Schultz D. Encyclopedia of the United States Constitution

Подождите немного. Документ загружается.

Compromise, stated, “Population was the best

measure of wealth.” Ultimately, as was suggested

by William Richardson Davie, North Carolina’s

delegate, slaves would be counted as three-ﬁ fths

of each state’s population for the purpose of deter-

mining apportionment in the House.

Resolutions 7 and 8 called for the selection of a

single executive by the national legislature, which,

in tandem with a “Council of revision,” would be

allowed to review all laws before they take effect.

Resolution 9 proposed a national judiciary and the

circumstances under which it would hear cases of

dispute. Resolutions 10 through 15 concerned the

admission of new states, assurances of a republican

form of government, the necessity for a provision

for amendments, a mandate of supremacy for the

new constitution, and ﬁ nally, the means by which

the new constitution would be ratiﬁ ed.

For more information: Rakove, Jack N. Origi-

nal Meanings: Politics and Ideas in the Making

of the Constitution. Vintage Series. New York:

Knopf Publishing, 1997; United States, James

Madison, Gaillard Hunt, and James Brown Scott.

The Debates in the Federal Convention of 1787:

Which Framed the Constitution of the United

States of America. New York: Oxford University

Press, 1920; Wood, Gordon S. The Creation of the

American Republic 1776–1787. Chapel Hill: Uni-

versity of North Carolina Press, 1998.

—Christy Woodward Kaupert

Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council

425 U.S. 748 (1976)

In Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, the U.S. Supreme

Court held that the state of Virginia violated the

free speech clause by prohibiting pharmacists

from advertising prescription-drug prices. The

case is important in that it is one of several deci-

sions recognizing the First Amendment protec-

tion for commercial speech.

Writing for the majority, Justice Blackmun

acknowledged that the advertising of prices is

“commercial speech,” that is, speech that does

no more than propose a commercial transaction.

This was signiﬁ cant because Valentine v. Chris-

tensen, 316 U.S. 52 (1942), had held that commer-

cial speech was not central to political discourse

and therefore was not constitutionally protected.

Disagreeing with this precedent, Justice Black-

mun explained that, though commercial speech

might not have the same constitutional status as

core political speech, the free flow of commer-

cial information is nonetheless important to the

marketplace of ideas because it is essential to a

free market economy. For this reason, Justice

Blackmun concluded that, while states may regu-

late false or deceptive advertisements, states may

not suppress truthful information about a lawful

economic activity. Here, Virginia’s price-advertis-

ing restriction did not regulate false or deceptive

information, but rather suppressed truthful infor-

mation that consumers might find important in

choosing prescription-drug suppliers. Thus, the

Court held the restriction unconstitutional.

Chief Justice War ren Burger concurred

and explained that the decision did not extend to

professional services, such as medicine and law,

which involve personal judgment. Similarly, Jus-

tice Stewart wrote a concurrence clarifying that

the holding recognized constitutional distinctions

between commercial and political speech, and

that, accordingly, states may restrict deceptive or

false advertising.

Dissenting alone, Justice William Hubbs

Rehnquist declared that the free speech clause

does not protect commercial speech at all. As a

practical matter, Justice Rehnquist questioned

how much of a burden Virginia’s price restriction

imposed on consumers, since consumers could

compare prices without pharmacists providing

this information in the form of advertisements.

Justice Rehnquist also warned that by protecting

the speech at issue in this case, the Court had pro-

hibited states from restricting the advertising of

liquor and cigarettes, subjects that the states had

traditionally regulated. Virginia State Board of

Pharmacy has generated strict limitations on how

government may regulate commercial transactions.

Just one year later, in Bates v. State Bar of Ari-

zona, 433 U.S. 350 (1977), the Court interpreted

782 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

vi+904_EofUSConsti-v2.indd 782 3/20/09 2:19:17 PM

Virginia State Board of Pharmacy as limiting how

states may regulate attorney advertising.

Then, in Central Hudson Gas & Elec. Co. v. Pub-

lic Serv. Comm’n, 447 U.S. 557 (1980), the Court

announced a commercial-speech test, which the

Court has since applied on numerous occasions to

invalidate commercial regulation. This has aroused

concern in some justices, who have claimed that,

in the guise of commercial-speech doctrine, the

Court has revived the Lochner era’s laissez-faire

jurisprudence. There is also some confusion as to

the doctrine’s applicability, as the Court has ques-

tioned whether it applies with the same rigor to

prior restraints and to restrictions on electronic

broadcasting. Despite this controversy and uncer-

tainty, however, the legacy of Virginia State Board

of Pharmacy, giving commercial speech a consti-

tutional status, seems secure.

For more information: Baker, C. Edwin. “Com-

mercial Speech: A Problem in the Theory of Free-

dom.” Iowa Law Review 62, no. 1 (1976): 1–56;

Post, Robert. “The Constitutional Status of Com-

mercial Speech.” UCLA Law Review 48, no. 1

(2000): 1–57.

