Schultz D. Encyclopedia of the United States Constitution

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framers apparently intended only as a routine cer-

emonial function.

Despite the critics, the Supreme Court has

repeatedly afﬁ rmed presidential power to enter

into executive agreements that become the law of

the land as established in the Belmont and Pink

cases. Recently, in American Insurance Associa-

tion v. Garamendi, 539 U.S. 396 (2003), the Court

not only afﬁ rmed presidential power to enter into

sole executive agreements, but also held that state

laws on a related subject were invalid if those laws

might interfere with an executive agreement.

For more information: Adler, David Gray.

“Court, Constitution, and Foreign Affairs.” In

The Constitution and the Conduct of American

Foreign Policy. Lawrence: University of Kansas

Press, 1996; Adler, David Gray. “The President’s

Recognition Power.” In The Constitution and the

Conduct of American Foreign Policy. Lawrence:

University of Kansas Press, 1996; Henkin, Louis.

Foreign Affairs and the United States Constitu-

tion. 2d ed. New York: Oxford University Press,

1996.

—David Adamany

United States v. Wong Kim Ark 169 U.S.

649

(1898)

In United States v. Wong Kim Ark, the Supreme

Court ruled that mere birth on the soil (jus soli)

of the United States made a baby a citizen, unless

the parents were enemy aliens or diplomatic

personnel.

United States v. Wong Kim Ark was the center

of a landmark case interpreting the deﬁ nition of

citizenship in the Fourteenth Amendment.

Wong Kim Ark was born in San Francisco in 1873

to Chinese parents who were legally the subjects

of the emperor of China. They were living and

working in the United States as private persons

and were not in any way employed by the govern-

ment of China.

In 1888 the Scott Act barred the return to the

United States of Chinese laborers who had exited

the United States. In 1892 Congress adopted

the Chinese Exclusion Act, which prohibited the

immigration of Chinese persons to the United

States.

In 1890 Wong traveled to China and returned

the same year without incident. In 1894 Wong,

now age 21, traveled again to China from San

Francisco, where he maintained a residence.

When he tried to reenter the United States, the

collector of the port of San Francisco barred his

entry. He then sued to be allowed to reenter the

United States.

Justice Horace Gray delivered the opinion of

the Court. He observed that all of Wong’s life,

except for his brief journeys to China, had been

spent in California at the same San Francisco resi-

dence. Nor was there any proof that he had ever

renounced his allegiance the United States nor

committed any act that would exclude him. He

further noted that Wong had been a native-born

citizen since his birth and that the Chinese exclu-

sion acts therefore could not apply to him.

Justice Gray also noted that the Constitution

nowhere deﬁ nes the meaning of the word “citizen”

or “natural-born citizen,” by way of either inclu-

sion or exclusion. The meaning of the phrase, he

argued, must therefore be interpreted in the light

of the common law.

The fundamental principle of the common law

was birth “within the allegiance of the king.” Chil-

dren of aliens born in England were natural-born

subjects, as were children of ambassadors repre-

senting England, although born on foreign soil.

Children of foreign ambassadors or diplomats or

of alien enemies were not natural-born subjects,

since they were born outside of the obedience of

the king. This was the rule in all English colonies

up to the Declaration of Independence.

For more information: Furer, Howard B. The

Fuller Court, 1888–1910. Danbury, Conn.: Gro-

lier Educational, 1995.

—Andrew J. Waskey

United Steelworkers of America v. Weber

443 U.S. 193 (1979)

The Supreme Court ruled in United Steelwork-

ers of America v. Weber that a voluntary race-

772 United States v. Wong Kim Ark

vi+904_EofUSConsti-v2.indd 772 3/20/09 2:19:14 PM

conscious afﬁ rmation action plan did not violate

Title VII of the Civil Rights Act of 1964. This

was the ﬁ rst employment affirmative action

case to reach the Supreme Court.

Until 1974, Kaiser Aluminum had hired only

trained craft workers, but since craft unions had

long excluded blacks from membership, very few

black craft workers were available. At its plant in

Gramercy, Louisiana, for example, only 1.83 per-

cent of the craftsmen were black, even though they

constituted 39 percent of the local workforce.

To redress this clear racial imbalance, the

corporation and the steelworkers union devel-

oped an afﬁ rmative action plan that included on-

the-job training programs to teach craft skills to

unskilled production workers. While admission to

the training program was based on seniority, half

of the training positions were set aside for blacks

and half for whites, until the percentage of black

craftsmen reflected the percentage of blacks in

the local labor pool.

In the ﬁ rst year, the training program at the

Gramercy plant admitted black workers with less

seniority than white workers, who were rejected.

