Schultz D. Encyclopedia of the United States Constitution

Подождите немного. Документ загружается.

forever exploded the historical argument laid out

by Justice Hugo Black in cases such as EVER-

SON V. BOARD OF EDUCATION, 330 U.S. 1 (1947), and

NGEL V. VITALE, 370 U.S. 421 (1962). As Rehnquist

put it, “It is impossible to build sound constitu-

tional doctrine upon a mistaken understanding

of constitutional history,” and he demonstrated

irrefutably that the Everson line of cases was an

attempt to do precisely that. Since 1985, no one

can be said to have applied the Court majority’s

mistaken reading of the establishment clause out

of ignorance.

The Wallace case arose out of Alabama’s

response to the Court’s decision in Engel that the

establishment clause forbade teacher-led prayer

in public schools. Alabama legislators undertook

in 1978 to enact a statute providing for a one-min-

ute moment of silence “for meditation,” in 1981

to enact a statute providing a minute for medita-

tion “or voluntary prayer,” and in 1982 to allow

teachers to lead “willing students” in a prayer

to “Almighty God . . . the Creator and Supreme

Judge of the world.”

Surprisingly, U.S. District Court Judge Bre-

vard Hand at trial interpreted the establishment

clause, as originally understood, to apply only

to limit Congress and the federal government,

and allowed Alabama to establish a state church

if it wanted to. Inexplicably, he ruled the 1978

law constitutional and the other two unconstitu-

tional, under the establishment clause; however,

he dismissed the plaintiffs’ claims concerning all

three because they had failed to state a claim for

which relief could be granted. The circuit court

of appeals reversed Hand’s decision (Stevens said

“not surprisingly”) on the basis of an unfounded

assertion that the Supreme Court had considered

and rejected the historical arguments Hand found

persuasive. Stevens found no difﬁ culty in uphold-

ing the circuit court’s decision under Lemon v.

Kurtzman.

In a solitary dissent, Rehnquist eviscerated

the Court’s entire 1947–85 line of establishment

clause precedent. Rehnquist did not address the

fatuous incorporation doctrine, as he might

have done. He did show, however, that the Everson

Court’s elevation of Thomas Jefferson’s “wall

of separation” metaphor to the status of constitu-

tional dogma made no sense, as Jefferson had nei-

ther helped draft nor participated in ratifying the

First Amendment. Rehnquist also demonstrated

in great detail that the authors and ratiﬁ ers of the

establishment clause had not understood that pro-

vision as banning government encouragement of

nonsectarian prayer, and had taken care to avoid

any such implication.

For more information: Curry, Thomas J. The

First Freedoms: Church and State in America to

the Passage of the First Amendment. New York:

Oxford University Press, 1986; Hutson, James H.,

ed. Religion and the New Republic: Faith in the

Founding of America. Lanham, Md.: Rowman

& Littleﬁ eld, 2000; Sheldon, Garrett Ward, and

Daniel L. Dreisbach. Religion and Political Cul-

ture in Jefferson’s Virginia. Lanham, Md.: Row-

man & Littleﬁ eld, 2000.

—Kevin R. C. Gutzman

War Powers Act

Passed on November 7, 1973, over President Rich-

ard M. Nixon’s veto, the War Powers Act (WPA)

was a congressional effort to limit the president’s

perceived powers as commander in chief. The

act came in response to what many in Congress

viewed as the exercise of “imperial” powers by

presidents during the Vietnam War.

The WPA attempted to place a number of

limitations on the commander in chief. The act

required the president to “consult” with Congress

in “every possible circumstance” when military

action was being considered and eventually used

abroad. If there had not been a formal declaration

of war, speciﬁ c statutory authorization for military

action, or a direct attack on the United States, its

possessions, or territories abroad—and the presi-

dent had used force—the act required that the

commander in chief notify congressional leaders

within 48 hours of the military action. Upon this

notiﬁ cation, the president then has 60 days to gain

congressional approval to continue the military

action. If approval is not gained, the act requires

that the military action shall be terminated. For

792 War Powers Act

vi+904_EofUSConsti-v2.indd 792 3/20/09 2:19:20 PM

reasons of military necessity, and in order to

produce a more expeditious end to the military

action, the president may determine that a 30-day

extension beyond the original 60-day requirement

may be needed. It should be noted that Congress

clearly intended the act to have broad application,

which included all situations in which U.S. troops

would be involved in hostilities abroad.

Most analysts treat the events surrounding the

WPA’s passage as an era of congressional asser-

tiveness in foreign policy, which came after a deep

distrust of the president had developed over the

conduct of the Vietnam War. Yet at the same time,

there is wide concurrence that the WPA has failed

miserably in limiting the president in military

affairs. There are multiple reasons for its failure.

