Landmark Supreme Court Decisions

Landmark Court Decisions
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Landmark U.S. Supreme Court Decisions

1. Georgia v. Brailsford, 3 U.S. 1 (Dall.) (1794) — Jury has power to judge law in bringing
general verdict.
❍ Opinion — John Jay
❍ Commentary — Jon Roland
2. Calder v. Bull, 3 U.S. 386 (Dall.) (1798) — Supreme Court has jurisdiction to overrule
unconstitutional state legislation, such as ex post facto laws.
❍ Opinion — Chase, Paterson, Iredell, Cushing
3. Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803) — Courts must not sustain
unconstitutional acts of government.
❍ Opinion — John Marshall, Chase, Paterson, Washington
4. United States v. Hudson, 7 Cranch 32 (1812) — Courts have no jurisdiction over common law
crimes.
❍ Opinion — Johnson
5. McCulloch v. Maryland, 17 U.S. 316 (1819) — National Bank was tax-exempt federal
agency.
❍ Syllabus
❍ Opinion — John Marshall
6. Gibbons v. Ogden, 22 U.S. 1 (1824) — State may not grant exclusive navigation license for its
coastal waters.
❍ Opinion — John Marshall, Concurring Johnson, J.
7. Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833) — Federal courts do not
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have jurisdiction in cases in which a citizen sues his state for violation of any of the Bill of Rights.
❍ Syllabus
❍ Opinion — John Marshall
8. Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868) — Congress may remove jurisdiction from
the Supreme Court.
❍ Opinion — Salmon P. Chase
9. Hurtado v. California, 110 U.S. 516 (1884) — States not required to indict by grand jury.
❍ Opinion — Matthews
❍ Dissenting — Harlan
10. Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895) — Jurors do not need to be
informed of their power to judge the law in bringing a general verdict.
❍ Syllabus
❍ Opinion — John M. Harlan, Jackson
❍ Dissenting — David J. Brewer, Brown
❍ Dissenting — Horace Gray, Shiras
11. Coffin v. U.S., 156 U.S. 432 (1895) — Court must instruct jury in criminal case that accused is
presumed innocent.
❍ Opinion — White
12. Buckley v. Valeo, 424 U.S. 1 (1976) — Campaign spending may not be limited, but
contributions may be, and the identity of contributors may be required to be disclosed, and
anonymous contributors prohibited.
❍ Opinion — Brennan, Stewart, Powell
13. Lewis v. United States, 445 U.S. 55 (1980) — Person who has been convicted of a crime in a
state court may be convicted of a federal crime for possession of firearms.
❍ Syllabus
❍ Opinion — Blackmun, J., Berger, Stewart, White, Rehnquist, Stevens
❍ Dissenting — Brennan, J., Marshall, Powell


14. Brown v. Socialist Workers', 459 U.S. 87 (1982) — Minor party which has historically been
harassed is exempt from campaign disclosure requirements.
❍ Opinion — Marshall
15. Hafer v. Melo, 502 U.S. 21 (1991) — State officers may be held personally liable for damages
based upon actions taken in their official capacities.
❍ Opinion — O'Connor
16. Staples v. United States, 511 U.S. 600 (1994) — Government must prove beyond a reasonable
doubt that defendant knew that his rifle had the characteristics that brought it within the statutory
definition of a machinegun.
❍ Opinion — Thomas
17. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) — Advocacy publication may be
anonymous, and is exempt from campaign disclosure statute.
❍ Opinion — Stevens, Concurring Ginsburg
❍ Concurring — Thomas
❍ Dissenting — Scalia, Rehnquist
18. United States v. Lopez, 514 U.S. 549 (1995) — Prohibition against possessing firearm in
proximity of a school is not authorized as connected to interstate commerce.
❍ Syllabus
❍ Opinion — Rehnquist, Kennedy, O'Connor, Scalia, Thomas
❍ Concurring — Kennedy, O'Connor
19. Caron v. United States, 524 U.S. 308 (1998) — Even if a State permitted an offender to have
the guns he possessed, federal law may use the State’s determination that the offender is more
dangerous than law-abiding citizens to impose its own felony conviction.
❍ Syllabus
❍ Opinion — Kennedy, Rehnquist, Stevens, O’Connor, Ginsburg, Breyer
❍ Dissenting — Thomas, Scalia, Suter
20. United States v. Morrison, Docket 99-5 (Decided May 15, 2000) — Congress lacked

authority to enact a law which provides a federal civil remedy for the victims of gender-motivated
violence.
❍ Syllabus
❍ Opinion — Rehnquist, O’Connor, Scalia, Kennedy, and Thomas
❍ Dissenting — Souter, Stevens, Ginsburg, and Breyer
❍ Dissenting — Breyer, Stevens; Souter and Ginsburg joined on I-A
21. Jones v. United States, Docket 99-5739 (Decided May 22, 2000) — An owner-occupied
residence not used for any commercial purpose does not qualify as property “used in” commerce
or commerce-affecting activity, so arson of such a dwelling is not subject to federal prosecution.
❍ Syllabus
❍ Opinion — Ginsburg, for unanimous court
❍ Concurring — Stevens, Thomas
❍ Concurring — Thomas, Scalia
Home| Constitution Society

State of Georgia v. Brailsford, et al., 3 U.S. 1 (Dall.) (1794)
SUPREME COURT of the UNITED STATES.