Brian Weber, one of the white workers, filed a

class action lawsuit alleging discrimination against

him and other similarly situated white employees

in violation of Title VII, which bars employment

discrimination on the basis of race, color, sex,

religion, and national origin.

The federal district court agreed with Weber,

and the court of appeals afﬁ rmed, holding that

all race-based employment preferences violated

Title VII.

The Supreme Court ruled only on this narrow

question: Does Title VII forbid private employers

and unions from voluntarily setting up afﬁ rma-

tive action plans to eliminate traditional patterns

of racial segregation? By a 5-2 vote, the Court

answered no. For the majority, Justice William J.

Brennan, Jr., wrote that ruling otherwise would

contradict Congress’s purpose in passing the Civil

Rights Act to open up economic opportunities for

blacks.

Brennan pointed out that “the plan does not

unnecessarily trammel the interests of white

employees,” because it does not require that they

be ﬁ red and replaced by black employees; nor does

it deny white employees access to the training pro-

grams. Instead, the plan is limited and temporary,

“not intended to maintain racial balance, but sim-

ply to eliminate a manifest racial imbalance” (pp.

208–209).

Finally, as a private—not government—plan, it

did not violate the Fourteenth Amendment of the

U.S. Constitution, which requires equal protec-

tion of the law. This distinguished Weber from

the Court’s ruling the previous year in R

EGENTS OF

THE UNIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S.

265 (1978), where a similar plan established by

a public university was struck down. It also dis-

tinguishes the case from later afﬁ rmative action

rulings, such as CITY OF RICHMOND V. J. A. CROSON

COMPANY, 488 U.S. 469 (1989), ADARAND CONSTRUC-

TORS, INC. V. PENA, 515 U.S. 200 (1995), and GRATZ

V. BOLLINGER, 539 U.S. 244 (2003).

For more information: Kluger, R. Simple Jus-

tice: The History of Brown v. Board of Education

and Black America’s Struggle for Equality. New

York: Knopf, 1975; Nowak, John E., and Ronald

D. Rotunda. Principles of Constitutional Law. St.

Paul, Minn.: Thomson/West, 2005.

—Nancy V. Baker

United Steelworkers of America v. Weber 773

vi+904_EofUSConsti-v2.indd 773 3/20/09 2:19:15 PM

774

ﱶﱷﱸ

Valley Forge Christian College v. Americans

United for the Separation of Church and

State, Inc.

454 U.S. 464 (1981)

In Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc.,

the Supreme Court ruled that the respondents

did not have the required standing to challenge

the free conveyance of government property into

the hands of Valley Forge Christian College. The

Court ruled that the respondents could not satisfy

the Article III requirements of “injury in fact”

and “case or controversy.” This case set an impor-

tant precedent concerning separation of church

and state in reference to the establishment

clause of the First Amendment.

The U.S. Department of the Army acquired

the property in question in 1942 to construct the

Valley Forge General Hospital to care for U.S.

Army members. In 1973 it was declared “sur-

plus property” by the U.S. government, and the

Department of Health, Education, and Welfare

(HEW) assumed the task of its disposal. Although

the land in question was appraised for $577,500,

HEW permitted a 100 percent beneﬁ t allowance

to the “buyer,” in essence selling the land for free

with the condition that the land would be used for

30 years solely for educational purposes.

Americans United ﬁ led a complaint soon after

the transaction, challenging the conveyance on

the ground that it violated the establishment

clause of the First Amendment. They argued

that the sale of Valley Forge General Hospital

to a religious institution violated constitutional

provisions concerning the separation of church

and state, and this unconstitutional transaction

deprived its members of the constitutional use

of their tax dollars. The U.S. District Court dis-

missed their case because of Americans United’s

failure to show actual injury beyond a general-

ized grievance common to all taxpayers. The U.S.

Court of Appeals for the Third Circuit reversed,

allowing Americans United standing merely as

“citizens claiming ‘injury in fact’ ” to their rights

under the establishment clause of the First

Amendment.

The Supreme Court reversed. In a 5-4 deci-

sion, Justice William Hubbs Rehnquist gave

the majority decision of the Court, which included

Justices Warren Burger, White, Lewis Pow-

ell, and Sandra Day O’Connor. They ruled

that the respondents did not have standing, either

as taxpayers or citizens, to challenge the con-

veyance in question. Because the establishment

clause does not create exceptions to this “standing”

requirement, no personal injury to the respon-

dents occurred as a result of the alleged constitu-

tional violation. Precedential cases such as Warth

v. Seldin solidiﬁ ed this requirement of “distinct

and palpable injury,” and the abstract nature of

the respondents’ “psychological injury” was insuf-

ﬁ cient to build a satisfactory “case or controversy”

under the establishment clause.