One of the most important reasons for its fail-

ure is that all presidents since 1973 have argued

that the act is an unconstitutional infringement

of the president’s powers as commander in chief.

While presidents have chosen to comply with the

clause’s requirement to notify Congress of military

actions conducted, they simultaneously note that

they are not acting under a speciﬁ c constitutional

obligation to do so.

Other critics of the WPA point to the act’s

imprecise language, which allows for broad inter-

pretations of the word “consult.” For example,

when President Ronald Reagan launched air

strikes on Libyan leader Muammar Qaddafi in

1986, congressional leaders were told of the forth-

coming missile strikes three hours prior to the mil-

itary action. Similarly, in 1989, President George

H. W. Bush gave congressional leaders ﬁ ve hours’

notice before the American military invasion of

Panama. In both cases, each administration main-

tained that it had consulted Congress prior to the

military action. In contrast, some in Congress felt

that they had been merely notiﬁ ed of the ensuing

military action and were not privy to any aspect of

the decision-making process.

Just as presidents have chosen to ignore the

WPA’s intent, Congress has simultaneously cho-

sen to avoid strict applications of the act. Rather,

Congress has been especially deferential to presi-

dents’ unilateral military actions, and has treated

military actions in a political manner, waiting to

see how the public responds to the commander in

chief’s decision. For example, in 1993 and 1996,

when President Bill Clinton conducted major mili-

tary strikes on Iraq, no member of Congress was

consulted in advance. With strong public approval

for the strikes, the voices of criticism from Con-

gress on the constitutionality of Clinton’s strikes

were insignificant. Most members of Congress

applauded the actions and remained silent on the

WPA. President Clinton, however, did go to con-

siderable lengths to consult with Congress prior to

the 1999 military strikes on Yugoslavian president

Slobodan Milosˇevic´. Once the bombings ensued,

Congress again chose against a speciﬁ c application

of the WPA.

President George W. Bush’s ﬁ rst term in ofﬁ ce

followed the same practice as his predecessor.

Barely a month into his presidency, more than

two years prior to Operation Iraqi Freedom,

Bush launched an extensive, one-day air strike on

Iraq on February 16, 2001. Like President Clin-

ton, Bush did not consult with or even notify any

member of Congress prior to the military action.

Congress applauded the military action, despite

the clear violation of the act. Since the terrorist

strikes on the United States on September 11,

2001, Congress has rarely raised concern over the

WPA, in large part due to the wide authorizations

that Congress granted Bush in the global war on

terrorism and for the war in Iraq.

The War Powers Act has never been examined

by the U.S. Supreme Court, but in Immigration

and Naturalization Service v. Chadha, 462 U.S.

919 (1983), the Court determined that a one-

house legislative veto was unconstitutional.

The Court’s decision suggests that Congress’s

requirement in the WPA that the president ter-

minate military action abroad if both houses vote

to require this is unconstitutional. However, oth-

ers contend that, unlike the one-house legislative

veto, the two-house one is not unconstitutional. In

addition, others assert that the WPA is unconsti-

tutional in that it encroaches either upon the exec-

utive power of the president or upon his role as

commander in chief, or that it limits some of the

powers that Congress has in military affairs under

Article I of the U.S. Constitution.

War Powers Act 793

vi+904_EofUSConsti-v2.indd 793 3/20/09 2:19:21 PM

For more information: Fisher, Louis, and

David Gray Adler. “The War Powers Resolution:

Time to Say Goodbye.” Political Science Quar-

terly 113, no. 1 (1998): 1–20; Hendrickson, Ryan

C. The Clinton Wars: The Constitution, Congress

and War Powers. Nashville, Tenn.: Vanderbilt

University Press, 2002; Katzman, Robert A. “War

Powers: Toward a New Accommodation.” In A

Question of Balance: The President, Congress,

and Foreign Policy. Washington, D.C.: Brookings

Institution, 1990.

—Ryan C. Hendrickson

Ware v. Hylton 3 U.S. [Dallas] 199 (1796)

Ware v. Hylton is an important precursor to the

monumental case, MARBURY V. MADISON (1 Cranch

137 [1803]) in the development of the concept of

judicial review.

The facts of this case are rather straightforward.

In 1777, before the conclusion of the Revolution-

ary War, Virginia, passed a law preventing the

collection of debts by British creditors. However,

the Treaty of Paris of 1783, which ofﬁ cially ended

the war, stated clearly that preexisting debts must

be honored. Thus, by the terms of the treaty,

debts against Americans by British citizens would

be collectable. A British citizen began an action

against a Virginian debtor. The state law was cited

by the Virginian as a reason for immunity from the

claim. This was the basis of the legal action. The

Virginia court agreed that the debt could not be

collected. The case was appealed to the Supreme

Court; the argument before the Court lasted sev-

eral days.