[ 3 U.S. 1]
February Term, 1794.
ON the meeting of the Court, a commission was read, dated the 28th of January, 1794, appointing
William Bradford, Esquire, Attorney-General of the United States.[1]
The STATE of GEORGIA, versus BRAILSFORD, et al.
This cause was now tried, by a special jury, upon an amicable issue, to ascertain , whether the debt due
from Spalding, and the right of action to recover it, belonged to the State of Georgia, or to the original
creditors, under all the circumstances, which are set forth in the pleadings and arguments on the equity
side of the Court? See 2 vol. Dall. Rep. 403, 415.
For the plaintiff, Ingersoll and Dallas, proposed two objects for enquiry: – 1. Was the debt due from
Spalding, at any time the property of the State? – 2. Has the title of the State ceased, or been removed,
and the right of action re-vested in the defendants?
1. On the first point, they contended, that Georgia as a sovereign State, had power to transfer the debt in
question from the original creditor, an alien enemy, to herself, notwithstanding some of the debtors were
citizens of another State; that by her confiscation law she had declared the intention to make the transfer;
and that without an inquest of office, her intention had been carried into effect in due form, and
according to [3 U.S. 1,2] law, as well in relation to her own citizens, as to the parties who were citizens of
South Carolina. – In support of these several propositions the following authorities were cited: 1 H.Bl.
149. Vatt B. 3. c. 77. Lee on Capt. Bynk. B. 1. c. 7. Vatt. B. 3. c. 18. s. 295. Jenk. 121. Sir T. Park. 121.
Plow. 243, 324. 1 H. Bl. 413. 2 Bl. Com. 405, 409. 2 Wood. 130. 4 B.. Com. 386. 1 Hal. P. C. 413. 3 Inst.
55. 1 Hawk. 68. 3 Bl. Com. 259. 3 T. Rep. 731, 2, 3, 4. 1 Woodes. 146. Cor. Car. 460. 16 Vin. Abr. 85. 6.
3 Bl. Com. 260. Park. 267. 1 P. Wm. 307. 1 Dail. Rep. 393. Hind. Ch. 129. 1 Vern. 58.
2. On the second point, it was urged, that although the word, “sequestration” was used in the Georgia
law, yet, that the law directed the debt to be collected, in the same manner as debts confiscated, and to be
put into the treasury, for the use of the state, until it should be otherwise appropriated; and that the state
had never made any other appropriation; but, on the first opportunity, claimed it as a forfeiture. The
election, therefore, to consider it as a confiscation, was reserved by the state to herself; and her
subsequent conduct makes the reservation absolute. The exception of debts in the South-Carolina law
cannot govern the case as to Powell & Hopton; for that law is only referred to for the manner and form,
not for the subjects of confiscation. It only remains, therefore, to enquire, whether, independent of
Georgia, the operation and existence of her law can be, and and has been, defeated and annulled. The
peace merely does not effect the right of the state; for, the condition of things at the conclusion of the
war is legitimate; and all things not mentioned in the treaty, are to remain as at the conclusion of it. The
treaty of 1783 does not affect the right of the state; for, though it provides, generally, in the 4th article,
that creditors, on either side, shall meet with no lawful impediment, in recovering their debts, this ought
to be understood merely as a provision that the war, abstractedly considered, shall make no difference in
the remedy, for the recovery of subsisting debts; that the remedy shall not be perplexed by instalment
laws, pine-barren laws, bull laws, paper money laws, &c; but it does not decide, what are subsisting
debts, which can only, indeed, be decided on the general principle of the law of nations. Laws of
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sequestration and confiscation, are not, however, the object of the 4th article of the treaty of peace; but of
a subsequent article, in which Congress only promise (all, indeed, that they could do) to recommend to
the states, revision and restitution. Debts discharged by law, where they originated, are every where
discharged. Such is not only the doctrine of Georgia, but of the British Statesmen and Judges wherever
the question has arisen. The Federal Constitution does not affect the right of the state; for, though [3 U.S.
3] it gives effect to the treaty of peace, it furnishes no rule for construing the meaning of the parties to
that instrument. In relation to these arguments, the following authorities were cited: – State papers,
Jefferson to Hammond, Hinde Ch. 127. 1 Br. Ch. 376. 3 Bac. Abr. 310. Caermarthen’s Memorial,
American Museum, May 1787. 1 Hen. Bl. 123, 135. 3 T. Rep. 732. 1 H. Bl. 149. 2 Br. Ch. 11. 1 H. Bl.
146.
For the defendants, Bradford (the attorney-general) E. Tilghman and Lewis made the following
points:–1st That the debts due to Powell & Hopton, had not been confiscated by the law of
South-Carolina, and, therefore, were not confiscated by the words of reference in the law of Georgia; nor
had Georgia a right to confiscate the property of the citizens of other states. 2d. That even if the law of
Georgia had confiscated Brailford’s interest in the debt, the right to recover the two thirds belonging to
Powell & Hopton was unimpaired. 3d. That the debt, as it respects Brailsford himself, is not confiscated,
but sequestered; and that the sequestration had not been enforced by any inquest of office, seizure, or
other act tantamount to an office or seizure. 4th. That the Peace alone, without any positive compact,
restored the right of action to the original creditors. 5th. That without recourse to the general principle of
the law of nations, the treaty expressly revives the right of action, by removing all legal impediments to
the recovery of bona-fide debts, and the treaty is the supreme law of the land, by virtue of the Federal
Constitution. In support of these propositions the following authorities were cited: – 3 Bac. 203. 2 Co.
67. 1 P. Wm. 307. Curs. Canc. 89. 1. Dom. Civ. L. 138, 147. Magna Carta. Sir T. Park. 267. 3 T. Rep.
734. Vatt. b. 4. c. 1. s. 8. ib. c. 2. s. 20. 22. Burn. Ec. L. 157. Carth. 148. Grot. b. 3. c. 20 s. 16. p. 700. 1
Dall. Rep. 233. 1 H. Bl. 123. 136. 2 Bro ch. 11. 1 Bl. c. 409. 240. Sir T. Raym. Saunf. 45. Plowd. 259. 3
Inst. 55. 1 Hawk. 68. State papers Bynk. b. 1. C. 7. 1 Ver. 58. Circular Letter of Congress.
The argument having continued for four days, the Chief Justice delivered the following charge on the 7th
of February.
Jay, Chief Justice. This cause has been regarded as of great importance; and doubtless is is so. It has
accordingly been treated by the Counsel with great learning, diligence and ability; and on your part it has
been heard with particular attention. It is, therefore, unnecessary for me to follow the investigation over
the extensive field into which it has been carried: you are now, if ever you can be, completely possessed
of the merits of the cause. [3 U.S. 3,4]
The facts comprehended in the case, are agreed; the only point that remains, is to settle what is the law of
the land arising from those facts; and on that point, it is proper, that the opinion of the court should be
given. It is fortunate on the present, as it must be on every occasion, to find the opinion of the court
unanimous: We entertain no diversity of sentiment; and we have experienced no difficulty in uniting in
the charge, which it is my province to deliver.
We are then, Gentlemen, of opinion, that the debts due to Hopton & Powell (who were citizens of
South-Carolina) were not confiscated by the statute of South-Carolina; the same being therein expressly
excepted: That those debts were not confiscated by the statute of Georgia, for that statute enacts, with
respect to Powell & Hopton, precisely the like, and no other, degree and extent of confiscation and

