Encyclopediaof the

American Constitution

Original 1986 Editorial Board

Henry J. Abraham

Charles L. Black, Jr.

Robert H. Bork

William J. Brennan, Jr.

Henry Steele Commager

Martha A. Field

Ruth Bader Ginsburg

Erwin N. Griswold

Gerald Gunther

Harold M. Hyman

Philip B. Kurland

Alpheus T. Mason

Paul L. Murphy

C. Herman Pritchett

Harry N. Scheiber

Martin Shapiro

Encyclopediaof the

American ConstitutionSECOND EDITION

Edited byLEONARD W. LEVY

andKENNETH L. KARST

ADAM WINKLER, Associate Editor for the Second Edition

DENNIS J. MAHONEY, Assistant Editor for the First EditionJOHN G. WEST, JR., Assistant Editor for Supplement I

MACMILLAN REFERENCE USAAn imprint of the Gale Group

New York

Copyright 2000 by Macmillan Reference USA

All rights reserved. No part of this book may be reproduced ortransmitted in any form or by any means, electronic or mechanical,including photocopying, recording, or by any information storage andretrieval system, without permission in writing from the Publisher.

Macmillan Library Reference USA1633 BroadwayNew York, NY 10019

Printed in the United States of America

Printing Number10 9 8 7 6 5 4 3 2 1

Library of Congress Cataloging-in-Publication DataEncyclopedia of the American Constitution / edited by Leonard W. Levy and Kenneth L.Karst.2nd ed. / Adam Winkler, associate editor for the second edition.

p. cm.Includes bibliographical references and indexes.ISBN 0-02-864880-3 (hard cover : alk. paper)

1. Constitutional lawUnited StatesEncyclopedias. I. Levy, Leonard Williams,1923 II. Karst, Kenneth L. III. Winkler, Adam.KF4548 .E53 2000342.73dc21 00-029203

This paper meets the requirements of ANSI-NISO Z39.48-1992 (Permanence of Paper).

v

Contents

Prefaces vii

List of Articles xxi

Lists of Contributors lxxxv

Encyclopedia of the American Constitution 1

Appendix 1: The Call for the FederalConstitutional Convention 2949

Appendix 2: Articles of Confederation 2951

Appendix 3: The Constitution of the United States 2957

Appendix 4: Resolution Transmitting theConstitution to Congress 2971

Appendix 5: Washingtons Letter of Transmittal 2973

Appendix 6: The Birth of theConstitution: A Chronology 2975

Appendix 7: Important Events in theDevelopment of American Constitutional Law 2979

Glossary 2991

Indexes 2995

vii

Preface(1986)

In the summer of 1787 delegates from the various states met in Philadel-phia; because they succeeded in their task, we now call their assembly theConstitutional Convention. By September 17 the delegates had completedthe framing of the Constitution of the United States. The year 1987 marksthe bicentennial of the Constitutional Convention. This Encyclopedia is in-tended as a scholarly and patriotic enterprise to commemorate the bicen-tennial. No encyclopedia on the Constitution has heretofore existed. Thiswork seeks to fill the need for a single comprehensive reference work treat-ing the subject in a multidisciplinary way.

The Constitution is a legal document, but it is also an institution: a charterfor government, a framework for building a nation, an aspect of the Americancivic culture. Even in its most limited sense as a body of law, the Constitutionincludes, in todays understanding, nearly two centuries worth of court de-cisions interpreting the charter. Charles Evans Hughes, then governor ofNew York, made this point pungently in a 1907 speech: We are under aConstitution, but the Constitution is what the judges say it is. Hughessremark was, if anything, understated. If the Constitution sometimes seemsto be chiefly the product of judicial decisions, it is also what Presidents sayit isand legislators, and police officers, and ordinary citizens, too. In thefinal analysis todays Constitution is the product of the whole political systemand the whole history of the many peoples who have become a nation. Con-stitutional law is history, wrote Professor Felix Frankfurter in 1937, Butequally true is it that American history is constitutional law.

