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humankind as being driven by a higher will, sug-

gesting a morality guided by providence.

The second school of historical interpretation

referenced by Beard and that followed Bancroft

was termed Teutonic. This school was derived

from the political talents and genius of the Teu-

tonic tribes who invaded England and destroyed

the older Roman and British cultures. Their

example of free government became a model for

the world, and Teutonic knowledge has served as

a foundation for the creation of the federal con-

stitution. The third school was not characterized

by a unique phrase or title and lacked a central

hypothesis. This school was narrowly empirical

and turned away from historical interpretation to

critical analysis of documents and facts.

Beard’s critique of these classical interpreta-

tions of history proved inﬂ uential in the develop-

ment of his own interpretations and his decision

to ally himself instead to some degree with the

Turner school (named for Frederick Jackson

Turner), given its affinity for economic inter-

pretation. Beard’s Economic Interpretation of

the Constitution of the United States examined

numerous historical documents, including unpub-

lished records from the U.S. Department of the

Treasury and records from the debates at the

Constitutional Convention. An investiga-

tion of these sources and the documented obser-

vations of Alexander Hamilton led Beard to

conclude that the convention was composed of

ﬁ ve distinct upper-class groups. In his own words,

Beard argued that “the overwhelming majority of

members, at least ﬁ ve-sixths, were immediately,

directly, and personally interested in the outcome

of their labors at Philadelphia, and were to a

greater or less extent economic beneﬁ ciaries from

the adoption of the Constitution” (149). Each

group represented a different economic interest

in society.

The ﬁ rst group was composed of public secu-

rity interests such as creditors, ﬁ nanciers, bank-

ers, and moneylenders. Beard was able to identify

at least 40 of the 55 delegates at the convention

as falling in this category. A second category of

economic interests was represented by merchants

and manufacturers and those in shipping lines.

This grouping consisted of 11 of the 55 delegates

at the convention, who were ultimately inﬂ uen-

tial in designing Article I, Section 9, of the U.S.

Constitution dealing with the interstate com-

merce clause. This clause centralized control

of commerce at the national level and prevented

state tariffs on imports. The third category identi-

ﬁ ed by Beard consisted of bankers, debtors, and

investors. Of the delegates there were 24 who fell

in this group and represented economic interests

in areas of business law and contracts. This inter-

est inﬂ uenced the design of Congress’s powers to

formulate bankruptcy laws, coin money, and regu-

late some of the more ﬁ nancially driven elements

of the new nation.

A fourth category of convention delegates was

composed of western land speculators and pro-

moters, men like George Washington, Benjamin

Franklin, Robert Morris, James Wilson, William

Blount, and others of wealth who had purchased

large parcels of land. This group included 14 of the

55 delegates and was inﬂ uential in bolstering the

constitutional powers of the chief executive and

U.S. militia to ﬁ ght American Indian tribes who

populated western territories. The ﬁ nal category

was composed of slaveowners. Beard’s research

identiﬁ ed 15 of the 55 delegates in this category,

which mainly consisted of southern slave owners

who were inﬂ uential in propagating slavery until

ratiﬁ cation of the Thirteenth Amendment. In

all, Beard argued that the gathering of interest-

driven delegates who convened to draft the U.S.

Constitution was composed of practical men who

“were able to build the new government upon the

only foundations which could be stable: funda-

mental economic interests” (151).

Beard’s categorical typology has served as a

reference for historians, political scientists, and

economists. While he places many of the 55 del-

egates into one or more of the ﬁ ve categories, the

typology still provides an idea for what motivated

the delegates and how the U.S. Constitution may

have consequently been designed to consider such

economic interests. Beard was a champion of the

progressive school of history, writing during an era

of tremendous economic growth and industrial

development. His unorthodox economic interpre-

52 Beard, Charles Austin

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tations of key historical eras and political events

questioned traditional modes of writing and have

in turn been challenged by numerous academi-

cians over time, such as Edward S. Corwin, Rob-

ert Brown, and Richard Hofstadter. Beard himself

acknowledged that his research was fragmentary

in nature but contended that it was “designed to

suggest new lines of historical research rather than

to treat the subject in an exhaustive fashion” (v).

Even so, his historical interpretation that the Con-

stitution was an economic document has survived

criticism and has earned a place in the literature

as an interesting, if not unorthodox, perspective

on the Founding Fathers.

For more information: Beale, Howard K., ed.