Dissenting, Justices William J. Brennan, Jr.,

Marshall, Blackmun, and John Paul Stevens

claimed that the case was decided on logistical

rather than substantive issues. Justice Brennan

argued that the decision of the Court to base its

ruling on Article III standing deprived the respon-

dents of the opportunity to “prove that [their]

rights [had] been violated” under the establish-

ment clause. Justice Brennan also claimed that, if

the case was reduced to a question of standing, the

precedent of cases such as Frothingham v. Mel-

lon reveals the Court’s authorization of taxpayer

vi+904_EofUSConsti-v2.indd 774 3/20/09 2:19:15 PM

standing as “sufﬁ ciently direct and immediate to

warrant injunctive relief.”

In conclusion, the signiﬁ cance of Valley Forge

Christian College v. Americans United is rooted

in the Article III requirements that delineate the

standards for bringing a lawsuit in federal court.

The Supreme Court exercised Article III prudence

when choosing which cases to address, especially

in controversial issues such as the separation of

church and state.

For more information: Hamburger, Philip. Sep-

aration of Church and State. Cambridge, Mass.:

Harvard University Press, 2002; Levy, Leonard.

The Establishment Clause. 2d ed. Chapel Hill:

University of North Carolina Press, 1994.

—Mary J. Piper

Van Orden v. Perry 545 U.S. 677 (2005)

In Van Orden v. Perry, the Supreme Court ruled

5-4 that a Ten Commandments monument on

the Texas state capitol grounds was not unconsti-

tutional. The complexity of the issue is reﬂ ected

in the seven different written opinions accom-

panying the case, and its relation to MCCREARY

COUNTY, KENTUCKY V. ACLU, 545 U.S. 844 (2005),

announced on the same day but with an opposite

outcome. The monument, one of 17 adorning the

22-acre lawn, was presented to Texas in 1961 by

the Fraternal Order of Eagles. Thomas Van Orden

challenged it as a violation of the establish-

ment clause. The lower courts found the monu-

ment served a valid secular purpose—recognizing

the work of the Eagles among youth—and said it

would not indicate state endorsement of religion to

a “reasonable observer.” Representing a plurality of

four, Chief Justice William Hubbs Rehnquist

dismissed the test for determining violations of the

establishment clause found in Lemon v. Kurtz-

man, 403 U.S. 602 (1971), as of no value in this

case. He focused on the monument’s setting and

context. He characterized the establishment clause

as both protecting against government interven-

tion in religion and protecting America’s religious

traditions. He accepted the Stone v. Graham, 449

U.S. 39 (1980), ruling that Ten Commandments

displays were inappropriate in public classrooms,

but saw nothing in Stone to mandate a similar rul-

ing in Van Orden, since the Texas display, viewed

occasionally by passers-by, was “more passive” than

the Stone displays seen daily by schoolchildren.

Justice Antonin Gregory Scalia concurred,

but would have gone further to sculpt an establish-

ment clause standard under which “there is noth-

ing unconstitutional in a state’s favoring religion

generally, honoring God through public prayer

and acknowledgment, or, in a non-proselytizing

manner, venerating the Ten Commandments.”

Justice Clarence Thomas agreed: “This case

would be easy if the Court were willing to aban-

don the inconsistent guideposts it has adopted for

addressing Establishment challenges.”

Justice Stephen G. Breyer, who was also

part of the majority in McCreary, explained his

reason for switching sides in this case by deﬁ ning

Van Orden as “borderline.” The physical setting

suggested predominantly nonreligious messages

such as “civic morality.” Time was also a factor.

For the previous 40 years there had been no legal

challenges, unlike McCreary’s “short (and stormy)

history of the courthouse Commandments’ dis-

plays.” Breyer thought the Texas monument might

pass the Lemon test, but based his judgment on

his sense that to rule otherwise would suggest “a

hostility toward religion that has no place in our

Establishment Clause traditions.”

Justice John Paul Stevens, dissenting, found

nothing to offset a predominantly religious mes-

sage. He recounted the monument’s past. Not

part of Texas history, it was one of thousands dis-

tributed across America with the help of Cecil B.

DeMille, producer of the popular 1956 ﬁ lm, The

Ten Commandments. The text’s religious nature

was highlighted by inclusion of the prologue, “I

AM the LORD thy God.” Though passive, the

monument’s permanency conveyed government

endorsement. Finally, Stevens catalogued his dis-

agreements with Rehnquist’s version of history.

