibits limitations on “pornog-

raphy,” but instead allows governments in some

circumstances to restrict “obscenity” (MILLER V.

United States v. American Library Association 759

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CALIFORNIA, 413 U.S. 15 [1973]). Second, case law

has upheld restrictions against child pornogra-

phy depicting actual children who are exploited

by the production process (New York v. Ferber,

458 U.S. 747 [1982]). And third, the Supreme

Court has upheld congressional spending provi-

sions that would not have been upheld as outright

regulations (S

OUTH DAKOTA V. DOLE, 483 U.S. 203

[1987]; RUST V. SULLIVAN, 500 U.S. 173 [1991]; NEA

V. FINLEY, 524 U.S. 569 [1998]). Given these three

factors, Congress opted not to regulate pornog-

raphy directly, but instead to condition federal

funds to libraries on using filtering software to

block obscenity or child pornography, and to block

minors from reviewing harmful material.

The plurality found that libraries may con-

sider the content of material in deciding what to

include in their collections, including whether to

include pornography, noting that such ﬁ ltering is

not fundamentally different from the selection

that libraries undertake with their physical book

collections. As such, congressional spending pro-

visions tied to the blocking of such material did

raise First Amendment problems. Further, the

plurality argued that the constitutional concerns

voiced by the dissents about the tendency of ﬁ l-

tering software to “overblock,” are eliminated by

the ability of library patrons to request that Web

sites be unblocked, even if such requests would be

embarrassing. Justices Kennedy and Breyer, both

of whom voted to uphold the constitutionality of

CIPA, voiced reasons different from the plural-

ity. These opinions both balanced the interests of

the government served by the legislation and the

burden foisted upon library patrons in favor of the

government, either one of which provided the gov-

ernment with the winning ﬁ fth vote—albeit for

reasons different from the plurality.

—Martin J. Sweet and Jensen Grant

United States v. Belmont 301 U.S. 324

(1937)

In United States v. Belmont, the Supreme Court

upheld a presidential executive agreement reached

to settle debts with the Soviet Union. This case

is important because it gave wide constitutional

authority to the president to use executive agree-

ments in foreign affairs.

Executive agreements are international com-

pacts negotiated by the president of the United

States with other heads of state. Although the U.S.

Constitution (Article II, Section 2) requires that

treaties—formal agreements between nations—

be approved by a two-thirds vote of the U.S.

Senate, the Constitution does not specifically

mention executive agreements. In United States

v. Belmont, the U.S. Supreme Court recognized

for the ﬁ rst time the constitutionality of executive

agreements, thus placing them on a par with U.S.

treaties. Additionally, the Court reinforced that

the president alone has power to recognize for-

eign governments and establish diplomatic rela-

tions with foreign states. This case signiﬁ cantly

expanded the power of the presidency, not only in

the ﬁ eld of international diplomacy, but also in the

area of domestic affairs.

Prior to the Bolshevik Revolution in October

1917, the Petrograd Metal Works, a Russian cor-

poration, deposited investments in a New York

City bank owned by August Belmont. In 1917,

the Bolshevik (Communist) party led a bloody

revolution, established the Soviet Union, nation-

alized corporations, confiscated their property,

and claimed all corporate assets—including funds

deposited in American banks. President Wood-

row Wilson refused to recognize the legitimacy of

the newly created Soviet Union, and in 1918 cut

off diplomatic relations with the Soviet state. It

was not until 1933 that President Franklin Roos-

evelt ofﬁ cially recognized the Soviet Union and

reopened diplomatic channels. Under the Litvinov

Assignments, President Roosevelt entered into an

executive agreement whereby the United States

government would serve as the agent to release

Soviet assets held in American banks before the

October Revolution of 1917. When the U.S. govern-

ment ordered the Belmont bank to relinquish the

Petrograd Metal Works assets, the bank refused,

and the government ﬁ led suit in U.S. district court

to recover the funds for the Soviet Union.

