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dents do not countenance such a presumption. On the

contrary, they recognize that a principal “function of free

speech under our system of government is to invite dis-

pute. It may indeed best serve its high purpose when it

induces a condition of unrest, creates dissatisfaction with

conditions as they are, or even stirs people to anger.” It

would be odd indeed to conclude both that “if it is the

speaker’s opinion that gives offense, that consequence is a

reason for according its constitutional protection,” and that

the government may ban the expression of certain dis-

agreeable ideas on the unsupported presumption that

their very disagreeableness will provoke violence.

Thus, we have not permitted the government to

assume that every expression of a provocative idea will

incite a riot, but have instead required careful considera-

tion of the actual circumstances surrounding such expres-

sion, asking whether the expression “is directed to inciting

or producing imminent lawless action and is likely to incite

or produce such action.” To accept Texas’ arguments that

it need only demonstrate “the potential for a breach of the

peace,” and that every flag burning necessarily possesses

that potential, would be to eviscerate our holding in Bran-

denburg. This we decline to do.

Nor does Johnson’s expressive conduct fall within that

small class of “fighting words” that are “likely to provoke

the average person to retaliation, and thereby cause a

breach of the peace.” No reasonable onlooker would have

regarded Johnson’s generalized expression of dissatisfac-

tion with the policies of the Federal Government as a

direct personal insult or invitation to exchange fisticuffs.

We thus conclude that the State’s interest in maintain-

ing order is not implicated on these facts. The State need

not worry that our holding will disable it from preserving

the peace. We do not suggest that the First Amendment

forbids a State to prevent “imminent lawless action.” Bran-

denburg. And, in fact, Texas already has a statute specifi-

cally prohibiting breaches of the peace, which tends to

confirm that Texas need not punish this flag desecration in

order to keep the peace.

The State also asserts an interest in preserving the flag as

a symbol of nationhood and national unity. In Spence, we

acknowledged that the government’s interest in preserving

the flag’s special symbolic value “is directly related to

expression in the context of activity” such as affixing a

peace symbol to a flag. We are equally persuaded that this

interest is related to expression in the case of Johnson’s

burning of the flag. The State, apparently, is concerned

that such conduct will lead people to believe either that

the flag does not stand for nationhood and national unity,

but instead reflects other, less positive concepts, or that the

concepts reflected in the flag do not in fact exist, that is,

that we do not enjoy unit as a Nation. These concerns blos-

som only when a person’s treatment of the flag communi-

cates some message, and thus are related “to the

suppression of free expression” within the meaning of

O’Brien. We are thus outside of O’Brien’s test altogether.

It remains to consider whether the State’s interest in pre-

serving the flag as a symbol of nationhood and national

unity justifies Johnson’s conviction.

As in Spence, “[w]e are confronted with a case of pros-

ecution for the expression of an idea through activity,” and

“[a]ccordingly, we must examine with particular care the

interests advanced by [petitioner] to support its prosecu-

tion.” Johnson was not, we add, prosecuted for the expres-

sion of just any idea; he was prosecuted for his expression

of dissatisfaction with the policies of this country, expres-

sion situated at the core of our First Amendment values.

Moreover, Johnson was prosecuted because he knew

that his politically charged expression would cause “serious

offense.” If he had burned the flag as a means of disposing

of it because it was dirty or torn, he would not have been

convicted of flag desecration under this Texas law: federal

law designates burning as the preferred means of dispos-

ing of a flag “when it is in such condition that it is no longer

a fitting emblem for display,” and Texas has no quarrel with

this means of disposal. The Texas law is thus not aimed at

protecting the physical integrity of the flag in all circum-

stances, but is designed instead to protect it only against

impairments that would cause serious offense to others.

Texas concedes as much: “Section 42.09(b) reaches only

those severe acts of physical abuse of the flag carried out

in a way likely to be offensive. The statute mandates inten-

tional or knowing abuse, that is, the kind of mistreatment

that is not innocent, but rather is intentionally designed to

seriously offend other individuals.”

Whether Johnson’s treatment of the flag violated

Texas law thus depended on the likely communicative

impact of his expressive conduct. Our decision in Boos v.

Barry tells us that this restriction on Johnson’s expression

is content based. . . .

According to the principles announced in Boos, John-

son’s political expression was restricted because of the con-

tent of the message he conveyed. We must therefore

subject the State’s asserted interest in preserving the spe-

cial symbolic character of the flag to “the most exacting

scrutiny.”

Texas argues that its interest in preserving the flag as

a symbol of nationhood and national unity survives this

close analysis. Quoting extensively from the writings of this

Court chronicling the flag’s historic and symbolic role in

our society, the State emphasizes the “‘special place’”

reserved for the flag in our Nation. The State’s argument is

1672 ERA 10: Contemporary United States

not that it has an interest simply in maintaining the flag as

a symbol of something, no matter what it symbolizes;

indeed, if that were the State’s position, it would be diffi-

cult to see how that interest in endangered by highly sym-

bolic conduct such as Johnson’s. Rather, the State’s claim is

that it has an interest in preserving the flag as a symbol of

nationhood and national unity, a symbol with a determi-

nate range of meanings. According to Texas, if one physi-

cally treats the flag in a way that would tend to cast doubt

on either the idea that nationhood and national unity are

the flag’s referents or that national unity actually exists, the

message conveyed thereby is a harmful one and therefore

may be prohibited.

If there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit

the expression of an idea simply because society finds the

idea offensive or disagreeable.