This was the era of the Supreme Court in which

seriatim decisions were the norm. That is, each

justice would normally author a separate opinion;

the majority would carry the day. Justice Chase’s

opinion put the matter most clearly in his conclu-

sion. He went through the facts and the arguments

made by the various parties to the case. In a very

lengthy opinion, he concluded that

the Constitution is retrospective and its terms are

applicable to actions taken before the Treaty of

1783 (note the terms of Article VI, Section 1);

the Constitution and laws of states, if they come

into conﬂ ict with the Constitution or national

laws or treaties “are by force of the said article

[Article VI], prostrated before the treaty”;

the Treaty of 1783 is supreme over any state law

or constitution, “. . . because no legislature

of any State has any kind of power over the

Constitution. . . .”;

state and federal judges have the duty to deter-

mine that state laws and constitutions are “null

and void” if they violate the United State Con-

stitution, federal laws, and federal treaties.

Other justices’ opinions, such as Paterson’s,

concur and provide the basis for the rejection of

the Virginia statute.

The importance of this case is that it was one

early case, along with others such as H

YLTON V.

UNITED STATES, Hayburn’s Case (1792), and Yale

Todd’s Case (1794) (presented in United States

v. Ferreira, 54 U.S. 40 [1851]), that explicitly or

implicitly explored the concept of judicial review.

For more information: Frankel, Robert P., Jr.

“Before Marbury: Hylton v. United States and the

Origins of Judicial Review.” Journal of Supreme

Court History 28, no. 1 (2003).

—Steven A. Peterson

Warren Court (1953–1969)

The Warren Court began on September 30, 1953,

when President Dwight D. Eisenhower appointed

Earl Warren (March 19, 1891–July 9, 1974), gover-

nor of California, as the 14th chief justice of the

Supreme Court—a recess appointment because

Congress was not in session. The appointment was

to replace Chief Justice Frederick Vinson who had

died on September 8, 1953, and was made quickly

because leadership was needed for the fall term of

the Supreme Court, about to begin in a few days.

The appointment was not conﬁ rmed until March

1, 1954.

The Warren Court ended on June 23, 1969,

a year after Warren had announced his plans to

retire. In June of 1968, Warren sent a letter to

President Lyndon B. Johnson announcing his

794 Ware v. Hylton

vi+904_EofUSConsti-v2.indd 794 3/20/09 2:19:21 PM

coming retirement, with the intention of inﬂ uenc-

ing Johnson’s decision for his replacement or pre-

venting Richard M. Nixon, who was the likely

next president, from appointing his successor. The

letter did not work.

Serving on the Warren Court at the time of the

chief justice’s appointment were five appointees

made by President Franklin D. Roosevelt: Hugo

L. Black (August 1937), Stanley F. Reed (January

1938), Felix Frankfurter (January 1939), William

O. Douglas (April 1939), and Robert H. Jackson

(July 1941). In addition there were three who had

been appointed by President Harry Truman: Harold

H. Burton (October 1945), Tom C. Clark (August

1949), and Milton Sherman (October 1949).

Added to the Warren Court as Eisenhower

appointees were John Marshall Harlan II

(March 1955) to replace Justice Roberts (died

October 1954), William J. Brennan, Jr. (Octo-

ber 1956), to replace Sherman Minton (retired

October 1956), Charles E. Whittaker (March

1957) to replace Stanley F. Reed (retired Febru-

ary 1957), and Potter Stewart (October 1958) to

replace Harold H. Burton (retired October 1958).

Appointees made to the Warren Court by Pres-

ident John F. Kennedy were Byron R. White (April

1962) to replace Charles E. Whittaker (retired

March 1962) and Arthur J. Goldberg (October

1962) to replace Felix Frankfurter (retired August

1962).

Supreme Court justices (left to right) William O. Douglas, Stanley Reed, Chief Justice Earl Warren, Justices Hugo

Black, Felix Frankfurter, and others stand with President Eisenhower on the White House steps, 1953.

(Library of

Congress)

Warren Court 795

vi+904_EofUSConsti-v2.indd 795 3/20/09 2:19:21 PM

Goldberg resigned in July 1965 and President

Lyndon B. Johnson appointed Abe Fortas (Octo-

ber 1965), who resigned in May of 1969. He was

replaced by the ﬁ rst African American to serve on

the Court, Thurgood Marshall (October 1967).