Charles Beard: An Appraisal. New York: Octagon

Books, 1976; Beard, Charles. An Economic Inter-

pretation of the Constitution of the United States.

New York: Macmillan, 1925; Benson, Lee. Turner

and Beard: American Historical Writing Recon-

sidered. New York: Free Press, 1960; Brown,

Robert E. Charles Beard and the Constitution:

A Critical Analysis of “An Economic Interpreta-

tion of the Constitution.” Princeton, N.J.: Princ-

eton University Press, 1965; Hofstadter, Richard.

The Progressive Historians: Turner, Beard, Par-

rington. New York: Alfred A. Knopf, 1968.

—Daniel Baracskay

Beauharnais v. Illinois 343 U.S. 250 (1952)

In Beauharnais v. Illinois, the U.S. Supreme

Court upheld an Illinois group libel statute by a

5-4 vote, ruling that it did not violate the First

Amendment. While Beauharnais has never been

explicitly overruled, many legal scholars question

whether it is still good law.

Joseph Beauharnais, president of the White

Circle League, distributed a leaﬂ et, set forth as

a petition of grievances, that called on Chicago’s

mayor and city council “to halt . . . the further

encroachment . . . [of] white people . . . by the

Negro.” The leaflet added that if “persuasion”

would not unite the white race, “the aggressions

. . . rapes, robberies, knives, gins and marijuana

of the negro . . . surely will.”

Beauharnais was convicted under an Illinois

statute banning public distribution of materials

portraying “depravity, criminality, unchastity or

lack of virtue of a class of citizens” on the basis of

“race, color, creed, or religion” when it exposes the

group in question to “contempt, derision or oblo-

quy” or causes a “breach of the peace or riots.”

Although Beauharnais offered to present evidence

that statements in the pamphlet were true, the trial

judge restricted the jury to the issue of whether

Beauharnais published the pamphlet. The Illinois

Supreme Court afﬁ rmed the conviction.

U.S. Supreme Court justice Felix Frankfurter,

afﬁ rming the Illinois Supreme Court, relied on

HAPLINSKY V. NEW HAMPSHIRE, 315 U.S. 568 (1942),

which held that certain types of speech—includ-

ing libel—fell outside the First Amendment. He

buttressed this point by noting that in 1952 most

states punished criminal libel by common law or

statute. He then discussed the history of race rela-

tions in Illinois, a history that could have led the

state to conclude that conveying falsehood about

“racial and religious groups” tends to “obstruct the

manifold adjustments required for free, ordered

life in a polyglot community.” Therefore, the Illi-

nois legislature was not “without reason” in try-

ing to curb “false and malicious defamation of

racial and religious groups,” especially given the

“powerful emotional impact” on those exposed to

it. While Justice Frankfurter admitted the Illinois

statute could be used in a discriminatory manner,

he would not strike it down based on the mere

possibility of abuse.

There were four dissents. Justice Hugo Black,

laying great emphasis on the right to petition

the government, accused the Court of wanting

to “degrade First Amendment freedoms to a ratio-

nal basis level.” He also worried that the statute

could be used against proponents of racial inte-

gration, a concern shared by Justice William O.

Douglas in his dissent. The remaining dissents

were narrower. Justice Stanley Reed, conceding

that Illinois could ban group libel, argued that

terms such as virtue made the Illinois law uncon-

stitutionally vague. Finally, Justice Robert Jackson

argued that the states had great leeway in punish-

ing speech but faulted the Illinois statute because

Beauharnais v. Illinois 53

xviii+446_EofUSConsti-v1.indd 53 3/12/09 3:03:52 PM

it did not let the accused present the defense of

truth to the jury.

Beauharnais has not aged well. In 1961, Illi-

nois removed the group libel statute. Three years

later, in N

EW YORK TIMES V. SULLIVAN, 376 U.S. 254

(1964), the Court outlawed criminal libel, weak-

ening one of the mainstays of Justice Frankfurter’s

argument. Later, in Collin v. Smith, 578 F.2d 1197

(7th Cir. 1978), the case growing out of the Skokie

affair, the Seventh Circuit questioned whether

Beauharnais remains good law. Interestingly,

Beauharnais has fared better outside the United

States, where foreign courts use it as an example

of a constitutionally valid hate speech law.

For more information: Kalven, Harry, Jr. The

Negro and the First Amendment. Chicago: Univer-

sity of Chicago Press, 1965; Walker, Samuel. Hate

Speech: The History of an American Controversy.