We have not recognized an exception to this principle

even where out flag has been involved. In Street v. New

York, we held that a State may not criminally punish a per-

son for uttering words critical of the flag. Rejecting the

argument that the conviction could be sustained on the

ground that Street had “failed to show the respect for our

national symbol which may properly be demanded of every

citizen,” we concluded that “the constitutionally guaran-

teed ‘freedom to be intellectually . . . diverse or even con-

trary,’ and the ‘right to differ as to things that touch the

heart of the existing order,’ encompass the freedom to

express publicly one’s opinions about our flag, including

those opinions which are defiant or contemptuous.” Now

may the government, we have held, compel conduct that

would evince respect for the flag. “To sustain the compul-

sory flag salute we are required to say that a Bill of Rights

which guards the individual’s right to speak his own mind,

left it open to public authorities to compel him to utter

what is not in his mind.”

In holding in Barnette that the Constitution did not

leave this course open to the government, Justice Jackson

described one of our society’s defining principles in words

deserving of their frequent repetition: “If there is any fixed

star in our constitutional constellation, it is that no official,

high or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of opinion

or force citizens to confess by word or act their faith

therein.” In Spence, we held that the same interest asserted

by Texas here was insufficient to support a criminal con-

viction under a flag-misuse statute for the taping of a

peace sign to an American flag. “Given the protected char-

acter Of [Spence’s] expression and in light of the fact that

no interest the State may have in preserving the physical

integrity of a privately owned flag was significantly

impaired on these facts.” we held, “the conviction must be

validated. . . .”

In short, nothing in our precedents suggests that a

State may foster its own view of the flag by prohibiting

expressive conduct relating to it. To bring its argument

outside our precedents, Texas attempts to convince us that

even if its interest in preserving the flag’s symbolic role

does not allow it to prohibit words or some expressive con-

duct critical of the flag, it does permit it to forbid the out-

right destruction of the flag. The State’s argument cannot

depend here on the distinction between written or spoken

words and nonverbal conduct. That distinction, we have

shown, is of no moment where the nonverbal conduct is

expressive, as it is here, and where the regulation of that

conduct is related to expression, as it is here. In addition,

both Barnette and Spence involved expressive conduct, not

only verbal communication, and both found that conduct

protected.

Texas’ focus on the precise nature of Johnson’s

expression, moreover, misses the point of our prior deci-

sions: their enduring lesson, that the government may not

prohibit expression simply because it disagrees with its

message, is not dependent on the particular mode in

which one chooses to express an idea. If we were to hold

that a State may forbid flag burning wherever it is likely to

endanger the flag’s symbolic role, but allow it wherever

burning a flag promotes that role—as where, for example,

a person ceremoniously burns a dirty flag—we would be

saying that when it comes to impairing the flag’s physical

integrity, the flag itself may be used as a symbol—as a sub-

stitute for the written or spoken word or a “short cut from

mind to mind”—only in one direction. We would be per-

mitting a State to “prescribe what shall be orthodox” by

saying that one may burn the flag to convey one’s attitude

toward it and its referents only if one does not endanger

the flag’s representation of notion-hood and national

unity.

We never before have held that the Government may

ensure that a symbol be used to express only one view of

that symbol or its referents. Indeed, in Schacht v. United

States, we invalidated a federal statute permitting an actor

portraying a member of one of our Armed Forces to “wear

the uniform of that armed force if that portrayal does not

tend to discredit that armed force.” This proviso, we held,

“which leaves Americans free to praise the war in Vietnam

but can send persons like Schacht to prison for opposing it,

cannot survive in a country which has the First Amend-

ment.”

We perceive no basis on which to hold that the princi-

ple underlying our decision in Schacht does not apply to

this case. To conclude that the government may permit

designated symbols to be used to communicate only a lim-

ited set of messages would be to enter territory having no

discernible or defensible boundaries. Could the govern-

ment, on this theory, prohibit the burning of state flags? Of

Domestic Politics 1673

copies of the Presidential seal? Of the Constitution? In

evaluating these choices under the First Amendment, how

would we decide which symbols were sufficiently special

to warrant this unique status? To do so, we would be

forced to consult our own political preferences, and

impose them on the citizenry, in the very way that the First

Amendment forbids us to do.

There is, moreover, no indication—either in the text

of the Constitution or in our cases interpreting it—that a

separate juridical category exists for the American flag

alone. Indeed, we would not be surprised to learn that the

persons who framed our Constitution and wrote the

Amendment that we now construe were not known for

their reverence for the Union Jack. The First Amendment

does not guarantee that other concepts virtually sacred to

our Nation as a whole—such as the principle that dis-

crimination on the basis of race is odious and destruc-

tive—will go unquestioned in the marketplace of ideas.

We decline, therefore, to create for the flag an exception

to the joust of principles protected by the First Amend-

ment.

It is not the State’s ends, but its means, to which we

object. It cannot be gainsaid that there is a special place

reserved for the flag in this Nation, and thus we do not

doubt that the government has a legitimate interest in

making efforts to “preserv[e] the national flag as an unal-

loyed symbol of our country.” We reject the suggestion,

urged at oral argument by counsel for Johnson, that the

government lacks “any state interest whatsoever” in regu-

lating the manner in which the flag may be displayed.

Congress has, for example, enacted precatory regulations

describing the proper treatment of the flag, and we cast no

doubt on the legitimacy of its interest in making such rec-

ommendations. To say that the government has an interest

in encouraging proper treatment of the flag, however, is

not to say that it may criminally punish a person for burn-

ing a flag as a means of political protest. “National unity as

an end which officials may foster by persuasion and exam-

ple is not in question. The problem is whether under our

Constitution compulsion as here employed is a permissible

means for its achievement.”

We are fortified in today’s conclusion by our convic-

tion that forbidding criminal punishment for conduct

such as Johnson’s will not endanger the special role

played by our flag or the feelings it inspires. To para-

phrase Justice Holmes, we submit that nobody can sup-

pose that this one gesture of an unknown man will change

our Nation’s attitude towards its flag. Indeed, Texas’ argu-

ment that the burning of an American flag “‘is an act hav-

ing a high likelihood to cause a breach of the peace,’” and

its statute’s implicit assumption that physical mistreat-

ment of the flag will lead to “serious offense,” tend to con-

firm that the flag’s special role is not in danger; if it were,

no one would riot or take offense because a flag had been

burned.