The short tenure of Justice Goldberg on the

Court was due to President Johnson’s strong urg-

ing that Goldberg become the American ambas-

sador to the United Nations during the troubling

time of the Vietnam War. Frustrated with the war,

Goldberg resigned the position in 1968, wanting to

become chief justice when Warren announced his

pending retirement. Instead, Johnson nominated

Abe Fortas as chief justice; however, the nomina-

tion was blocked by northern Republicans and

southern Democrat conservatives. A few months

later, ethical charges were brought against Fortas,

forcing him to resign.

The appointment of Earl Warren as chief jus-

tice was a political payoff made by President

Eisenhower to California supporters. Warren

at the time was governor of California. He had

previously been California attorney general and

had participated in the World War II Japanese

internments. Instead of judicial experience or

legal scholarship, he brought to the Court political

skills. These were to help the Court greatly during

his tenure as chief justice because the Court was

deeply divided when he arrived.

The split among the justices upon Warren’s

accession was between those favoring judicial

restraint and those favoring judicial activism.

Frankfurter was the leader of the faction in favor

of judicial restraint, while Justices Black and

Douglas were leaders of the activists. Tom Clark

was often on the side of the activists, but could be

expected to take an independent stance if he were

so inclined.

The Warren Court in its ﬁ rst phase was split

between the two factions. In its second phase,

it was ﬁ rmly engaged in judicial activism, espe-

cially in the area of civil liberties and civil

rights. The ﬁ rst major case faced by the War-

ren Court was B

ROWN V. BOARD OF EDUCATION OF

TOPEKA (1954), a case that had been held over

from the Vinson Court, which had been unable to

reach a decision. It was heard again in December

of 1953. Warren used his political skills to achieve

complete consensus. Warren wrote the opinion,

which was delivered on May 17, 1954. The Court

then adjourned and left town. The case marked

the beginning of a shift from focusing on prop-

erty rights to focusing on personal rights. It also

put the Court into the center of enormous con-

troversy and sparked the Civil Rights movement.

A ﬂ ood of antisegregation cases followed, which

were eventually matched by federal legislation.

The decisions were divisive and engendered calls

for Warren’s impeachment.

In 1956 the Warren Court took the ﬁ rst of its

many cases involving criminal rights with Grif-

ﬁ n v . I l l i n o i s , 351 U.S. 12. It ruled that publicly

ﬁ nanced trial transcripts be supplied to criminal

indigents in order to support their appeals. This

was followed by GIDEON V. WAINWRIGHT, 372 U.S.

335 (1963), giving a court-appointed attorney paid

for by the state as representation for an indigent

defendant. In subsequent cases the right was

extended to defendants in misdemeanors.

The Gideon case, described in the book Gide-

on’s Trumpet, overturned the rule established in

BETTS V. BRADY, 316 U.S. 455 (1942). The right

to counsel was expanded in ESCOBEDO V. ILLI-

NOIS, 378 U.S. 478 (1964), and MIRANDA V. ARIZONA,

384 U.S. 436 (1966), moved law enforcement away

from confessions to having to develop scientiﬁ c

evidence in criminal cases. The Miranda deci-

sion meant that defendants were to be informed

of their constitutional rights as soon as the ﬁ nger

of suspicion pointed at them.

Cases protecting the rights of the accused from

unreasonable searches and seizures were decided

in Mapp v. Ohio, 367 U.S. 643 (1963), and Katz

v. United States, 389 U.S. 347 (1967). These and

other similar cases were landmark cases that

interpreted many clauses in the ﬁ rst 10 amend-

ments (Bill of Rights) and applied them to

the states through the Court doctrine of selective

incorporation.

Other momentous decisions of the Warren

Court included the decisions to ban prayer (Engle

v. Vitale, 370 U.S. 421 [1962]) and Bible reading

(ABINGTON TOWNSHIP V. SCHEMPP [with Murray v.

Curlett], (374 U.S. 203 [1963]) in the schools; Sun-

796 Warren Court

vi+904_EofUSConsti-v2.indd 796 3/20/09 2:19:22 PM

day closing laws (blue laws), McGowan v. Mary-

land, 366 U.S. 420 (1961); and other cases seeking

to remove religious influence from the public

square—adding to the controversy surrounding

the Court.

In B

AKER V. CARR, 369 U.S. 186 (1962), the

Warren Court reversed precedent and ruled that

apportionment of voting districts and voting rights

in general were no longer political questions, but

instead were judicable disputes. Numerous other

voting rights cases followed, adding fuel to the

fires of controversy surrounding the era of the

Warren Court.

For more information: Belknap, Michal R. The

Supreme Court under Earl Warren, 1953–1969.

Columbia: University of South Carolina Press,

2004; Cox, Archibald. The Warren Court: Con-

stitutional Decisions as an Instrument of Reform.