Thus an Encyclopedia of the American Constitution would be incompleteif it did not seek to bridge the disciplines of history, law, and political science.Both in identifying subjects and in selecting authors we have sought to buildthose bridges. The subjects fall into five general categories: doctrinal con-cepts of constitutional law (about fifty-five percent of the total words); people(about fifteen percent); judicial decisions, mostly of the Supreme Court of

PREFACE (1986)viii

the United States (about fifteen percent); public acts, such as statutes, trea-ties, and executive orders (about five percent); and historical periods (aboutten percent). (These percentages are exclusive of the appendicesprintedat the end of the final volumeand bibliographies.) The articles vary inlength, from brief definitions of terms to treatments of major subjects ofconstitutional doctrine, which may be as long as 6,000 words, and articles onperiods of constitutional history, which may be even longer. A fundamentalconcept like due process of law is the subject of three 6,000-word articles:Procedural Due Process of Law (Civil), Procedural Due Process of Law(Criminal), and Substantive Due Process of Law. In addition, there is a 1,500-word article on the historical background of due process of law. The standardlength of an article on a major topic, such as the First Amendment, is 6,000words; but each principal component of the amendmentFreedom ofSpeech, Freedom of the Press, Religious Liberty, Separation of Church andStateis also the subject of a 6,000-word article. There are also other,shorter articles on other aspects of the amendment.

The reader will find an article on almost any topic reasonably conceivable.At the beginning of the first volume there is a list of all entries, to spare thereader from paging through the volumes to determine whether particularentries exist. This list, like many another efficiency device, may be a mixedblessing; we commend to our readers the joys of encyclopedia-browsing.

The Encyclopedias articles are arranged alphabetically and are liberallycross-referenced by the use of small capital letters indicating the titles ofrelated articles. A reader may thus begin with an article focused on onefeature of his or her field of inquiry, and move easily to other articles onother aspects of the subject. For example, one who wished to read about thecivil rights movement of the 1950s and 1960s might begin with the large-scale subject of Civil Rights itself; or with a particular doctrinal topic (De-segregation, or Miscegenation), or an article focused on a narrower factualsetting (Public Accommodations, or Sit-Ins). Alternatively, the reader mightstart with an important public act (Civil Rights Act of 1964), or with a bio-graphical entry on a particular person (Martin Luther King, Jr., or Earl War-ren). Other places to start would be articles on the events in particular eras(Warren Court or Constitutional History, 19451961 and 19611977). Thereader can use any of these articles to find all the others, simply by followingthe network of cross-references. A Subject Index and a Name Index, at theend of the last volume, list all the pages on which the reader can find, forexample, references to the freedom of the press or to Abraham Lincoln. Fullcitations to all the judicial decisions mentioned in the Encyclopedia are setout in the Case Index, also at the end of the final volume.

The Encyclopedias approximately 2,100 articles have been written by 262authors. Most of the authors fall into three groups: 41 historians, 164 lawyers(including academics, practitioners, and judges), and 53 political scientists.The others are identified with the fields of economics and journalism. Ourlawyer-authors, who represent about three-fifths of all our writers, have pro-duced about half the words in the Encyclopedia. Historian-authors, althoughconstituting only about sixteen percent of all authors, produced about one-third of the words; political scientists, although responsible for only one-sixth of the words, wrote more than a quarter of the articles. Whether thisinformation is an occasion for surprise may depend on the readers occu-pation.

In addition to the interdisciplinary balance, the reader will find geograph-ical balance. Although a large number of contributors is drawn from the

PREFACE (1986) ix

School of Law of the University of California, Los Angeles, the ClaremontColleges, and other institutions in California, most come from the Northeast,including twelve from Harvard University, thirteen from Yale University, andnine from Columbia University. Every region of the United States is repre-sented, however, and there are many contributors from the South (DukeUniversity, University of Virginia, University of North Carolina, Universityof Texas, etc.), from the Midwest (University of Chicago, University of NotreDame, University of Wisconsin, University of Michigan, etc.), and from theNorthwest (University of Oregon, Portland State University, University ofWashington, etc.). There are several contributors from foreign countries,including Austria, Canada, and Great Britain.

Every type of academic environment is represented among the eighty-sixcolleges and universities at which the authors work. The contributors includescholars based at large public universities smaller state colleges, Ivy Leagueuniversities, private liberal arts colleges, and religiously affiliated institutions.Not all of the authors are drawn from academia; one is a member of Congressand nine are federal judges. In addition, other government offices, researchinstitutions, libraries, newspaper staffs, and law firms are represented.

