Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P3 doc

MOLLIE ISAACS, COLLECTION OF THE SUPREME COURT OF THE UNITED STATES Antonin Scalia 1936– ❖ 1936 Born, Trenton, N.J.. ◆ ◆ 2004 The Opinions of Justice Antonin Scalia published 2002 Delive

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college, he enlisted in the Army Air Corps, serving from 1940 to 1945 Saxbe was called to serve again during the Korean conflict in the 1950s; he was discharged from the reserve with the rank of colonel in 1963

Immediately after WORLD WAR II, Saxbe returned to Ohio with the intention of furthering his education He gave serious thought to pursuing a career in the ministry of the Episcopal Church, but his long-standing interest in political and COMMUNITY SERVICEprevailed Saxbe entered law school at Ohio State University in 1945 and, simultaneously, launched a campaign to serve in the Ohio House of Representatives He was elected and served four terms from 1947 to 1954

Saxbe completed his law degree at the end of his second term He served as House majority leader

in 1951 and 1952, and as speaker of the House in

1953 and 1954

Saxbe left the Ohio Legislature at the conclusion of his fourth term He returned to Mechanicsburg, where he raised cattle on the family farm He also partnered with two longtime friends to establish the Columbus, Ohio, law firm of Saxbe, Boyd, and Prine He practiced law for two years before re-entering the political arena in 1956 In 1957 he ran as the Republican candidate for state attorney general Over the next decade, he served four terms in that state office As attorney general, Saxbe proved to be a tough and capable crime fighter He believed thatCAPITAL PUNISHMENTwas

a strong deterrent and that stiff prison sentences should be imposed for gun-related crimes

Although conservative in his views on crime and money, Saxbe described himself as“liberal on the rights of people.” In 1968 Saxbe took his unique mix of fiscal conservatism and social responsibility to the electorate He ran as the Republican candidate for a U.S Senate seat, and he won a close election over liberal Democrat John J

Gilligan His stand against the Pentagon’s deploy-ment of antiballistic missiles during theVIETNAM WAR surprised many of those who thought his campaign promises were mere rhetoric Gilligan was quoted as saying,“If I had known he was going

to be like this, I would have voted for him myself.”

Saxbe’s voting record on most major issues showed that he moved gradually to the right during his four years in the U.S Senate

Saxbe was quickly disenchanted with life as a senator He felt that many of his senate colleagues were sadly out of touch with the electorate He

alienated most of Washington when he said,“The first six months I kept wondering how I got [here] After that, I started wondering how all of them did.”

In addition to his disdain for the insulated lives of Washington politicians, Saxbe was frustrated with the pace of legislation on Capitol Hill To address the problem, he joined forces with Senator Alan M Cranston to develop a two-track system of moving legislation through the Senate The system allowed less controver-sial bills to pass through the legislative process quickly, while more volatile measures were held for debate and discussion When other efforts to improve the process stalled, Saxbe removed himself from the Senate entirely, by taking part

in travel junkets Saxbe’s pleas for aid to East Bengal and for discontinuation of aid to Pakistan were direct results of his findings while

on a trip; he considered these actions to be among his greatest achievements in the Senate Saxbe’s frustration with Washington was not limited to the Senate For example, Saxbe had defied protocol by challenging Nixon’s Vietnam policy during a social gathering at the White House for freshman senators In re-sponse, the president’s staff kept Saxbe out of the Oval Office and away from Nixon for almost two years after that disastrous first meeting with the chief executive

Saxbe’s growing contempt for the White House staff reached a new height in 1971, when

he referred to Nixon aides H R Haldeman and John D Ehrlichman as“a couple of Nazis” and again in 1972 when he commented on Nixon’s professed innocence in the WATERGATE scandals, saying that the chief executive sounded“like the fellow who played the piano in a brothel for twenty years, and insisted that he didn’t know what was going on upstairs.” (The Watergate scandals began with a break-in at the Democratic National Committee headquarters—located in the Water-gate Office Towers—and eventually toppled the Nixon administration.)