forfeiture, with that of South-Carolina. Wherefore it cannot now be necessary to decide, how far one
state may of right legislate relative to the personal rights of citizens of another state, not residing within
their jurisdiction.
We are also of opinion, that the debts due to Brailsford, a British subject, residing in Great Britain, were
by the statute of Georgia subjected, not to confiscation, but only to sequestration; and, therefore, that his
right to recover them, revived at the peace, both by the law of nations and the treaty of peace.
The question of forfeiture in the case of joint obligees, being at present immaterial, need not now be
decided.
It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is
the province of the jury, on questions of law, it is the province of the court to decide. But it must be
observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have
nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact
in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that
respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are
the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law.
But still both objects are lawfully, within your power of decision.
Some stress has been laid on a consideration of the different situations of the parties to the cause; The
State of Georgia, sues three private persons. But what is it to justice, how many, or how few; how high,
or how low; how rich, or how poor; the contending parties may chance to be? Justice is indiscriminately
due to all, without regard to numbers, wealth, or rank. Because to the State of Georgia, composed of
many [3 U.S. 4,5] thousands of people, the litigated sum cannot be of great moment, you will not for this
reason be justified, in deciding against her claim; if the money belongs to her, she ought to have it; but on
the other hand, no consideration of the circumstances, or of the comparative insignificance of the
defendant’s, can be a ground to deny them the advantage of a favourable verdict, if in justice they are
entitled to it.
Go then, Gentlemen, from the bar without any impressions of favor or prejudice for the one party or the
other; weigh well the merits of the case, and do on this, as you ought to do on every occasion, equal and
impartial justice.
The jury having been absent some time, returned to the bar, and proposed the following questions to the
court.
1. Did the act of the State of Georgia, completely vest the debts of Brailsford, Powell, & Hopton, in the
State, at the time of passing the same?
2. If so, did the treaty of peace, or any other matter, revive the right of the defendants to the debt in
controversy?
In answer to these questions, the CHIEF JUSTICE stated, that it was intended in the general charge of the
court, to comprise their sentiments upon the points now suggested; but as the jury entertained a doubt,
the enquiry was perfectly right. On the 1st question, he said it was the unanimous opinion of the judges,
that the act of the State of Georgia did not vest the debts of Brailsford, Powell & Hopton, in the State at
the time of passing it. On the 2nd question he said, that no sequestration divests the property in the thing
sequestered; and, consequently, Brailsford, at the peace, and indeed, throughout the war, was the real

owner of the debt. That it is true, the State of Georgia interposed with her legislative authority to prevent
Brailsford’s recovering the debt while the war continued, but, that the mere restoration of peace, as well
as the very terms of the treaty, revived the right of action to recover the debt, the property of which had
never in fact or law been taken from the defendants: and that if it were otherwise, the sequestration
would certainly remain a lawful impediment to the recovering of a bona fide debt, due to a British
creditor, in direct opposition to the 4th article of the treaty.
After this explanation, the jury, without going again from the bar, returned a Verdict for the defendants.
1. Mr. Bradford was appointed in the room of Edmund Randolph, Esq. who had accepted the office of
Secretary of State.
Text Version | Commentary | Contents