We are tempted to say, in fact, that the flag’s

deservedly cherished place in our community will be

strengthened, not weakened, by our holding today. Our

decision is a reaffirmation of the principles of freedom and

inclusiveness that the flag best reflects, and of the convic-

tion that our toleration of criticism such as Johnson’s is a

sign and source of our strength. Indeed, one of the proud-

est images of our flag, the one immortalized in our own

national anthem, is of the bombardment it survived at Fort

McHenry. It is the Nation’s resilience, not its rigidity, that

Texas sees reflected in the flag—and it is that resilience

that we reassert today.

The way to preserve the flag’s special role is not to

punish those who feel differently about these matters. It is

to persuade them that they are wrong. “To courageous,

self-reliant men, with confidence in the power of free and

fearless reasoning applied through the processes of popu-

lar government, no danger flowing from speech can be

deemed clear and present, unless the incidence of the evil

apprehended is so imminent that it may befall before there

is opportunity for full discussion. If there be time to expose

through discussion the falsehood and fallacies, to avert the

evil by the processes of education, the remedy to be

applied is more speech, not enforced silence.” And, pre-

cisely because it is our flag that is involved, one’s response

to the flag burner may exploit the uniquely persuasive

power of the flag itself. We can imagine no more appro-

priate response to burning a flag than waving one’s own, no

better way to counter a flag burner’s message than by salut-

ing the flag that burns, no surer means of preserving the

dignity even of the flag that burned than by—as one wit-

ness here did—according its remains a respectful burial.

We do not consecrate the flag by punishing it desecration,

for in doing so we dilute the freedom that this cherished

emblem represents.

Johnson was convicted for engaging in expressive conduct.

The State’s interest in preventing breaches of the peace

does not support his conviction because Johnson’s conduct

did not threaten to disturb the peace. Nor does the State’s

interest in preserving the flag as a symbol of nationhood

and national unity justify his criminal conviction for engag-

ing in political expression. The judgment of the Texas

Court of Criminal Appeals is therefore

Affirmed.

Source:

Supreme Court Reporter, Vol. 109, pp. 2,533–2,558.

1674 ERA 10: Contemporary United States

Contract with America, 1994

At a rally on the grounds of the Capitol building in Washing-

ton, D.C., September 27, 1994, more than 300 Republican

House candidates, including about 150 incumbents, signed a

“Contract with America” crafted by House minority leader

Newt Gingrich (R-Ga.). Focusing primarily on budget issues,

the “contract” represented a platform of policies that Republi-

can lawmakers would seek to pass if their party won a major-

ity in the House in congressional elections in November.

Signatories pledged a variety of tax cuts, an increase in de-

fense spending, and a constitutional amendment requiring a

balanced federal budget. In the November elections, the

Republicans gained control of the House for the first time in

40 years, and Gingrich became speaker.

During the “first hundred days” (a phrase going back to

congressional passage of F. D. Roosevelt’s New Deal in that

time), Congress became “subject to the same laws as everyone

else,” concerning such things as racial or sex discrimination;

the House cut congressional committee staffs and budgets by

30 percent and . . . voted on every item in the Contract.”

In part because of President Clinton’s vetoes, a number of

items in the contract did not succeed. The impasse between

the Republican House and the Democratic president came to

a head over approving the 1995 budget. Gingrich held his

ground, and the government, except for “essential personnel,”

was shut down. Instead of convincing the country that the

Republicans were saving the nation’s checkbook from profli-

gate Democrats, Gingrich’s plan backfired. The public, a good

proportion of whom depended in some way on federal

largesse, blamed the Republicans. In 1996 Clinton retained

the presidency, the Democrats held the Senate, and they

gained some seats in the Republican-majority House.

________________________

_______________________

As Republican Members of the House of Representatives

and as citizens seeking to join that body we propose not just

to change its policies, but even more important, to restore

the bonds of trust between the people and their elected

representatives. That is why, in this era of official evasion

and posturing, we offer instead a detailed agenda for

national renewal, a written commitment with no fine print.

This year’s election offers the chance, after four

decades of one-party control, to bring to the House a new

majority that will transform the way Congress works. That

historic change would be the end of government that is too

big, too intrusive, and too easy with the public’s money. It

can be the beginning of a Congress that respects the val-

ues and shares the faith of the American family.

Like Lincoln, our first Republican president, we

intend to act “with firmness in the right, as God gives us to

see the right.” To restore accountability to Congress. To

end its cycle of scandal and disgrace. To make us all proud

again of the way free people govern themselves.

On the first day of the 104th Congress, the new

Republican majority will immediately pass the following

major reforms, aimed at restoring the faith and trust of the

American people in their government:

First, require all laws that apply to the rest of the

country also apply equally to the Congress;

Second, select a major independent auditing firm to

conduct a comprehensive audit of Congress for waste,

fraud, or abuse;

Third, cut the number of House committees, and cut

committee staff by one-third;

Fourth, limit the terms of all committee chairs;

Fifth, ban the casting of proxy votes in committee;

Sixth, require committee meetings to be open to the

public;

Seventh, require a three-fifths majority vote to pass a

tax increase;

Eighth, guarantee an honest accounting of our federal

budget by implementing zero baseline budgeting.

Thereafter, within the first hundred days of the 104th

Congress, we shall bring to the House Floor the following

bills, each to be given full and open debate, each to be

given a clear and fair vote, and each to be immediately

available this day for public inspection and scrutiny.

