Schultz D. Encyclopedia of the United States Constitution

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Congress could tax and spend only for things enu-

merated in the Constitution. To him, the phrase

“general welfare” was a preface to the powers

listed in the remainder of Article I, Section 8, not

a separate grant of power. Hamilton, however,

interpreted the general welfare clause as an inde-

pendent power that was not limited by other pow-

ers granted in the Constitution. Under his logic,

Congress could levy taxes and spend the revenue

on new programs provided they advanced the gen-

eral welfare in a broad sense and as long as the

beneﬁ ts were appropriated on a national, rather

than local, scale.

It is reasonable to say that, in general, Ham-

ilton’s reading of the general welfare clause has

dominated American political history. In the 19th

century, federal initiatives, such as a national

banking system, and internal improvements, such

as lighthouses and roads, were justiﬁ ed, in part,

by the general welfare power. Initiatives aimed

at poverty relief, though, remained the prov-

ince of the states and private organizations. This

scheme changed during the New Deal. In the case

United States v. Butler, 297 U.S. 1 (1936), the U.S.

Supreme Court explicitly supported Hamilton’s

interpretation, saying that “the power of Congress

to authorize expenditure of public moneys for

public purposes is not limited by the direct grants

of legislative power found in the Constitution.”

The decision did, however, specify that Congress’s

spending power was limited by the Tenth Amend-

ment. Subsequent Supreme Court decisions on

other New Deal initiatives chipped away at the

qualifying power of the Tenth Amendment in

favor of promoting the general welfare, specifi-

cally in federal policy areas that aimed to help dis-

advantaged populations, such as the elderly and

widows and their children.

The implementation of New Deal policies to

promote the general welfare signaled the begin-

ning of the federal government’s involvement

in programs to relieve poverty and other social

inequalities. Concomitantly, the Supreme Court

increasingly decided cases that required an evalu-

ation of the impact of various inequalities. Begin-

ning in the 1940s, however, the constitutional

basis for the broadening spectrum of federal wel-

fare policies moved away from taxing and spend-

ing for the “general welfare” toward a greater

reliance on the Fourteenth Amendment’s equal

protection clause to promote not only legal, but

also social, equality.

Use of the equal protection clause to promote

social welfare and equality is commonly traced to

legal reasoning found in footnote four of U.S. v.

Carolene Products Co., 304 U.S. 144 (1938), which

suggested that the courts are obligated to heavily

scrutinize any law that affects, among others, “insu-

lar minorities” to ensure that it does not impinge on

their fundamental rights. In B

ROWN V. BOARD

OF EDUCATION, 347 U.S. 483 (1954), the Court acti-

vated this reasoning to find racially segregated

schools unconstitutional. Many observers suggest

that Brown initiated an “Equal Protection Revolu-

tion” that led the Court to “strictly scrutinize” new

areas of legislation in order to protect the welfare

of disadvantaged “classiﬁ cations” or groups. Since

then, classiﬁ cations based on race have received

strict scrutiny; other classifications such as

ethnicity, gender, mental capacity, and wealth have

received various levels of scrutiny over time.

From the New Deal through the 1960s,

the courts generally deferred to agency discre-

tion in the implementation of welfare policies,

which amounted to a rather low level of scrutiny.

Beginning in the late 1960s, however, judicial

review of welfare programs took a new direction;

welfare entitlements were more broadly deﬁ ned,

and welfare beneﬁ ciaries enjoyed a new kind of

right. While the U.S. Supreme Court found that

there is no fundamental right to welfare entitle-

ments, these entitlements came to be viewed as

a kind of property. In other words, beneﬁ ciaries

of entitlements were understood to have statu-

torily conferred programmatic rights that could

not be reasonably denied. Two seminal Supreme

Court decisions helped shape this new concep-

tion of welfare. In GOLDBERG V. KELLY, 397 U.S.

254 (1970), the Court determined that a welfare

recipient’s continued interest in receiving ben-

eﬁ ts is a statutory entitlement that is equivalent

to property under the due process clause. In

SHAPIRO V. THOMPSON, 394 U.S. 618 (1969), the

Court held that state residency requirements or

802 welfare and the Constitution

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waiting periods for welfare beneﬁ ts violate both

the implied constitutional right to travel and the

equal protection clause because they discriminate

against the poor. Although, in the modern era, the

federal courts have relied on statutory interpreta-

tion of welfare laws to shape and protect this area

of rights, the constitutional analyses in Goldberg

and Shapiro are often referenced as the sources of

the new welfare rights.

For more information: Gunther, Gerald. Indi-

vidual Rights in Constitutional Law. 5th ed.

Westbury, N.Y.: Foundation Press, 1990; Melnick,

R. Shep. Between the Lines: Interpreting Welfare

Rights. Washington, D.C.: Brookings, 1994; Post,

Russell L. “The Constitutionality of Government

Spending for the General Welfare.” Virginia Law

Review 22 (1935): 1–38.

