Schultz D. Encyclopedia of the United States Constitution

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The United States Supreme Court found that

the federal sentencing guidelines were mandatory

and binding on all judges and, thereby, should be

treated more like a statute because they “have the

force and effect of laws.” The Court mirrored its

own decision in Blakely v. Washington (2004)

by devoting its legal analysis to the effect of this

enhancement departure rather than its form.

The most decisive rule made by the Supreme

Court in Booker was its suggestion for remedy.

The Court considered two possible remedies: (1)

Insert statutory protection of the constitutional

right to a jury trial within the articulated sen-

tencing guidelines, or (2) rule that the federal

sentencing guidelines are advisory. The Court

concluded that the remedy for this error was to

eliminate the mandatory nature of the federal

sentencing guidelines—that is, they are now

simply advisory. The Supreme Court saw value

in retaining a strong connection between the use

of “relevant conduct” or “real offense” factors for

purposes of increased uniformity of sentencing.

“Real conduct” is often not proved beyond a rea-

sonable doubt and is often inadmissible in the

trial court (see Spohn, 2000). Sentences based

on real conduct were often decided on a case-

by-case basis, which is now the ofﬁ cial stance of

the Court.

In the ﬁ rst part of the 21st century, the United

States Supreme Court drastically changed the

face of sentencing reforms. Although the Court,

in M

ISTRETTA V. UNITED STATES, 488 U.S. 361

(1989), ruled that sentencing guidelines did not

violate the separation of powers doctrine and

were constitutional, the Court has now ruled

that a judge can not increase the sentence with

facts not determined by a jury beyond a reason-

able doubt (Apprendi v. New Jersey, 530 U.S. 466

[2000]). Judges also can not depart above the pre-

scribed guideline range under the same principle

whether they increase the sentence over the stat-

utory maximum or not (Blakely v. Washington,

542 U.S. 296 [2004], and United States v. Booker,

543 U.S. 220 [2005]). Therefore, the face of the

sentencing guidelines has drastically changed,

and sentencing guidelines, at the federal level,

have been all but eliminated.

For more information: Barrueco, A. L. “Fast-

tracking United States v. Booker: Why Judges

Should Not Fix Fast-track Disparities.” Connecti-

cut Public Interest Law Journal 6 (2006): 65–109;

Spohn, C. How Do Judges Decide?: The Quest

for Fairness and Justice in Sentencing. Thou-

sand Oaks, Calif.: Pine Forge Press, 2002; United

States Sentencing Commission. Final Report on

the Impact of United States v. Booker on Federal

Sentencing. Washington, D.C.: United States Sen-

tencing Commission, March 2006; Yellen, D. “Sav-

ing Federal Sentencing Reform after Apprendi,

Blakely and Booker.” Villanova Law Review 50

(2005): 163–187.

—Jeremy D. Ball and Barbara J. Hayler

United States v. Classic 313 U.S. 299 (1941)

In United States v. Classic, the Supreme Court

upheld the power of Congress under Article

I, Section 4 to regulate political primaries when

they are part of the process of choosing candi-

dates for federal ofﬁ ce. Classic is part of a group

of decisions known as the “White Primary” cases

that sought to ban discrimination against African

Americans in politics.

In Newberry v. United States, 256 U.S. 232

(1921), the Supreme Court ruled that Article I,

Section 4 of the U.S. Constitution did not provide

Congress the power to regulate the states’ primary

elections. In other words, Congress did not have the

authority to dictate how political parties conducted

their primaries, which are used to select party

candidates who will run in the general election in

November. For the one-party (Democrats) South,

this essentially alienated black voters from the selec-

tion process. States dominated by one political party

chose their representatives in the primary elections

(known as White Primaries)—the general election

was only a formality. In other words, the candidates

from these one-party states who would become the

members of Congress were actually elected in the

primary election, not the general election, because

these candidates usually ran unopposed or faced

weak challengers. United States v. Classic changed

precedent, to some degree, which was established

in the Newberry case.

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In United States v. Classic, the Supreme Court

reversed itself from the decision it reached in

Newberry. In this case, two counts of an indict-

ment were brought against the commissioners of

elections, who conducted a primary election in

Louisiana to nominate a Democratic candidate

for Congress. The case centered on whether or not

“the right of qualiﬁ ed voters to vote in the Loui-

siana primary and to have their ballots counted

is a right ‘secured by the Constitution’ within

the meaning of 19 and 20 of the Criminal Code,

and whether the acts of appellees charged in the

indictment violated those sections.” The Court

held that Article I, Section 4 provides Congress

with the power to regulate elections, including

primary elections, when state law incorporates

the primary as an essential part of the process

used for choosing candidates who will be national

representatives. In addition, the Court ruled that

Article I, Section 2 provides citizens with a guar-

anteed right to vote in congressional prima-

ries, and these citizens have a right to have their

votes counted, and the state cannot interfere with

this right.