The Fiscal Responsibility Act

—A balanced budget/tax limitation amendment and a leg-

islative line-item veto to restore fiscal responsibility to an

out-of-control Congress, requiring them to live under the

same budget constraints as families and businesses.

The Taking Back Our Streets Act

—An anti-crime package including stronger truth in sen-

tencing, “good faith” exclusionary rule exemptions, effec-

tive death penalty provisions, and cuts in social spending

from this summer’s crime bill to fund prison construction

and additional law enforcement to keep people secure in

their neighborhoods and kids safe in their schools.

The Personal Responsibility Act

—Discourage illegitimacy and teen pregnancy by prohibit-

ing welfare to minor mothers and denying increased

AFDC for additional children while on welfare, cut spend-

ing for welfare programs, and enact a tough two-years-

and-out provision with work requirements to promote

individual responsibility.

The Family Reinforcement Act

—Child support enforcement, tax incentives for adoption,

strengthening rights of parents in their children’s educa-

Domestic Politics 1675

tion, stronger child pornography laws, and an elderly

dependent care tax credit to reinforce the central role of

families in American society.

The American Dream Restoration Act

—A $500-per-child tax credit, begin repeal of the marriage

tax penalty, and creation of American Dream Savings

Accounts to provide middle-class tax relief.

The National Security Restoration Act

—No U.S. troops under UN command and restoration of

the essential parts of our national security funding to

strengthen our national defense and maintain our credibil-

ity around the world.

The Senior Citizens Fairness Act

—Raise the Social Security earnings limit, which currently

forces seniors out of the workforce, repeal the 1993 tax

hikes on Social Security benefits, and provide tax incen-

tives for private long-term care insurance to let older

Americans keep more of what they have earned over the

years.

The Job Creation and Wage Enhancement Act

—Small business incentives, capital gains cut and indexa-

tion, neutral cost recovery, risk assessment/cost benefit

analysis, strengthening of the Regulatory Flexibility Act

and unfunded mandate reform to create jobs and raise

worker wages.

The Common Sense Legal Reforms Act

—”Loser pays” laws, reasonable limits on punitive dam-

ages, and reform of product liability laws to stem the end-

less tide of litigation.

The Citizen Legislature Act

—A first-ever vote on term limits to replace career politi-

cians with citizen legislators.

Further, we will instruct the House Budget Commit-

tee to report to the floor and we will work to enact addi-

tional budget savings, beyond the budget cuts specifically

included in the legislation described above, to ensure that

the federal budget deficit will be less than it would have

been without the enactment of these bills.

Respecting the judgment of our fellow citizens as we

seek their mandate for reform, we hereby pledge our

names to this Contract with America.

Source:

National Center for Public Policy Research. “Contract with

America.” Available on-line. URL: www.nationalcenter.org/

ContractwithAmerica.html. Accessed November 2003.

Clinton v. Jones, 1997

In a decision that, among other things, demonstrated how far

removed the Supreme Court could get from political realities,

the justices ruled unanimously that a sitting president could be

sued for actions outside of his official duties.

The ruling came from a sexual harassment grievance

pending against President Bill Clinton for alleged behavior

while he was governor of Arkansas. In 1994 Paula C. Jones

sued Clinton in federal court for violating her civil rights. Jones,

a former Arkansas state employee, accused Clinton of having

sexually propositioned her in a Little Rock hotel room in 1991.

In her suit, Jones claimed that she was subjected to a hostile

work environment after she rebuffed Clinton’s unwelcome sex-

ual advances. Jones sought damages for both emotional distress

and defamation of character regarding the alleged hotel

episode. President Clinton, who denied her accusations,

argued that he should not be subject to a civil suit while in

office. His lawyers invoked the principle of executive privilege

in asking the federal courts to postpone Jones’s complaint until

Clinton left office. On May 27, 1997, the high court denied

Clinton’s request, rejecting his executive privilege claim. The

justices held that nothing in the Constitution exempted the

president from facing a valid civil complaint in a timely man-

ner. At the same time, the Court said proper respect for the

presidency obligated trial courts to accommodate the presi-

dent’s schedule as much as possible in civil actions.

On January 17, 1998, during the discovery process, Clin-

ton, under oath, was interviewed in private by Jones’s lawyers.

It marked the first time that a sitting president had to submit as

a defendant in a civil court challenge.

Susan Webber Wright, the federal judge presiding over

the case, dismissed Jones’s lawsuit April 1. Ruling that “there

are no genuine issues for trial in this case,” she found that

Jones had not proved that she had been a victim of sexual

harassment even if the encounter with Clinton had taken

place. According to the judge, Jones had provided no evi-

dence that she had been hurt, personally or professionally, by

Clinton’s alleged behavior. Jones initially intended to seek an

appeal of Judge Wright’s decision, but later reached a settle-

ment with President Clinton for $850,000.

However, during the suit, Jones’s lawyers questioned

Clinton about a rumored affair with intern Monica Lewinsky.

He denied it under oath. This opened the way for special pros-

ecutor Kenneth Starr, who was looking into alleged miscon-

duct by the Clintons in connection with a failed Arkansas

resort named Whitewater, to question him about Lewinsky.

Starr’s findings led to Clinton’s impeachment.

________________________

_______________________

Note: Where it is feasible, a syllabus (headnote) will be released,

as is being done in connection with this case, at the time the

opinion is issued. The syllabus constitutes no part of the

1676 ERA 10: Contemporary United States

opinion of the Court but has been prepared by the Reporter

of Decisions for the convenience of the reader. See United

States v. Detroit Timber & Lumber Co., 200 U.S. 321

, 337.