—Margaret Tullai

West Coast Hotel v. Parrish 300 U.S. 379

(1937)

In West Coast Hotel v. Parrish, the Supreme

Court upheld a state minimum wage law for

women. West Coast Hotel formally overruled an

earlier Supreme Court case, ADKINS V. CHILDREN’S

HOSPITAL, 261 U.S. 525 (1923), which held that a

minimum-wage law for women violated the due

process clause of the Fourteenth Amend-

ment. This case was an important decision that

eventually led the Court to uphold New Deal leg-

islation and give the government more authority to

regulate the economy.

In 1913, the Washington state legislature

passed a law ﬁ xing a minimum wage for women

to combat the “sweating system” of long hours and

little pay, which the state found to be hazardous to

a woman’s health and safety. The plaintiff in this

case brought suit against her employer for back

wages, which should have been paid at a rate of

$14.50 per 48-hour week.

The hotel alleged that the due process clause

of the Fourteenth Amendment protected its free-

dom of contract with employees. Justice Hughes,

who wrote on behalf of the majority, disagreed.

He argued that the Constitution contains no free-

dom of contract, and that any liberties protected

by the Fourteenth Amendment can be deprived if

due process of law is satisﬁ ed. He found the state’s

interest in keeping women healthy was justiﬁ ed

because they were typically paid less and were in

a weaker bargaining position than men. He noted

that the physical structure of women places them

at a disadvantage in the struggle for subsistence

and that their maternal functions must be pre-

served to ensure the “strength and vigor of the

race.” Because of these factors, the Court ruled

that a state can pass legislation to protect the

health and safety of women that might not be con-

stitutional if also applied to men.

West Coast Hotel was an expansion of Muller v.

Oregon, 208 U.S. 412 (1908), in which the Court

upheld a law limiting the number of hours women

could work. The Court distinguished both of

these cases from LOCHNER V. NEW YORK, 198 U.S.

45 (1905), which invalidated a law limiting the

number of hours a baker could work, because the

law applied only to women. Eventually, the Court

would use the same reasoning to uphold laws pro-

tecting men as well as women. See Williamson v.

Lee Optical Co., 348 U.S. 483 (1955).

For more information: Cushman, Barry.

Rethinking the New Deal Court: The Structure

of a Constitutional Revolution. New York: Oxford

University Press, 1998.

—Dylan R. Kytola

West Lynn Creamery, Inc., v. Healy 512

U.S. 186

(1994)

In West Lynn Creamery, Inc. v. Healy, the Supreme

Court struck down a pricing statute that related to

in-state and out-of-state milk producers violating the

dormant commerce clause of the Constitution.

In this case, the state of Massachusetts sub-

jected all ﬂ uid milk sold by dealers in the state to

a social assessment via a pricing order. It imposed

this assessment in order to help preserve Massa-

chusetts dairy farms. Most milk sold in Massachu-

setts was produced outside of the state, yet funds

collected from this assessment were, in effect,

distributed to Massachusetts dairy farmers. West

West Lynn Creamery, Inc., v. Healy 803

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Lynn Creamery sued in a Massachusetts court,

claiming that the assessment violated the federal

commerce clause. The Massachusetts court denied

relief to West Lynn Creamery, and the case was

appealed to the Massachusetts Supreme Court,

which afﬁ rmed the lower court’s decision, “con-

cluding that the order was not facially discrimina-

tory, applied evenhandedly, and only incidentally

burdened interstate commerce, and that such

a burden was outweighed by the ‘local beneﬁ ts’ to

the dairy industry.”

The case was appealed to the Supreme Court

and, in a 7-2 decision delivered by Justice John

Paul Stevens, the Court concluded that the

pricing order was unconstitutional. According to

the Court:

Neither the power to tax nor the police power

may be used by the state of destination with

the aim and effect of establishing an economic

barrier against competition with the products

of another state or the labor of its residents.

Restrictions so contrived are an unreasonable

clog upon the mobility of commerce. They set up

what is equivalent to a rampart of customs duties

designed to neutralize advantages belonging to

the place of origin.

Thus, because the minimum price regulation

had the same effect as a tariff or customs duty—

neutralizing the advantage possessed by lower-cost

out-of-state producers—it was held unconstitu-

tional as a violation of the commerce clause. Simi-

larly, in Bacchus Imports, Ltd. v. Dias, 468 U.S.

263 (1984), this Court invalidated a law that advan-

taged local production by granting a tax exemption

to certain liquors produced in Hawaii.

West Lynn Creamery, Inc. v. Healy is one of

several recent commerce clause cases that dem-

onstrate that there are limits on state taxing and

police power authority, even absent explicit con-

gressional action.