For more information: Bixby, David M. “The

Roosevelt Court, Democratic Ideology, and

Minority Rights: Another Look at United States v.

Classic.” Yale Law Journal 90, no. 4 (March 1981):

741–815.

—Dan Krejci

United States v. Curtiss-Wright Export Corp.

299 U.S. 304 (1936)

In United States v. Curtiss-Wright Export Corp.,

the Supreme Court held that Congress was not in

violation of the nondelegation doctrine when it

gave authority to the executive to declare an arms

embargo in South America in an effort to reestab-

lish peace in the region.

On May 28, 1934, Congress passed a joint

resolution that gave the president the authority

to prohibit the sale of weapons and munitions to

countries that were engaged in the Gran Chaco

War, if the president believed that such a course

of action would help to reestablish peace in the

region. The next day, President Roosevelt issued a

proclamation making it illegal for American com-

panies to sell such products to countries engaged

in the armed hostilities. The proclamation was

revoked by a second executive-issued proclamation

allowing for the sale of weapons and munitions

at the end of 1935. In 1936, the Curtiss-Wright

Export Corporation was charged with conspiring

to illegally sell 15 machine guns to Bolivia before

the second proclamation was issued. Since Bolivia

was engaged in the Chaco conﬂ ict, the corpora-

tion was in violation of the joint resolution of Con-

gress as well as the ﬁ rst proclamation issued by

President Roosevelt.

The issue before the Supreme Court was

whether or not Congress was within its author-

ity to delegate to the executive broad authority to

execute the joint resolution, granting to the ofﬁ ce

lawmaking power. The Court did not ﬁ nd a consti-

tutional violation, though in the year prior to this

decision, the Court had struck down congressio-

nal grants of power to the president in the domes-

tic sphere (PANAMA REFINING CO. V. RYAN, 293 U.S.

388 [1935], and Schechter Corp. v. United States,

295 U.S. 495 [1935]).

Justice Sutherland, joined by Chief Justice

Hughes and Justices Devanter, Brandeis, But-

ler, Stone, Roberts, and Cardozo, wrote for the

Court, holding that if the joint resolution had

related solely to internal affairs, it could be chal-

lenged whether or not it constituted an unlawful

delegation of legislative power to the executive, as

had been the case in the cases the year before.

However, the stated purpose of the resolution was

to control a situation external to the United States,

thus falling within the category of foreign affairs.

The Court held that the limitation on the federal

government exercising only powers specifically

enumerated in the Constitution is true in respect

to domestic affairs alone. The Court found that,

while the Constitution does not speciﬁ cally grant

to the president authority to conduct foreign rela-

tions alone, it is implicitly granted and therefore

the “broad discretion” that Congress conferred

upon the executive should be vested in the presi-

dent to decide whether or not the enforcement of

the congressional joint resolution would aid in the

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reestablishment of peace in the affected countries.

Sutherland makes it clear that it is important to

note that this case does not take into consideration

only the authority vested in the president by Con-

gress, but also the power of the president “as the

sole organ of the federal government in the ﬁ eld of

international relations.” Justice McReynolds dis-

sented in a very short sentence, stating simply that

he did not agree and was of the opinion that the

circuit court had reached the right opinion and its

judgment should have been afﬁ rmed.

While the ruling in this case concerns the pow-

ers of the federal government in general, and in

particular how far the powers of delegation from

Congress to the president reach, it is remembered

and often cited for Sutherland’s suggestion, quot-

ing a speech of former chief justice John Mar-

shall, made in 1800 when he was a member

of the House of Representatives and one

year before being appointed chief justice of the

Supreme Court, that the president is the “sole

organ” of the nation in the area of foreign affairs.

This ruling is signiﬁ cant not only because it upheld

export limitations on the grounds of national secu-

rity but also, more important, because it estab-

lished the broad principle of executive supremacy

in matters relating to both national security and

foreign affairs. Since the decision, presidents on

both sides of the aisle have been known to quote

the decision in letters to Congress, suggesting the

executive’s power in the area of foreign affairs is

broad. It should be noted that Marshall’s concept

of the executive as the “sole organ” in foreign

affairs actually was in regard to the president’s

authority to communicate with other nations, not

to make policy concerning other nations without

consultation from Congress.