Lincoln: University of Nebraska Press, 1994.

—Robert A. Kahn

Betts v. Brady 316 U.S. 455 (1942)

In Betts v. Brady, the Supreme Court ruled that

an individual facing criminal charges in state

court was not entitled to a attorney provided by

the government if he or she could not afford one

of his own.

Betts, an unemployed farmhand on welfare

and with little formal education, was charged

with robbery in Maryland. As he could not afford

to hire a defense lawyer, he asked the court to

appoint one. When his request was denied, Betts

pleaded not guilty and attempted to conduct his

own defense in a bench trial. He questioned the

state’s witnesses and called his own witnesses in

an effort to establish an alibi. The judge found him

guilty and sentenced Betts to eight years in prison.

Betts sought a writ of habeas corpus claiming

he had been denied his right to counsel under

the Fourteenth Amendment due process

guarantee.

Justice Owen Roberts delivered the opinion of

the Court, which found that Betts was not denied

due process of law. They held that the Sixth

Amendment of the Constitution, providing

for assistance of counsel, applied only in federal

courts and was not applicable to the states. Rather

they found that due process is measured by a

totality of the circumstances in a given case. They

distinguished Betts’s situation from their holding

in Powell v. Alabama, 287 U.S. 45 (1932), where

the Court held that depriving the Scottsboro boys

of adequate counsel was a due process violation.

To the Betts majority, it was signiﬁ cant that the

Powell defendants faced capital charges and addi-

tionally that they were considered incapable of

making their own defense because of “ignorance,

feeblemindedness, illiteracy, or the like.” Betts did

not face the death penalty, and, they claimed, he

was not helpless but a 43-year-old man of average

intelligence. Therefore, requiring states to provide

counsel in situations like his would force them to

afford attorneys in “every criminal case, whatever

the circumstances.”

The majority opinion also drew on the origi-

nal intent of the writers of the Constitution. They

noted that when the Bill of Rights was adopted,

the founders intended the Sixth Amendment to

allow defendants only the privilege of hiring pri-

vate counsel. If individual states wished to provide

attorneys for indigent defendants, that was their

choice rather than a constitutional requirement.

Justice Hugo Black wrote the dissent, joined

by Justices William O. Douglas and William

Francis Murphy. They argued that the right to

counsel was fundamental to a fair trial and that

the Sixth Amendment was applicable to the states

through the Fourteenth Amendment’s due process

guarantee. They further claimed that the circum-

stances in Betts’s case constituted a denial of proce-

dural protection. To deny a request for an attorney

and to subject someone to a greater likelihood of

conviction merely because of the defendant’s pov-

erty was not consistent with “common and funda-

mental ideas of fairness and right.” It contradicted

a democratic society’s promise of equal justice

under law. Betts v. Brady was overturned in 1963

in G

IDEON V. WAINWRIGHT, 372 U.S. 335.

For more information: Lewis, Anthony. Gide-

on’s Trumpet. New York: Random House/Vintage,

1966; Uelmen, Gerald F. “A Train Ride: A Guided

54 Betts v. Brady

xviii+446_EofUSConsti-v1.indd 54 3/12/09 3:03:52 PM

Tour of the Sixth Amendment Right to Counsel.”

Law and Contemporary Problems 58 (2001):

13–29.

—Mary Welek Atwell

bicameral legislature

Bicameralism is the principle that describes the

division of power in the U.S. legislative branch

between the House of Representatives and

the Senate. Bicameralism is provided for in

Article I of the U.S. Constitution and is

one of the many checks placed upon legislative

power.

Bicameralism describes any legislature com-

posed of two distinct chambers. The chambers,

or houses, are often differentiated on the basis

of their constituencies or method(s) of election

or selection. A so-called lower house is normally

directly elected by the general voting-age popu-

lation, while the upper house may be appointed,

directly elected, or indirectly elected. Bicameral-

ism, in the U.S. Constitution, provides for checks

and balances of legislative authority by dividing

its powers between the two houses, requiring con-

currence in the passage of legislation while assign-

ing unique authority to one chamber or the other,

for example, ratiﬁ cation of treaties, conﬁ rmation of

appointments, and origination of revenue bills.

The governments of many countries utilize bicam-

eral parliaments, though some democratic nations

operate under a unicameral (single chamber) par-

liament, an example being the Knesset in Israel.

The lengths of members’ terms differ by chamber,

with lower-house delegates serving shorter terms

(normally two years) and upper-house delegates

serving longer ones (normally four to six years).