For more information: Nowak, John E., and

Ronald D. Rotunda. Principles of Constitutional

Law. St. Paul, Minn.: Thomson/West, 2005.

—Dan Krejci

West River Bridge Company v. Dix 47 U.S.

507

(1848)

This case marked the first time the Supreme

Court dealt with the power of eminent domain,

holding that the taking of a bridge for public use

was not a violation of the contract clause in

the United States Constitution.

In 1795, Vermont passed an act of legisla-

tion entitled “An act granting to John W. Blake,

Calvin Knowlton, and their associates, the privi-

lege of building a toll-bridge over West River, in

Brattleboro.” The act authorized Blake and his

associates to incorporate and run a toll bridge for

100 years. In May of 1843, local commissioners,

on petition from some of the populace to take

charge of the bridge operation, recommended

the use of eminent domain to take the bridge and

make it a public way. The bridge was taken by

eminent domain. The case was tried in a Vermont

court in November 1843, and the report ﬁ led by

the commissioners was accepted; the West River

Bridge Company was to be compensated with

$4,000 for their bridge, which was to be taken

for public use.

The case was appealed to the Supreme

Court, which was asked to decide if the taking

of the bridge for public use was a violation of

the contract clause. Justice Daniel delivered the

opinion of the Court, concluding that the taking

of the bridge and land for public use was not

a violation of the contract clause of Article I

of the Constitution. The Court stated that

eminent domain was a fundamental power of

the states, and as long as fair and just com-

pensation was paid to the West River Bridge

Company, then Vermont had the power to take

the land for public use.

Overall, while viewed as a contract clause case,

West River Bridge Company v. Dix is an impor-

tant case supporting the use of eminent domain for

a wide variety of public uses, including the taking

of different types of property, such as contracts.

For more information: Nowak, John E., and

Ronald D. Rotunda. Principles of Constitutional

Law. St. Paul, Minn.: Thomson/West, 2005.

—Dan Krejci

804 West River Bridge Company v. Dix

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White Court (1910–1921)

The White Court began on Monday, December

19, 1910, when Edward Douglass White, Jr. (born

November 3, 1845), became the ninth chief jus-

tice of the Supreme Court, replacing Chief Jus-

tice Melville Weston Fuller. It ended with White’s

death in ofﬁ ce on May 19, 1921.

The members of the Court when Chief Justice

White was elevated from a Supreme Court associ-

ate justice position to chief justice were justices

John Marshall Harlan (appointed in 1877),

Joseph McKenna (appointed 1898), Oliver

Wendell Holmes, Jr. (appointed in 1902), Wil-

liam R. Day (appointed 1903), Horace H. Lurton

(appointed January 1910), and Charles E. Hughes

(appointed October 1910). Added to the Court

almost immediately in January of 1911 were Willis

Van Devanter and Joseph R. Lamar.

In March of 1912, Mahlon Pitney took the seat

of John Marshall Harlan, who died in October

of 1911. James C. McReynolds replaced Horace

H. Lurton, who died in July of 1914. Louis D.

Brandeis was added to the court (June 5, 1916),

and John H. Clarke was added in October of 1916.

They replaced Joseph Rucker Lamar (appointed

1911), who died in January of 1916, and Charles

Evans Hughes, who resigned on June 10, 1916.

White’s appointment by President William

Howard Taft upon the death of Melville Fuller was

a surprise to many because White was a Democrat

and President Taft was a Republican. His appoint-

ment as chief justice was the ﬁ rst time an associate

justice had been elevated to the ofﬁ ce since John

Rutledge in 1795.

The new chief justice had a new majority to

deal with political outrage over decisions of the

Fuller Court. Cases coming before the White

Court reflected the politico-economic battles

then raging between the Progressive Movement

and the laissez-faire industrial capitalism that

had developed in late-19th-century America. The

Court was to achieve a reputation as a “progres-

sive” court because of its decision in S

TANDARD OIL

O. OF NEW JERSEY V. UNITED STATES, 221 U.S. 1

(1911).

The Standard Oil case had been argued March

14, 15, and 16, 1910, and then reargued in Janu-

ary of 1911. It was decided on May 15, 1911. In

a unanimous decision written by Chief Justice

White (with Justice Harlan issuing a concurring

opinion), the Court declared that the prosecution

of Standard Oil for monopoly practices under the

Sherman Antitrust Act was constitutional. It rec-

ognized the authority of Congress derived from

the commerce clause to prevent practices that

were otherwise acceptable under common law.

However, in the American Tobacco case (1920),

the Court followed the rule of reason in common

law that mere bigness is not unreasonable and that

there are reasonable and unreasonable “trusts.”