Proponents of expanded executive authority

in the area of international relations draw upon

the Curtiss-Wright decision as authoritative. For

example, as assistant attorney general, future chief

justice of the Supreme Court William Hubbs

Rehnquist would argue the constitutionality of

the Vietnam War’s Tonkin Gulf Resolution on the

basis of the Curtiss-Wright decision. As a justice,

Rehnquist would again rely on Curtiss-Wright

afﬁ rming the power of the president to terminate

treaties without the consent of the Senate (GOLD-

WATER V. CARTER, 444 U.S. 996 [1979]). Yet members

of the Court have also tried to curtail such reason-

ing. Justice Jackson argued that Curtiss-Wright

actually suggests that that, while the president

may act in foreign affairs without explicit congres-

sional authority to do so, he cannot act contrary to

an act of Congress and has the most leniency from

the federal courts when the executive acts pursu-

ant to a congressional statute (Y

OUNGSTOWN SHEET

& TUBE V. SAWYER, 343 U.S. 579, 636 n. 2 [1952]),

showing the prominence of Congress even in the

area of foreign affairs. A federal circuit court also

criticized the opinion, stating that the dicta in

which Sutherland claims the president is the sole

organ in foreign affairs is a “blanket endorsement”

of the executive having control over all policy that

extends beyond the borders of the country. That

court rejected this view (American Intern. Group

v. Islamic Republic of Iran, 657 F.2nd 430, 438 n.

6 [D.C. Cir. 1981]).

For more information: Fisher, Louis. Presiden-

tial War Power. Lawrence: University Press of

Kansas, 2004; Silverstein, Gordon. Imbalance of

Powers. Oxford: Oxford University Press, 1997;

Wormuth, Francis, and Edwin Firmage. To Chain

the Dog of War: The War Powers of Congress in

History and Law. 2d ed. Chicago: University of

Illinois Press, 1989; Yoo, John. The Powers of War

and Peace: The Constitution and Foreign Affairs

after 9/11. Chicago: Chicago University Press,

2005.

—Amanda DiPaolo

United States v. Darby Lumber Co. 312

U.S. 100

(1941)

In United States v. Darby, the U.S. Supreme Court

upheld federal minimum wage laws as a valid power

of Congress under the commerce clause.

In 1938 Congress passed the Fair Labor Stan-

dards Act (FLSA). This law prevented the ship-

ping in interstate commerce of goods that

are produced by companies whose employees are

paid less than the minimum wage or who work

more than 40 hours a week without overtime pay.

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Fred Darby was an owner of a lumber business

who was indicted for violating the provisions of

the FSLA, and he challenged the constitutionality

of the law on the grounds that it exceeded Con-

gress’s commerce clause authority in the Consti-

tution. At issue in this case was whether Congress

could regulate the conditions of manufacturing. If

manufacturing conditions were considered solely

intrastate (no matter whether they were eventu-

ally distributed across state lines), then it would

appear that Congress had violated its authority

under the commerce clause, and the matter would

be left to individual state governments for regula-

tion, if at all.

A unanimous Court held the FLSA was a

constitutional exercise of congressional author-

ity under the commerce clause. The Court con-

ceded that the manufacturing that occurred at

the Darby Lumber Company was intrastate; how-

ever, once the goods were shipped and crossed

state lines, then the goods became interstate and

could be regulated by the federal government.

Relying upon G

IBBONS V. OGDEN (1824), the Court

concluded that the Congress’s commerce clause

authority is complete concerning goods that are

or could become commerce, even if congressional

intent was to regulate the conditions of manufac-

turing (and not necessarily just the distribution of

goods across state lines).

A roadblock for the Court in Darby was its rul-

ing in HAMMER V. DAGENHART (1918). In that case,

the Court held that Congress did not have the

authority under the commerce clause to pass a

law that excluded products of child labor from

becoming interstate commerce. The Court’s vote

in Hammer was 5-4, and it contained a classic dis-

sent authored by Justice Oliver Wendell Hol-

mes. The Court in Darby proclaimed that the

Hammer decision was wrongly decided and was a

departure from its body of rulings concerning the

commerce clause.

Moreover, addressing the claim that the power

to regulate manufacturing conditions was a right

reserved to the states per the Tenth Amendment,

the Court stated that its ruling in this case was

unaffected by the Tenth Amendment. Indicat-

ing quite clearly a jurisprudential philosophy

that would be controlling on the Court for next

50+ years, Justice Stone’s opinion for the Court

stated that the Tenth Amendment was nothing

more than a declaration of the general relation-

ship between the national and state governments.

As far as Congress’s commerce clause authority

was concerned, Congress could regulate inter-

state commerce and the conditions related to the

production of goods that were eventually trans-

ported interstate without being hampered by the

Tenth Amendment.