Cambridge, Mass.: Harvard University Press,

1968; Newton, Jim. Justice for All: Earl Warren

and the Nation He Made. New York: Penguin

Group, 2006; Scheiber, Harry N., ed. Earl War-

ren and the Warren Court: The Legacy in Ameri-

can and Foreign Law. Lanham, Md.: Rowman &

Littleﬁ eld, 2007; Schwartz, Bernard, ed. Warren

Court: A Retrospective. New York: Oxford Uni-

versity Press, 1996; Urofsky, Melvin. The Warren

Court: Justices, Rulings, and Legacy. Santa Bar-

bara, Calif.: ABC-CLIO, 2001.

—Andrew J. Waskey

Washington v. Davis 426 U.S. 229 (1976)

In Washington v. Davis, the Supreme Court held

that the discriminatory impact of a law is not sufﬁ -

cient, by itself, to establish a racial classiﬁ cation in

violation of the Fifth Amendment’s due process

clause, which guarantees equal protection of

the laws.

Davis concerned whether the District of

Columbia Police Department’s recruiting proce-

dures discriminated against blacks in violation of

the due process clause of the Fifth Amendment.

To join the police department, the District of

Columbia required applicants to pass a written test

“designed to test verbal ability, vocabulary, reading

and comprehension.” Statistics revealed that blacks

failed the entrance examination far more often

than whites. The Court held that proof that a law

is administered in a manner that disproportion-

ately impacts minorities is insufﬁ cient, by itself, to

establish a racial classiﬁ cation in violation of the

constitutional guarantee of equal protection.

Writing for the Court, Justice White explained

that evidence of discriminatory impact “[s]tanding

alone . . . does not trigger the rule that racial

classiﬁ cations are to be subjected to the strictest

scrutiny and are justiﬁ able only by the weightiest

considerations.” A law that, on its face, is racially

neutral will be upheld if it is rationally related to

a legitimate government purpose, even if there

is evidence of discriminatory impact. But if, in

addition to evidence of a discriminatory impact,

a person challenging a law as violating equal pro-

tection presents evidence of a law’s discriminatory

purpose—meaning that a law was enacted with

the purpose of discriminating against persons of

a certain race or national origin—then the chal-

lenger will have made a prima facie case that the

law violates equal protection.

The Supreme Court offered two justiﬁ cations

for its conclusion that discriminatory impact,

standing alone, is insufﬁ cient to establish an equal

protection violation. First, the Court reasoned

that the purpose of equal protection “is the pre-

vention of ofﬁ cial conduct discriminating on the

basis of race.” Second, the Court noted that “a

whole range of tax, welfare, public service, regula-

tory, and licensing statutes that may be more bur-

densome to the poor and to the average black than

to the more afﬂ uent white” might be threatened

were the Court to permit a racial classiﬁ cation to

be proved based solely on proof of discriminatory

impact.

The Court has subsequently reaffirmed the

rule articulated in Washington v. Davis in Mobile

v. Bolden, 446 U.S. 55 (1980), and McClesky v.

Kemp, 481 U.S. 279 (1987).

For more information: Lawrence, Charles R.,

III. “The Id, the Ego, and Equal Protection: Reck-

oning with Unconscious Racism.” Stanford Law

Review 39, no. 317 (1987): 323; Selmi, Michael.

Washington v. Davis 797

vi+904_EofUSConsti-v2.indd 797 3/20/09 2:19:22 PM

“Was the Disparate Impact Theory a Mistake?”

UCLA Law Review 53, no. 701 (2006).

—Andre Mura

wealth and the Constitution

Wealth or ﬁ nancial status is often problematic for

the Supreme Court in that their use may deny

some rights and liberties.

The U.S. Constitution is widely viewed as the

legal foundation of America’s wealth-building sys-

tem. Most of the 55 delegates to the convention

that created the American constitution were of

some ﬁ nancial substance, raising speculation that

the document was designed to beneﬁ t the mer-

cantile or landed class. A version of this argument

was ﬁ rst articulated by anti-Federalists and small

agrarian interests opposed to the Constitution’s

ratiﬁ cation.

In the early 20th century the allegation of

the Constitution’s embedded economic bias was

expounded by Charles A. Beard (1874–1948),

a noted American historian who founded New

York’s New School for Social Research, in his 1925

An Economic Interpretation of the Constitution

of the United States. For a time, Beard’s thesis

was inﬂ uential among cosmopolitan academics.

His theory began to lose luster, however, when

challenged by traditionalist scholars, most notably

Forrest McDonald. Professor McDonald’s book

We the People: The Economic Origins of the Con-

stitution (1958) claimed a much more pluralistic

landscape of ﬁ nancial interests than did Beard.