Other commerce cases included the upholding

of the constitutionality of the Pure Food and Drug

Act of 1906 in Hipolite Egg Co. v. United States

(1911), the Mann Act of 1910 in Hoke v. United

States (1913), and H

AMMER V. DAGENHART (1918),

supporting regulation of the Keating-Owen Child

Labor Act of 1916. However, a Kansas law forbid-

ding the use of “yellow dog contracts” was over-

turned in COPPAGE V. KANSAS (1915).

Two other commerce clause cases were the

Minnesota Rate Cases (1913) and the Shreveport

Rate Case (1914). These upheld the power of the

federal government to limit individual state actions

in the area of commerce.

Income tax legislation based upon the Six-

teenth Amendment was upheld in Brushaber

v. Union Paciﬁ c Railroad (1916) and extended in

Stanton v. Baltic Mining Co. (1916).

Race relations arose in McCabe v. Atchison,

Topeka & Santa Fe Railway Company (1914).

In the strongest day of Jim Crow legislation, the

Court decided that separate-but-equal meant

equal. However, in BUCHANAN V. WARLEY (1917),

it struck down racial segregation laws in hous-

ing as restraints on the equal rights of property

for all. And in Guinn v. Oklahoma (1915) it struck

down “grandfather clauses” used to disenfranchise

blacks from exercising the right to vote.

Conservation and the use of public lands was

addressed in United States v. Grimaud (1911).

The Court found that Congress could legislate

to regulate the control of forest reserves. It also

upheld the right of the federal government to leg-

islate on conservation matters involving migratory

White Court 805

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birds, upon the basis of treaties in MISSOURI V.

HOLLAND (1920).

Dowdell v. United States (1911) and Ocampo

v. United States (1914) were the latest in a num-

ber of Insular Cases that argued the question,

“Do Constitutional rights follow the flag?” The

White Court accepted the case from the Philip-

pines Supreme Court (in what was then an Ameri-

can-governed territory) but refused to fully apply

the Constitution to the facts of the case, observing

that due process had been followed.

American involvement in World War I gener-

ated cases involving the government’s war powers,

which were upheld in Northern Paciﬁ c Railway

Co., v. North Dakota (1919). It upheld as well the

virtual nationalization of the economy during the

war.

The Espionage Act of 1916 (adopted in response

to German sabotage in the Black Tom munitions

explosion) and the Sedition Act of 1917 brought

freedom of speech cases to the Court. Justice Hol-

mes in S

CHENCK V. UNITED STATES (1919) issued the

unanimous decision of the Court that freedom of

speech was limited when there was a “clear and

present danger” of substantive evils that Congress

could seek to prevent. However, in Abrams v.

United States (1919) Brandeis and Holmes sought

to restrain the limiting of freedom of speech.

The White Court’s decision in MUSKRAT V.

UNITED STATES (1911) deﬁ ned the jurisdiction of

the federal courts as limited to “real” cases and

controversies. As Justice Day warned petitioners,

the Court does not issue advisory opinions.

For more information: Bindler, Norman.

The Conservative Court, 1910–1930. Danbury,

Conn.: Grolier Educational Corp., 1995; High-

saw, Robert Baker. Edward Douglass White:

Defender of the Conservative Faith. Baton

Rouge: Louisiana State University Press, 1981;

Pratt, Walter F. Supreme Court under Chief

Justice Edward Douglass White, 1910–1921.

Columbia: University of South Carolina Press,

1999; Shoemaker, Rebecca S. White Court: Jus-

tices, Rulings and Legacy. Santa Barbara, Calif.:

ABC-CLIO, 2004.

—Andrew J. Waskey

Whitney v. California 247 U.S. 357 (1927)

In the case of Whitney v. California, the United

States Supreme Court held that membership in an

organization advocating criminal syndicalism was

substantively dangerous, and therefore such mem-

bership must be given great weight in the analy-

sis of the law. Although this case was overruled

in B

RANDENBURG V. OHIO, 395 U.S. 444 (1969), the

“concurrence” of Justice Brandeis (voted as such

because the defendant did not raise the correct

constitutional issues in her appeal) is a classic

dealing with First Amendment issues.

The defendant in this case, Miss Whitney,

was a known member of the Socialist Party. She

attended a convention of the Socialist Party in

1919, which split into two groups. She went with

the more radical group and subsequently attended

a second meeting to help organize a new Califor-

nia section of the Communist Labor Party. She

encouraged workers to vote for Communist Labor

Party candidates at future elections, but her reso-

lution stating so was defeated and a more radical

resolution adopted, although it was not her inten-

tion to violate any known law.

Miss Whitney was later convicted under the

California Criminal Syndicalism Act. “Criminal

syndicalism” was deﬁ ned in the act challenged by

Miss Whitney as “any doctrine or precept advocat-

ing, teaching, or aiding and abetting the commis-

sion of crime, sabotage, or unlawful acts of force

and violence or unlawful methods of terrorism, as

a means of accomplishing a change in industrial

ownership or control or effecting any political

change.” Such act held it unlawful to organize a

group that advocated acts of violence as a means

of effecting change in industry and politics. Miss

Whitney argued that neither her “mere mem-

bership” nor her presence at a convention could

be deﬁ ned as a “crime.” She was convicted and

appealed to the United States Supreme Court on

the basis of due process violations and violations

of her First Amendment and equal protection

rights.