Justice David H. Souter also found the

monument religious, and explained how it dif-

fered from depictions of Moses in the Supreme

Court building. He found no “common denomi-

nators” in the 17 monuments to qualify them as

Van Orden v. Perry 775

vi+904_EofUSConsti-v2.indd 775 3/20/09 2:19:15 PM

a “museum” and no contextual factors to detract

from the religious character. That the monument

had gone unchallenged for 40 years was not sur-

prising: “Suing a State over religion puts nothing

in a plaintiff’s pocket and can take a great deal

out, and . . . the risk of social ostracism can be

powerfully deterrent.”

For more information: Boston, Rob. “Decalogue

Divide,” Church and State (July/August 2005): 7–

9; Hester, Joseph P. The Ten Commandments: A

Handbook of Religious, Legal, and Social Issues.

Jefferson, N.C.: McFarland, 2003.

—Jane G. Rainey

veto

A presidential veto is formal action by the presi-

dent that stops and prevents a legislative bill from

being enacted into law. As a source of many other

governmental powers, the United States Constitu-

tion (Article I, Section 7) explicitly and clearly

gives the president the veto power. According to

the Constitution, bills passed by Congress shall

be presented to the president for his approval and

signature before the law can take effect. Proce-

durally, if the president decides that he does not

like or approve of the bill’s contents, the president

returns the bill to Congress within 10 days stat-

ing his particular objections to it. The bill is not

dead, though, for Congress then has the oppor-

tunity to override the veto or repass the bill by

considering it again. However, the reconsidered

bill cannot become law over the president’s veto

unless a super-majority of two-thirds of both the

House of Representatives and Senate votes

for the bill.

In addition to the veto, the president also has

what is called a pocket veto. A pocket veto is one

way a president can veto a bill without taking any

action when Congress is not in session. The pocket

veto gives the president a third option other than

signing or vetoing the bill. He can take no action

and do nothing, that is, he neither signs nor returns

the bill. If the president does not sign or veto the

bill within 10 days after receiving it from Congress,

the bill becomes law automatically if Congress is

in session. However, if Congress is not in session,

then the bill does not become law—that is, if Con-

gress adjourns before the president’s 10-day bill

return period ends (excluding Sundays), the bill

dies and cannot be enacted into law. This is called

a pocket veto, implying that the president can just

simply put the bill in his pocket as a means to veto

a bill and stop it from becoming law.

The reason for giving the president a pocket

veto was to prevent Congress from having too

much power. The drafters of the Constitution

were concerned that Congress might pass a bill

and then adjourn quickly, thereby preventing the

president from having the opportunity to return

or veto the bill. Although the Constitution grants

Congress the principal responsibility for making

laws, the president’s veto power shows that the

Founding Fathers wanted the president to play a

role in lawmaking. The writers of the Constitu-

tion were worried that even an assembly of popu-

larly elected representatives might intrude on the

rights, liberties, and interests of the citizenry. The

presidential veto power is an example of one of the

U.S. Constitution’s principles, commonly referred

to as check-and-balance.

Congress cannot override a bill that has been

stopped through a pocket veto, unlike a bill sub-

jected to a regular veto. Under a regular veto,

Congress can reconsider the bill, if it so chooses,

and override the president’s decision with at least

a two-thirds majority in both the House and the

Senate. However, since Congress is no longer in

session in the case of a pocket veto, Congress can-

not override a pocket veto. This institutional rule

gives the president a very powerful tool in affect-

ing legislative outcomes. However, Congress may

reintroduce the same bill in the next session of

Congress, but subject again to the presidential

veto. The average number of pocket vetoes is about

ﬁ ve per year, which is only about 2–3 percent of

the bills that Congress passes.

Scholars often consider the effects of the con-

stitutional rules and powers, like the veto, on the

policy-making process and good governance. One

criticism of the veto power is that it gives too much

power to one person—the president—who can

mute the voice of the 535 senators and represen-

776 veto

vi+904_EofUSConsti-v2.indd 776 3/20/09 2:19:16 PM

tative comprising Congress. Another criticism is

that the veto power may add to political stalemate

or policy gridlock because the veto creates one

more obstacle to be overcome in passing legisla-

tion. Conversely, the Founding Fathers intention-

ally created an institutional system that made it

difﬁ cult to pass laws because they wanted to pro-

tect personal liberty by limiting government.

For more information: Diclerico, Robert D.

The American Presidency. 5th ed. Upper Saddle

River, N.J.: Prentice Hall, 2000; Gregg, Gary L.