When applied to governments in the United

States, the U.S. Congress and 49 of the 50

states operate with bicameral legislatures. Only

Nebraska maintains a unicameral legislature, a

feature it implemented in 1937, championed by

U.S. senator George W. Norris. The vast majority

of local governments in the United States—cities,

towns, boroughs, school districts, etc.,—employ

unicameral bodies, such as city councils, boards,

or commissions.

Dividing a parliament into two chambers estab-

lishes an internal check on legislative powers. To

pass a law, both chambers must agree on exactly

the same language, which requires compromise

between the houses, thereby greatly reducing

extremist legislation. Critics of bicameral legis-

latures argue that they are inefﬁ cient and easily

stalemated by partisan politics.

The bicameral tradition in the United States

may be traced to the British Parliament, which

itself is a bicameral institution. As each of the thir-

teen colonies in America established its govern-

ment, many adopted the English model, although

several, such as Pennsylvania, opted for a uni-

cameral body. The first U.S. constitution—the

Articles of Confederation—created a unicameral

legislature in which each state, regardless of the

size of its population or delegation to the congress,

received one vote.

The Convention of 1787 drafted a new consti-

tution, one that included, out of political neces-

sity, a bicameral legislature. One of the most

contentious issues faced by the Constitutional

Convention’s delegates was the matter of repre-

sentation, in particular, whether states or citizens

or both should be reﬂ ected in a new legislature.

Those states with small populations favored a

unicameral body similar to that under the Arti-

cles of Confederation, while heavily populated

states argued for parliamentary representation

based on population. The convention assigned

the problem to a committee, and from that group

emerged the Great Compromise, which struck a

balance between the demands of the large and

small states, ﬁ nally settling the matter. The U.S.

Congress consists of the House of Representa-

tives, in which representation is based on a state’s

population, and the Senate, in which each state is

treated equally, receiving two votes.

Who should be counted in the population

of a state divided the convention’s delegates as

well. The framers reached another compromise

in the matter, the odious Three-ﬁ fths Compro-

mise, which counted each slave as three-ﬁ fths of

a person.

Recently, the question of how to count the pop-

ulation was brought before the Supreme Court. At

bicameral legislature 55

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issue was the use of statistical sampling to predict

more accurately the census of the United States as

opposed to the traditional, actual head count. In

Department of Commerce v. U.S. House of Rep-

resentatives, 525 U.S. 316 (1999), the majority,

in a 5-4 vote, ruled that the U.S. Census Bureau

must use an actual enumeration for the purpose

of determining the total population to be used for

apportioning representatives in the House. How-

ever, in Utah v. Evans, 535 U.S. 452 (2002), with

another 5-4 vote, the Court approved the U.S.

Census Bureau’s use of “hot-deck imputation,”

a statistical technique that Congress had earlier

approved, which estimates how many people the

actual count is missing.

For more information: Pitkin, Hanna Fenichel.

The Concept of Representation. Berkeley: Univer-

sity of California Press, 1967; Tsebelis, George,

and Jeannette Money. Bicameralism. Cambridge:

Cambridge University Press, 1997.

—Thomas J. Baldino

Bickel, Alexander Mordecai (1924–1974)

scholar

Alexander Mordecai Bickel was a renowned com-

mentator and scholar who studied and wrote about

the role of the U.S. Supreme Court in American

life.

Bickel was born in Bucharest, Romania, but

immigrated to the United States with his parents

in 1939. He received his undergraduate degree

from City College of the City University of New

York in 1947 and graduated in 1949 from Harvard

Law School with highest honors after serving as

editor of the school law review. Bickel then went

on to serve as a law clerk to Supreme Court justice

Felix Frankfurter from 1952 to 1953. While work-

ing for Frankfurter, Bickel was involved in assist-

ing the justice as the Court debated the historic

school desegregation decision, B

ROWN V. BOARD

OF EDUCATION OF TOPEKA, 347 U.S. 483 (1954).

In 1956, Bickel accepted a position as a pro-

fessor at Yale Law School, where he taught until

his death. It was during this time that Bickel had

his most enduring impact on the scholarly com-

munity. One of Bickel’s contributions was his coin-

ing of the phrase countermajoritarian difﬁ culty,

a phrase still widely in use today (see counter-

majoritarianism). This phrase represented the

concept that there is an inherent tension between

the exercise of judicial review and the demo-

cratic principles on which the United States is

founded. Judicial review is the idea that the fed-

eral courts can strike down legislation passed by

Congress if it violates the Constitution.