In September 1973 Saxbe announced that

he would not seek reelection to the Senate Just a month later, Nixon asked him to accept an appointment as attorney general of the United States to replaceELLIOT RICHARDSON Richardson, Nixon’sthird attorney general,had resignedrather than obey anEXECUTIVE ORDER to fire Watergate

PROSECUTOR ARCHIBALD COX Saxbe was reluctant

to accept the nomination, but he knew that the administration wanted to avoid a long

IFEEL VERY

STRONGLY THAT THE

JUSTICE DEPARTMENT

IS THE VERY HEART

AND SOUL OF OUR

COUNTRY,BECAUSE

GOVERNMENT

WITHOUT LAW IS

TYRANNY

—W ILLIAM B S AXBE

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confirmation battle and that his past criticism of

the president would make him a credible

candi-date with both Nixon supporters and detractors

After a two-hour discussion with Nixon, in

which the president denied any knowledge or

involvement in the Watergate scandals, Saxbe

accepted the nomination He took office in

January 1974 His goal was to restore the

Department of Justice’s credibility with the

U.S public and to keep the public informed of

the department’s activities

Saxbe initiated weekly news conferences at

the beginning of his term but curtailed them

quickly when he found that his offhand

comments generated more interest than did

his substantive efforts Among Saxbe’s more

printable gaffes were his reference to PATTY

HEARST as a common criminal and his

observa-tion that Jewish intellectuals of the 1950s were

enamored with the Communist party

As attorney general, Saxbe supported

legis-lation limiting access to criminal records of

arrested and convicted persons, and he

contin-ued to favor capital punishment and tough

sentences for gun-related crimes He conducted

an investigation into the FBI’s

counterintelli-gence program—Cointelpro—and condemned

the program for its harassment of left-wing

groups, black leaders, and campus radicals

He also worked on two of the biggest antitrust

cases in history, against IBM and AT&T

After Nixon’s resignation, Saxbe continued to

serve as attorney general in the Ford

administra-tion He resigned in December 1974 to accept an

appointment as U.S ambassador to India

For the next 20 years Saxbe practiced law in

Florida, Ohio, and Washington, D.C., and he

remained active in REPUBLICAN PARTY politics In

March 1994 he announced that he would join the

Columbus, Ohio, law firm of Chester, Hoffman,

Willcox, and Saxbe, where his son was a partner

Saxbe is often called upon to speak about the

turmoil of the Watergate years and his

experi-ence in the final days of the Nixon

administra-tion On the eve of Nixon’s funeral in April 1994,

Saxbe acknowledged that he had never made an

attempt to see Nixon again after his resignation

because the former president had lied to him

about his involvement in the Watergate scandals

Saxbe published an autobiography in 2000

while continuing to practice law at Chester,

Willcox & Saxbe, where he specialized in

general business law and strategic counsel In

2002 the auditorium of Ohio State University’s Moritz College of Law was named the William

B Saxbe Law Auditorium in recognition of his history of public service and his generous donations to the school

FURTHER READINGS Barrett, John Q 1998 “All or Nothing, or Maybe Cooperation: Attorney General Power, Conduct, and Judgment in Relation to the Work of an Independent Counsel ” Mercer Law Review 49 (winter).

Powell, H Jefferson 1999 The Constitution and the Attorneys General Durham, N.C: Carolina Academy Press.

Saxbe, William B., with Peter D Franklin 2000 I’ve Seen the Elephant Kent, Ohio: Kent State Univ Press.