Thinking about the Presidency: Documents and

Essays from the Founding to the Present. Lan-

ham, Md.: Rowman & Littleﬁ eld, 2005.

—Miles A. Cooper

vice president

The vice president holds an executive ofﬁ ce posi-

tion in the national government, serving as the

head of the Senate, and is ﬁ rst in line to succeed

the president were the latter incapacitated.

Article I, Section 3, Clause 4 makes the vice

president the presiding ofﬁ cer of the Senate, with

voting power only if the body is deadlocked.

For much of its history, the American vice

presidency has been the subject of satire and

political humor. Vice presidents themselves have

made fun of their ofﬁ ce. Woodrow Wilson’s vice

president, Thomas Marshall, joked that serving

as vice president was like “a man in a cataleptic

ﬁ t; he cannot speak; he cannot move; he suffers

no pain; he is perfectly conscious of all that goes

on, but has no part in it.” The ofﬁ ce of the vice

president was created as a weak office and has

not grown much in power since that time. The

main function of the vice president is as successor

to the American presidency in the event that the

president can no longer function in that role, pos-

sibly as a result of illness, death, resignation, or

impeachment. It has also become a launch pad

for a run for the presidency. More recently, vice

presidents have increasingly become regarded as

advisers to the president.

The idea for a vice presidency was largely

an afterthought during the Constitutional

Convention. However, this ofﬁ ce was not well

speciﬁ ed. It was unclear as to whether or not the

vice president would become president or simply

perform the duties of the president if the presi-

dent was no longer able to fulﬁ ll the duties of the

ofﬁ ce. It was also left unclear as to whether the

vice president would carry out the remainder of

the president’s term or would simply ﬁ ll in until a

special election could be called. John Adams was

the ﬁ rst person to be elected to the ofﬁ ce of the

vice presidency.

During the 19th century, it was the political

parties rather than presidential candidates who

chose the vice presidential nominees. This cre-

ated tension within the government, largely due

to the fact that parties would actively seek out a

nomination from a particular party or region that

had been adversely affected by the presidential

nomination. This did not allow for much respect

and camaraderie between the president and the

vice president. However, some presidents dur-

ing the 19th century sought and respected the

advice of their vice presidents. It was also dur-

ing this time, in 1841, that the ﬁ rst opportunity

was presented for a vice president, John Tyler, to

assume the role and responsibility of the presi-

dent, when William Henry Harrison became the

ﬁ rst president to die while still in ofﬁ ce. When

Tyler became president he resisted efforts to refer

to him as an acting president, preferring that he

be considered a regular president with all the for-

mal duties of the presidency.

In more modern times, the vice presidential

candidate is selected as a running mate by the

presidential nominees. It is often the case today

that presidential nominees choose running mates

who were their losing opponents in the primary

election. They care more about competence, loy-

alty, and the ability to succeed the president rather

than geographic region. Today, vice presidents are

encouraged to be more active. They are kept up

to date on issues and receive security brieﬁ ngs as

well. They often sit in on cabinet meetings and

have sometimes served as a liaison between Con-

gress and the White House.

Constitutionally, the vice presidency has

caused some problems. Initially, when George

vice president 777

vi+904_EofUSConsti-v2.indd 777 3/20/09 2:19:16 PM

Washington and then John Adams ran for presi-

dent in 1788, 1792, and 1796, there were no politi-

cal parties. The individual who received the most

electoral votes became president and the runner-

up became vice president. However, in 1800,

with the emergence of party slates, Thomas

Jefferson ran as president and he picked Aaron

Burr to be his vice president. When the electors

cast their ballots, both Jefferson and Burr tied,

forcing the House of Representatives to

select the president. As a result of this problem,

the Twelfth Amendment was adopted in

1804. It allowed for the president and vice presi-

dent to run as a team, with separate ballots for

president and vice president. As a result of this

amendment, while the House of Representatives

would select the president, the Senate would pick

the vice president.

Over the course of American history, presidents

have faced incapacities that eventually led to their

vice presidents taking over. For example, in 1865

Abraham Lincoln’s vice president, Andrew

Johnson, became president when Lincoln was

assassinated. In 1881 James Garﬁ eld was assassi-

nated but laid in a coma for two months before

dying and being succeeded by his vice president,

Chester A. Arthur. Lyndon Johnson replaced John

Kennedy in 1963 when Kennedy was assassinated.

In 1974 Richard Nixon’s vice president, Ger-

ald Ford, became president when Nixon resigned

to avoid impeachment charges growing out of

Watergate.