The ruling in Darby represented a ﬁ ne example

of how the Court in the late 1930s and early 1940s

began to show great deference to the elected

branches of the federal government to regulate

the economy per various New Deal legislation

and programs. In the early years of the New Deal,

the Court was quite skeptical of the idea that the

Constitution gave the national government the

authority to enact legislation that would create

economic policy for the entire nation (see United

States v. Butler, 1936, wherein the Court struck

down a farm subsidies program). However, in a

few short years, the Court changed its philoso-

phy and began to uphold the constitutionality of

numerous New Deal programs, like the one ques-

tioned in Darby.

For more information: Leuchtenburg, William

E. The Supreme Court Reborn: The Constitu-

tional Revolution in the Age of Roosevelt. New

York: Oxford University Press, 1995; Schwartz,

Bernard. A History of the Supreme Court. New

York: Oxford University Press, 1993.

—John M. Aughenbaugh

United States v. E.C. Knight Co. 156 U.S. 1

(1895)

In United States v. E.C. Knight Company, the

Supreme Court ruled that sugar manufacturing

was not part of interstate commerce and

therefore was beyond the scope of federal regula-

tion. The Court’s narrow deﬁ nition of interstate

commerce severely weakened the national govern-

ment’s efforts to eradicate monopolies under the

Sherman Antitrust Act of 1890.

United States v. E.C. Knight Co. 765

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Article I, Section 8 of the Constitution

delegates to Congress the authority to regulate

interstate commerce. Under the aegis of this com-

merce clause, Congress enacted the Sherman

Antitrust Act of 1890. This landmark act banned

trusts and combinations that restrain trade in

interstate or foreign commerce. The law autho-

rized the Justice Department to seek injunc-

tions, seize property, and ﬁ le criminal and civil

suits against violators.

One target of the federal prosecutors under

the Sherman Antitrust Act was the sugar monop-

oly involving the E.C. Knight Company. By the

early 1890s, just six companies controlled the

American sugar industry. The largest company,

the American Sugar Refining Company, domi-

nated approximately 65 percent of the market.

Four Pennsylvania-based reﬁ ners, including the

E.C. Knight Company, collectively controlled

about 33 percent of the market, and one Massa-

chusetts-based company did a mere 2 percent of

the nation’s sugar reﬁ ning. In 1892, the Ameri-

can Sugar Reﬁ ning Company acquired the four

Pennsylvania companies, giving it control over

98 percent of the sugar reﬁ ning market. The U.S.

government ﬁ led suit under the Sherman Antitrust

Act to prevent the merger. The E.C. Knight Com-

pany, which favored the merger, argued that sugar

reﬁ ning constituted “manufacturing”—not “com-

merce”—and was therefore beyond the scope of

federal regulation. The lower court ruled in favor

of Knight, and the federal government appealed.

Is the manufacturing of reﬁ ned sugar part of

interstate commerce and therefore subject to con-

gressional regulation? In United States v. E.C.

Knight, the Supreme Court affirmed the lower

court decision holding that sugar production did

not constitute commerce. Delivering the majority

opinion, Chief Justice Melville Fuller observed,

“Commerce succeeds to manufacturing, and is not

a part of it. . . . The fact that an article is manufac-

tured for export to another State does not of itself

make it an article of interstate commerce, and the

intent of the manufacturer does not determine the

time when the article or product passes from the

control of a State and belongs to commerce.” Fuller

concluded that any regulation would have to come

from the states under their police powers. Jus-

tices Stephen Field, Horace Gray, David Brewer,

Henry Brown, Rufus Peckham, Edward White,

and George Shiras, Jr., joined in the decision.

The lone dissenter was John Marshall Har-

lan. Harlan recognized the threat monopolies

posed and argued that collusion in manufactur-

ing had a direct impact on the price of goods in

interstate commerce. Moreover, Harlan believed

that the magnitude of the problem was beyond the

scope of individual states to remedy. According to

Harlan, “The general government is not placed by

the Constitution in such a condition of helpless-

ness that it must fold its arms and remain inactive

while capital combines, under the name of a cor-

poration, to destroy competition. . . . The doctrine

of the autonomy of the states cannot properly be

invoked to justify a denial of power in the national

government to meet such an emergency, involv-

ing, as it does, that freedom of commercial inter-

course among the states which the Constitution

sought to attain.”

The Court’s ruling in this case weakened the

enforcement of the Sherman Antitrust Act. How-

ever, in Addystone Pipe and Steel Company v.

United States (1899) the Court upheld portions of

the Sherman Antitrust Act in restricting the col-

lusive sale and distribution of pipes in interstate

commerce. Signiﬁ cant federal antitrust action did

not occur until 1914, when Congress enacted the

Clayton Antitrust Act and established the Federal

Trade Commission. And it was generally not until

the New Deal that the Supreme Court began to

consistently uphold federal antitrust regulations

under the commerce clause.