http://www.constitution.org/ussc/003-001.txt
SUPREME COURT of the UNITED STATES.
[ 3 U.S. 1]
February Term, 1794.
ON the meeting of the Court, a commission was read, dated the 28th of
January, 1794, appointing William Bradford, Esquire, Attorney-General of the
United States.[1]
The STATE of GEORGIA, versus BRAILSFORD, et al.
This cause was now tried, by a special jury, upon an amicable issue, to
ascertain , whether the debt due from Spalding, and the right of action to
recover it, belonged to the State of Georgia, or to the original creditors,
under all the circumstances, which are set forth in the pleadings and
arguments on the equity side of the Court? See 2 vol. Dall. Rep. 403, 415.
For the plaintiff, Ingersoll and Dallas, proposed two objects for enquiry:
-- 1. Was the debt due from Spalding, at any time the property of the State?
-- 2. Has the title of the State ceased, or been removed, and the right of
action re-vested in the defendants?
1. On the first point, they contended, that Georgia as a sovereign State,

had power to transfer the debt in question from the original creditor, an
alien enemy, to herself, notwithstanding some of the debtors were citizens
of another State; that by her confiscation law she had declared the
intention to make the transfer; and that without an inquest of office, her
intention had been carried into effect in due form, and according to [3 U.S.
1,2] law, as well in relation to her own citizens, as to the parties who
were citizens of South Carolina. -- In support of these several propositions
the following authorities were cited: 1 H.Bl. 149. Vatt B. 3. c. 77. Lee on
Capt. Bynk. B. 1. c. 7. Vatt. B. 3. c. 18. s. 295. Jenk. 121. Sir T. Park.
121. Plow. 243, 324. 1 H. Bl. 413. 2 Bl. Com. 405, 409. 2 Wood. 130. 4 B..
Com. 386. 1 Hal. P. C. 413. 3 Inst. 55. 1 Hawk. 68. 3 Bl. Com. 259. 3 T.
Rep. 731, 2, 3, 4. 1 Woodes. 146. Cor. Car. 460. 16 Vin. Abr. 85. 6. 3 Bl.
Com. 260. Park. 267. 1 P. Wm. 307. 1 Dail. Rep. 393. Hind. Ch. 129. 1 Vern.
58.
2. On the second point, it was urged, that although the word,

"sequestration" was used in the Georgia law, yet, that the law directed the
debt to be collected, in the same manner as debts confiscated, and to be put
into the treasury, for the use of the state, until it should be otherwise
appropriated; and that the state had never made any other appropriation;
but, on the first opportunity, claimed it as a forfeiture. The election,
therefore, to consider it as a confiscation, was reserved by the state to
herself; and her subsequent conduct makes the reservation absolute. The
exception of debts in the South-Carolina law cannot govern the case as to
Powell & Hopton; for that law is only referred to for the manner and form,
not for the subjects of confiscation. It only remains, therefore, to
enquire, whether, independent of Georgia, the operation and existence of her
law can be, and and has been, defeated and annulled. The peace merely does
not effect the right of the state; for, the condition of things at the
conclusion of the war is legitimate; and all things not mentioned in the
treaty, are to remain as at the conclusion of it. The treaty of 1783 does
not affect the right of the state; for, though it provides, generally, in
the 4th article, that creditors, on either side, shall meet with no lawful
impediment, in recovering their debts, this ought to be understood merely as
a provision that the war, abstractedly considered, shall make no difference
in the remedy, for the recovery of subsisting debts; that the remedy shall
not be perplexed by instalment laws, pine-barren laws, bull laws, paper
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money laws, &c; but it does not decide, what are subsisting debts, which can
only, indeed, be decided on the general principle of the law of nations.
Laws of sequestration and confiscation, are not, however, the object of the
4th article of the treaty of peace; but of a subsequent article, in which
Congress only promise (all, indeed, that they could do) to recommend to the
states, revision and restitution. Debts discharged by law, where they
originated, are every where discharged. Such is not only the doctrine of
Georgia, but of the British Statesmen and Judges wherever the question has
arisen. The Federal Constitution does not affect the right of the state;
for, though [3 U.S. 3] it gives effect to the treaty of peace, it furnishes
no rule for construing the meaning of the parties to that instrument. In
relation to these arguments, the following authorities were cited: -- State
papers, Jefferson to Hammond, Hinde Ch. 127. 1 Br. Ch. 376. 3 Bac. Abr. 310.
Caermarthen’s Memorial, American Museum, May 1787. 1 Hen. Bl. 123, 135. 3 T.
Rep. 732. 1 H. Bl. 149. 2 Br. Ch. 11. 1 H. Bl. 146.
For the defendants, Bradford (the attorney-general) E. Tilghman and Lewis