The majority held that the Syndicalism Act was

not repugnant to the due process clause for its

vagueness or uncertainty of deﬁ nition because the

deﬁ nition of “criminal syndicalism” was very spe-

806 Whitney v. California

vi+904_EofUSConsti-v2.indd 806 3/20/09 2:19:25 PM

ciﬁ c. They went further and held that the act also

did not violate the equal protection clause because

its penalties were confined to people who were

advocating a resort to violent and unlawful actions

as a means of changing industrial and political

conditions. The ﬁ nal holding of the Court stated

that the act did not violate free speech because

a state may, through the exercise of its police

power, punish people who utter speech inimi-

cal to the public welfare, tending to incite crime,

disturbing the peace, or endangering the founda-

tions of organized government and threatening its

overthrow by unlawful means.

For more information: Kalven, Harry, Jr. A

Worthy Tradition: Freedom of Speech in Amer-

ica. New York: Harper & Row, 1988.

—Kelli Styron

Whren v. United States 517 U.S. 806 (1996)

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

Court held that pretextual trafﬁ c stops are con-

stitutional, so long as the officer that made the

stop believes that either a trafﬁ c violation or some

other offense has occurred.

Plainclothes ofﬁ cers in Washington, D.C., were

patrolling, in an unmarked car, an area that had

been known for drug activity and drug sales. They

noticed a truck with temporary license plates and

driven by youthful occupants, waiting at a stop

sign for more than 20 seconds, which seemed to

be an unusually long time, as there were no other

vehicles in the vicinity. The police turned their

car around to head back to the truck, but as they

did so the vehicle drove away from the police car

at “unreasonable” speed. The ofﬁ cers pulled the

truck over on the grounds that the driver had been

speeding and had remained too long in the inter-

section, a violation of the city trafﬁ c code. When

the police ofﬁ cer approached the passenger’s side

window, he noticed two large bags containing

crack cocaine in the passenger’s (Whren) hands.

The police arrested both Whren and the driver.

Whren was subsequently convicted of drug

possession and appealed, arguing the search of

his person was invalid because the ofﬁ cers lacked

either probable cause or reasonable suspicion that

the defendants were engaged in the dealing of ille-

gal narcotics, and that the trafﬁ c stop was uncon-

stitutional because it was conducted as a pretext,

or excuse, to search the vehicle and its occupants

for drugs.

The Supreme Court disagreed. A prior case,

Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977),

held that the decision to stop an automobile is

reasonable if the police believe a trafﬁ c violation

occurred. Whren agreed with this but believed that

probable cause that a trafﬁ c violation has occurred

is not enough, because there are myriad reasons

an ofﬁ cer can pull a car over. Whren argued that

the subjective intent of the ofﬁ cer was relevant. In

other words, did the ofﬁ cer pull over the vehicle

Whren was riding in because he wanted to look

for drugs, or because he really cared about the

trafﬁ c violation? The Court determined that the

subjective intent of the ofﬁ cer was irrelevant. So

long as there was probable cause to make a trafﬁ c

stop, the stop was reasonable under the Fourth

Amendment.

This case is signiﬁ cance because it gives police

the authority to make traffic stops as long as

they have probable cause to believe any offense

has been committed (Hemmens, Worrall, and

Thompson, 2004). More speciﬁ cally, it endorses

a practice known as pretext stops, which is when

an ofﬁ cer detains a motorist on a trafﬁ c violation,

with the real motivation of looking for evidence of

other criminal activity (Hemmens et al., 2004).

For more information: Hemmens, Craig, John

Worrall, and Alan Thompson. Criminal Justice

Case Briefs: Signiﬁ cant Cases in Criminal Proce-

dure. Los Angeles: Roxbury, 2004.

—Brian Iannacchione

Wickard v. Filburn 317 U.S. 111 (1942)

Wickard v. Filburn is a U.S. Supreme Court

decision that upheld a tax on the production of

wheat for personal use under the Agricultural

Adjustment Act. Wickard provides a window into

debates over the commerce clause (Article I,

Section 8, Clause 3) vis-à-vis the Tenth Amend-

Wickard v. Filburn 807

vi+904_EofUSConsti-v2.indd 807 3/20/09 2:19:25 PM

ment that date back to before the 1789 ratifica-

tion of the Constitution. Nominally about

wheat farming, fundamentally Wickard is about

federalism.