For more information: Bork, Robert. The Anti-

Trust Paradox: A Policy at War with Itself. New

York: Basic Books, 1978; Hovenkamp, Herbert.

Enterprise and American Law, 1836–1937. Cam-

bridge, Mass.: Harvard University Press, 1991.

—Richard J. Hardy

United States v. Lopez 514 U.S. 549 (1995)

In United States v. Lopez, the U.S. Supreme

Court held that, in enacting the provision of the

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federal Gun-Free School Zones Act of 1990 that

makes carrying a ﬁ rearm within 1,000 feet of a

public school a federal crime, Congress exceeded

its authority under the Constitution’s interstate

commerce power.

Alfonso Lopez had been convicted under the

federal act for carrying a weapon within a school

zone. In an attempt to have his federal indictment

dismissed, he challenged the act as an unconstitu-

tional exercise of Congress’s interstate commerce

power. To understand the signiﬁ cance of this case,

it is necessary to examine its historical and con-

stitutional context. One of the enumerated pow-

ers granted to Congress in the Constitution is the

interstate commerce power. It was not until the

end of the 19th century that Congress began to

use this power as the basis of federal laws. At that

same time, however, the Court began to see the

commerce power less as a source of federal power

and more as a prohibition on federal interfer-

ence in a state’s local or internal commerce. From

the 1870s until 1937, the Court progressively

restricted Congress’s use of the commerce power

in most areas of regulation.

Beginning abruptly in 1937, the Court dramati-

cally shifted its position on the scope of federal

commerce power, moving to a position of great def-

erence to Congress’s judgment on the link between

the regulated activities and interstate commerce.

The Court gave Congress virtually complete dis-

cretion to regulate the channels of interstate

commerce with respect to the movement of any

people or goods as well as activities within a state,

if such activities are a part of or affect interstate

commerce. Under this view, even if the commer-

cial impact of the activity of a single individual is

minute, the aggregate of such activities was seen as

having a sufﬁ cient impact on interstate commerce

to satisfy the constitutional threshold. During the

years following 1937, Congress acted pursuant to

this broad interpretation and greatly expanded the

use of this power well beyond economic regulation

into other areas such as civil rights and social

welfare, making it the most signiﬁ cant source of

federal regulatory power. This approach, extend-

ing over a 60-year period, came to an end in 1995

with the decision in United States v. Lopez.

In this landmark decision, the Supreme Court,

for the ﬁ rst time since 1937, declared a federal stat-

ute to be beyond Congress’s interstate commerce

power. The Court found that: (1) The statute at issue

had “nothing to do with ‘commerce’ or any sort of

economic enterprise”; (2) it lacked a provision that

would require a judicial examination of whether the

defendant’s ﬁ rearm possession affected interstate

commerce; and (3) there were no congressional

ﬁ ndings that might assist the Court in evaluating

the legislature’s judgment on that question. The

Court rejected the government’s argument that,

even if Lopez’s possession of a gun in a school zone

did not impact interstate commerce, the aggregate

effect of guns in public schools had a substantial

effect on interstate commerce.

Given the widespread use of the commerce

power as a basis for federal regulation, the poten-

tial impact of this decision is enormous. The

decision casts doubt on a tremendous amount of

federal legislation based on the commerce power.

The dissenting opinions in Lopez expressed some

alarm over this matter. During the decade since

the Lopez decision, the Court has decided two

more cases that rest on a similarly narrow view

of the interstate commerce power. This reinforces

the suggestion that a majority of the Court has

embraced a new interpretation of that power. The

exact contours of this power and its consequences

for American life remain to be seen.

For more information: Merritt, Deborah Jones.

“Reflections on United States v. Lopez: Com-

merce!” Michigan Law Review 94 (1995): 674–

751; Tribe, Lawrence H. American Constitutional

Law. 3d ed. New York: Foundation Press, 2000.

—Steven B. Dow

United States v. Morrison 529 U.S. 598

(2000)

In a 5 to 4 decision, the Supreme Court in United

States v. Morrison found Section 13981 of the

1994 Violence Against Women Act (VAWA) uncon-

stitutional. The disallowed provision permitted

victims of gender-motivated violence to sue their

assailants in federal court.

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In 1994, as a freshman at Virginia Polytech-

nic Institute and State University (Virginia Tech),

Christy Brzonkala claimed she was raped by Anto-

nio Morrison and James Crawford, members of the

school’s football team. When Brzonkala brought

charges through the university’s judicial system,

the results seemed unsatisfactory. Crawford was

acquitted and Morrison was given only a nominal

penalty to be served after he graduated. Brzonk-

ala then sued her alleged assailants under Sec-

tion 13981 of the newly passed Violence Against

Women Act. Based on the premise that citizens

have the civil right to be free from violence based

on gender just as they should be free of violence

based on race, VAWA provided that victims of rape

and domestic violence could bring suit in federal

court. The federal district court and the Fourth

Circuit found the relevant section of VAWA uncon-

stitutional. The Supreme Court afﬁ rmed.