made the following points:--1st That the debts due to Powell & Hopton, had
not been confiscated by the law of South-Carolina, and, therefore, were not
confiscated by the words of reference in the law of Georgia; nor had Georgia
a right to confiscate the property of the citizens of other states. 2d. That
even if the law of Georgia had confiscated Brailford’s interest in the debt,
the right to recover the two thirds belonging to Powell & Hopton was
unimpaired. 3d. That the debt, as it respects Brailsford himself, is not
confiscated, but sequestered; and that the sequestration had not been
enforced by any inquest of office, seizure, or other act tantamount to an
office or seizure. 4th. That the Peace alone, without any positive compact,
restored the right of action to the original creditors. 5th. That without
recourse to the general principle of the law of nations, the treaty
expressly revives the right of action, by removing all legal impediments to
the recovery of bona-fide debts, and the treaty is the supreme law of the
land, by virtue of the Federal Constitution. In support of these
propositions the following authorities were cited: -- 3 Bac. 203. 2 Co. 67.
1 P. Wm. 307. Curs. Canc. 89. 1. Dom. Civ. L. 138, 147. Magna Carta. Sir T.
Park. 267. 3 T. Rep. 734. Vatt. b. 4. c. 1. s. 8. ib. c. 2. s. 20. 22. Burn.
Ec. L. 157. Carth. 148. Grot. b. 3. c. 20 s. 16. p. 700. 1 Dall. Rep. 233. 1
H. Bl. 123. 136. 2 Bro ch. 11. 1 Bl. c. 409. 240. Sir T. Raym. Saunf. 45.
Plowd. 259. 3 Inst. 55. 1 Hawk. 68. State papers Bynk. b. 1. C. 7. 1 Ver.
58. Circular Letter of Congress.
The argument having continued for four days, the Chief Justice delivered the
following charge on the 7th of February.
Jay, Chief Justice. This cause has been regarded as of great importance; and
doubtless is is so. It has accordingly been treated by the Counsel with
great learning, diligence and ability; and on your part it has been heard
with particular attention. It is, therefore, unnecessary for me to follow
the investigation over the extensive field into which it has been carried:
you are now, if ever you can be, completely possessed of the merits of the
cause. [3 U.S. 3,4]
The facts comprehended in the case, are agreed; the only point that remains,
is to settle what is the law of the land arising from those facts; and on
that point, it is proper, that the opinion of the court should be given. It
is fortunate on the present, as it must be on every occasion, to find the
opinion of the court unanimous: We entertain no diversity of sentiment; and
we have experienced no difficulty in uniting in the charge, which it is my
province to deliver.
We are then, Gentlemen, of opinion, that the debts due to Hopton & Powell
(who were citizens of South-Carolina) were not confiscated by the statute of

South-Carolina; the same being therein expressly excepted: That those debts
were not confiscated by the statute of Georgia, for that statute enacts,
with respect to Powell & Hopton, precisely the like, and no other, degree
and extent of confiscation and forfeiture, with that of South-Carolina.
Wherefore it cannot now be necessary to decide, how far one state may of
right legislate relative to the personal rights of citizens of another
state, not residing within their jurisdiction.
We are also of opinion, that the debts due to Brailsford, a British subject,
residing in Great Britain, were by the statute of Georgia subjected, not to
confiscation, but only to sequestration; and, therefore, that his right to
recover them, revived at the peace, both by the law of nations and the
treaty of peace.
The question of forfeiture in the case of joint obligees, being at present

immaterial, need not now be decided.
It may not be amiss, here, Gentlemen, to remind you of the good old rule,
that on questions of fact, it is the province of the jury, on questions of
law, it is the province of the court to decide. But it must be observed that
by the same law, which recognizes this reasonable distribution of
jurisdiction, you have nevertheless a right to take upon yourselves to judge
of both, and to determine the law as well as the fact in controversy. On
this, and on every other occasion, however, we have no doubt, you will pay
that respect, which is due to the opinion of the court: For, as on the one
hand, it is presumed, that juries are the best judges of facts; it is, on
the other hand, presumbable, that the court are the best judges of the law.
But still both objects are lawfully, within your power of decision.
Some stress has been laid on a consideration of the different situations of

the parties to the cause; The State of Georgia, sues three private persons.
But what is it to justice, how many, or how few; how high, or how low; how
rich, or how poor; the contending parties may chance to be? Justice is
indiscriminately due to all, without regard to numbers, wealth, or rank.
Because to the State of Georgia, composed of many [3 U.S. 4,5] thousands of
people, the litigated sum cannot be of great moment, you will not for this
reason be justified, in deciding against her claim; if the money belongs to
her, she ought to have it; but on the other hand, no consideration of the
circumstances, or of the comparative insignificance of the defendant’s, can
be a ground to deny them the advantage of a favourable verdict, if in
justice they are entitled to it.
Go then, Gentlemen, from the bar without any impressions of favor or

prejudice for the one party or the other; weigh well the merits of the case,
and do on this, as you ought to do on every occasion, equal and impartial
justice.
The jury having been absent some time, returned to the bar, and proposed the
following questions to the court.
1. Did the act of the State of Georgia, completely vest the debts of
Brailsford, Powell, & Hopton, in the State, at the time of passing the same?
2. If so, did the treaty of peace, or any other matter, revive the right of
the defendants to the debt in controversy?
In answer to these questions, the CHIEF JUSTICE stated, that it was intended
in the general charge of the court, to comprise their sentiments upon the
points now suggested; but as the jury entertained a doubt, the enquiry was
perfectly right. On the 1st question, he said it was the unanimous opinion
of the judges, that the act of the State of Georgia did not vest the debts

of Brailsford, Powell & Hopton, in the State at the time of passing it. On
the 2nd question he said, that no sequestration divests the property in the
thing sequestered; and, consequently, Brailsford, at the peace, and indeed,
throughout the war, was the real owner of the debt. That it is true, the
State of Georgia interposed with her legislative authority to prevent
Brailsford’s recovering the debt while the war continued, but, that the mere
restoration of peace, as well as the very terms of the treaty, revived the
right of action to recover the debt, the property of which had never in fact
or law been taken from the defendants: and that if it were otherwise, the
sequestration would certainly remain a lawful impediment to the recovering
of a bona fide debt, due to a British creditor, in direct opposition to the
4th article of the treaty.
After this explanation, the jury, without going again from the bar, returned
a Verdict for the defendants.
1. Mr. Bradford was appointed in the room of Edmund Randolph, Esq. who had
accepted the office of Secretary of State.