Each article is signed by its author; we have encouraged the authors towrite commentaries, in essay form, not merely describing and analyzing theirsubjects but expressing their own views. On the subject of the Constitution,specialists and citizens alike will hold divergent viewpoints. In inviting au-thors to contribute to the Encyclopedia, we have sought to include a rangeof views. The reader should be alert to the possibility that a cross-referencedarticle may discuss similar issues from a different perspectiveespecially ifthose issues have been the subject of recent controversy. We hope this aware-ness will encourage readers to read more widely and to expand the range oftheir interests concerning the Constitution.

Planning of the Encyclopedia began in 1978, and production began in1979; nearly all articles were written by 1985. Articles on decisions of theSupreme Court include cases decided during the Courts October 1984 term,which ended in July 1985. Given the ways in which American constitutionallaw develops, some of the subjects treated here are moving targets. In aproject like this one, some risk of obsolescence is necessarily present; at thiswriting we can predict with confidence that some of our authors will wishthey had one last chance to modify their articles to take account of decisionsin the 1985 term. To minimize these concerns we have asked the authors ofarticles on doctrinal subjects to concentrate on questions that are funda-mental and of enduring significance.

We have insisted that the authors keep to the constitutional aspects oftheir various topics. There is much to be said about abortion or antitrust law,or about foreign affairs or mental illness, that is not comprehended withinthe fields of constitutional law and history. In effect, the title of every articlemight be extended by the phrase . . . and the Constitution. This statementis emphatically true of the biographical entries; every author was admonishedto avoid writing a conventional biography and, instead, to write an appreci-ation of the subjects significance in American constitutional law and history.

We have also asked authors to remember that the Encyclopedia will beused by readers whose interests and training vary widely, from the specialistin constitutional law or history to the high school student who is writing apaper. Not every article will be within the grasp of that student, but the vastmajority of articles are accessible to the general reader who is neither his-torian nor lawyer nor political scientist. Although a constitutional specialist

PREFACE (1986)x

on a particular subject will probably find the articles on that specialty toogeneral, the same specialist may profit from reading articles in other fields.A commerce clause expert may not be an expert on the First Amendment;and First Amendment scholars may know little about criminal justice. Thedeluge of cases, problems, and information flowing from courts, other agen-cies of government, law reviews, and scholarly monographs has forced con-stitutional scholarship to become specialized, like all branches of the liberalarts. Few, if any, can keep in command of it all and remain up to date. TheEncyclopedia organizes in readable form an epitome of all that is knownand understood on the subject of the Constitution by the nations specialistscholars.

Because space is limited, no encyclopedia article can pretend to exhaustits subject. Moreover, an encyclopedia is not the same kind of contributionto knowledge as a monograph based on original research in the primarysources is. An encyclopedia is a compendium of knowledge, a reference workaddressed to a wide variety of interested audiences: students in secondaryschool, college, graduate school, and law school; scholars and teachers ofconstitutional law and history; lawyers; legislators; jurists; government offi-cials; journalists; and educated citizens who care about their Constitutionand its history. Typically, an article in this Encyclopedia contains not onlycross-references to other articles but also a bibliography that will aid thereader in pursuing his or her own study of the subject.

In addition to the articles, the Encyclopedia comprises several appendices.There is a copy of the complete text of the Constitution as well as of GeorgeWashingtons Letter of Transmittal. A glossary defines legal terms that maybe unfamiliar to readers who are not lawyers. Two chronologies will help puttopics in historical perspective; one is a detailed chronology of the framingand ratification of the Constitution and the Bill of Rights, and the other is amore general chronology of American constitutional history. Finally, thereare three indexes: the first is an index of court cases, with the completecitation to every case mentioned in the Encyclopedia (to which is attacheda brief guide to the use of legal citations); the second is an index of names;and the third is a general topical index.

For some readers an encyclopedia article will be a stopping-point, but thearticles in this Encyclopedia are intended to be doorways leading to ideasand to additional reading, and perhaps to the readers development of in-dependent judgment about the Constitution. After all, when the AmericanConstitutions tricentennial is celebrated in 2087, what the Constitution hasbecome will depend less on the views of specialists than on the beliefs andbehavi...