Congress had cited two constitutional provisions,

the commerce clause and the Fourteenth

Amendment, as authority for VAWA. The legisla-

tors heard hours of testimony about the effects of

violence against women on the economy. Rape,

domestic violence, and the fear engendered by

those crimes limited women’s career choices and job

opportunities, curtailed their freedom to travel, and

had a negative impact on their educational choices.

Without a doubt, gender-based violence cost millions

of dollars each year in health care and mental health

costs. Based on such information, Congress deter-

mined that violence against women had a signiﬁ cant

economic impact and could be addressed under its

power to regulate interstate commerce.

The Court disagreed with that analysis. They

held that only economic activities or noneconomic

activities with a substantial effect on the economy

could be regulated under the commerce power. It

took exception to Congress’s judgment about the

connection between violence against women and

its economic impact. The Court drew a distinc-

tion between what was truly national and what

was truly local. Violent crime and its repercus-

sions were considered local matters for state law

and state courts.

With respect to the Fourteenth Amendment,

lawmakers heard substantial testimony that the

states had failed to respond adequately to violence

directed at women, especially in affording protec-

tion against rape and domestic violence. Forty-four

state attorneys general agreed that the ability to sue

an assailant in federal court would provide a valu-

able remedy for victims. If the states were failing to

provide those who suffered from gender-motivated

violence with equal protection, Congress had

the authority under the Fourteenth Amendment to

enforce the equal protection guarantee.

Again, ﬁ ve members of the Court disagreed.

They did not concede that, if women have a right

to be free from gender-based violence and if the

states fail to safeguard that right, the ability to

sue assailants in federal court is an appropriate

remedy. The justices found that the Fourteenth

Amendment did not apply, as the remedy was not

congruent with the offense. They believed that if

the states were not protecting victims, a federal

suit against an individual rapist or abuser was

aimed at the wrong target.

Many supporters of VAWA draw a parallel

with racism and racial violence. They argue that

violence against women is a systemic problem,

reflecting deep gender inequities in American

society. If this is true and if gender-based violence

violates a civil right to be free from attacks that

grow out of bias, then the federal courts are an

appropriate forum in which to address such per-

vasive expressions of inequality. If, however, as the

Court seemed to believe, violence against women

consists of isolated, individual crimes, then state

and local remedies should be sufﬁ cient.

For more information: Atwell, Mary Welek.

Equal Protection of the Law?: Gender and Justice

in the United States. New York: Peter Lang, 2002;

Schneider, Elizabeth M. Battered Women and

Feminist Lawmaking. New Haven, Conn.: Yale

University Press, 2000.

—Mary Welek Atwell

United States v. Nixon 418 U.S. 683 (1974)

In United States v. Nixon, the Supreme Court

ruled against President Richard M. Nixon and

his lawyers in favor of the United States, ordering

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the president to turn over tapes of White House

conversations to a special prosecutor investigating

the Watergate break-ins. The signiﬁ cance of the

case was to establish not only that the president

has a limited constitutional power of executive

privilege, but also that a sitting president is not

exempt from being subpoenaed and held legally

accountable for his actions.

The case arose out of investigations into the

involvement of Nixon in the break-in at the Demo-

cratic Party’s national headquarters in the Water-

gate complex in Washington, D.C., in 1972. During

congressional investigations into the break-in, one

witness indicated that Nixon had tape-recorded

conversations in his ofﬁ ce. After it was revealed

that the tapes existed, Archibald Cox, a special

prosecutor appointed to investigate the matter,

was ﬁ red in October 1973 in what has come to be

known as the Saturday Night Massacre. A subse-

quent special prosecutor, Leon Jaworski, subpoe-

naed the tapes. Nixon refused to turn them over.

The president’s position, as deﬁ ned by his lawyers,

offered a claim that the president of the United

States had an absolute right of executive privilege

not to turn the tapes over. This concept of execu-

tive privilege was supposedly rooted in the idea of a

separation of powers. The case was litigated in the

federal courts until it reached the Supreme Court,

which in an 8-0 decision disagreed with Nixon.

Writing for the Court, Chief Justice Warren

Burger stated that, while executive privilege

does exist within the Constitution under the

concept of separation of powers and protects

the ofﬁ ce of the president from having to reveal

some private conversations, this privilege is not

absolute and has to give way to the needs of a

pending criminal investigation. As a result of

this decision, Nixon was forced to turn over the

taped conversations, and this led to his eventual

resignation.