SCAB

A pejorative term used colloquially in reference to

a nonunion worker who takes the place of a union employee on strike or who works for wages and other conditions that are inferior to those guaranteed to a union member by virtue of the union contract; also known as a strikebreaker

CROSS REFERENCE Labor Union.

vSCALIA, ANTONIN

In 1986 Antonin Scalia was appointed to the U.S Supreme Court by President RONALD REAGAN, becoming the first American of Italian descent to serve as an associate justice Known for his conservative judicial philosophy and narrow reading of the Constitution, Scalia has repeatedly urged his colleagues on the Court to overturn ROE V WADE, 410 U.S 113, 93 S Ct

705, 35 L Ed 2d 147 (1973), the decision recognizing a woman’s right to terminate her pregnancy under certain circumstances

Scalia was born March 11, 1936, in Trenton, New Jersey Before he began grade school, Scalia and his family moved to Elmhurst, New York, where he spent much of his boyhood Scalia is the only child of Eugene Scalia, an Italian immigrant who taught romance languages at Brooklyn College for 30 years, and Catherine Scalia, a first-generation Italian-American who taught elementary school

In 1953 Antonin Scalia graduated first in his class at St Francis Xavier High School, a Jesuit military academy in Manhattan Four years later Scalia was valedictorian at George-town University, receiving a bachelor’s degree in history In the spring of 1960 Scalia graduated magna cum laude from Harvard Law School

SCALIA, ANTONIN 9

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where he served as an editor for the Harvard Law Review Known to his friends as Nino, Scalia was known to many of his classmates as

an eager and able debater

Upon graduation from law school, Scalia accepted a position as an associate attorney with

a large law firm in Cleveland, Ohio, where he practiced law until 1967 He resigned to teach at the University of Virginia School of Law In

1971 Scalia joined the Nixon Administration to serve as general counsel for the Office of

Telecommunications Policy Under President

GERALD R.FORDScalia served as assistant attorney general for the JUSTICE DEPARTMENT, where he drafted a key presidential order establishing new restrictions on the information-gathering activ-ities of the CENTRAL INTELLIGENCE AGENCY and

FEDERAL BUREAU OF INVESTIGATION

In 1977 Scalia left public office to become

a visiting scholar at the American Enterprise Institute, a conservative think tank in Washing-ton, D.C During this same year, Scalia also returned to academia, accepting a position as law professor at the University of Chicago, where he developed a reputation as an expert in

ADMINISTRATIVE LAW In 1982 President Reagan appointed Scalia to the U.S Court of Appeals for the District of Columbia, which many lawyers consider to be the second most power-ful court in the country

When Chief JusticeWARREN BURGERretired in

1986, President Reagan elevated sitting justice

WILLIAM REHNQUIST to the chair of chief justice and nominated Scalia to fill the vacancy of associate justice Confirmed by a vote of 98–0 in the Senate, Scalia became the first Roman Catholic to be appointed to the U.S Supreme Court sinceWILLIAM J.BRENNAN JR in 1957 Scalia’s tenure on the high court has been marked by a JURISPRUDENCE of ORIGINAL INTENT Proponents of original intent, also called origin-alists, believe that the Constitution must be interpreted in light of the way it was understood

Antonin Scalia.

MOLLIE ISAACS,

COLLECTION OF THE

SUPREME COURT OF THE

UNITED STATES

Antonin Scalia 1936–

❖

1936 Born,

Trenton, N.J.

1939–45 World War II

1950

◆

1950–53 Korean War

1961–73 Vietnam War

◆

◆◆

1957 Graduated from Georgetown Univ.

1960 Served as editor of law review, graduated from Harvard Law School 1967–71

Taught law

at UVA law school

1971–72 Served as general counsel for the Office of Telecommunications Policy

1972 Became chair of the Administrative Conference of the United States

1977 Joined the University

of Chicago Law School faculty

1982 Appointed

to the U.S Court

of Appeals for the District of Columbia

1974 Appointed assistant U.S attorney general

1992 Dissented

in part in

Planned Parenthood

v Casey

1986 Appointed associate justice of the U.S.

Supreme Court 1988 Wrote

majority opinion

in Coy v Iowa

1994 Distinguished Jurist in Residence, Touro Law Center

2000 Voted with majority

in Bush

v Gore

1996 Dissented in U.S v Virginia

1997 Wrote majority opinion

in Printz

v U.S.