State of Georgia v. Brailsford, et al., 3 U.S. 1 (Dall.) (1794): Commentary

Commentary by Jon Roland
This is the first Supreme Court case which recognized and established the principle that in a jury trial the
jury has the right and duty to judge the law as well as the facts in a case, which was later to be
undermined by Sparf v. U.S.[1] The key quote is:
... on questions of fact, it is the province of the jury, on questions of law, it is the province of
the court to decide. But it must be observed that by the same law, which recognizes this
reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves
to judge of both, and to determine the law as well as the fact in controversy. On this, and on
every other occasion, however, we have no doubt, you will pay that respect, which is due to
the opinion of the court: For, as on the one hand, it is presumed, that juries are the best
judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the
law. But still both objects are lawfully, within your power of decision. — Chief Justice John
Jay.
1. Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895).
http://www.constitution.org/ussc/003-001jr.htm [1/9/2001 7:45:40 PM]

http://www.constitution.org/ussc/003-001jr.txt
This is the first Supreme Court case which recognized and established the
principle that in a jury trial the jury has the right and duty to judge the
law as well as the facts in a case, which was later to be undermined by
Sparf v. U.S.[1] The key quote is:
... on questions of fact, it is the province of the jury, on

questions of law, it is the province of the court to decide. But
it must be observed that by the same law, which recognizes
this reasonable distribution of jurisdiction, you have
nevertheless a right to take upon yourselves to judge of both,
and to determine the law as well as the fact in controversy. On
this, and on every other occasion, however, we have no
doubt, you will pay that respect, which is due to the opinion of
the court: For, as on the one hand, it is presumed, that juries
are the best judges of facts; it is, on the other hand,
presumbable, that the court are the best judges of the law. But
still both objects are lawfully, within your power of decision.
-- Chief Justice John Jay.
1. Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895).
http://www.constitution.org/ussc/003-001jr.txt [1/9/2001 7:45:43 PM]

Calder v. Bull, 3 U.S. 386 (1798)
U.S. Supreme Court

CALDER v. BULL, 3 U.S. 386 (Dall.) (1798)
Calder et Wife,
v.
Bull et Wife.
August Term, 1798
In error from the State of Connecticut. The cause was argued at the last term, (in the absence of THE
CHIEF JUSTICE) and now the court delivered their opinions seriatim.
CHASE, Justice. The decision of one question determines (in my opinion), the present dispute. I shall,
therefore, state from the record no more of the case, than I think necessary for the consideration of that
question only.
The Legislature of Connecticut, on the 2nd Thursday of May 1795, passed a resolution or law, which, for
the reasons assigned, set aside a decree of the court of Probate for Harford, on the 21st of March 1793,
which decree disapproved of the will of Normand Morrison (the grandson) made the 21st of August
1779, and refused to record the said will; and granted a new hearing by the said Court of Probate, with
liberty of appeal therefrom, in six months. A new hearing was had, in virtue of this resolution, or law,
before the said Court of Probate, who, on the 27th of July 1795, approved the said will, and ordered it to
be recorded. At August 1795, appeal was then had to the superior court at Harford, who at February
term 1796, affirmed the decree of the Court of Probate. Appeal was had to the Supreme Court of errors
of Connecticut, who, in June 1796, adjudged, that there were no errors. More than 18 months elapsed
from the decree of the Court of Probate (on the 1st of March 1793) and thereby Caleb Bull and wife
were barred of all right [3 U.S. 386, 387] of appeal, by a statute of Connecticut. There was no law of that
State whereby a new hearing, or trial, before the said Court of Probate might be obtained. Calder and
wife claim the premises in question, in right of his wife, as heiress of N. Morrison, physician; Bull and
wife claim under the will of N. Morrison, the grandson.
The Council for the Plaintiffs in error, contend, that the said resolution or law of the Legislature of
Connecticut, granting a new hearing, in the above case, is an ex post facto law, prohibited by the
Constitution of the United States; that any law of the Federal government, or of any of the State
governments, contrary to the Constitution of the United States, is void; and that this court possesses the
power to declare such law void.
It appears to me a self-evident proposition, that the several State Legislatures retain all the powers of
legislation, delegated to them by the State Constitutions; which are not EXPRESSLY taken away by the
Constitution of the United States. The establishing courts of justice, the appointment of Judges, and the
making regulations for the administration of justice, within each State, according to its laws, on all
subjects not entrusted to the Federal Government, appears to me to be the peculiar and exclusive
province, and duty of the State Legislatures: All the powers delegated by the people of the United States
to the Federal Government are defined, and NO CONSTRUCTIVE powers can be exercised by it, and all
the powers that remain in the State Governments are indefinite; except only in the Constitution of
Massachusetts.