United States v. Nixon is considered a water-

shed case in American constitutional law. It stood

for the principle that presidents are not above the

law and that they too have to comply with orders

of the court. This case thus became a major

precedent for cases such as C

LINTON V. JONES,

520 U.S. 681 (1997), where the Court ruled that

President Clinton was not excepted from having

to face a sexual harassment lawsuit brought by

Paula Jones while he was still president. How-

ever, Nixon also has created some constitutional

confusion. While the Court stated that executive

privilege did exist, it did not say how extensive it

was or what it protected. As a result, subsequent

presidents such as George Bush, and his vice

president Dick Cheney, have invoked executive

privilege to prevent individuals in their admin-

istration from testifying about activities such as

the ﬁ ring of federal attorneys or allegations of

illegal wiretapping and electronic surveillance

of individuals.

For more information: Kurland, Phillip. Water-

gate and the Constitution. Chicago: University of

Chicago Press, 1978; Small, Melvin. The Presi-

dency of Richard Nixon. Lawrence: University

Press of Kansas, 2003.

—Ernest Gomez and David Schultz

United States v. O’Brien 391 U.S. 367 (1968)

In United States v. O’Brien, the Supreme Court

decided that the First Amendment did not pro-

tect all “expressive conduct”—in this case, burning

a draft card. The Court held that a legitimate and

important government interest in the regulation

President Richard Nixon reads a farewell speech

to his staff on August 9, 1974, at the White House,

Washington, D.C., following his resignation.

(George

Tames/New York Times Co./Getty)

United States v. O’Brien 769

vi+904_EofUSConsti-v2.indd 769 3/20/09 2:19:13 PM

of conduct could justify incidental limitations on

freedom of speech.

On March 31, 1966, David Paul O’Brien and

three compatriots burned their draft cards on

the steps of a Boston courthouse. O’Brien was

promptly arrested and charged with violating fed-

eral law. In 1965, in response to emerging protests

against the Vietnam War and the draft, Congress

had amended the Uniform Military Training and

Service Act (UMTSA) of 1948 to proscribe the

knowing destruction of any Selective Service

document.

Before trial, O’Brien argued that he was

engaged in protected speech and that the 1965

amendment to the UMTSA abridged his rights

under the First Amendment. After the trial court

rejected that argument, O’Brien was tried, con-

victed, and sentenced to six years in federal cus-

tody. On appeal, the court of appeals reversed. It

held that Congress had indeed targeted the pro-

testers’ message for suppression when it passed the

1965 amendment. The government then appealed

to the U.S. Supreme Court.

O’Brien was a hard case. On its face, the 1965

amendment banned conduct, not speech. Could

the ﬁ rst amendment protect any conduct through

which a speaker sought to convey a message? If it

protected draft card burning, then why not

urinating on the Washington Monument? Yet,

both the social context and statements by legisla-

tors backing the 1965 amendment indicated that

Congress was bothered much more by what the

draft card burners were saying than by what they

were doing.

Confronted with this dilemma in the year 1968,

the Supreme Court split the difference between

two polar positions. The Court could have viewed

O’Brien’s action as “conduct,” not “speech,” and

therefore as not entitled to any protection. Alter-

natively, it could have treated his action as just

like the written or spoken word, and therefore as

entitled to maximum protection.

Chief Justice Warren’s opinion for the Court

took neither of these approaches. Rather, he

began with the proposition that O’Brien’s action

involved a combination of “speech” and “non-

speech” elements. When this was the case, War-

ren continued, a particular logic should apply.

This logic would become known as the O’Brien

test: “. . . a government regulation is sufﬁ ciently

justiﬁ ed [1] if it is within the constitutional power

of government; [2] if it furthers an important or

substantial government interest; [3] if the govern-

mental interest is unrelated to the suppression of

free expression; and [4] if the incidental restric-

tion on alleged First Amendment freedoms is

no greater than is essential to the furtherance of

that interest” (391 U.S. 367, at 377). Warren then

went on to uphold the constitutionality of the

1965 amendment, both on its face and as applied

to O’Brien. Warren accepted the government’s

claim that it had a “substantial interest”—namely,

the smooth functioning of the draft—and that

this interest was “unrelated to expression.” The

incidental burden on O’Brien’s speech could not

be avoided.

The Court’s decision was 7 to 1, with Justice

Marshall not participating. Only Justice William

O. Douglas dissented, and he did so not on the

merits of the First Amendment claim, but rather

on the basis of his view that the Court should

decide “whether conscription is permissible in the

absence of a declaration of war.”