◆ ◆

2004 The Opinions of Justice Antonin Scalia published

2002 Delivered widely debated speech on the death penalty and religious authority for democracy at the University of Chicago

2003 Received Citadel of Free Speech Award from City Club; declared in speech that government has power to curtail rights during wartime

2008 Wrote majority opinion

in District of Columbia v Heller

2000 Presidential election result uncertain due

to disputed Fla vote count; recount halted by

U.S Supreme Court with 5–4 vote in Bush v Gore

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at the time it was framed and ratified According

to Scalia, originalism has two virtues: preserving

theSEPARATION OF POWERSin a democratic society,

and curbing judicial discretion

The Constitution delegates specific

enumer-ated powers to the three branches of the federal

government The Legislative Branch is given

the power to make law under Article I; the

EXECUTIVE BRANCH is given the power to enforce

the law under Article II; and the Judicial Branch

is given the power to interpret and apply the law

under Article III Originalists believe that

democracy is enhanced when the lawmaking

power is exercised by the federal legislature

because, unlike federal judges who are

appointed by the president and given life tenure

on the bench, members of Congress are held

accountable to the electorate at the ballot box

This separation of powers is blurred, Scalia

argues, when unelected federal judges decide

cases in accordance with their own personal

preferences, which may be contrary to those

expressed by the framers and ratifiers In such

instances, Scalia asserts, federal judges usurp the

legislative function by making new law that

effectively replaces the popular understanding

of the Constitution at its time of adoption The

only way to curb this type of judicial discretion

and to preserve the separation of powers, Scalia

concludes, is by requiring federal judges to

interpret and apply the Constitution in light of

its original meaning This meaning can be

illuminated, Scalia says, by paying careful

atten-tion to the express language of the Constituatten-tion

and the debates surrounding the framing and

RATIFICATIONof particular provisions

Scalia’s interpretation and application of the

EIGHTH AMENDMENT best exemplifies his judicial

philosophy The Eighth Amendment prohibits

CRUEL AND UNUSUAL PUNISHMENT Courts that

evaluate a claim under the Cruel and Unusual

Punishments Clause, Scalia argues, must

deter-mine whether a particular punishment was

allowed in 1791 when the Eighth Amendment

was framed and ratified Moreover, he argues

that courts must not take into account notions

of the evolving standards of human decency

For example, Scalia contends that CAPITAL

PUNISHMENT was clearly contemplated by the

framers and ratifiers of the federal Constitution

The FIFTH AMENDMENTexplicitly references

capi-tal crimes, Scalia observes, and capicapi-tal

punish-ment was prevalent in the United States when

the Constitution was adopted Whether states

presently support or oppose capital punishment plays only a negligible role in Scalia’s analysis

Scalia’s interpretation of the DUE PROCESS CLAUSEof the Fifth and Fourteenth Amendments provides another example of his judicial philos-ophy According to Scalia, the Due Process Clause was originally understood to offer only procedural protection, such as the right to aFAIR HEARING before an impartial judge and an unbiased jury Nowhere in the text of the Constitution, Scalia notes, is there any hint that the Due Process Clause offers substantive protection It is not surprising then that Scalia has dissented from U.S Supreme Court deci-sions that have relied on the Due Process Clause

in protecting the substantive right of women to terminate their pregnancies under certain circumstances (Planned Parenthood v Casey,

505 U.S 833, 112 S Ct 2791, 120 L Ed

2d 674 [1992]) Likewise, Scalia disagreed with the Court’s decision that a state law grant-ingVISITATION RIGHTSto grandparents was uncon-stitutional because it infringed upon the funda-mental rights of parents to raise their children (Troxel v Granville, 530 U.S 57, 120 S Ct 2054,

147 L Ed 2d 49 (2000)) No such right, Scalia has commented, can be found in the express language of any constitutional provision

Scalia has surprised some observers by his literal reading of the SIXTH AMENDMENT, which guarantees the right of criminal defendants to

be“confronted with witnesses against them.” In Coy v Iowa, 487 U.S 1012, 108 S Ct 2798, 101