More recently, Beard’s thesis has received criti-

cism for failing to account for the Constitution’s

contribution to the general welfare.

The connection between governmental foun-

dations and wealth building was highlighted

under the Articles of Confederation, as Congress

was dependent upon the states to enforce its laws

and collect its taxes. With some states shirking

their duties, the early Congress had to borrow

from wealthy individuals to sustain government

operations, yet without adequate means to repay

the debts. The chaos of the era was heightened by

states issuing their own currencies and monetiz-

ing debts.

In response to the problems, merchants gath-

ered first in Alexandria, Virginia, and then in

Annapolis, Maryland. The Annapolis Convention

produced a request for a constitutional convention

to address the country’s growing crisis. Congress

responded on February 21, 1787, by calling for a

convention of the states to revise the Articles of

Confederation and render them adequate to the

exigencies of government and the preservation

of the Union. Thus, the American constitution

resulted, in part, from a commercial interest in

reordering the system. The goal was to engender

national economic prosperity—an idea that Whig

senator Henry Clay popularized in the 1820s as

the “American System.”

Working from this perspective it is possible to

conceive of the U.S. Constitution as an engine of

commerce and wealth generation. This contrasts

with the popularized view that the overriding

purpose of the Constitution was to secure indi-

vidual rights and liberties. Certain particulars of

the U.S. Constitution lend support to this inter-

pretation. In Article I, Section 8, Clause 1 the

Congress is granted power to lay and collect taxes,

pay debts, provide for the common welfare of the

states, borrow money on the nation’s credit, regu-

late commerce, coin money and regulate its value,

and other things essential to a prosperous com-

mercial state. Elsewhere there are prohibitions

against feudalism and nonappropriated govern-

ment spending as well as protections for interstate

free trade, due process, and private property—

protections that facilitate the spread of wealth in a

society. Even the Madisonian aim of constituting

a geographically far-ﬂ ung republic helps stimulate

competition among factions so as to pluralistically

disperse wealth. But none of these observations

answer the question as to why the voting public

has kept their Constitution unengaged regarding

wealth concentration. This void is increasingly

consequential now that the top 1 percent of Amer-

ican wealth holders control well over one-third of

all U.S. private wealth, with foreign elites holding

large shares as well.

Since the Founders created checks and bal-

ances for most hazards they identiﬁ ed, it is worth

considering what they might have done had they

798 wealth and the Constitution

vi+904_EofUSConsti-v2.indd 798 3/20/09 2:19:22 PM

foreseen a ﬁ nancial system capable of concentrat-

ing immense wealth for some individuals. Indeed,

Thomas Jefferson bemoaned the convention’s

failure to add a constitutional clause prohibiting

long-term national debt. This hazard, he feared,

could beneﬁ t the upper capital class at the expense

of the working man, even endangering republican

institutions at some point.

Some political observers believe that a cul-

tural reformation could produce constitutional

amendments limiting wealth concentration. This

is unlikely, however, as illustrated by billionaire

Donald Trump’s aborted bid for the U.S. presi-

dency in 1999–2000. Trump built his political

platform around the idea of a one-time asset tax

of 14.25 percent on American fortunes over $10

million, arguing that the tax would pay off the

national debt (then about $5.7 trillion), among

other things. Predictably, the American public and

both major political parties barely took notice. Yet,

in 1992 the public ratiﬁ ed our Twenty-seventh

Amendment to provide a bit more control over

modest congressional salaries. These observations

suggest that American culture is not yet ready to

use the Constitution to address wealth distribu-

tion challenges.

Nevertheless, constitutional battles have made

it conceivable for the American electorate to

someday challenge the evolving mediated demo-

cratic plutocracy—a system where large capital

holders engineer much of the political process by

using wealth to inﬂ uence primary races, especially

for the presidency and the U.S. Senate. This so-

called “wealth primary” reflects the advantages

that accrue to those who garner exceptional media

attention by early domination of a campaign fund-

raising cycle. Yet, the plutocratic primary is not

constitutionally predestined; notable U.S. Supreme

Court decisions have found scant constitutional

grounds for privileging wealth in elections.

In Harper v. Virginia Board of Elections, 383

U.S. 663 (1966), the U.S. Supreme Court found

(by a 6-3 margin) that “a state violates the equal

protection clause of the Fourteenth Amend-

ment . . . whenever it makes the afﬂ uence of the

voter or payment of any fee an electoral standard.”