Bickel also presented a solution to lessen the

tension between these two ideas that was at the

core of his main scholarly contribution. Unlike

many at the time, Bickel did not believe the

Supreme Court should be an unimportant part

of the government. At the same time, however,

Bickel believed that in many regards the Supreme

Court had extended itself too far in major national

controversies such as school desegregation and

affirmative action. The Court’s main role,

for Bickel, was one where its wisdom and isolation

from elections allowed it to defend historic moral

virtues from the short-term desires of the public

and elected ofﬁ cials.

Another contribution made by Bickel was his

theory of the passive virtues of judicial decision

making. Under this logic, the Supreme Court

should decide cases on the narrowest grounds pos-

sible. Justice Byron R. White, who served on the

Court from 1962 to 1993, is an example of a judge

whose legal beliefs were generally supportive of

Bickel’s viewpoint. Justice White would frequently

admonish his colleagues who used broad constitu-

tional reasoning in an opinion when a much nar-

rower approach would sufﬁ ce.

Bickel was also involved in several Supreme

Court cases while he was a law professor. The

most important was a Supreme Court case involv-

ing free speech and national security. Bickel rep-

resented the New York Times at oral argument in

New York Times v. United States, 403 U.S. 713

(1971), which addressed whether the government

could prohibit newspaper publication of allegedly

sensitive war materials during the Vietnam War

(Bickel’s side prevailed). Just three years later, in

1974, Bickel died of cancer at the age of 50 in New

Haven, Connecticut.

56 Bickel, Alexander Mordecai

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For more information: Ward, Kenneth D., and

Cecilia R. Castillo, eds. The Judiciary and Ameri-

can Democracy: Alexander Bickel, the Coun-

termajoritarian Difficulty, and Contemporary

Constitutional Theory. Albany: State University

of New York Press, 2005.

—Ryan C. Black

bill of attainder

A bill of attainder is a speciﬁ c law naming an indi-

vidual guilty of a crime. Bills of attainder are pro-

hibited by the U.S. Constitution.

Article I, Section 9, Clause 3 of the Constitution

states: “No Bill of Attainder or ex post facto Law

shall be passed.” Section 10, Clause 1 addition-

ally states: “No State shall enter into any Treaty,

Alliance, or Confederation; grant letters of

Marque and Reprisal; coin Money; emit Bills

of Credit; make any Thing but gold and silver Coin

a Tender in Payment of Debts; pass any Bill of

Attainder, ex post facto Law, or Law impairing the

Obligation of Contracts, or grant any Title of Nobil-

ity.” Therefore, neither the federal government nor

any state government shall be able to pass a law

that equates to a bill of attainder.

A bill of attainder is deﬁ ned in United States

v. Brown, 381 U.S. 437, 448–49 (1965), as “legis-

lative acts, no matter what their form, that apply

either to named individuals or to easily ascertain-

able members of a group in such a way as to inﬂ ict

punishment on them without a judicial trial.” An

act is a bill of attainder when the punishment is

death, and it is a bill of pains and penalties when

the punishment is less severe. Both kinds of pun-

ishment fall within the scope of the constitutional

prohibition.

The prohibitions covered in both Sections 9 and

10 are best illustrated by United States v. Lovett,

328 U.S. 303 (1946). In Lovett, Congress passed

a law that prohibited the payment of salaries to

three named federal government employees. Con-

gress did this because the employees were engaged

in subversive activities. Lovett and two other

named defendants were government employees

working in government agencies that had lawfully

employed them. Their employers were fully sat-

isﬁ ed with the quality of their work and wished

to keep them employed in their jobs. Congress

provided in Section 304 of the Deﬁ ciency Appro-

priation Act of 1943 that no salary should be paid

to these three named individuals. Congressman

Martin Dies spoke on the ﬂ oor of the House and

attacked, among others, Lovett, naming him as an

“irresponsible, unrepresentative, crackpot, radical

bureaucrat” and an afﬁ liate of “Communist front

organizations.” The U.S. Supreme Court said that

Section 304 was designed to apply to particular

individuals, and it thus operated “as a legislative

decree of perpetual exclusion” from a chosen voca-

tion. The Court went on to declare the act invalid

as a bill of attainder since it applied to named indi-

viduals and punishes them through nonpayment

for services rendered without a judicial trial in

front of a neutral and detached magistrate.