—Jesse R. Merriam

void for vagueness doctrine

The void for vagueness doctrine requires that

criminal laws and statutes be written such that

the language is clear and straightforward enough

that a person of average intelligence is able to

understand.

The void for vagueness doctrine results from

the due process clause of the Fifth Amendment

to the United States Constitution. Simply, if a per-

son of average intelligence cannot determine from

the law or statute behavior that is prohibited, and

the corresponding punishment to such behavior,

then the law is considered vague, and therefore

unconstitutional. Vague statutes are considered

unconstitutional based on the notion that a per-

son who does not understand what constitutes a

crime cannot defend himself against criminal

accusation or indictment and consequently would

be deprived “due process.” In essence, a person of

average intelligence should not be made to “guess”

at the meaning of a law or statute (Winters v. New

York, 333 U.S. 507, 515–516 [1948]).

A noted example of the Court voiding a statute

for vagueness is found in the Supreme Court case

CITY OF CHICAGO V. MORALES, 527 U.S. 41 (1999). In

this case, Chicago’s Gang Congregation Ordinance

prohibited “criminal street gang members” from

loitering in public places. Under the ordinance,

if law enforcement observed a person whom they

reasonably believed to be a gang member loitering

in a public place with one or more persons, they

could order them to disperse. Any person who did

not comply with the order was considered to have

violated the ordinance and could be arrested. Spe-

ciﬁ cally, the ordinance required that in any public

place in Chicago, persons in the company of a gang

member would be ordered to disperse if their pur-

pose was not apparent to law enforcement.

The difficulty with the ordinance was that it

included both protected (harmless) and prohib-

ited (criminal) behavior. The ordinance’s deﬁ nition

of loitering—“to remain in any one place with no

apparent purpose”—was inherently subjective and

thus could have been construed differently by dif-

ferent individuals. For example, a law-abiding citi-

zen holding a conversation with friends on a street

corner under the law could unwittingly be turned

into a criminal. The application of this deﬁ nition

by law enforcement depended on whether some

purpose was apparent to the officer, who could

subsequently arrest individuals at his own discre-

tion. Simply, it is difﬁ cult for anyone, including law

enforcement, to discern if any Chicagoan standing

in a public place with a group of people would or

would not have an “apparent purpose.” As a result,

the Supreme Court ruled that the ordinance was

vague and thus unconstitutional. Justice Sandra

Day O’Connor found that the Chicago ordinance

was “unconstitutionally vague because it lacked

sufﬁ cient minimal standards to govern law enforce-

ment ofﬁ cers; in particular, it failed to provide any

standard by which police can judge whether an

individual has an apparent purpose.”

For more information: Fellman, David. The

Defendant’s Rights Today. Madison: University

void for vagueness doctrine 783

vi+904_EofUSConsti-v2.indd 783 3/20/09 2:19:18 PM

of Wisconsin Press, 1976; Gardner, Thomas, and

Terry Anderson. Criminal Law: Principles and

Cases. St. Paul, Minn.: West Publishing, 1996.

—Brigette J. Bush

Voting Rights Act of 1965

The Voting Rights Act (VRA) adopted in 1965 and

extended in 1970, 1975, 1982, and 2006 is an act

that implements the Fifteenth Amendment

provision that voting rights cannot be denied on

account of race. Congress designed this law to

give the executive and judicial branches of govern-

ment the ability to implement the achievements

guaranteed in the Fourteenth and Fifteenth

Amendments.

The Fifteenth Amendment provides that “the

right of citizens of the United States to vote shall

not be denied or abridged by the United States

or by any State on account of race, color or pre-

vious condition of servitude.” Thus, Section 2 of

the Fifteenth Amendment, like Section 2 of the

Thirteenth Amendment and Section 5 of

the Fourteenth Amendment, gives Congress the

power to enforce these amendments by appropri-

ate legislation. Beside the ban on the infringement

of franchise rights on the listed accounts, the VRA

also contains several special but temporary provi-

sions that impose stringent requirements on cer-

tain jurisdictions. Yet, the VRA and the long line

of amendments and judicial intervention that form

its lineage today can be properly understood only

within the context of its evolution and the histori-

cal struggle to establish a secure basis of black suf-

frage in the United States.

Before the Civil War, neither the U.S. Con-

stitution nor federal laws provided for a speciﬁ c

protection of voting rights. Voting qualiﬁ cations

were established by states, a practice that led to a

political franchise exercised only by white males.

Historical records reveal that black men could

black women were denied franchise rights in all

states. By adopting the Military Reconstruction

Act of 1867 after the Civil War, Congress took

measures to extend the right to vote to most

adult males in the secessionist southern states.