This decision ﬁ nalized the de-linkage of monetary

means to voter qualiﬁ cations, shutting the door on

the poll tax in state elections two years after the

Twenty-fourth Amendment accomplished

the same in federal elections. Likewise, in Bullock

v. Carter, 405 U.S. 134 (1972), the Court’s major-

ity opinion stated that a sound primary system

should “spread the cost among all the voters in an

attempt to distribute the inﬂ uence without regard

to wealth.” This decision came in response to a sys-

tem in Texas where candidates seeking placement

on primary ballots had to pay candidate filing

fees to their political parties ranging from $150

to $8,900. The Court majority stated, “We would

ignore reality were we not to ﬁ nd that this system

falls with unequal weight on voters, as well as can-

didates, according to their economic status.”

While the aforementioned Court decisions

follow a semi-egalitarian track in electoral mat-

ters, other decisions have taken a different path.

In B

UCKLEY V. VALEO, 424 U.S. 1 (1976), the Court

equated a candidate’s personal campaign expen-

ditures with First Amendment rights of free

speech, effectively limiting the range of cam-

paign finance reform as it affects wealthy can-

didates. In a somewhat related matter, the High

Court overturned a federal district court decision

that found wealth to be a suspect classiﬁ cation in

the funding of public education through local real

estate taxes, since tax revenue for school districts

varies widely based upon housing values. Thus,

San Antonio School District v. Rodriquez, 411

U.S. 1 (1973), acts as a limitation on the reach of

the equal protection clause as it regards the impact

of disparate wealth.

The nation’s judicial system faces daunting

challenges in protecting property and associated

beneﬁ ts of capital holding while simultaneously

preventing the wealth privilege from distorting

representative democracy toward modernized

plutocracy. If history is any guide, solutions to

current constitutional impasses are most likely to

arise from major economic dislocations that shift

electoral alignments or engage passive voters.

For more information: Kelly, Marjorie. The

Divine Right of Capital: Dethroning the Corpo-

rate Aristocracy. San Francisco: Berrett-Koehler,

wealth and the Constitution 799

vi+904_EofUSConsti-v2.indd 799 3/20/09 2:19:23 PM

2001; Skousen, W. Cleon. The Making of America:

The Substance and Meaning of the Constitution.

Washington, D.C.: National Center for Constitu-

tional Studies, 1985.

—Timothy J. Barnett

Webster v. Reproductive Health Services

492 U.S. 490 (1989)

In Webster v. Reproductive Health Services, the

U.S. Supreme Court ruled on the constitutionality

of a Missouri law. Speaking for himself and Justices

Anthony M. Kennedy and Byron White, Chief

Justice William Hubbs Rehnquist announced

the judgment of the Court.

The ﬁ rst issue was a preamble in the Missouri

law declaring that human life “begins at con-

ception.” The Court held that, because this was

merely an abstract statement favoring childbirth

over abortion, it need not decide on its constitu-

tionality. The second part of the law barred abor-

tions not necessary to save a woman’s life in public

facilities such as the Truman Medical Center in

Kansas City, Missouri. Although Truman was a

private hospital, it was built on state-leased land

and therefore considered “public,” even though

no state funds were spent on abortions performed

there. Rehnquist explained that states may show

they prefer childbirth to abortion by restricting

the performance of abortions at public hospitals.

As with the preamble, the Court also found it

unnecessary to rule on the provision of the law

forbidding the use of public funds, employees, and

facilities to encourage or counsel women to have

abortions not necessary to save their lives. Accept-

ing the state’s argument that it was intended only

to prevent hospital administrators from allocat-

ing funds for abortion counseling, the Court

never addressed the question of whether the law

restricted physicians’ freedom of speech by barring

them from discussing abortion with their patients.

The last, and most important, provision of the

law involved the requirement to determine fetal

viability by measuring its age, weight, and lungs

when a physician believes it is at least 20 weeks of

age. In upholding this provision, Rehnquist inter-

preted the law as requiring doctors to perform

these tests only when they believed them useful

in determining viability. He rejected the lower

court’s interpretation that the law required these

tests to be performed on any woman a physician

believes is at least 20 weeks pregnant.

Rehnquist acknowledged that the Missouri law

was inconsistent with ROE V. WADE, 410 U.S. 113

(1973), because it required these tests to be per-

formed during the second trimester of the preg-

nancy. He believed that the best way to resolve the

inconsistency was to change the requirements of

Roe. Although he insisted that the Court was not

overruling Roe, he seemed to encourage legisla-

tion that would require the Court to revisit and

overrule Roe in the future.

Justice Sandra Day O’Connor agreed with

the three justices, but wrote separately to state

her view that the viability tests were consistent

with Roe and the Court did not have to examine

its constitutionality. Justice Antonin Gregory

Scalia agreed as well, but expressed disappoint-

ment in the Court’s refusal to explicitly overrule

Roe, which in his view was wrongly decided.