The Twenty-fifth Amendment, ratified

in 1967, sought to formally describe the role of

the vice presidency in the case of a presidential

vacancy. The vice president is to take over the

ofﬁ ce of the presidency for the remainder of the

term. The amendment also set out the procedures

for when presidents experience disabilities, allow-

ing for the president to temporarily turn power

over to the vice president.

For more information: Milkis, Sidney M., and

Michael Nelson. The American Presidency: Ori-

gins and Development, 1776–2002. 4th ed. Wash-

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

—Jacqueline M. Loubet

Village of Euclid, Ohio v. Ambler Realty Co.

272 U.S. 365 (1926)

In Village of Euclid v. Ambler Realty, the Supreme

Court decided that the village of Euclid acted

constitutionally and within its police power by

establishing zones for varying intensities of land

use. The signiﬁ cance of the Euclid decision is that

it established a test to determine the constitution-

ality of zoning ordinances. The Court found that

a zoning ordinance is constitutional provided it

reasonably relates to the public health, safety, and

welfare.

Ambler Realty possessed 68 acres of land in the

village of Euclid, a suburb of Cleveland, Ohio. The

village, in fear that the growth of industry in the

surrounding area might change the character of

the village, established a zoning ordinance based

on three classes of height, four classes of area, and

six classes of use. The property in question was

divided into three use classes, as well as various

height and area classes. Ambler Realty sued the

village, arguing that the zoning ordinance had

substantially reduced the value of their property

by limiting its use, amounting to deprivation of

Ambler’s liberty and property without due pro-

cess. At the district court level, the village of

Euclid moved to dismiss the complaint entirely,

arguing that Ambler Realty had no right to sue in

the ﬁ rst place without taking the issue before the

Euclid Zoning Board, as required by the zoning

ordinance. The district court denied this motion

and ruled in favor of Ambler Realty, stating that

the ordinance was an improper use of the village’s

police powers and therefore unconstitutional.

The Supreme Court agreed with the lower

court’s denial of the dismissal motion, but over-

turned the outcome of the case and sided with

the village of Euclid. On behalf of a six-member

majority, with Justices McReynolds, Van Devanter,

and Butler dissenting, Justice Sutherland argued

that “the exclusion of buildings devoted to busi-

ness, trade, etc., from residential districts, bears

a rational relation to the health and safety of the

community.” In other words, the zoning ordinance

was not an unreasonable extension of the village’s

police power and did not have the character of

arbitrary ﬁ at, and thus it was not unconstitutional.

778 Village of Euclid, Ohio v. Ambler Realty Co.

vi+904_EofUSConsti-v2.indd 778 3/20/09 2:19:16 PM

Further, the Court found that Ambler Realty had

offered no evidence that the ordinance had any

effect on the value of the property in question, but

based its assertions of depreciation on speculation

only. This speculation, the Court ruled, was not a

valid basis for a claim of takings.

The Supreme Court, in ﬁ nding that there was

valid government interest in maintaining the char-

acter of a neighborhood and in regulating where

certain land uses should occur, cleared the way

for the subsequent explosion in zoning ordinances

across the country. To date, the power of govern-

ment to address land use issues via zoning ordi-

nances is almost universally accepted.

For more information: Fischel, William A.

Regulatory Takings: Law, Economics, and Poli-

tics. Cambridge, Mass.: Harvard University Press,

1995.

—Erika N. Cornelius

Vinson Court (1946–1953)

The Vinson Court refers to the Supreme Court

under Chief Justice Fred Vinson. The Vinson

Court is often labeled as a Court in transition from

the New Deal Court of Stone to the progressive

court of Earl Warren. It is also a Court seen as one

that was conservative, struggling with the issues of

the Cold War and racism. For many, Vinson’s lead-

ership is seen as one of the weakest in history.

Fred Vinson was a devoted New Dealer and

supporter of President Franklin Roosevelt. In

1937, after a career in politics and law, he was

appointed to the Court of Appeals for the Dis-

trict of Columbia circuit. In 1943 he resigned,

taking the job as director of price stabilization in

the FDR administration. He moved on to other

jobs within the executive branch until his ascent

to the Supreme Court in 1946, replacing Harlan

Fiske Stone as chief justice.

When Stone had died there was significant

controversy surrounding his replacement. Presi-

dent Harry Truman debated moving an associate

justice into the chief’s position, with rumors circu-

lating that perhaps it would be Robert Jackson. Yet

some justices threatened to resign if that occurred.

Instead, Truman decided to appoint Vinson—a

lifelong friend—to be chief justice.