This act imposed on these states, as conditions

for readmission to the Union, requirements that

they adopt new constitutions that granted univer-

sal male suffrage regardless of race. Three years

later in 1870, Congress enshrined the black right

to vote in the Fifteenth Amendment. This amend-

ment followed the Thirteenth and Fourteenth

Amendments, both of which guaranteed freedom

from slavery and citizenship to all persons born

or naturalized in the United States. Together, all

three amendments were designed to eradicate the

vestiges of slavery.

By granting the right of franchise to blacks

and forbidding its abridgment on account of race

or previous condition of servitude, the Fifteenth

Amendment superseded existing state laws to the

contrary. Following its enactment, Congress exer-

cised its powers under Section 2 of that amend-

ment by enacting two measures, notably, the

Enforcement Act of 1870 and the Force Act of

1871. Together both acts prohibited state ofﬁ cials

from applying election laws in a racially discrimi-

natory manner and outlawed physical threats and

economic intimidation against voters. They also

made it illegal for individuals to conspire to inter-

fere with the right to cast a ballot. To implement

the Force Act, Congress authorized the appoint-

ment of ofﬁ cials to observe registrations and elec-

tion proceedings. The net result was that, between

1871 and 1887, the sudden inﬂ ux in black regis-

tration and voting facilitated the election of black

candidates to local, state, and federal ofﬁ ces.

While northern states came to accept black

voting, in the 1880s southern states resisted the

enforcement of the Fifteenth Amendment. They

did so by adopting laws that imposed poll taxes

and literacy test requirements as well as measures

that disqualiﬁ ed those deemed to have committed

crimes of “moral turpitude.” The so-called white

primary was a practice designed to evade the

Fifteenth Amendment by using private political

parties to conduct elections and establish mem-

bership qualiﬁ cations. Tactics of the overall effort

to reverse post-Reconstruction political advances

were: violence, fraud, structural discrimination,

statutory suffrage restriction, and constitutional

disenfranchisement. Each of these became more

784 Voting Rights Act of 1965

vi+904_EofUSConsti-v2.indd 784 3/20/09 2:19:18 PM

effective as they allowed others to be employed.

Violence and intimidation for example, enabled

southern Democrats to take over the polls, after

which election returns were compromised. Simi-

larly, fraudulently elected ofﬁ cials gerrymandered

election districts and imposed other structurally

discriminatory devices. In the end, a decreasing

number of Republicans and third-party members

in legislatures meant that legislative and consti-

tutional measures that imposed franchise restric-

tions on blacks were hardly contested. In many

ways these efforts paid off in disenfranchising

blacks in all southern states.

In 1876 two Supreme Court decisions abruptly

ended any prospect of using the Enforcement and

Forces Acts to enforce the Fifteenth Amendment.

In both United States v. Reese (1876) and United

States v. Cruiksank (1876), the Court threw out

indictments based on various provisions of both

acts. It held that in order to secure convictions

under both acts, a showing had to be made estab-

lishing intent to discriminate for reasons of race

and with the approval of the state. Thus, absent

tacit state action or authority, neither legislation

could be enforced. While the Court’s ruling was

effective in crippling any effort by Congress to pro-

tect the right of franchise for African Americans, it

coincided with a growing shift in national attitude

toward noninterference. The culmination of this

attitude was the Hayes-Tilden Compromise Act

passed by Congress in 1877, which marked the end

of Southern Reconstruction. The overall effect of

this legislation was immediate. It removed federal

troops from the South and precipitated a climate

where violence was used to suppress black voter

turnout and fraud was used to undo lawfully cast

black votes. Thus, in virtually all southern states

between 1890 and 1910, constitutional rewrites

with explicit provisions that excluded blacks

from the electoral process became the means of

replacing previous statutes. In the end, efforts to

break the grip of black disenfranchisement and to

restore rights to the franchise took many decades

to crystallize. The enactment of civil right acts in

the late 1950s and early 1960s, or speciﬁ cally in

1957, 1960, and 1964 and the Voting Rights Act of

1965, were integral to these efforts.

As enacted, the Voting Rights Act represented an

entirely different tack compared to previous civil

rights acts. For 1965, it was at best revolutionary

and yet unique in that it went beyond reliance on

litigation, to prescription of concrete measures to

aid in the enforcement of promises in the Four-

teenth and Fifteenth Amendments. It suspended

most voting qualiﬁ cations for ﬁ ve years and gave

the attorney general and the courts broad powers

to grant relief whenever violations of the Fifteenth

Amendment occurred. Generally divided into 14

sections, the VRA did three things: ﬁ rst, it deﬁ ned

the enforcement mechanisms to ensure the admin-

istration of a discrimination-free electoral process;

second, it established extraordinary mechanisms

to monitor certain states and counties; and third,

it created a triggering mechanism to bring most of

the South under federal monitoring and instituted

special provisions to enforce compliance.