For more information: Cohen, William, and

David J. Danelski. Constitutional Law: Civil Lib-

erty and Individual Rights. 5th ed. New York:

Foundation Press, 2002.

—Kelli Styron

Bill of Rights (1791)

The Bill of Rights refers to the first 10 amend-

ments to the U.S. Constitution introduced in the

House of Representatives by James Madi-

son in 1789 and ratiﬁ ed in 1791 after three-quar-

ters of the then 14 states adopted them. The Bill

of Rights are perhaps the most important amend-

ments to the Constitution, including some of the

most fundamental rights and liberties regard-

ing free expression, religion, rights of the accused,

and property rights. Throughout U.S. history these

rights have been the subject of countless Supreme

Court constitutional law decisions.

The idea of a bill of rights dates back to the

Magna Carta of 1215. This document, signed

by King John, forced him to recognize certain

fundamental rights such as habeas corpus and

a right to trial by jury of one’s peers. In

1689, Parliament adopted the English Bill of

Rights, which protected many religious liberties

and granted individuals the right to petition the

Bill of Rights 57

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monarch to address grievances. Together, the

Magna Carta and the Bill of Rights placed lim-

its on governmental power in an effort to protect

individual rights.

The need for a bill of rights in the new American

nation surfaced during the ratiﬁ cation debates in

the states following the drafting of the Constitution

in Philadelphia in 1787. Critics of the proposed con-

The Bill of Rights (National Archives)

58 Bill of Rights

xviii+446_EofUSConsti-v1.indd 58 3/12/09 3:03:53 PM

stitution were known as the Anti-Federalists, and

they were fearful of the new national government

that it created because in part they saw it as too

powerful. Anti-Federalists such as Patrick Henry

asserted the need for a bill of rights. One of the

Anti-Federalist publications known as the Letters

from a Federal Farmer noted the importance of a

bill of rights in England: “The country from which

we have derived our origin, is an eminent example

of this. Their magna charta and bill of rights have

long been the boast, as well as the security, of that

nation.” For Anti-Federalists, a bill of rights listing

the basic liberties of individuals was necessary to

restrain the new national government.

In response, Federalists such as Alexander

Hamilton, Madison, and James Wilson, who

were defenders of the new constitution, gener-

ally rejected calls for a bill of rights. Hamilton, in

Federalist 84 (of The Federalist Papers), sought

to respond to Anti-Federalist demands for a bill

of rights by dismissing the need for one. First he

pointed out that the Constitution already con-

tained numerous provisions protecting individual

rights. Second, he asserted: “I go further, and

afﬁ rm that bills of rights, in the sense and to the

extent in which they are contended for, are not

only unnecessary in the proposed Constitution,

but would even be dangerous. They would contain

various exceptions to powers not granted; and, on

this very account, would afford a colorable pretext

to claim more than were granted.” For Hamilton,

no bill of rights was needed since the Constitution

did not grant the national government the power

to limit individual rights.

Eventually, the Federalists held the day, and

the Constitution was adopted; however, to secure

its confirmation, Madison conceded the argu-

ments of the Anti-Federalists and promised intro-

duction of a bill of rights in Congress if the new

constitution was adopted. In 1789, he introduced

17 amendments. Of these 17, 12 were adopted by

Congress, and of these, 10 of them were ratiﬁ ed

by 1791 and became what is now known as the

Bill of Rights. Originally, Madison’s plan was to

have them directly incorporated into the text of

the Constitution, but he later changed his mind

and opted to add them as a separate document.

The Bill of Rights contains numerous provi-

sions. The First Amendment contains clauses

guaranteeing rights to free speech, press, exercise

of religion, and right to assembly and petition for

grievances. It also prevents the establishment of

religion.

The Second Amendment refers to a right to

bear arms. In D

ISTRICT OF COLUMBIA V. HELLER,

the Supreme Court resolved a long-running debate

and held that this amendment protects an individ-

ual’s right to bear arms. The Third Amendment

protects against quartering of troops in one’s home.

The Fourth Amendment is protection against

unreasonable seizures, and the Fifth Amend-

ment protects a right to an indictment by a grand

jury, protection against double jeopardy, and a

right against self-incrimination. The Fifth

Amendment also contains the takings clause,

which regulates the use of eminent domain, as

well as a due process clause.