Speaking for Justices William J. Brennan, Jr.,

and Thurgood Marshall, Justice Harry Blackmun

charged that the law plainly stated that doctors

must determine the age, weight, and lung maturity

of every 20-week fetus. This provision, he argued,

risked the lives of the woman and the fetus and did

not further the state’s interest in protecting their

health. In his view, the Court was inviting states to

adopt restrictive abortion regulations in the hopes

that Roe would be overruled. If this occurred, he

warned, women’s lives would be endangered by

being forced into dangerous illegal abortions.

For more information: Mezey, Susan Gluck.

Elusive Equality: Women’s Rights, Public Policy,

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

2003; Tribe, Laurence. Abortion: The Clash of

Absolutes. New York: Norton, 1990.

—Susan Gluck Mezey

Weeks v. United States 232 U.S. 383 (1914)

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

held that criminal evidence must be excluded from

800 Webster v. Reproductive Health Services

vi+904_EofUSConsti-v2.indd 800 3/20/09 2:19:23 PM

use in court when it is obtained by federal law

enforcement ofﬁ cers through an improper search.

The decision provided the Supreme Court’s ﬁ rst

endorsement of the exclusionary rule, a con-

troversial remedy for improper searches. The rule

was later expanded for application to state and

local law enforcement ofﬁ cers in Mapp v. Ohio,

367 U.S. 643 (1961). The Weeks decision led to

debates that continue into the 21st century about

whether evidence of a criminal suspect’s guilt

should be excluded from use in court.

Fremont Weeks was arrested on December

21, 1911, in Kansas City, Missouri, at his place

of employment. A U.S. marshal accompanied by

Kansas City police ofﬁ cers went to Weeks’s board-

ing house where another resident admitted them.

They entered Weeks’s room without a search war-

rant and seized various papers. These items were

used to convict Weeks for violating federal laws

against using the mail to transport lottery tickets.

According to the words of the Fourth Amend-

ment to the U.S. Constitution, the amendment is

to protect “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against

unreasonable searches and seizures.” The U.S.

marshal violated Weeks’s Fourth Amendment

rights by failing to obtain a search warrant from a

judge before conducting the search. In nonemer-

gency situations, the Fourth Amendment requires

that the police obtain a warrant from a judge

before searching a home. In writing on behalf

of a unanimous Supreme Court, Justice William

Day emphasized the justices’ view that the use of

improperly obtained evidence would effectively

nullify people’s rights. In Day’s words, “If letters

and private documents can thus be seized and held

and used in evidence against a citizen accused of

an offense, the protection of the [Fourth] Amend-

ment, declaring his right to be secure against such

searches and seizures, is of no value, and, so far as

those thus placed are concerned, might as well be

stricken from the Constitution” (Weeks v. United

States, 232 U.S. at 393).

The exclusionary rule from Weeks remains con-

troversial because it creates situations in which a

guilty person may escape punishment because the

evidence of guilt was excluded from use in court.

During the 20th century, the Supreme Court

identiﬁ ed speciﬁ c kinds of searches for which the

exclusionary rule will not apply. However, despite

the adjustments to the exclusionary rule, the 21st-

century Supreme Court continues to endorse

the fundamental rule of Weeks v. United States

requiring the exclusion of evidence when police

ofﬁ cers who had an opportunity to obtain a search

warrant failed to do so.

For more information: Abraham, Henry J.

Freedom and the Court: Civil Rights and Liber-

ties in the United States. 5th ed. New York: Oxford

University Press, 1988; Smith, Christopher E.

Criminal Procedure. Belmont, Calif.: Wadsworth

Publishing, 2003.

—Christopher E. Smith

welfare and the Constitution

Welfare and welfare rights implicate constitu-

tional issues regarding the power of the national

government.

Among the powers granted to Congress in

Article I, Section 8 of the U.S. Constitution

are the powers to “lay and collect Taxes, Duties,

Imposts, and Excises, to pay the Debts and pro-

vide for the common defense and general Welfare

of the United States.” There is no elaboration on

the meaning of “general welfare,” and the place-

ment of this phrase in the clause authorizing Con-

gress to tax and spend has caused confusion over

how or whether these powers ﬁ t together. Over

time, conflict over the meaning of the general

welfare clause has given way to debate over the

proper application of the Fourteenth Amend-

ment to protect the welfare of disadvantaged

populations, and most recently to the use of statu-

tory interpretation to shape the implementation of

welfare policies.

Disagreements over the general welfare clause

date back to the Founding period. Although both

James Madison and Alexander Hamilton

supported the establishment of a strong national

government, they clashed over how to interpret

Congress’s power to tax and spend to “provide

for the general welfare.” Madison believed that

welfare and the Constitution 801

vi+904_EofUSConsti-v2.indd 801 3/20/09 2:19:23 PM