A general outline of the VRA recapitulates per-

tinent aspects of the act from Sections 2–14. The

permanent Sections 2 and 3, the most signiﬁ cant

aspect of the act, codiﬁ ed the Fifteenth Amend-

ment. Both sections provided for penalties as well

as empowered the attorney general to litigate for

(a) the suspension of literacy tests, (b) the appoint-

ment of federal examiners to oversee voter regis-

tration, and (c) the retention of court jurisdiction

to review proposed changes in voting procedures

before local governments could enforce them. The

special provisions of the act (Sections 4 through

9) placed the burden of litigation and adminis-

trative appeals on the states and local jurisdic-

tions rather than on the aggrieved individuals.

To bypass southern courts that, for the most part,

were a captive of local politics, the Justice Depart-

ment was authorized by the VRA to take direct

administrative action at the D.C. District Court

on behalf of the disenfranchised blacks.

Unlike the permanent provisions, the special

provisions under Sections 4–9 were intended to

be temporary for ﬁ ve years—between 1965 and

1970—and applicable only to certain jurisdic-

tions with speciﬁ ed criteria. For example, Section

4 banned “literacy tests” for ﬁ ve years in any sub-

division where such tests were then in force. The

targets were states that historically used literacy

Voting Rights Act of 1965 785

vi+904_EofUSConsti-v2.indd 785 3/20/09 2:19:18 PM

tests as an instrument to discriminate in the elec-

toral process. While the trigger provisions of the

act successfully captured offenders, they could

avoid this by ﬁ ling for a declaratory judgment at

the D.C. District Court and demonstrating that

such tests had not been used in the ﬁ ve years pre-

scribed by the act. Since historically state courts

and local ofﬁ cials hindered efforts to ensure black

franchise rights by passing bogus legislation,

Section 5 of the VRA sought to prevent such by

requesting preclearance of all electoral laws with

the attorney general or the court before imple-

mentation. In this view, all pre- and post-Novem-

ber 1964 voting regulations or proposals were part

of the preclearance to the Justice Department

except where speciﬁ c showing was made estab-

lishing that such regulations did not in purpose or

effect deny the right to vote on the basis of race or

color. Thus, under the VRA the decision whether

a state could change its voting procedure was a

matter for the Justice Department or the District

of Columbia Court of Appeals to decide.

To counter the corrupt conduct of local reg-

istrars who often made biased decisions favor-

ing local laws, Sections 6–8 provided for federal

registration examiners and election observers.

Appointed by the Federal Civil Service Commis-

sion, their duties were distinct. While election

registration examiners were to ensure that peo-

ple who actually registered could vote, election

observers served as poll watchers to ensure that

all eligible persons were indeed allowed to vote

and the ballot accurately counted. Sections 9 and

10 provided procedures where target states could

challenge federally compiled registration lists and

also made applicable the poll tax prohibition to

states. Also, Section 11 provided criminal pen-

alties for false registrations, false votes, and the

destruction of voting records as well as giving the

attorney general wide latitude to intervene where

necessary to prosecute offending parties. Lastly,

Section 14 defined voting to include all actions

necessary to make a vote effective. To sum, any

jurisdiction could be subject to the special provi-

sions of the VRA under the statistical automatic

trigger of Section 4(b), or found guilty for outright

violation of the Fifteenth Amendment.

In January 1969, former attorney general

Ramsey Clark submitted a piece of legislation to

Congress to extend “all provisions” of the Voting

Rights Act of 1965 for an additional five years.

While the justiﬁ cations for renewal were debat-

able, the effect of nonrenewal was obvious. At the

core of the debates was whether the underlying

objectives of the special provisions of the act had

been accomplished. Originally, the “special pro-

visions” were conceived as temporary measures

to be discontinued once blacks were successfully

integrated into the political system. That did not

happen. Congressional hearings held to extend

the act established that, between 1965 and 1970,

voting electorates were manipulated through ger-

rymandering, annexations, packing, switching

to at-large elections, and the adoption of various

structural changes to prevent the newly registered

blacks from effectively using the ballot. Similarly,

the U.S. Commission on Civil Rights also noted the

emergence of new techniques to dissuade blacks,

including increases in candidate filing fees

when black candidates ran for ofﬁ ce, abolishing

or making positions appointive, extending terms

of ofﬁ ce for white incumbents, and withholding

job-opening information from blacks. Based on

these reports it is therefore possible that, without

further extension of the VRA in 1970, jurisdiction

that fell within the automatic trigger provision

would have simply bailed out and perhaps rein-

stated the literacy test requirements again.