SUPREME COURT OF THE UNITED STATES

YLLABUS

Clinton v. Jones, 1997

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

No. 95-1853. Argued January 13, 1997—

Decided May 27, 1997

Respondent sued under 42 U.S.C. §§ 1983

and 1985 and

Arkansas law to recover damages from petitioner, the cur-

rent President of the United States, alleging, inter alia,

that while he was Governor of Arkansas, petitioner made

“abhorrent” sexual advances to her, and that her rejection

of those advances led to punishment by her supervisors in

the state job she held at the time. Petitioner promptly

advised the Federal District Court that he would file a

motion to dismiss on Presidential immunity grounds, and

requested that all other pleadings and motions be deferred

until the immunity issue was resolved. After the court

granted that request, petitioner filed a motion to dismiss

without prejudice and to toll any applicable statutes of lim-

itation during his Presidency. The District Judge denied

dismissal on immunity grounds and ruled that discovery

could go forward, but ordered any trial stayed until peti-

tioner’s Presidency ended. The Eighth Circuit affirmed

the dismissal denial, but reversed the trial postponement

as the “functional equivalent” of a grant of temporary

immunity to which petitioner was not constitutionally enti-

tled. The court explained that the President, like other

officials, is subject to the same laws that apply to all citi-

zens, that no case had been found in which an official was

granted immunity from suit for his unofficial acts, and that

the rationale for official immunity is inapposite where only

personal, private conduct by a President is at issue. The

court also rejected the argument that, unless immunity is

available, the threat of judicial interference with the Exec-

utive Branch would violate separation of powers.

Held:

1. This Court need not address two important consti-

tutional issues not encompassed within the questions pre-

sented by the certiorari petition: (1) whether a claim

comparable to petitioner’s assertion of immunity might

succeed in a state tribunal, and (2) whether a court may

compel the President’s attendance at any specific time or

place. Pp. 7–9.

2. Deferral of this litigation until petitioner’s Presi-

dency ends is not constitutionally required. Pp. 7–28.

(a) Petitioner’s principal submission—that in all but

the most exceptional cases, the Constitution affords the

President temporary immunity from civil damages litiga-

tion arising out of events that occurred before he took

office—cannot be sustained on the basis of precedent. The

principal rationale for affording Presidents immunity from

damages actions based on their official acts—i.e., to enable

them to perform their designated functions effectively

without fear that a particular decision may give rise to per-

sonal liability, see, e.g., Nixon v. Fitzgerald, 457 U.S. 731

749, 752, and n. 32—provides no support for an immunity

for unofficial conduct. Moreover, immunities for acts

clearly within official capacity are grounded in the nature

of the function performed, not the identity of the actor

who performed it. Forrester v. White, 484 U.S. 219, 229.

The Court is also unpersuaded by petitioner’s historical

evidence, which sheds little light on the question at issue,

and is largely canceled by conflicting evidence that is itself

consistent with both the doctrine of presidential immunity

as set forth in Fitzgerald, and rejection of the immunity

claim in this case. Pp. 9-15.

(b) The separation of powers doctrine does not

require federal courts to stay all private actions against the

President until he leaves office. Even accepting the unique

importance of the Presidency in the constitutional scheme,

it does not follow that that doctrine would be violated by

allowing this action to proceed. The doctrine provides a

self executing safeguard against the encroachment or ag-

grandizement of one of the three co equal branches of

Government at the expense of another. Buckley v. Valeo,

424 U.S. 1, 122. But in this case there is no suggestion that

the Federal Judiciary is being asked to perform any func-

tion that might in some way be described as “executive.”

Respondent is merely asking the courts to exercise their

core Article III jurisdiction to decide cases and controver-

sies, and, whatever the outcome, there is no possibility that

the decision here will curtail the scope of the Executive

Branch’s official powers. The Court rejects petitioner’s

contention that this case—as well as the potential addi-

tional litigation that an affirmance of the Eighth Circuit’s

judgment might spawn—may place unacceptable burdens

on the President that will hamper the performance of his

official duties. That assertion finds little support either in

history, as evidenced by the paucity of suits against sitting

Presidents for their private actions, or in the relatively nar-

row compass of the issues raised in this particular case. Of

greater significance, it is settled that the Judiciary may

severely burden the Executive Branch by reviewing the

legality of the President’s official conduct, see e.g.,

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

and may direct appropriate process to the President him-

self, see e.g., United States v. Nixon, 418 U.S. 683. It must

follow that the federal courts have power to determine the

Domestic Politics 1677

legality of the President’s unofficial conduct. The reasons

for rejecting a categorical rule requiring federal courts to

stay private actions during the President’s term apply as

well to a rule that would, in petitioner’s words, require a

stay “in all but the most exceptional cases.” Pp. 15-24.

Court’s stay order was not the “functional equivalent” of an

unconstitutional grant of temporary immunity. Rather, the

District Court has broad discretion to stay proceedings as

an incident to its power to control its own docket. See, e.g.,

Landis v. North American Co., 299 U.S. 248, 254. More-

over, the potential burdens on the President posed by this

litigation are appropriate matters for that court to evaluate

in its management of the case, and the high respect owed

the Presidency is a matter that should inform the conduct

of the entire proceeding. Nevertheless, the District Court’s

stay decision was an abuse of discretion because it took no

account of the importance of respondent’s interest in

bringing the case to trial, and because it was premature in

that there was nothing in the record to enable a judge to

assess whether postponement of trial after the completion

of discovery would be warranted. Pp. 25-27.

(d) The Court is not persuaded of the seriousness of

the alleged risks that this decision will generate a large vol-

ume of politically motivated harassing and frivolous litiga-

tion and that national security concerns might prevent the

President from explaining a legitimate need for a continu-

ance, and has confidence in the ability of federal judges to

deal with both concerns. If Congress deems it appropriate

to afford the President stronger protection, it may respond

with legislation. Pp. 27–28

Source:

Cornell Law School, Legal Information Institute. Available on-

line. URL: http://supct.law.cornell.edu/supct/html/95-1853.