Wickard originated in a complaint filed by

Ohio farmer Roscoe C. Filburn. He sought to

enjoin collection of a ﬁ ne imposed on him under

the terms of the 1938 Agricultural Adjustment

Act (AAA). The AAA established allotments lim-

iting wheat planting. Filburn violated his quota

with his 1941 crop, only part of which he sold, the

remainder being fed to his animals and used for

cooking or as seed. For disregarding his quota,

Filburn was ﬁ ned $117.11. Filburn argued that the

ﬁ ne was uncollectible because the AAA exceeded

the authority of Congress under the commerce

clause.

Writing for a unanimous Court, Justice Rob-

ert H. Jackson upheld the AAA. Notable about

the Court’s reasoning is its embrace of Congress’s

expansive understanding of “commerce.” Enacting

the AAA, Congress extended “federal regulation

to production not intended in any part for com-

merce but wholly for consumption on the farm.”

In so doing, Congress rejected existing categori-

cal judicial distinctions between “production”

and “manufacture” versus “commerce,” on the

one hand, and “direct” versus “indirect” effects

that had thwarted regulation. Saying that “the

mechanical application of legal formulas [is] no

longer feasible,” Jackson validated the congressio-

nal approach: “even if [Filburn’s] activity be local

and though it may not be regarded as commerce, it

may still, whatever its nature, be reached by Con-

gress if it exerts a substantial economic effect on

interstate commerce and this irrespective of

whether such effect is what might at some earlier

time have been deﬁ ned as ‘direct’ or ‘indirect.’ ”

For over half a century, the prevailing view

was that Wickard articulated the ﬁ nal constitu-

tional word on congressional commerce power.

Along with two other landmark New Deal–era

cases (N

ATIONAL LABOR RELATIONS BOARD V. JONES

AND LAUGHLIN STEEL CORP., 301 U.S. 1 [1937]) and

UNITED STATES V. DARBY LUMBER CO., 312 U.S. 100

[1941]), it came to symbolize the expansive regula-

tory power of the federal government, post–New

Deal. Nevertheless, as a counterpoint to the exist-

ing consensus, during the last 20 years of the 20th

century Wickard increasingly became the target

of a steady drumbeat of criticism as having cor-

rupted the role of states in the federal system. By

1995, Court appointments by successive Republi-

can presidents had created a slim majority of jus-

tices who embraced this criticism. This majority

drew the line—some would say threw down the

gauntlet—in UNITED STATES V. LOPEZ, 514 U.S. 549.

Chief Justice Rehnquist wrote: “we [decline] . . .

to pile inference upon inference in a manner that

would bid fair to convert congressional authority

under the commerce clause to a general police

power of the sort retained by the States. Admit-

tedly, some of our prior cases have taken long steps

down that road, giving great deference to congres-

sional action. . . . This we are unwilling to do.”

For more information: Brown, Judith Olans,

and Peter D. Enrich. “Nostalgic Federalism.”

Hastings Constitutional Law Quarterly 28 (Fall

2000): 1; Chen, Jim. “Filburn’s Legacy.” Emory

Law Journal 52 (Fall 2003): 1,719; Merritt, Debo-

rah Jones. “Reﬂ ections on United States v. Lopez:

Commerce!” Michigan Law Review 94 (Decem-

ber 1995): 674.

—James C. Foster

wiretapping

Wiretapping is electronic surveillance related to

message interception, with or without knowledge

of the parties who are having their communica-

tions intercepted. Wiretapping is generally rec-

ognized to be any interception of a telephone

transmission by accessing the telephone signal

itself, and electronic eavesdropping is the use of

an electronic transmitting or recording device to

monitor conversations without the consent of the

parties. Wiretapping or electronic surveillance

by the government raises constitutional concerns

under the Fourth Amendment.

In OLMSTEAD V. UNITED STATES, 277 U.S. 438

(1928), the Supreme Court ruled that electronic

surveillance without a warrant violated neither

the Fourth nor Fifth Amendments to the Consti-

808 wiretapping

vi+904_EofUSConsti-v2.indd 808 3/20/09 2:19:26 PM

tution, and the thing seized—conversation—was

not protected by these amendments. However,

in Katz v. New York, 389 U.S. 347 (1967), the

Court overruled Olmstead, ruling that the Fourth

Amendment did apply to wiretaps. In Nardone v.

United States, 302 U.S. 379 (1937), the exclu-

sionary rule was applied to illegal wiretapping

in federal prosecutions. Eventually it was also

applied to state criminal actions.

In the year 2006, several concerns emerged in

relation to the constitutionality of the ability of

the president to authorize warrantless wiretapping

by the National Security Agency (NSA) for both

domestic and foreign protection purposes. The

president, George W. Bush, and his vice presi-

dent, Dick Cheney, have argued that the actions

were necessary so as to continue protecting the

country from enemies foreign and domestic and to

thwart surprise attacks similar to the World Trade

Center terrorist attacks on September 11, 2001.