Surely southern states would have liked the

special provisions of the Voting Rights Act to

lapse. However, their objections revolved around

the preclearance requirements and the regional

attention of the act directed their way. Specifi-

cally, they decried the stigma it placed on the

South and southerners as a whole. However, after

considerable debate in 1970, Congress imposed a

temporary ban on the use of all literacy tests and

extended the “temporary provision” of VRA for

another five years, until 1975. Also attached to

these amendments was a provision extending to

18 years of age the right to the franchise; to ensure

its constitutionality, a proposal to that effect was

sent to the states for ratiﬁ cation and led to passage

of the Twenty-sixth Amendment. The 1970

786 Voting Rights Act of 1965

vi+904_EofUSConsti-v2.indd 786 3/20/09 2:19:19 PM

revisions also provided an allowance to recapture

new black voters if it were shown that literacy tests

had in fact been used in a jurisdiction where reg-

istration and voting rates fell below 50 percent in

the 1968 presidential elections. Lastly, a nation-

wide uniform standard for absentee balloting was

initiated to give citizens denied the right to vote,

the ability to take action in a U.S. district court on

behalf of the United States.

When the special provision of the VRA was

again close to expiration in 1975, the Civil Rights

Commission issued a report evaluating the over-

all impact of the act since 1970. The conclusions

reached were mixed. While the commission cited

progress, it also argued that it was not enough and

that relaxing or nonrenewal could hamper forward

movement by reversing previous achievements in

voting rights. While proponents called for another

10-year renewal, in the end Congress extended the

“special provisions” of VRA for only seven years

(1975 to 1982), and made permanent the tempo-

rary ban on literacy tests introduced in 1970. Also,

responding to widespread discrimination against

Hispanics, Asians, and Native Americans, Con-

gress made the protection of “language minori-

ties” part of the 1975 revisions, to be in effect until

1985. The source of congressional power for this

addition, unlike those of “racial minority” provided

under the Fifteenth Amendment, was Congress’s

power to secure guarantees of equal protec-

tion by appropriate legislation under the Four-

teenth Amendment. Using the assumption that the

lack of foreign-language voting material was itself

a discriminatory test, the new language provision

required the production and use of voting material

in both English and the language minority at issue

in any given jurisdiction. This provision was made

compulsory in political subdivisions where mem-

bers of a single language minority were at least 5

percent of the voting population.

In 1982, after much debate for and against,

Congress again renewed the “special provisions”

of the Voting Rights Act for 25 years. Support for

renewal this time was predicated on the general

notion that progress heretofore achieved could

vanish if the special provisions were not renewed.

Clearly non-renewal could have engendered

ramifications on two fronts. The first was that

the special provisions renewed and the language

requirements included for the ﬁ rst time in 1975

could have expired. The second was that Congress

had to provide clarity in light of the Supreme

Court’s decision in Mobile v. Bolden, 446 U.S.

55 (1980), which ruled that plaintiffs had to show

“discriminatory intent along with discriminatory

effect” to prevail in a voting rights violation claim.

However, the Bolden decision was in sharp con-

trast to an earlier ruling in White v. Regester, 412

U.S. 755 (1973), in which the Court held certain

multimember districts incompatible with the equal

protection clause of the Fourteenth Amendment.

To reconcile Bolden and White, Congress in 1982

amended Section 2 of the VRA to provide that

plaintiffs could indeed establish violation under

the subsection without having to show a “discrim-

inatory purpose.” Predictably, had Congress not

acted in 1982, it could have seriously undermined

the important gains made in minority rights to the

franchise since 1965.

In the end, proponents in Congress not only

got the special provisions of the Voting Rights Act

extended for 25 years, but also the language assis-

tance provision included in 1975 was extended

to include 1985 to 1992. In many ways, the lan-

guage provision agreed upon in 1982 was some-

what restrictive in that it made it more difﬁ cult for

language communities to qualify and therefore be

properly protected under the Voting Rights Act.

By changing how to determine a community’s lan-

guage proﬁ ciency requirement, the added provi-

sion also cut to nearly half the number of counties

that qualiﬁ ed for language assistance under the

act in 1975.

With the growth of language minorities both

in population and political power in the United

States, it was obvious by 1992 that Congress could

not afford to drop what to that point had become

an essential component of political participation

for those whose major, first language was other

than English. Thus, the 1992 extension of the the

language provision to 15 more years with the addi-

tion of new language minorities to the coverage

was indeed a victory for the language minority

communities. The 15-year extension also brought

Voting Rights Act of 1965 787

vi+904_EofUSConsti-v2.indd 787 3/20/09 2:19:19 PM

the language provision into parallel timing with

other special provisions of the Voting Rights Act.

In so doing, the legislation changed the previous

5 percent rule for mandatory coverage to an abso-

lute numerical count of 10,000 people. That is, for

any jurisdiction with a minority language popula-

tion of 10,000, voting instruments and information

must be made available to voters in English and in

the minority language.

Recently, on July 13 and 20, 2006, both the

House of Representatives and the Senate

voted to renew the expiring provisions of the VRA.