The Sixth Amendment provides for a right

to a speedy trial, to defend oneself with witnesses

and to confront witnesses and question them,

and to be represented by a lawyer. The Seventh

Amendment provides for a jury trial in some

civil matters. The Eighth Amendment proscribes

cruel and unusual punishment and exces-

sive bail. Finally, the Ninth Amendment and

Tenth Amendment serve as catch-all protections

of rights, with the former stating that the enumer-

ation of speciﬁ c rights shall not deny people of all

their other rights and the latter reserving to the

states powers not delegated to the national gov-

ernment nor prohibited to them.

The Bill of Rights was originally written to limit

the power of the national government, not the state

governments. The significance of the point was

emphasized by Chief Justice John Marshall in

ARRON V. MAYOR AND CITY COUNCIL OF BALTIMORE,

32 U.S. 243 (1833). In this case, he rejected claims

that a state violated the Fifth Amendment rights of

an individual who had had property taken without

compensation. He held that the “Fifth Amend-

ment must be understood as restraining the power

of the general government, not as applicable to the

States.” Thus, the Bill of Rights did not apply to the

states or limit their authority.

Bill of Rights 59

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This view of the Bill of Rights as inapplicable to

the states changed with the adoption of the Four-

teenth Amendment in 1868. Section 1, contain-

ing the due process clause, has been used to apply

many of the provisions of the Bill of Rights to the

states. Starting ﬁ rst in Chicago, B. & Q. R. Co. v.

City of Chicago, 166 U.S. 226 (1897), which reversed

Barron and stipulated that the Fifth Amendment’s

just compensation applied to the states, and then

in G

ITLOW V. PEOPLE OF THE STATE OF NEW YORK, 268

U.S. 652 (1925), where the Court stated that the

First Amendment free speech clause limited states,

the Supreme Court has ruled that most of the major

provisions of the Bill of Rights are applicable and

enforceable against states by way of the due process

clause of the Fourteenth Amendment.

The process of applying the Bill of Rights to the

states by way of the due process clause is known

as incorporation. The Court, with the nota-

ble exception of Justice Hugo Black, has never

adopted the argument that the entire Bill of Rights

was incorporated through the Fourteenth Amend-

ment to limit states. Instead, it has opted for selec-

tive incorporation of parts of the Bill of Rights. Most

of the Bill of Rights was incorporated after World

War II and under the Warren Court. Except for

the Second and Third Amendments, the Grand

Jury provision of the Fifth Amendment, the right

to jury trial provision in the Seventh Amendment,

and the excessive bail provision of the Eighth, the

rest of the Bill of Rights has been incorporated.

The adoption of the Bill of Rights represented

a major change in the way rights were to be pro-

tected in the United States. Instead of relying on

federalism, separation of powers, and checks

and balances to protect individuals, the Bill of

Rights takes certain issues out of the political pro-

cess, leaving it up to the courts to protect them.

Beginning with United States v. Carolene Prod-

ucts Co., 304 U.S. 144 (1938), the Supreme Court

subjected legislation implicating Bill of Rights

protections to strict scrutiny, demanding

that the government demonstrate a compelling

interest that is narrowly tailored before permit-

ting their restriction or limitation. Generally, the

Court has not been supportive of limits on Bill of

Rights protections since Carolene Products.

While Bill of Rights provisions are generally

supported, it is often difﬁ cult to ascertain what

the amendments mean today, and many are con-

troversial. For example, in 1791, the World Wide

Web and the Internet did not exist, and many other

technologies of today were absent. Determining

how to apply the First and Fourth Amendments

to these new technologies is difﬁ cult. In addition,

since the terrorist attacks of September 11, 2001,

some have argued for the need to relax some of

the search and seizure and other criminal law

protections of the Bill of Rights in order to facili-

tate the “war on terrorism.” In response, defend-

ers of individual liberties such as the American

Civil Liberties Union oppose this, arguing

that the Bill of Rights is supposed to apply at all

times, including during periods of war.

Overall, the Bill of Rights is one of the major

constitutional law documents in the United States.

Its adoption has had a signiﬁ cant impact on the

protection of rights and the operation of the dif-

ferent levels of government.