ZS.html. Accessed November 2003.

Printz v. United States, 1997

Major decision on state versus federal powers in which the

U.S. Supreme Court ruled that the Brady gun control law

intruded unconstitutionally on states’ rights. It has a dual sig-

nificance, both regarding the Rehnquist court’s elevation of

states’ rights and the nation’s conflict over gun control.

Problems of federalism, namely, the allocation of power

between the national and state governments, has long been a

subject for federal litigation.

National League of Cities v.

Usery,

426 U.S. 833), focused on the Tenth Amendment pro-

vision that reserves powers to the states that are not specifi-

cally granted to the federal government. Because of this 1976

ruling, a federal district court in Texas ruled that San Antonio’s

mass transit workers were not covered by federal wage and

price regulations. The federal government joined the transit

workers in appealing this decision to the Supreme Court in

Garcia v. San Antonio Metropolitan

(469 U.S. 528). On

February 19, 1985, the high court ordered arguments regard-

ing whether or not the Tenth Amendment as applied in

Usery

also applied in the San Antonio situation. In a 5-4 decision

written by Associate Justice Blackmun, the Court ruled that

the federal minimum wage regulations and hour standards

applied to employees of public mass transit systems and, by

extension, to other public employees as well, thereby restor-

ing the protection of the Fair Labor Standards Act to most state

workers: “state sovereign interests are more properly pro-

tected by procedural safeguards inherent in the structure of

the Federal system than by judicially created limitations on

Federal power.” Dissenting, Justice Powell asserted that this

ruling “rejects almost two hundred years of the understanding

of the constitutional status of Federalism,” an opinion shared

by Associate Justices Rehnquist and O’Connor and Chief Jus-

tice Burger.

After Rehnquist became Chief Justice and Anthony Scalia

and Clarence Thomas were added to the Court, the minority

elevation of state sovereignty became the majority opinion.

For example, in

Federal Maritime Commission v. South Car-

olina Ports Authority

(No. 01-46), decided May 29, 2002, the

Supreme Court, 5-4, further extended the concept of state

sovereignty by removing private complaints against states from

federal jurisdiction. The decision was called the term’s most

important federalism case.

Printz

also concerned federalism and state sovereignty.

The 1993 federal law, named for James S. Brady, the former

White House press secretary who was shot and gravely

wounded in the assassination attempt on President Ronald

Reagan in 1981, required state officials to conduct back-

ground checks on prospective handgun buyers and imposed

a five-day precautionary waiting period on handgun sales.

County Sheriff Jay Printz of Montana, who argued that the

Brady law improperly imposed federal authority on state law

enforcement, successfully challenged the statute in federal

district court. In 1995 a federal appeals court overturned the

district court’s decision and upheld the law. On June 27,

1997, ruling on Printz’s final appeal, the Supreme Court voted

5-4 to strike down the legislation’s background check re-

quirement. Such a federal requirement, the Court held, vio-

lated the principle of separate state sovereignty. The Court

did not address the Brady law’s five-day waiting period, leav-

ing that provision intact for the time being. The sharply

divided ruling revealed profoundly divergent views among

the justices on the essential nature of the nation’s system of

shared authority between the federal government and the

states. The

Printz

decision furthered the recent trend on the

Court toward readjusting the state-federal balance of powers

in favor of the states.

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________________________

_______________________

Note: Where it is feasible, a syllabus (headnote) will be released,

as is being done in connection with this case, at the time the

opinion is issued. The syllabus constitutes no part of the

opinion of the Court but has been prepared by the Reporter

of Decisions for the convenience of the reader. See United

States v. Detroit Timber & Lumber Co., 200 U.S. 321

, 337.

Brady Handgun Violence Prevention Act provisions

require the Attorney General to establish a national system

for instantly checking prospective handgun purchasers’

backgrounds, note following 18 U.S.C. § 922 and com-

mand the “chief law enforcement officer” (CLEO) of each

local jurisdiction to conduct such checks and perform

related tasks on an interim basis until the national system

becomes operative, §922(s). Petitioners, the CLEOs for

counties in Montana and Arizona, filed separate actions

challenging the interim provisions’ constitutionality. In

each case, the District Court held that the background

check provision was unconstitutional, but concluded that it

was severable from the remainder of the Act, effectively

leaving a voluntary background check system in place. The

Ninth Circuit reversed, finding none of the interim provi-

sions unconstitutional.

Held:

1. The Brady Act’s interim provision commanding

CLEOs to conduct background checks, §922(s)(2), is

unconstitutional. Extinguished with it is the duty implicit

in the background check requirement that the CLEO

accept completed handgun applicant statements (Brady

Forms) from firearms dealers, §§922(s)(1)(A)(i)(III) and

(IV). Pp. 4–34.

(a) Because there is no constitutional text speaking to

the precise question whether congressional action com-

pelling state officers to execute federal laws is unconstitu-

tional, the answer to the CLEOs’ challenge must be sought

in historical understanding and practice, in the Constitu-

tion’s structure, and in this Court’s jurisprudence. P. 4.

(b) Relevant constitutional practice tends to negate the

existence of the congressional power asserted here, but is

not conclusive. Enactments of the early Congresses seem to

contain no evidence of an assumption that the Federal Gov-

ernment may command the States’ executive power in the

absence of a particularized constitutional authorization. The

early enactments establish, at most, that the Constitution

was originally understood to permit imposition of an obliga-

tion on state judges to enforce federal prescriptions related

to matters appropriate for the judicial power. The Govern-

ment misplaces its reliance on portions of The Federalist

suggesting that federal responsibilities could be imposed on

state officers. None of these statements necessarily

implies—what is the critical point here—that Congress

could impose these responsibilities without the States’ con-

sent. They appear to rest on the natural assumption that the

States would consent, see FERC v. Mississippi, 456 U.S.