By 390 to 33 and 98 to 0 votes, both houses over-

whelmingly agreed to extend the act for another 25

years. The consensus view was that federal super-

vision was still necessary to protect the ability of

minorities and the disadvantaged to cast ballots in

some regions of the country. In urging the adoption

of the act and recalling the Selma Alabama 1965

Bloody Sunday civil rights demonstration march,

Rep. John Lewis, Democrat of Georgia, said “Yes,

we’ve made some progress; . . . but the sad truth is,

discrimination still exists.” That’s why we still need

the Voting Rights Act, and we must not go back

to the dark past.” Senator Barack Obama, Dem-

ocrat of Illinois, added a similar reference as he

stated that “despite the progress . . . made so far in

upholding the right to vote, it is clear the problems

still exist.”

The Voting Rights Act of 1965 was enacted dur-

ing a period when, in parts of the South, blacks

were forbidden to vote. Those who attempted to

ister risked losing their jobs, homes, or their lives.

Today’s America is a world different from 1965,

when President Lyndon B. Johnson signed the

act into law after the violent attacks on civil rights

marchers who demanded the right to vote. Yet, it

remains in some respects the same. While the pur-

pose of the act then was to ensure that blacks were

afforded full rights to vote, along the way Congress

adjusted this purpose to include other minorities,

who either avoided or simply could not partake in

the electoral process because they could not read,

write, or understand English.

As demonstrated here, along the way the act

did more than establish a nationwide prohibition

against voting discrimination based on race. It

banned poll taxes and literacy tests and impanelled

the federal government to play a more active role

than it had before. In regions where discrimination

was egregious, the Justice Department was given

the authority to review progress made in elec-

toral processes such as redistricting to determine

if they were discriminatory. While critics charge

that the core requirements of the act are outdated

and also that Congress has moved beyond pri-

mary questions of access, supporters stake differ-

ent positions. They maintain that the long history

of deliberate and calculated voting discrimination

justiﬁ es the act’s continued relevance and impor-

tance as an instrument that fosters meaningful

black and other minority representation. They

point, for example, to the overwhelming 2006

approval in Congress for extending the VRA to

retain the original preclearance requirements, the

temporary provisions, and language provisions as

evidence of its continued relevance.

In the end, Congress’s willingness to extend the

act as demonstrated thus far means that, while it

has produced historic results, it is indeed still neces-

sary. Arguably, it is necessary for the advancement

of political equality beyond access to the ballot box

and on to meaningful representation and meaning-

ful political membership in our democracy.

For more information: Ball, Howard, Dale

Krane, and Thomas P. Lauth, Compromised

Compliance: Implementation of the 1965 Voting

Rights Act. Westport, Conn.: Greenwood Press,

1982; Grofman, Bernard, Lisa Handley, and

Richard Niemi. Minority Representation and the

Quest for Voting Equality. New York: Cambridge

University Press, 1992; Hudson, David Michael.

Along Racial Lines: Consequences of the 1965

Voting Rights Act. New York: Peter Lang, 1998;

Kousser, J. Morgan. Colorblind Injustice: Minor-

ity Voting Rights and the Undoing of the Second

Reconstruction. Chapel Hill: University of North

Carolina Press, 1999; Morgan, Ruth P. Gover-

nance by Decree: The Impact of the Voting Rights

Act in Dallas. Lawrence: University of Kansas

Press, 2004.

—Marc G. Pufong

788 Voting Rights Act of 1965

vi+904_EofUSConsti-v2.indd 788 3/20/09 2:19:19 PM

789

ﱶﱷﱸ

Wagner Act (National Labor Relations Act)

The Wagner Act (National Labor Relations Act) is

the main New Deal–era law that regulates collec-

tive bargaining and union activity in the private

sector in the United States.

In May 1935, in SCHECHTER POULTRY CORPORATION

V. UNITED STATES, 295 U.S. 495 (1935), the Supreme

Court struck down as unconstitutional the National

Industrial Recovery Act. Less than two months later,

to ﬁ ll the void left by this decision, Congress, at the

urging of President Franklin D. Roosevelt, passed

the National Labor Relations Act—better known

as the Wagner Act. The act, one of the key pieces

of legislation in American labor history, awarded

workers the right to unionize and to collectively

bargain through a union of their choice and placed

the authority of the federal government behind the

idea of unionization. The right to unionize and col-

lectively bargain guaranteed by the Wagner Act

repeated the assurance to do such in Section 7a of

the National Industrial Recovery Act.

Robert Wagner (D-New York), the author of

the legislation, was elected to the Senate in 1926

and became chairman of the Senate Banking and

Currency Committee during the New Deal era.

Two of his most notable accomplishments were

enacted into law in 1935: the Social Security Act,

providing old-age pensions to Americans, and the

Wagner Labor Act.

The National Labor Relations Board (NLRB)

established by the Wagner Act was charged with

investigating and ruling on charges of unfair labor

practices, and conducting elections on union rep-

resentation. It was given more across-the-board

powers than the weaker entity of the same name

established under the National Industrial Recov-

ery Act.

Because the courts had been so antilabor and

to a lesser degree anti–New Deal up to this point,

many companies and unions operated for the ﬁ rst

year or two after passage as though the Wagner

Act did not exist, presuming Congress lacked

authority to enact such legislation under the com-

merce clause. Unions often followed traditional

tactics such as sit-down strikes rather than appeal

to the NLRB for a ruling.