L Ed 2d 857 (1988), Scalia wrote that the Sixth Amendment requires a face-to-face confronta-tion and that such an opportunity had been denied when a large screen had been placed between a DEFENDANT charged with CHILD MOLESTATION and the child who was accusing him The Sixth Amendment, Scalia concluded, intended for courts to preserve the adversarial nature of the criminal justice system by protecting the rights guaranteed by the Con-frontation Clause over governmental objections that face-to-face CROSS-EXAMINATION may be emotionally traumatic for some victims

Scalia drew the ire of advocates forGAY AND LESBIAN RIGHTSwith hisDISSENTinROMER V.EVANS,

517 U.S 620, 116 S Ct 1620, 134 L Ed 2d 855 (1996) The Court invalidated aCONSTITUTIONAL AMENDMENT by the state of Colorado that prohibited anti-discrimination laws intended

to protect gays, lesbians, and bisexuals Accord-ing to the majority in the decision, the state

JUDGES IN A REAL SENSE‘MAKE’ LAW [T]HEY MAKE IT AS JUDGES MAKE IT,WHICH IS TO SAY AS THOUGH THEY WERE‘FINDING’IT— DISCERNING WHAT THE LAW IS,RATHER THAN DECREEING WHAT IT IS TODAY CHANGED TO,OR WHAT IT WILL TOMORROW BE

—A NTONIN S CALIA

SCALIA, ANTONIN 11

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constitutional amendment violated the FOUR-TEENTH AMENDMENT of the U.S Constitution

Scalia disagreed, writing a scathing dissent

According to Scalia, the majority opinion

“places the prestige of this institution behind the proposition that opposition to homosexual-ity is as reprehensible as racial or religious bias.”

Whether Scalia is writing about the Sixth Amendment, the Eighth Amendment, or any other Constitutional provision, some regard his judicial opinions as among the most well written

in the history of the U.S Supreme Court The clarity, precision, and incisiveness with which he writes is frequently praised However, some of Scalia’s opinions take on an acerbic quality

Often relegated to the role of dissenting justice, Scalia is not above hurling invectives at his colleagues on the Court, sometimes criticizing their opinions as silly and preposterous

In 2004 Scalia would notRECUSEhimself from

a case involving former Vice President Richard Cheney, with whom he has dined and hunted

Cheney was contesting a federal court mandate

to release internal files of an energy task force he had overseen for the Bush administration Also that year, tapes of Scalia’s speech at a Mississippi high school, which two journalists recorded, were erased at the insistence of a U.S deputy marshal; journalism groups were outraged

Controversy also surrounded Scalia two years later, when the Boston Herald reported that he made an obscene hand gesture at the Cathedral

of the Holy Cross in that city Scalia said the newspaper misinterpreted the gesture

Scalia has continued to speak stridently about the judiciary He said in 2004 that the top court spends too much time on morally tinged cases that elected legislatures should decide

And late in 2006, he urged higher pay for federal judges “If you become a federal judge in the Southern District of New York [Manhattan], you can’t raise a family on what the salary is,”

Scalia said while addressing the Northern Virginia Technology Council

In June 2008 Scalia, writing the majority opinion in a 5-4 Supreme Court ruling that struck down a Washington, D.C gun ban, said,

“It is not the role of this court to pronounce the

SECOND AMENDMENTextinct.”

Scalia married the former Maureen McCarthy in 1960 They have nine children

Scalia has written numerous articles on a variety

of issues and is the author of A Matter of

Interpretation: Federal Courts and the Law (1997) In 2008, Scalia’s book, Making Your Case: The Art of Persuading Judges (with Bryan A Garner, editor in chief of Black’s Law Dictionary) was published

FURTHER READINGS Frantz, Douglas 1986 “Scalia Embodies President’s Hope for Court ’s Future.” Chicago Tribune (August 3) Hasson, Judy 1986 “Scalia Got Early Chance to Show His Legal Talents ” Seattle Times (August 5).