Vinson presided over a Court in ideological

transition from a liberal New Deal bench to a

more conservative one, which in turn would be

transformed when Earl Warren replaced him in

1953. The liberals on the Court included Wil-

liam O. Douglas, Hugo Black, Frank Murphy,

and Wiley Rutledge, and the conservatives were

Robert Jackson, Felix Frankfurter, Stanley Reed,

and Harold Burton. In 1949, Rutledge left the

Court along with another FDR appointee, Frank

Williams, paving the way for Truman to appoint

Sherman Minton and Tom Clark as their replace-

ments. These appointments further pushed the

Court into a more ideologically polarized body,

with Vinson often providing the critical ﬁ fth vote

for the conservatives.

Race, civil rights, and the cold war domi-

nated the agenda of the brief Vinson Court. In

Dennis v. United States, 341 U.S. 494 (1951), the

Court, with Vinson writing for a split majority,

upheld the conviction of a member of the Com-

munist Party for a violation of the Smith Act. The

Smith Act had made it illegal to “knowingly or

willfully advocate, abet, advise or teach the duty,

necessity, desirability or propriety of overthrow-

ing the Government of the United States or of

any State by force or violence, or for anyone to

organize any association which teaches, advises or

encourages such an overthrow, or for anyone to

become a member of or to afﬁ liate with any such

association.” In effect, the act criminalized mem-

bership in the Communist Party, and Dennis, a

leader in it, was convicted under this law. Justices

Black and Douglas, in dissent, viewed this as a

First Amendment free speech issue.

In Sweatt v. Painter, 339 U.S. 629 (1950), the

Court pushed the segregationist doctrine of sep-

arate but equal to its extreme, holding that the

University of Texas at Austin law school had to

admit an African-American student because the

school reserved for blacks was not comparable.

Noting that the school for African Americans

lacked books and faculty, the Court said it was

not a separate and equal facility and therefore

Herman Sweatt was entitled to admission to the

Vinson Court 779

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University of Texas law school. Sweatt, along with

SHELLEY V. KRAEMER, 334 U.S. 1 (1948), where the

Court ruled that courts could not enforce racially

restrictive covenants, were important civil rights

victories for African Americans that paved the

way for B

ROWN V. BOARD OF EDUCATION OF TOPEKA,

347 U.S. 483 (1954), and the future War ren

Court decisions that struck down many other

discriminatory laws.

Finally, in YOUNGSTOWN SHEET AND TUBE V. SAW-

YER, 343 U.S. 579 (1952), better known as the

steel seizure case, the Court rejected President

Truman’s contention that under Article II of

the U.S. Constitution he had the authority

to seize or nationalize the steel mills during the

Korean War in order to avert a strike. Writing

for the Court, Justice Black rejected claims that

the president as commander in chief had this

authority to take control of the mills. Black took

a literalist reading of the Constitution, stating

there was no explicit language authorizing this

action. Douglas also rejected the claims of presi-

dential power with equally absolute language.

However, in separate concurrences, other justices

were more conciliatory. Of special note, Justice

Jackson’s concurrence, describing how presiden-

tial power might change depending on whether

Congress enabled or opposed it, is often cited

by presidents as a defense of executive authority.

President Bush, in defending many of his actions

following the terrorist attacks of 9/11, invoked

Jackson’s concurrence to support his authority.

Only Vinson and Minton voted to uphold Tru-

man’s actions.

Scholars and Supreme Court historians have

not been kind to the Vinson Court. They rate Vin-

son as a justice as one of the worst and see him as

a weak and ineffectual chief. In his defense, the

Court and American society were divided by many

issues, forcing the Court to confront some very

difﬁ cult matters. However, at least in the area of

civil rights, some of the Vinson Court precedents

may have opened up American society.

For more information: Frank, John P. The Jus-

tices of the United States Supreme Court: Their

Lives and Major Opinions. New York: Chelsea

House, 1995; Schwartz, Bernard. A History of

the Supreme Court. New York: Oxford University

Press, 1993.

—David Schultz

Virginia Declaration of Rights (1776)

The Virginia Declaration of Rights was an

important document that influenced Thomas

Jefferson in writing the Declaration of

Independence and later James Madison in

drafting the U.S. Bill of Rights.

Adopted on June 12, 1776, by the colonial Vir-

ginia Constitutional Convention meeting in Wil-

liamsburg, Virginia, the declaration consists of

16 provisions outlining measures for limiting the

power of government for the purpose of protect-

ing the rights of citizens. George Mason (1725–

1792), a successful Virginia plantation owner,

civic leader, and neighbor of George Washington,

was the primary author of the Virginia Declara-

tion of Rights. Mason would later oppose the rati-

ﬁ cation of the U.S. Constitution on the grounds

that the U.S. Constitution lacked a national Bill

of Rights.