The Court’s opinion has come in for sharp

criticism. One kind of objection goes to the nature

of the O’Brien test itself. The Court’s general

approach, some have argued, severely discounts

the vital importance of allowing citizens to control

the form, and therefore, potentially, the power and

effectiveness, of their speech. The crucial question

in the O’Brien test is what the government is up to,

and not what the citizen is up to—what the gov-

ernment’s “interest” is, and not what the govern-

ment in fact or in effect limits. The Court’s use of

balancing language, moreover, gives future judges

wide latitude to call it as they want to see it.

Another kind of objection grants the desirabil-

ity or plausibility of the O’Brien test, but goes on

to criticize the Court for how it applied it in this

case. In this view, the Court’s conclusions—that

the government’s interest was both “unrelated to

the suppression of free expression” and “substan-

tial”—simply “blinked reality” (Stone, p. 477).

The Court discounted the substantial evidence of

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an actual legislative motive and purpose to sup-

press speech. Indeed, it wrote that it was always

reluctant to examine legislative motives in consti-

tutional cases. This claim was transparently false,

for it had often done just that in equal protec-

tion and establishment clause cases. Finally,

the Court’s discussion of the government’s “sub-

stantial interest” reads very much like a discussion

of mere bureaucratic convenience.

But O’Brien had implications reaching beyond

its peculiar facts and context. The Court recog-

nized symbolic speech as potentially protected,

and offered a new set of authoritative terms under

which many future cases would be evaluated

EXAS V. JOHNSON, 491 U.S. 397 [1989] [ﬂ ag burn-

ing protected], and Barnes v. Glenn Theatre, Inc.,

501 U.S. 560 [1991] [ban on totally nude dancing

upheld via an application of the O’Brien test]).

For more information: Gunther, Gerald, and

Kathleen M. Sullivan. Constitutional Law: Cases

and Materials. 13th ed. Westbury, N.Y.: Foun-

dation Press, 1997; Powe, Lucas A. The Warren

Court and American Politics. Cambridge, Mass.:

Harvard University Press, 2000; Stone, Geoffrey.

Perilous Times: Free Speech during Wartime.

New York: W.W. Norton, 2005.

—Michael Paris

United States v. Pink 315 U.S. 203 (1942)

In United States v. Pink, the Supreme Court

expanded the president’s foreign affairs authority.

The Court reafﬁ rmed presidential power to enter

into executive agreements with foreign nations

without the consent of the Senate; and it held

again that such agreements were a form of federal

law, thus overriding conﬂ icting state laws.

The case arose from President Franklin Roos-

evelt’s 1933 recognition of the Communist regime

as the lawful government of the Soviet Union. As

part of that recognition, the president had entered

into an agreement (the Litvinov agreement) with

the Soviet government, transferring all property

of the Soviet Union within the United States to

the government of the United States to settle

American claims against the Soviet Union. Ameri-

cans owed money by a Russian corporation sued

to obtain that corporation’s funds held by the New

York state insurance commissioner. The United

States government also claimed those funds

under the Litvinov agreement, arguing that the

funds belonged to the Soviet government, which

had nationalized the Russian corporation. The

New York courts rejected the government’s claim

because of state law prohibiting the conﬁ scation

of property.

Five justices, in an opinion by Justice William

O. Douglas, upheld the government’s position.

Drawing on broad language in UNITED STATES V.

CURTISS-WRIGHT EXPORT CORPORATION, 299 U.S.

304 (1936), and UNITED STATES V. BELMONT, 301

U.S. 324 (1937), the Court held: (1) that the presi-

dent is the “sole organ” of the United States for

the recognition of foreign governments, (2) that

the president has authority to make executive

agreements that set the conditions for recognition

of foreign governments, (3) that executive agree-

ments do not require the consent of the Senate,

as do treaties, and (4) that executive agreements

override state laws because, like treaties, they are

the “supreme law of the land” under the Constitu-

tion. The ﬁ ve justices in the majority in the Pink

case had all been appointed since the decision in

Belmont, therefore giving additional credibility to

this strong statement of presidential power in for-

eign affairs. Chief Justice Harlan Fiske Stone

and Justice Owen Roberts dissented; two others

did not participate.

Presidents have made thousands of executive

agreements. Some have been authorized by Con-

gress or approved afterward. But most have been

made by the president alone—often called “sole

agreements”—on the authority of the Belmont

and Pink cases. Sole executive agreements have

been criticized as presidential lawmaking with-

out the approval of Congress and as bypassing

the Senate’s constitutional power to ratify treaties

under Article I, Section 2 of the Constitution.

Critics also argue that the Constitution does not

give the president a power to “recognize” foreign

governments, as stated in the Pink case. Article

II, Section 3 gives him only the power to “receive”

foreign ambassadors, which the Constitution’s

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