Scalia, Antonin, and Paul I Weizer 2004 The Opinions of Justice Antonin Scalia: The Caustic Conservative New York: P Lang.

Scalia, Antonin 1997 A Matter of Interpretation: Federal Courts and the Law Princeton, N.J.: Princeton Univ Press.

——— 1989 “Originalism: The Lesser Evil.” University of Cincinnati Law Review 57.

SCHECHTER POULTRY CORP V UNITED STATES

A.L.A Schechter Poultry Corp v United States,

295 U.S 495, 55 S Ct 837, 79 L Ed 1570 (1935),

is one of the most famous cases from the Great Depression era The case tested the legality of certain methods used by Congress and President

FRANKLIN D.ROOSEVELTto combat the devastating economic effects of the Depression After the U.S Supreme Court declared the methods unconsti-tutional, Roosevelt publicly scolded the Court and later used the decision as one justification for

a controversial plan to stock the Court with justices more receptive of Roosevelt’s programs

At the heart of the Schechter case was legislation passed by Congress in 1933 The NA-TIONAL INDUSTRIAL RECOVERY ACT(NIRA) (48 Stat 195) was passed in response to the unemploy-ment and poverty that swept the nation in the early 1930s and provided for the establishment

of local codes for fair competition in industry The codes were written by private trade and industrial groups If the president approved the codes, they became law Businesses were required to display a Blue Eagle insignia from theNATIONAL RECOVERY ADMINISTRATION to signify their compliance with the codes Typical local codes set minimum wages and maximum hours for workers and gave workers the right to organize into unions and engage in COLLECTIVE BARGAINING with management Codes also pre-scribed fair trade practices, and many codes set minimum prices for the sale of goods

The Schechter Poultry Corporation, owned and operated by Joseph, Martin, Alex, and Aaron

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Schechter, was in the business of selling chickens at

wholesale The corporation purchased some of the

poultry from outside the state of New York It

bought the poultry at markets and railroad

terminals in New York City and sold the poultry

to retailers in the city and surrounding environs In

April 1934 President Roosevelt approved the code

of fair competition for the live poultry industry of

the New York City metropolitan area (Live Poultry

Code) In July 1934 the Schechters were

arrested and indicted on 60 counts of violating

the Live Poultry Code TheINDICTMENT included

charges that Schechter Poultry had failed to

observe the MINIMUM WAGE and maximum hour

provisions applicable to workers and that it had

violated a provision of the Live Poultry Code

prohibiting the sale of unfit chickens The case

became popularly known as the Sick Chicken case

The Schechters pleaded not guilty to the

charges At trial, the Schechters were convicted

on 18 counts of violating the Live Poultry Code

and two counts of conspiring to violate the Live

Poultry Code An appeals court affirmed their

convictions, but the U.S Supreme Court agreed

to hear their appeal

The Schechters presented several arguments

challenging the Live Poultry Code According

to the Schechters, the code system of the

NIRA was an unconstitutional ABDICATION of

the legislative power vested in Congress by

Article I, Section 1, of the U.S Constitution

The Schechters argued further that their

intra-state wholesale business was not subject to

congressional authority under the COMMERCE

CLAUSE of Article I, Section 8, Clause 3, of the

Constitution and that the procedures for

enforcing the NIRA codes violated the DUE

PROCESS CLAUSEof theFIFTH AMENDMENT

In support of the Live Poultry Code, the

federal government argued that the code was

necessary for the good of the nation According to

the government, the Live Poultry Code ensured

the free flow of chickens in interstate commerce

This arrangement kept chicken prices low and

helped ease, however slightly, the financial

burden on the general public The government

also argued that it was within the power of

Congress to enact the NIRA regulatory scheme

that gave rise to the Live Poultry Code because

codes such as the Live Poultry Code applied only

to businesses engaged in interstate commerce

The Court unanimously disagreed with

the federal government Under the commerce

clause, Congress had the power to regulate commerce between the states, not intrastate commerce The power to enact legislation on intrastate commerce was reserved to the states under theTENTH AMENDMENTto the Constitution