742, 796, n. 35 (O’Connor, J., concurring in judgment and

dissenting in part). Finally, there is an absence of executive

commandeering federal statutes in the country’s later his-

tory, at least until very recent years. Even assuming that

newer laws represent an assertion of the congressional

power challenged here, they are of such recent vintage that

they are not probative of a constitutional tradition. Pp. 4-18.

that controls these cases: the system of “dual sovereignty.”

See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 457. Although

the States surrendered many of their powers to the new

Federal Government, they retained a residuary and invio-

lable sovereignty that is reflected throughout the Consti-

tution’s text. See, e.g., Lane County v. Oregon, 7 Wall. 71,

76. The Framers rejected the concept of a central govern-

ment that would act upon and through the States, and

instead designed a system in which the State and Federal

Governments would exercise concurrent authority over

the people. The Federal Government’s power would be

augmented immeasurably and impermissibly if it were

able to impress into its service—and at no cost to itself—

the police officers of the 50 States. Pp. 18–22.

(d) Federal control of state officers would also have an

effect upon the separation and equilibration of powers

between the three branches of the Federal Government

itself. The Brady Act effectively transfers the President’s

responsibility to administer the laws enacted by Congress,

Art. II, §§2 and 3, to thousands of CLEOs in the 50 States,

who are left to implement the program without meaning-

ful Presidential control. The Federal Executive’s unity

would be shattered, and the power of the President would

be subject to reduction, if Congress could simply require

state officers to execute its laws. Pp. 22–23.

(e) Contrary to the dissent’s contention, the Brady

Act’s direction of the actions of state executive officials is

not constitutionally valid under Art. I, §8, as a law “neces-

sary and proper” to the execution of Congress’s Commerce

Clause power to regulate handgun sales. Where, as here, a

law violates the state sovereignty principle, it is not a law

“proper for carrying into Execution” delegated powers

within the Necessary and Proper Clause’s meaning. Cf.

New York v. United States, 505 U.S. 144, 166. The

Supremacy Clause does not help the dissent, since it

makes “Law of the Land” only “Laws of the United States

which shall be made in Pursuance [of the Constitution.]”

Art. VI, cl. 2. Pp. 24–25.

(f) Finally, and most conclusively in these cases, the

Court’s jurisprudence makes clear that the Federal Gov-

ernment may not compel the States to enact or administer

a federal regulatory program. See, e.g., New York, supra, at

Domestic Politics 1679

188. The attempts of the Government and the dissent to

distinguish New York—on grounds that the Brady Act’s

background check provision does not require state legisla-

tive or executive officials to make policy; that requiring

state officers to perform discrete, ministerial federal tasks

does not diminish the state or federal officials’ account-

ability; and that the Brady Act is addressed to individual

CLEOs while the provisions invalidated in New York were

directed to the State itself—are not persuasive. A “balanc-

ing” analysis is inappropriate here, since the whole object

of the law is to direct the functioning of the state executive,

and hence to compromise the structural framework of dual

sovereignty; it is the very principle of separate state

sovereignty that such a law offends. See e.g., New York,

supra, at 187. Pp. 25–34.

2. With the Act’s background check and implicit

receipt of forms requirements invalidated, the Brady Act

requirements that CLEOs destroy all Brady Forms and

related records, §922(s)(6)(B)(i), and give would be pur-

chasers written statements of the reasons for determining

their ineligibility to receive handguns, §922(s)(6)(C),

require no action whatsoever on the part of CLEOs such

as petitioners, who are not voluntary participants in admin-

istration of the federal scheme. As to them, these provi-

sions are not unconstitutional, but simply inoperative. Pp.

34–36.

Source:

Cornell Law School. The Legal Information Institute. Avail-

able on-line. URL: http://supct.law.cornell.edu/supct/html/

95-1853.ZS.html. Accessed November 2003.

Articles of Impeachment for

President Clinton, 1998

Articles drafted December 11–12, 1998, by the House Judi-

ciary Committee, which indicted President William Jefferson

Clinton for charges of “high crimes and misdemeanors.” The

four articles were based on accusations made by independent

counsel Kenneth Starr in a report submitted to Congress in

September 1998. Starr had been originally appointed in 1994

under the 1978 independent counsel law to investigate the

president and first lady’s involvement in a failed real estate

deal for Arkansas resort property called Whitewater. His pow-

ers were later extended to investigate the White House travel

office scandal in which former staff were fired and a Clinton

friend was substituted, the White House’s acquisition of FBI

files on George H. W. Bush administration White House per-

sonnel, and the president’s relationship with intern Monica

Lewinsky and state employee Paula Jones. Some members of

Congress attempted to find an alternative to impeachment,

such as censure, to punish the president. However, Republi-

can Speaker of the House Robert Livingston did not schedule

a censure vote as it was “not envisioned in the Constitution.”

In his opinion the House had the responsibility “to charge or

not charge, impeach or not impeach.” On December 19,

1998, the House voted to impeach President Clinton for

obstruction of justice and perjury.

Because of the sexual ramifications of Clinton and Lewin-

sky’s relationship and his alleged relationship with Paula

Jones, the Starr Report, which was widely published and dis-

cussed in the media, contained information normally left off

the network television and the mainstream journals.

________________________

_______________________

Resolution impeaching William Jefferson Clinton,

President of the United States, for high crimes and

misdeameanors.

Resolved, that William Jefferson Clinton, President of the

United States, is impeached for high crimes and misde-

meanors, and that the following articles of impeachment

be exhibited to the United States Senate:

Articles of impeachment exhibited by the House of

Representatives of the United States of America in the

name of itself and of the people of the United States of

America, against William Jefferson Clinton, President of

the United States of America, in maintenance and support

of its impeachment against him for high crimes and mis-

demeanors.