Many have argued that these warrantless wiretaps

are contrary to the requirements of the Foreign

Intelligence Surveillance Act of 1978.

The American Civil Liberties Union chal-

lenged this electric surveillance, but the federal

courts ruled that it lacked standing. In 2007

Congress authorized much of the president’s

authority to order this surveillance. However,

many still argue that this wiretapping violates the

Fourth Amendment.

For more information: LaFave, Wayne R., Jer-

old H. Israel, and Nancy J. King. Criminal Proce-

dure. St. Paul, Minn.: Thomson/West, 2004.

—Ernest Gomez

Wisconsin v. Yoder 406 U.S. 205 (1972)

In Wisconsin v. Yoder, the Supreme Court upheld

the claim of Amish parents that the free exercise

clause of the First Amendment gave them the

right to remove their children from school after

the eighth grade despite state compulsory edu-

cation laws requiring high school attendance

through age 16.

They argued that this law violated their reli-

gious freedom because they believe they must

separate themselves from worldly influences to

attain salvation. They maintained that an eighth-

grade education taught children sufﬁ cient read-

ing and math skills to function within the Amish

community. Beyond that, youths would learn the

practical skills of farming and homemaking simply

by working with their elders.

Wisconsin v. Yoder maintained the expansive

range of religious freedom staked out in Sherbert

v. Verner, 374 U.S. 398 (1963). Even in situations

where a law applied to the general public, excep-

tions must be made to protect religious liberty if

the government cannot demonstrate a “compelling

interest” to restrict a religious practice. In Wiscon-

sin v. Yoder, the U.S. Supreme Court maintained

in a 6-1 vote that the state had not adequately

demonstrated that its educational concerns should

override the Amish right to exercise their religion.

(Two justices had retired, with replacements not

yet conﬁ rmed.)

While the ruling emphasized the religious

nature of the Amish demand, the majority opin-

ion, written by Chief Justice Warren Burger,

also addressed the need to protect the Amish “way

of life,” the psychological harm Amish youth might

suffer from exposure to worldly values, and the fact

that Amish high school dropouts typically devel-

oped into productive law-abiding citizens. The

Court dismissed the state’s argument that young

people who might choose to leave the Amish com-

munity would be ill equipped to do so without a

high school education. First, the education of Amish

youths did not cease after the eighth grade but con-

tinued within their community. In fact, they were

taught many virtues that Thomas Jefferson had

pronounced essential for a democratic society. Sec-

ondly, compulsory high school education laws, of

relatively recent origin, were developed to prevent

idleness among youth. Finally, Burger emphasized

that the Court’s ruling addressed the rights of par-

ents as the parties traditionally in charge of their

children’s religious upbringing. Whether children

had an independent right to a secondary education

or to make their own religious choices was beyond

the scope of the case.

It was on this point that Justice William O.

Douglas dissented. With one exception, the

Wisconsin v. Yoder 809

vi+904_EofUSConsti-v2.indd 809 3/20/09 2:19:26 PM

views of the affected children were not part of the

record; and Douglas, citing the Court’s respect for

the views of young people in such cases as TINKER V.

ES MOINES, 393 U.S. 503 (1969), was unwilling to

cede full control over children’s educational futures

to their parents. However, Douglas endorsed the

Court’s continued application of the “compel-

ling interest” standard, and even argued that the

Court’s reliance on the favorable “law and order”

record of the Amish was irrelevant: “A religion is

a religion irrespective of what the misdemeanor or

felony records of its members might be.”

This case became a precedent for advocates

of home schooling. However, the Court’s opinion

was so narrowly tailored to ﬁ t the speciﬁ c situa-

tion that its applicability to other faiths or to non-

educational Amish conflicts has been limited.

Moreover, the “compelling interest” standard that

shaped this decision was abandoned by the Court

in 1990.

For more information: Peters, Shawn Francis.

The Yoder Case: Religious Freedom, Education,

and Parental Rights. Lawrence: University Press

of Kansas, 2003.

—Jane G. Rainey

Wolf v. Colorado 338 U.S. 25 (1949)

In Wolf v. Colorado, the United States Supreme

Court held that the Fourteenth Amendment

did not apply to the states when dealing with the

use of illegally obtained evidence in a criminal

proceeding, even though it did apply to the fed-

eral government. This case addressed the issue of

whether or not the standards set by the due pro-

cess clause should apply to the states in uphold-

ing the conviction of the defendant Wolf, who

was prosecuted with the use of evidence illegally

obtained by authorities in their investigation.

Julius Wolf was convicted of conspiring to per-

form abortions, with the aid of illegally obtained

evidence. On appeal, the Supreme Court of Colo-

rado upheld his conviction. Wolf then applied for

a writ of certiorari and the writ was granted by

the Supreme Court in 1949. The Supreme Court

upheld his conviction, stating that while the

Fourth Amendment applied to the federal gov-

ernment, it did not apply to the states, which were

instead governed by the due process clause of the

Fourteenth Amendment.