According to the Court, the business conducted by the Schechters was decidedly intrastate Their business was licensed in New York, they bought their poultry in New York, and they sold it to retailers in New York Because it was intended to reach intrastate businesses such as Schechter Poultry, the Live Poultry Code regulated intrastate commerce, and it was, therefore, an unconstitu-tional exercise of congressional power The Court reversed the Schechters’ convictions and declared the Live Poultry Code unconstitutional

The Schechter decision was decided around the same time as other, similar Supreme Court decisions striking down federal attempts to address the economic crises of the Depression

However, the Schechter decision was a particu-larly troublesome setback for the Roosevelt administration The NIRA was the centerpiece

of Roosevelt’s plan to stabilize the national economy (theNEW DEAL), and the government’s loss in the Sick Chicken case marked the end of the NIRA and its fair trade codes Less than one week after the Schechter decision was an-nounced, Roosevelt publicly condemned the Court Roosevelt declared that the Court’s

“horse-and-buggy definition of interstate com-merce” was an obstacle to national health

Roosevelt’s remarks were controversial be-cause they appeared to cross the line that separated the powers of theEXECUTIVE BRANCHfrom those of the judicial branch They sparked a national debate

on the definition of interstate commerce, the role

of the U.S Supreme Court, and the limits of federal power Several citizens and federal legisla-tors began to propose laws and constitutional amendments in an effort to change the makeup of the Supreme Court At first, Roosevelt refused to back any of the plans, preferring instead to wait and see if the Court would reconsider its stand and reverse the Schechter holding After the Supreme Court delivered another series of opinions in 1936 that nullified New Deal legislation, Roosevelt began to push for legislation that would modify the makeup of the Court

In 1937, the Supreme Court began to issue decisions upholding New Deal legislation In NLRB v Jones & Laughlin Steel Corp., 301 U.S 1,

57 S Ct 615, 81 L Ed 893 (1937), the Court held that the National Labor Relations Act did

SCHECHTER POULTRY CORP V UNITED STATES 13

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not violate the commerce clause, finding that Congress has the power to regulate intrastate activities that“have such a close and substantial relation to interstate commerce that their control

is essential or appropriate to protect that commerce from burdens and obstructions.”

After Jones & Laughlin Steel Corp., the Court seldom visited the FEDERALISM issues raised in Schechter However, the Court reviewed Schech-ter in United States v Gomez, 514 U.S 549,

115 S Ct 1624, 131 L Ed 2d 626 (1995), concluding that Congress could not enact a law prohibiting guns in school zones because Congress had failed to make a connection between interstate commerce and the concerns regarding guns near schools

FURTHER READINGS Burns, James M 1990 Crosswinds of Freedom: American Experience New York: Knopf.

Cohen, William, and Jonathan D Varat 2001 Constitu-tional Law: Cases and Materials 8th ed New York:

Foundation Press.

Louchheim, Katie, ed 1983 The Making of the New Deal:

The Insiders Speak Cambridge, MA: Harvard Univ.

Press.

Pearse, Steven 2010 “Accounting for the Lack of Account-ability: The Great Depression Meets the Great Reces-sion ” Hastings Constitutional Law Quarterly Winter.

Schlesinger, Arthur M., Jr 2003 The Age of Roosevelt: The Coming of the New Deal Boston: Houghton Mifflin.

CROSS REFERENCES Commerce Clause; Federalism.