One of the largest steel producers in the coun-

try was Jones and Laughlin, a company that oper-

ated in many states and was involved in every facet

of steel production from extraction through distri-

bution of the ﬁ nished product. Charges of unfair

labor practices, including discriminating against

workers who wanted to join a labor union, were

ﬁ led against the company for actions at a plant in

Pennsylvania. The NLRB ruled against the com-

pany and ordered it to reinstate workers who had

been dismissed consequent to participating in

union activities. The lower courts ruled in favor

of the company, and the NLRB appealed to the

Supreme Court.

In National Labor Relations Board v. Jones &

Laughlin Steel Corporation, 301 U.S. 1 (1937), the

Court upheld the Wagner Act. Jones and Laugh-

lin argued that Congress had no power to regulate

the steel industry. The issue before the Court was

whether Congress could regulate a manufacturer

if the manufacturer’s activity signiﬁ cantly affects

interstate commerce. Chief Justice Charles

Evans Hughes’s majority opinion held that Con-

gress has the constitutional authority to safeguard

the right of the respondent’s employees to self-

organization and freedom in the choice of repre-

sentatives for collective bargaining. Justice James

McReynolds wrote the dissent, which was joined

vi+904_EofUSConsti-v2.indd 789 3/20/09 2:19:19 PM

by Justices Pierce Butler, George Sutherland, and

Willis Van Devanter, holding that the right to

contract was fundamental and included the privi-

lege of selecting those with whom one wished to

contract.

Following Jones & Laughlin, the Supreme

Court and the NLRB were in general agreement

with the Court ruling in favor of the NLRB, with

a few exceptions. In NLRB v. Mackay Radio &

Telephone Co., 304 U.S. 333 (1938), with Jus-

tice Owen Roberts writing for a 7-0 majority, the

Court held that while a company could not ﬁ re

workers for going on strike, it could permanently

replace them. Five years later, in Virginia Electric

& Power Co. v. NLRB, 319 U.S. 533 (1943), a

6-3 Court, with Justice Frank Murphy writing the

opinion, held that the First Amendment barred

the NLRB from making it illegal for employers

to express opposition to unions, provided they

did not try to intimidate or threaten workers with

retaliation for exercising their rights under the

Wagner Act.

Originally the Wagner Act banned unjust labor

practices by management; it was amended in 1947

with the Taft-Hartley Act, which imposed limita-

tions on unions such as forbidding secondary boy-

cotts. Congress has altered the original provisions

since, but the National Labor Relations Act, or

Wagner Act, remains the primary law governing

relations between unions and employers in the

private sector.

Some union advocates and supporters now crit-

icize the Wagner Act as being outdated and urge

that it be modernized to reﬂ ect the new realities

of the workplace.

For more information: Cletus, Daniel. The

ACLU and the Wagner Act: An Inquiry into the

Depression-Era Crisis of American Liberalism.

Ithaca: New York State School of Industrial and

Labor Relations, Cornell University, 1980; Millis,

Harry A. From the Wagner Act to Taft-Hartley.

Chicago: University of Chicago Press, 1950; St.

Antoine, Theodore J. “How the Wagner Act Came

to Be: A Prospectus.” Michigan Law Review 96,

no. 8 (August 1998): 2,201–2,211.

—Mark Alcorn

Waite Court (1873–1888)

In 1873, President Ulysses S. Grant chose lit-

tle-known Ohio attorney Morrison R. Waite to

replace the deceased Salmon P. Chase as chief

justice of the U.S. Supreme Court. The Senate

quickly approved Waite. None of his contempo-

raries regarded Waite as the possessor of a ﬁ rst-

rate legal mind, but most recognized that Grant

could have done far worse. The Waite Court holds

a minor place in constitutional history.

Iowa attorney Samuel Freeman Miller, ﬂ am-

boyant former California Supreme Court justice

Stephen J. Field, and New Jersey railroad attor-

ney Joseph P. Bradley assumed intellectual lead-

ership of the Waite Court. The remaining justices

were holdovers from the Chase Court. Former

chief judge of the New York Court of Appeals

Ward Hunt, former attorney general Nathan Clif-

ford of Maine, former attorney general Noah H.

Swayne of Ohio, and former Illinois judge David

Davis had all been on the bench for a number

of years. In 1877, John Marshall Harlan,

former attorney general of Kentucky, replaced

Davis. Harlan became one of the great dissent-

ers in Supreme Court history with his rejection

of a narrow view of civil rights, generally

acclaimed by recent scholars.