For more information: Kelly, Alfred, Winfred

A. Harbinson, and Herman Belz. The American

Constitution: Its Origins and Development. New

York: W. W. Norton & Co., 1991; Levy, Leonard

W. Original Intent and the Framers’ Constitu-

tion. New York: Macmillan Publishing, 1989;

Perry, Michael J. We the People: The Fourteenth

Amendment and the Supreme Court. New York:

Oxford University Press, 1999; Schwartz, Ber-

nard. A History of the Supreme Court. New York:

Oxford University Press, 1993; Stone, Geoffrey

R., and Richard A. Epstein. The Bill of Rights in

the Modern States. Chicago: University of Chi-

cago Press, 1992; Storing, Herbert J. What the

Anti-Federalists Were For. Chicago: University of

Chicago Press, 1981.

—David Schultz

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics

403 U.S.

388

(1971)

In Bivens v. Six Unknown Named Agents of Fed-

eral Bureau of Narcotics, the U.S. Supreme Court

60 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

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established a civil remedy for individuals who had

been allegedly wronged by illegal action by the

federal government.

Traditionally, individuals who had been sub-

ject to illegal activity by police ofﬁ cers, such as

the use of excessive force, could sue them and

the federal government under the Federal Tort

Claims Act. However, in Bivens, the Court ruled

that the Constitution provided for civil remedies

to compensate for wrongs committed against

them by federal law-enforcement agents who vio-

late their rights.

Webster Bivens was arrested without warrant

and had his house searched without warrant. No

charges were brought against him, whereupon Biv-

ens brought suit that his Fourth Amendment

right to protection from unreasonable searches

and seizure was violated. The Supreme Court,

with the opinion delivered by Justice William

J. Brennan, Jr., ruled that the Fourth Amend-

ment provided for ﬁ nancial damages or remedy

to citizens for every wrong committed by the gov-

ernment where a remedy did not exist or where

one could have been recovered if the violation had

been committed by a private citizen and suit was

then brought against that person.

For more information: Langran, Robert W. The

Supreme Court: A Concise History. New York:

Peter Lang, 2004.

—Ernest Gomez

Black, Hugo (1886–1971) Supreme Court justice

Hugo Black was nominated to serve as a U.S.

Supreme Court associate justice by President

Franklin Roosevelt in 1937. After confirmation

in 1937, Black served on the Supreme Court until

1971. Associate Justice Black left a lasting legacy

on the judiciary. Serving more than 34 years on

the Supreme Court, Black is one of the longest-

serving Supreme Court justices, along with Asso-

ciate Justices William O. Douglas and Stephen

Johnson Field and Chief Justice John Marshall.

Justice Black is best known as one of the liber-

als on the Roosevelt Supreme Court and for his

insistence that the Fourteenth Amendment

served to incorporate all of the Bill of Rights

provisions to apply to the states.

Hugo Black came from humble beginnings to

national prominence. He was born on February

27, 1886, in a poor farming community in Alabama

and was the youngest of eight children of Hugo

and Martha Black. After attending medical school

for a year, Black decided to pursue law instead. In

1906, Hugo Black graduated from the University

of Alabama law school. In February 1921, Black

married Josephine Foster, and the couple had

three children. Josephine died in 1951, and Black

married Elizabeth DeMeritte in 1957.

In 1927, Black was sworn in as a senator repre-

senting the state of Alabama. An eloquent speaker

and a loyal Democrat, Black quickly won the

admiration of leaders of his party and gained the

attention of President Roosevelt. This admiration

earned Black a nomination for the U.S. Supreme

Court. Since Black was serving as a senator when

he was nominated, it seemed his confirmation

would be quick and easy; however, this was the

ﬁ rst appointment that President Roosevelt made

after his court-packing plan. For the first time

since 1888, instead of receiving a quick conﬁ rma-

tion with little debate, Senator Black’s nomination

was sent to the Senate Judiciary Committee.

Black was placed under much scrutiny, and his

confirmation seemed in doubt when his former

membership in the Ku Klux Klan (KKK) came

into question. A radio speech on October 1, 1937,

in which Black denied any present afﬁ liation with

the KKK helped sway public support. Ultimately,

the Senate conﬁ rmed Black’s nomination with a

vote of 63-13. On his first day of service to the

Supreme Court, on October 4, 1937, demonstra-

tors protesting Black’s appointment to the Court

crowded the Supreme Court building.

As a justice, the rulings of Black would be

labeled “activist” because of his willingness to

review laws and strike them down as unconsti-

tutional. On the Court, Black’s rulings distanced

his image as a Klan member. In one of his early

rulings as justice, the unanimous opinion of the

Supreme Court in Chambers v. Florida, 309 U.S.

227 (1940), written by Black, favored three Afri-

can-American defendants in a question of unjust

Black, Hugo 61

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