SCHENCK V UNITED STATES Schenck v United States, 249 U.S 47, 39 S Ct 247,

63 L Ed 470 (1919), is a seminal case in

CONSTITUTIONAL LAW, representing the first time that the U.S Supreme Court heard a FIRST AMENDMENT challenge to a federal law on free speech grounds In upholding the constitutional-ity of theESPIONAGE ACT OF1917 (40 Stat 217), the Supreme Court articulated theCLEAR AND PRESENT DANGER doctrine, a test that still influences the manner in which state and federal courts decide free speech issues This doctrine pioneered new territory by drawing a line that separates protected speech, such as the public criticism of government and its policies, from unprotected speech, such as the advocacy of illegal action

On December 20, 1917, Charles Schenck was convicted in federal district court for violating the Espionage Act, which prohibited individuals from obstructing military recruiting, hindering enlist-ment, or promoting insubordination among the

armed forces of the United States Schenck, who was the general secretary of the Socialist party in the United States, had been indicted for mailing antidraft leaflets to more than fifteen thousand men in Philadelphia The leaflets equated the draft withSLAVERY, characterized conscripts as criminals, and urged opposition to American involvement in

WORLD WAR I Schenck appealed his conviction to the Supreme Court, which agreed to hear the case Attorneys for Schenck challenged the constitu-tionality of the Espionage Act on First Amend-ment grounds FREEDOM OF SPEECH, Schenck’s attorneys argued, guarantees the liberty of all Americans to voice their opinions about even the most sensitive political issues, as long as their speech does not incite immediate illegal action Attorneys for the federal government argued that freedom of speech does not include the freedom to undermine theSELECTIVE SERVICE SYSTEMby casting aspersions upon the draft

In a 9–0 decision, the Supreme Court affirmed Schenck’s conviction Justice OLIVER WENDELL HOLMES JR delivered the opinion Holmes observed that the constitutionality of all speech depends on the circumstances in which it is spoken No reasonable interpretation

of the First Amendment, Holmes said, protects utterances that have the effect of force For example, Holmes opined that the Freedom of Speech Clause would not protect a man who falsely shouts fire in a crowded theater

“The question in every case,” Holmes wrote,

“is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Holmes conceded that during peacetime Schenck’s vituperative leaflets might have received constitutional protection However, Holmes said, during times of war no American has the right to speak or publish with the intent of obstructing the CONSCRIPTION

process when such speech has a tendency to incite others to this unlawful purpose

The Supreme Court’s decision in Schenck established two fundamental principles of constitutional law First, Schenck established that the First Amendment is not absolute Under certain circumstances, the rights pro-tected by the Freedom of Speech Clause must give way to important countervailing interests Preserving the integrity of the military draft during wartime and protecting theater patrons from the perils of pandemonium are two

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examples of countervailing interests that will

override First Amendment rights

Second, Schenck established the standard by

which subversive and seditious political speech

would be measured under the First Amendment

for the next fifty years Before the government may

punish someone who has published scurrilous

political material, the Court in Schenck said, it

must demonstrate that the material was published

with the intent or tendency to precipitate illegal

activity and that it created a clear and present

danger that such activity would result

Schenck did not settle every aspect of free

speech JURISPRUDENCE It left unresolved a

number of crucial questions and created

ambiguities that could only be clarified through

the judicial decision-making process It was

unclear after Schenck, for example, how

imme-diate or probable a particular danger must be

before it becomes clear and present If Schenck

permitted the government to regulate speech

that has an unlawful tendency, some observers

feared, Congress could ban speech that carried

with it any harmful tendency without regard to

the intent of the speaker or the likely effect of

the speech on the audience

In 1969 the Supreme Court articulated the

modern clear-and-present-danger doctrine in

Brandenburg v Ohio, 395 U.S 444, 89 S Ct

1827, 23 L Ed 2d 430, stating that the

government may not forbid or punish

subver-sive speech except where it advocates or directs

imminent lawless action and is likely to incite or

produce such action

Under Brandenburg, courts must consider

the intention of the speaker or writer, as well as

her ability to persuade and arouse others when

evaluating the danger presented by particular

speech Courts must also consider the

suscep-tibility of an audience to a particular form of

expression, including the likelihood that

cer-tain members of the audience will be aroused

to illegal action Despite the reformulation of

the clear-and-present-danger test, Schenck

retains constitutional vitality in cases

concern-ing the Freedom of Speech Clause, havconcern-ing

been cited in more than 100 state and federal

judicial opinions since the 1980s

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