Writing for the majority, Justice Felix Frank-

furter addressed the issue of incorporating the

Bill of Rights and stated that, while the Four-

teenth Amendment prohibits unlawful use of ille-

gally obtained evidence in a federal case, due to

the application of the Bill of Rights, it does not

apply to the states. This opinion was in accord

with the decision in P

ALKO V. CONNECTICUT, 302

U.S. 319 (1937), in which the Supreme Court

refused to apply the Fifth Amendment prohibition

on double jeopardy to the states through the

use of the Fourteenth Amendment. In Wolf, the

Court determined that no prohibition on the use

of illegally obtained evidence in a court of law was

stated anywhere in the Fourteenth Amendment.

While the precedent for this decision was estab-

lished in the case of WEEKS V. UNITED STATES, 232

U.S. 383 (1914), where the Court ruled that the

use of illegally obtained evidence was prohibited in

federal, but not state, courts, Justice Frankfurter

further stated that, while most of the modern

world “does not regard as vital . . . the exclusion of

evidence such obtained, [the Court must hesitate]

to treat this remedy as an essential ingredient of

the right.” He reasoned that while such state-con-

doned police action would be unlawful, the states

had an obligation unto themselves to protect soci-

ety from ill uses of authority by the police, such as

civil actions, and that they do not need the appli-

cation of the due process clause of the Fourteenth

Amendment to do this for them.

For more information: Hemmens, Craig, John

Worrall, and Alan Thompson. Criminal Justice

Case Briefs: Signiﬁ cant Cases in Criminal Proce-

dure. Los Angeles: Roxbury, 2004.

—Marianne Hudson

810 Wolf v. Colorado

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811

ﱶﱷﱸ

Yick Wo v. Hopkins 118 U.S. 356 (1886)

In Yick Wo v. Hopkins, the U.S. Supreme Court

held that a city ordinance was invalid if applied

in a discriminatory manner to a particular class

of persons, even if the ordinance appeared valid

and impartial on its face. The Yick Wo decision

was the ﬁ rst instance where the Court relied upon

evidence of discriminatory application of a law to

strike it down. This precedent became signiﬁ cant

later when the Warren Court used similar logic

to strike down laws discriminating against African

Americans.

Throughout the 19th century there was a mas-

sive inﬂ ux of Chinese immigrants into California.

In response, the state of California and many of

its municipalities began to pass anti-Chinese laws.

Yick Wo v. Hopkins involved a San Francisco city

ordinance prohibiting laundries in wooden build-

ings without the approval of the city’s board of

supervisors. While approximately two-thirds of

the laundries affected by this ordinance were

operated by Chinese, all of the Chinese applicants

were denied the required permits to stay in busi-

ness. In contrast, all but one of the Caucasians

who operated laundries affected by the ordinance

were granted the permit.

Yick Wo was one of the laundry operators

denied a permit by the board of supervisors. Con-

tinuing to operate his business, he was arrested for

violating the ordinance. Yick Wo petitioned the

Supreme Court of California for a writ of habeas

corpus, arguing that he had been deprived of lib-

erty. The California court denied his petition and

he appealed to the United States Supreme Court.

Justice Matthews wrote the decision for a

unanimous Court. In his opinion, Justice Mat-

thews stated that while it is necessary for the

Court to defer to the California Supreme Court

with regard to questions of state law, questions

arising under the United States Constitution or

federal law require an independent construction

of the ordinance. Justice Matthews argued that

the Supreme Court of California had erred in con-

struing the ordinance as a reasonable exercise of

the police power of the state, designed to pro-

tect the public from the danger of ﬁ re. In place of

this interpretation, he posited that the ordinance

in question gave “naked and arbitrary power” to

the board of supervisors.

In holding the San Francisco ordinance

invalid, Justice Matthews relied on both the

equal protection clause of the Fourteenth

Amendment and a treaty between the United

States and China. In doing so, he found the ordi-

nance to have been applied “with an evil eye

and an unequal hand” to a particular class of

persons. Thus, the ordinance created a system

of discrimination that violated the principle of

equal protection, regardless of the intent of the

ordinance.

As the ﬁ rst Supreme Court decision to rely on

evidence of applied discrimination to overturn an

ordinance, Yick Wo laid down a foundation that

would later be used to strike down laws discrimi-

nating against African Americans. At the time of

the decision, however, its greatest signiﬁ cance was

as a justiﬁ cation for striking down laws regulating

business (for example L

OCHNER V. NEW YORK, 198

U.S. 45 [1905]).

For more information: Hall, Kermit L. The

Magic Mirror: Law in American History. New

York: Oxford University Press, 1989; Saxton, Alex-

ander. The Indispensable Enemy: Labor and the

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