The federal district court, however, ruled in

favor of Belmont, noting that: (a) the U.S. gov-

ernment had no authority to supersede the New

760 United States v. Belmont

vi+904_EofUSConsti-v2.indd 760 3/20/09 2:19:10 PM

York law that speciﬁ cally forbade the conﬁ scation

of bank assets; (b) the conﬁ scation of such funds

violated the Fifth Amendment’s command that

private property shall not be taken without just

compensation; and (c) the president was act-

ing pursuant to an executive agreement and not a

treaty, which required the advice and consent

of the U.S. Senate. The U.S. Court of Appeals

afﬁ rmed the lower court decision, and the fed-

eral government appealed to the U.S. Supreme

Court.

Writing for the majority, Justice George

Sutherland ruled that the lower courts erred in

dismissing the suit. According to Sutherland: (a)

the president had the sole constitutional authority

to recognized foreign governments and exchange

diplomatic personnel; (b) the executive agreement

entered into by the president had the same effect

as a treaty; (c) the Constitution’s supremacy

clause (Article VI, Section 2) makes treaties and

executive agreements superior to any conﬂ icting

state laws; and (d) the Fifth Amendment’s tak-

ings clause applies only to U.S. citizens and not

Soviet subjects. Justice Sutherland was joined by

Justices Pierce Butler, Charles Evans Hughes,

Owen Roberts, James McReynolds, and Willis Van

Devanter. Delivering a concurring opinion was

Justice Harlan Fiske Stone, joined by Justices

Benjamin Cardozo and Louis Brandeis. There was

no dissenting opinion.

The implications of Belmont are far-reach-

ing. Over the years, presidents have increasingly

relied upon executive agreements to accomplish

foreign-policy goals that might not otherwise be

ratified as treaties by skeptical senators. Crit-

ics charge that executive agreements are more

secretive than treaties and have shifted too much

power to the president in the ﬁ eld of international

affairs. Moreover, critics maintain that, because of

the supremacy clause, it is possible for a president

to alter domestic policy through executive agree-

ments that otherwise might be unconstitutional.

The Belmont decision was reafﬁ rmed in U

NITED

STATES V. PINK (1942), when the Court ruled that

state insurance companies also had no authority to

prevent the restoration of Soviet assets under the

terms of an executive agreement.

For more information: Margolis, Lawrence.

Executive Agreements and Presidential Power in

Foreign Policy. New York: Praeger, 1985; Mayer,

Kenneth R. With the Stroke of a Pen: Executive

Orders and Presidential Power. Princeton, N.J.:

Princeton University Press, 2001.

—Richard J. Hardy

United States v. Booker 543 U.S. 220 (2005)

In United States v. Booker (2005), the Supreme

Court ruled that a judge could not set a sentence

above the federal sentencing guideline maxi-

mum without a jury determination of the facts

beyond a reasonable doubt supporting such a deci-

sion. The importance of the decision is that more

discretionary power has been taken away from

the judge to ensure that the guarantee of the right

to jury trial and the right to due process of the

defendant is retained.

Freddie Booker was found guilty by a federal

jury of the possession to distribute 50 grams of

crack. The Federal Sentencing Guideline Com-

mission mandated a “base” sentence range from

a minimum of 210 months to a maximum of 262

months. The statutory maximum at the federal

level for this offense is life imprisonment. Dur-

ing sentencing, the judge found, by a preponder-

ance of the evidence, that Booker had possessed

an additional 566 grams of crack—an additional

fact not found by the jury. Based on this “rel-

evant conduct” mandatory enhancement, the

judge imposed a sentence of a minimum of 360

months, with the maximum of life imprisonment.

“Relevant conduct” is evidence substantiated dur-

ing sentencing but not found in the facts at trial.

In conjunction with United States v. Fanfan, 543

U.S. 220 (2005), the Supreme Court considered

two issues: (1) Did the federal sentencing guide-

lines’ mandatory enhancement, which were based

on facts not proven by a jury beyond a reasonable

doubt, violate the Sixth Amendment right to

jury, and (2) if this provision did violate the right

to jury, what was the remedy for such violation?

The Supreme Court found that the trial court did

violate the right to jury trial with these relevant-

conduct mandatory enhancements.

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