Article I

In his conduct while President of the United States,

William Jefferson Clinton, in violation of his constitutional

oath faithfully to execute the office of President of the

United States and, to the best of his ability, preserve, pro-

tect, and defend the Constitution of the United States, and

in violation of his constitutional duty to take care that the

laws be faithfully executed, has willfully corrupted and

manipulated the judicial process of the United States for

his personal gain and exoneration, impeding the adminis-

tration of justice, in that:

On August 17, 1998, William Jefferson Clinton swore

to tell the truth, the whole truth, and nothing but the

truth before a Federal grand jury of the United States.

Contrary to that oath, William Jefferson Clinton willfully

provided perjurious, false and misleading testimony to

the grand jury concerning one or more of the following:

(1) the nature and details of his relationship with a sub-

ordinate Government employee; (2) prior perjurious,

false and misleading testimony he gave in a Federal civil

rights action brought against him; (3) prior false and

misleading statements he allowed his attorney to make

to a Federal judge in that civil rights action; and (4) his

corrupt efforts to influence the testimony of witnesses

1680 ERA 10: Contemporary United States

and to impede the discovery of evidence in that civil

rights action.

In doing this, William Jefferson Clinton has under-

mined the integrity of his office, has brought disrepute on

the Presidency, has betrayed his trust as President, and

has acted in a manner subversive of the rule of law and

justice, to the manifest injury of the people of the United

States.

Wherefore, William Jefferson Clinton, by such con-

duct, warrants impeachment and trial, and removal from

office and disqualification to hold and enjoy any office of

honor, trust or profit under the United States.

Article II

In his conduct while President of the United States,

William Jefferson Clinton, in violation of his constitutional

oath faithfully to execute the office of President of the

United States and, to the best of his ability, preserve, pro-

tect, and defend the Constitution of the United States, and

in violation of his constitutional duty to take care that the

laws be faithfully executed, has willfully corrupted and

manipulated the judicial process of the United States for

his personal gain and exoneration, impeding the adminis-

tration of justice, in that:

(1) On December 23, 1997, William Jefferson Clinton,

in sworn answers to written questions asked as part of a

Federal civil rights action brought against him, willfully

provided perjurious, false and misleading testimony in

response to questions deemed relevant by a Federal judge

concerning conduct and proposed conduct with subordi-

nate employees.

(2) On January 17, 1998, William Jefferson Clinton

swore under oath to tell the truth, the whole truth, and

nothing but the truth in a deposition given as part of a Fed-

eral civil rights action brought against him. Contrary to

that oath, William Jefferson Clinton willfully provided per-

jurious, false and misleading testimony in response to

questions deemed relevant by a Federal judge concerning

the nature and details of his relationship with a subordi-

nate Government employee, his knowledge of that

employee’s involvement and participation in the civil rights

action brought against him, and his corrupt efforts to influ-

ence the testimony of that employee.

In all of this, William Jefferson Clinton has under-

mined the integrity of his office, has brought disrepute on

the Presidency, has betrayed his trust as President, and

has acted in a manner subversive of the rule of law and

justice, to the manifest injury of the people of the United

States.

Wherefore, William Jefferson Clinton, by such con-

duct, warrants impeachment and trial, and removal from

office and disqualification to hold and enjoy any office of

honor, trust or profit under the United States.

Article III

In his conduct while President of the United States, Wil-

liam Jefferson Clinton, in violation of his constitutional oath

faithfully to execute the office of President of the United

States and, to the best of his ability, preserve, protect, and

defend the Constitution of the United States, and in viola-

tion of his constitutional duty to take care that the laws

be faithfully executed, has prevented, obstructed, and

impeded the administration of justice, and has to that end

engaged personally, and through his subordinates and

agents, in a course of conduct or scheme designed to delay,

impede, cover up, and conceal the existence of evidence

and testimony related to a Federal civil rights action

brought against him in a duly instituted judicial proceeding.

The means used to implement this course of conduct

or scheme included one or more of the following acts:

(1) On or about December 17, 1997, William Jeffer-

son Clinton corruptly encouraged a witness in a Federal

civil rights action brought against him to execute a sworn

affidavit in that proceeding that he knew to be perjurious,

false and misleading.

(2) On or about December 17, 1997, William Jeffer-

son Clinton corruptly encouraged a witness in a Federal

civil rights action brought against him to give perjurious,

false and misleading testimony if and when called to testify

personally in that proceeding.

(3) On or about December 28, 1997, William Jeffer-

son Clinton corruptly engaged in, encouraged, or sup-

ported a scheme to conceal evidence that had been

subpoenaed in a Federal civil rights action brought against

him.

(4) Beginning on or about December 7, 1997, and

continuing through and including January 14, 1998,

William Jefferson Clinton intensified and succeeded in an

effort to secure job assistance to a witness in a Federal civil

rights action brought against him in order to corruptly pre-

vent the truthful testimony of that witness in that pro-

ceeding at a time when the truthful testimony of that

witness would have been harmful to him.

(5) On January 17, 1998, at his deposition in a Federal

civil rights action brought against him, William Jefferson

Clinton corruptly allowed his attorney to make false and

misleading statements to a Federal judge characterizing an

affidavit, in order to prevent questioning deemed relevant

by the judge. Such false and misleading statements were

subsequently acknowledged by his attorney in a communi-

cation to that judge.

(6) On or about January 18 and January 20-21, 1998,

William Jefferson Clinton related a false and misleading

account of events relevant to a Federal civil rights action

brought against him to a potential witness in that proceed-

ing, in order to corruptly influence the testimony of that

witness.

Domestic Politics 1681