The Virginia Declaration of Rights opens with

a philosophical discussion of human nature and

the nature of legitimate political authority. By

virtue of their very humanity, the declaration

asserts, “all men are by nature equally free and

independent” and equally hold claim to various

natural rights. These rights include the right

to life, liberty, and the ability to seek property,

“happiness and safety.” Governments exist to

enhance the enjoyment of such rights and—in

the event of governments’ failure to protect nat-

ural rights—are subject to reform or abolition

when the majority considers such action neces-

sary for the public good.

However, while afﬁ rming the people’s right to

abolish “inadequate” or oppressive government,

the declaration’s most extensive analysis is oriented

toward an elaboration of what a well-managed and

liberty-promoting government would look like.

Government will foster “the greatest degree of

happiness and safety” when the following condi-

tions are met: free elections occur often and at

780 Virginia Declaration of Rights

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known, predictable times; legislative, executive,

and judicial powers are separate; the military is

under civilian control; religious liberty is recog-

nized; freedom of the press is ensured; and

both criminal rights and property rights are guar-

anteed. With respect to the former, the declaration

upholds the right to trial by jury, the right

against self-incrimination, the right to know

any accuser and witnesses summoned, the right

to trial without inordinate delay, the right against

capricious searches and seizures, and the right to

be free from both “excessive bail” and “cruel

and unusual punishment,” and, with respect

to the latter, the document calls for prohibitions

on taxation or removal of one’s property without

consent.

In addition to outlining the procedural and

administrative components of good government,

as discussed above, the Virginia Declaration

also addresses the cultural foundations of a free

people. The declaration proclaims the need for

virtues such as “moderation, temperance, [and]

frugality,” and claims that all citizens have “the

mutual duty . . . to practice Christian forbear-

ance, love, and charity, towards each other.”

That is, while the Virginia Declaration promotes

individual rights, it embodies a concept of rights

linked with obligations, namely, obligations that

would limit the exercise of individual rights in

any manner injurious to that which the com-

munity regards as virtuous. Thus, while George

Mason and his fellow Virginians, in adopting the

Virginia Declaration of Rights, advocated free-

dom of religion as a necessary component of

living in a free society, their concepts of freedom

and religion were culturally informed by an 18th-

century worldview in which religious meaning

and individual liberty were thought to be mutu-

ally sustaining.

For more information: Bowling, Kenneth R.

“ ‘A Tub to the Whale’: The Founding Fathers and

Adoption of the Federal Bill of Rights,” Journal

of the Early Republic 8 (Autumn 1988): 223–251;

Scott, James Brown. “George Mason,” The Vir-

ginia Law Register 12 (January 1927): 556–561.

—Ellen Grigsby

Virginia Plan, the

The Virginia Plan, presented at the Philadelphia

(Constitutional) Convention by the Virginia del-

egate, Edmund J. Randolph, governor of Virginia,

on May 29, 1787, was the first of three alterna-

tives presented. Randoph’s Resolutions were

titled “The Virginia Plan” and became informally

known as the “large states” plan because of the

advantages the resolutions would provide states

with larger populations. Federalist in theme, the

15 resolutions afﬁ rmed the necessity of correct-

ing deﬁ ciencies in the Articles of Confederation,

strengthening and centralizing the national gov-

ernment, and creating three separate branches:

legislative, executive, and judicial.

Following a general resolution expressing the

need to address the weaknesses in the Articles,

Resolutions 2–6 concerned the national legisla-

ture, suggesting a bicameral legislature hav-

ing a “lower house” elected by the people of each

state and an “upper house” with members chosen

by the lower house. How the representation in

each house would be selected presented the most

contention. Resolution 5 suggested two alterna-

tives: representation in the lower house based on

the proportion of free citizens or based upon the

amount of taxes rendered by each state; this was

debated over eight days!

The 10 small states were concerned that Vir-

ginia, Massachusetts, and Pennsylvania could

conspire to dictate their will on the rest by vir-

tue of their larger delegations if representation

was based upon the proportion of citizens in each

state. The alternative of equality would not solve

the problem either, as the smaller states outnum-

bered the larger ones as described by Benjamin

Franklin. The issue of slaves complicated mat-

ters further. Were they to be considered property

or citizens? As William Paterson, the attorney

general of New Jersey and author of the New

Jersey Plan, argued, “. . . if Negroes are not

represented in the States to which they belong,

why should they be represented in the General

Government?” The proposal that wealth provide

the means by which representation would be allo-

cated offered no better solution; as William Sam-

uel Johnson, a supporter of the Connecticut

Virginia Plan, the 781

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