Calder v. Bull, 3 U.S. 386 (1798)
The effect of the resolution or law of Connecticut, above stated, is to revise a decision of one of its
Inferior Courts, called the Court of Probate for Harford, and to direct a new hearing of the case by the
same Court of Probate, that passed the decree against the will of Normand Morrison. By the existing law
of Connecticut a right to recover certain property had vested in Calder and wife (the appellants) in
consequence of a decision of a court of justice, but, in virtue of a subsequent resolution or law, and the
new hearing thereof, and the decision in consequence, this right to recover certain property was divested,
and the right to the property declared to be in Bull and wife, the appellees. The sole enquiry is, whether
this resolution or law of Connecticut, having such operation, is an ex post facto law, within the
prohibition of the Federal Constitution?
Whether the Legislature of any of the States can revise and correct by law, a decision of any of its Courts
of Justice, although not prohibited by the Constitution of the State, is a question of very great importance,
and not necessary NOW to be determined; because the resolution or law in question does not go so far. I
cannot subscribe to the omnipotence of a State [3 U.S. 386, 388] Legislature, or that it is absolute and
without control; although its authority should not be expressly restrained by the Constitution, or
fundamental law, of the State. The people of the United States erected their Constitutions, or forms of
government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to
protect their persons and property from violence. The purposes for which men enter into society will
determine the nature and terms of the social compact; and as they are the foundation of the legislative
power, they will decide what are the proper objects of it: The nature, and ends of legislative power will
limit the exercise of it. This fundamental principle flows from the very nature of our free Republican
governments, that no man should be compelled to do what the laws do not require; nor to refrain from
acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without
exceeding their authority. There are certain vital principles in our free Republican governments, which
will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize
manifest injustice by positive law; or to take away that security for personal liberty, or private property,
for the protection whereof of the government was established. An ACT of the Legislature (for I cannot
call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful
exercise of legislative authority. The obligation of a law in governments established on express compact,
and on republican principles, must be determined by the nature of the power, on which it is founded. A
few instances will suffice to explain what I mean. A law that punished a citizen for an innocent action,
or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys,
or impairs, the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a
law that takes property from A. and gives it to B: It is against all reason and justice, for a people to
entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The
genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of
legislation; and the general principles of law and reason forbid them. The Legislature may enjoin,
permit, forbid, and punish; they may declare new crimes; and establish rules of conduct for all its citizens
in future cases; they may command what is right, and prohibit what is wrong; but they cannot change
innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private
contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses
such powers, if they had not been expressly restrained; would, [3 U.S. 386, 389] in my opinion, be a
political heresy, altogether inadmissible in our free republican governments.
ALL the restrictions contained in the Constitution of the United States on the power of the State
Legislatures, were provided in favour of the authority of the Federal Government. The prohibition

Calder v. Bull, 3 U.S. 386 (1798)
against their making any ex post facto laws was introduced for greater caution, and very probably arose
from the knowledge, that the Parliament of Great Britain claimed and exercised a power to pass such
laws, under the denomination of bills of attainder, or bills of pains and penalties; the first inflicting
capital, and the other less, punishment. These acts were legislative judgments; and an exercise of judicial
power. Sometimes they respected the crime, by declaring acts to be treason, which were not treason,
when committed;[1] at other times, they violated the rules of evidence (to supply a deficiency of legal
proof) by admitting one witness, when the existing law required two; by receiving evidence without oath;
or the oath of the wife against the husband; or other testimony, which the courts of justice would not
admit;[2] at other times they inflicted punishments, where the party was not, by law, liable to any
punishment;[3] and in other cases, they inflicted greater punishment, than the law annexed to the
offence.[4] — The ground for the exercise of such legislative power was this, that the safety of the
kingdom depended on the death, or other punishment, of the offender: as if traitors, when discovered,
could be so formidable, or the government so insecure! With very few exceptions, the advocates of such
laws were stimulated by ambition, or personal resentment, and vindictive malice. To prevent such, and
similar, acts of violence and injustice, I believe, the Federal and State Legislatures, were prohibited from
passing any bill of attainder; or any ex post facto law.
The Constitution of the United States, article 1, section 9, prohibits the Legislature of the United States
from passing any ex post facto law; and, in section 10, lays several restrictions on the authority of the
Legislatures of the several states; and, among them, "that no state shall pass any ex post facto law." It
may be remembered, that the legislatures of several of the states, to wit, Massachusetts, Pennsylvania,
Delaware, Maryland, and North and South Carolina, are expressly prohibited, by their state
Constitutions, from passing any ex post facto law. [3 U.S. 386, 390]
I shall endeavour to show what law is to be considered an ex post facto law, within the words and
meaning of the prohibition in the Federal Constitution. The prohibition, "that no state shall pass any ex
post facto law," necessarily requires some explanation; for, naked and without explanation, it is
unintelligible, and means nothing. Literally, it is only, that a law shall not be passed concerning, and
after the fact, or thing done, or action committed. I would ask, what fact; of what nature, or kind; and by
whom done? That Charles 1st. king of England, was beheaded; that Oliver Cromwell was Protector of
England; that Louis 16th, late King of France, was guillotined; are all facts, that have happened; but it
would be nonsense to suppose, that the States were prohibited from making any law after either of these
events, and with reference thereto. The prohibition, in the letter, is not to pass any law concerning, and
after the fact; but the plain and obvious meaning and intention of the prohibition is this; that the
Legislatures of the several states, shall not pass laws, after a fact done by a subject, or citizen, which
shall have relation to such fact, and shall punish him for having done it. The prohibition considered in
this light, is an additional bulwark in favour of the personal security of the subject, to protect his person
from punishment by legislative acts, having a retrospective operation. I do not think it was inserted to
secure the citizen in his private rights, of either property, or contracts. The prohibitions not to make any
thing but gold and silver coin a tender in payment of debts, and not to pass any law impairing the
obligation of contracts, were inserted to secure private rights; but the restriction not to pass any ex post
facto law, was to secure the person of the subject from injury, or punishment, in consequence of such
law. If the prohibition against making ex post facto laws was intended to secure personal rights from
being affected, or injured, by such laws, and the prohibition is sufficiently extensive for that object, the
other restraints, I have enumerated, were unnecessary, and therefore improper; for both of them are
retrospective.