Hunt suffered a stroke in 1878 but held on until

1882, when Congress approved a special pension

bill. Circuit Judge Samuel Blatchford of New

York replaced Hunt and, although a good worker,

never proved to be an outstanding jurist. Horace

Gray, chief justice of the Supreme Judicial Court

of Massachusetts, replaced the deceased Clif-

ford in 1881. Upon Strong’s resignation in 1880,

President Rutherford B. Hayes appointed Cir-

cuit Judge William B. Woods of Georgia. Woods

became the ﬁ rst judge from the south since the

appointment of John A. Campbell of Alabama in

1852. On Swayne’s retirement in 1881, Ohio rail-

road lawyer and U.S. senator Stanley Mathews

replaced him. In 1888, upon the death of Woods,

Lucius Quintus Cincinnatus Lamar of Missis-

sippi joined the Court. Lamar was the ﬁ rst jus-

tice who had served in the Confederate army, and

his appointment symbolized post-Reconstruction

reconciliation.

790 Waite Court

vi+904_EofUSConsti-v2.indd 790 3/20/09 2:19:20 PM

The most important Waite opinion came in

the Granger Cases, 94 U.S. 113–187 (1877). Dur-

ing Waite’s term, the Supreme Court was asked

for the ﬁ rst time to respond to social legislation.

This marked the beginning of the epoch when

due process served as the most fertile source of

constitutional lawmaking. The Granger Cases rul-

ing upheld the power of the states to regulate the

rates of railroads and other businesses. It came in

response to abuses that accompanied the post–

Civil War growth of railroads. Angry midwestern

farmers, who ﬂ ocked to the Granger movement

in the early 1870s, sought to correct these abuses

through state regulation. The Granger Cases deci-

sion has served as the basis upon which govern-

ment regulation has generally rested.

The Reconstruction era witnessed the enact-

ment of significant civil rights statutes by the

U.S. Congress. The Civil Rights Act of 1875 is

the most important of these laws. It contained a

prohibition against racial discrimination in inns,

public conveyances, and places of amusement. In

the 1883 C

IVIL RIGHTS CASES, 109 U.S. 3 (1883),

the Waite Court ruled this provision invalid on

the ground that it sought to reach discriminatory

action that was purely private in nature and con-

sequently not within the state scope of the equal

protection clause. Harlan, a former slaveowner,

dissented from this narrow construction of the

Fourteenth Amendment by declaring that the

majority’s narrow concept of state action reduced

the amendment to baubles thrown to those who

deserved fair treatment. Nevertheless, the Court

has continued to follow the rule set down in the

Civil Rights Cases.

The Waite Court’s narrow construction of the

Fourteenth Amendment in the Civil Rights Cases

can be contrasted with its extension of consti-

tutional protection to corporations. In 1886, in

SANTA CLARA COUNTY V. SOUTHERN PACIFIC RAIL-

ROAD, 118 U.S. 394, 396 (1886), the Court decided

that corporations were persons within the mean-

ing of the Fourteenth Amendment. Chief Justice

Waite refused to hear arguments on the question,

and the Court wrote no opinion. Nevertheless, the

Waite pronouncement deﬁ nitively settled the law

on the matter.

The Supreme Court became involved in the

contested presidential election of 1876 through

the appointment of ﬁ ve justices to the commission

set up by Congress to resolve the dispute. The jus-

tices, with the exception of one, were reluctant to

serve. Bradley, viewed as the least partisan of the

justices, cast the decisive vote that put Hayes in

the White House in 1877. Bradley’s vote created a

storm of controversy and tarnished his career. The

episode served as another example of a judicial

involvement in the political arena that reﬂ ected

unfavorably on the Supreme Court. However, the

involvement of the justices persuaded the nation to

accept the decision and may have averted another

national crisis.

The Supreme Court’s reputation had been

tarnished during the turbulence of Dred Scott,

the Civil War, Reconstruction, and the political

maneuverings of Chase. Waite restored its reputa-

tion. At his death in 1888, the Supreme Court had

resumed its position as a fully coordinate depart-

ment of government.

For more information: Currie, David P. The

Constitution in the Supreme Court: The First

Hundred Years, 1789–1888. Chicago: University

of Chicago Press, 1986; Frankfurter, Felix. The

Commerce Clause under Marshall, Taney, and

Waite. Chapel Hill: University of North Carolina

Press, 1960; Schwartz, Bernard. The History of

the Supreme Court. New York: Oxford University

Press, 1992.

—Caryn E. Neumann

Wallace v. Jaffree 472 U.S. 38 (1985)

In Wallace v. Jaffree the Supreme Court invali-

dated as a violation of the establishment

clause an Alabama law allowing students to

engage in one minute of silent meditation. This

case contains a classic exposition of originalist

interpretation of the First Amendment’s estab-

lishment clause.

While the majority opinion by Justice John

Paul Stevens applied the LEMON V. KURTZMAN,

403 U.S. 602 (1971), test in workaday fashion,

Justice William Hubbs Rehnquist’s dissent

Wallace v. Jaffree 791

vi+904_EofUSConsti-v2.indd 791 3/20/09 2:19:20 PM