Calder v. Bull, 3 U.S. 386 (1798)
I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st.
Every law that makes an action , done before the passing of the law, and which was innocent when done,
criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it
was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law required at the time of the commission of the
offence, in order to convict the offender. [3 U.S. 386, 391] All these, and similar laws, are manifestly
unjust and oppressive. In my opinion, the true distinction is between ex post facto laws, and retrospective
laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex
post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested,
agreeably to existing laws, is retrospective, and is generally unjust; and may be oppressive; and it is a
good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and
for the benefit of the community, and also of individuals, relate to a time antecedent to their
commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both
concerning, and after, the facts committed. But I do not consider any law ex post facto, within the
prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the
crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction. Every
law that is to have an operation before the making thereof, as to commence at an antecedent time; or to
save time from the statute of limitations; or to excuse acts which were unlawful, and before committed,
and the like; is retrospective. But such laws may be proper or necessary, as the case may be. There is a
great and apparent difference between making an UNLAWFUL act LAWFUL; and the making an innocent
action criminal, and punishing it as a CRIME. The expressions "ex post facto laws," are technical, they
had been in use long before the Revolution, and had acquired an appropriate meaning, by Legislators,
Lawyers, and Authors. The celebrated and judicious Sir William Blackstone, in his commentaries,
considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his
successor, Mr. Wooddeson; and by the author of the Federalist, who I esteem superior to both, for his
extensive and accurate knowledge of the true principles of Government.
I also rely greatly on the definition, or explanation of EX POST FACTO LAWS, as given by the
Conventions of Massachusetts, Maryland, and North Carolina; in their several Constitutions, or forms of
Government.
In the declaration of rights, by the convention of Massachusetts, part 1st. sect. 24, "Laws made to punish
actions done before the existence of such laws, and which have not been declared CRIMES by preceeding
laws, are unjust, etc."
In the declaration of rights, by the convention of Maryland, art. 15th, "Retrospective laws punishing facts
committed before the existence of such laws, and by them only declared criminal, are oppressive, etc." [3
U.S. 386, 392]
In the declaration of rights by the convention of North Carolina, art. 24th, I find the same definition,
precisely in the same words, as in the Maryland constitution.
In the declaration of Rights by the convention of Delaware, art. 11th, the same definition was clearly
intended, but inaccurately expressed; by saying "laws punishing offences (instead of actions, or facts)
committed before the existence of such laws, are oppressive, etc."
I am of opinion, that the fact, contemplated by the prohibition, and not to be affected by a subsequent

Calder v. Bull, 3 U.S. 386 (1798)
law, was some fact to be done by a Citizen, or Subject.

In 2nd Lord Raymond 1352, Raymond, Justice, called the stat. 7 Geo. 1st. stat. 2 par 8, about registering
Contracts for South Sea Stock, an ex post facto law; because it affected Contracts made before the
statute.
In the present case, there is no fact done by Bull and wife Plaintiffs in Error, that is in any manner
affected by the law or resolution of Connecticut: It does not concern, or relate to, any act done by them.
The decree of the Court of Probate of Harford (on the 21st, March) in consequence of which Calder and
wife claim a right to the property in question, was given before the said law or resolution, and in that
sense, was affected and set aside by it; and in consequence of the law allowing a hearing and the decision
in favor of the will, they have lost, what they would have been entitled to, if the Law or resolution, and
the decision in consequence thereof, had not been made. The decree of the Court of probate is the only
fact, on which the law or resolution operates. In my judgment the case of the Plaintiffs in Error, is not
within the letter of the prohibition; and, for the reasons assigned, I am clearly of opinion, that it is not
within the intention of the prohibition; and if within the intention, but out of the letter, I should not,
therefore, consider myself justified to continue it within the prohibition, and therefore that the whole was
void.
It was argued by the Counsel for the plaintiffs in error, that the Legislature of Connecticut had no
constitutional power to make the resolution (or law) in question, granting a new hearing, etc.
Without giving an opinion, at this time, whether this Court has jurisdiction to decide that any law made
by Congress, contrary to the Constitution of the United States, is void; I am fully satisfied that this court
has no jurisdiction to determine that any law of any state Legislature, contrary to the Constitution of such
state, is void. Further, if this court had such jurisdiction, yet it does not appear to me, that the resolution
(or law) in question, is contrary to the charter of Connecticut, or its constitution, which is said by counsel
to be composed of its charter, [3 U.S. 386, 393] acts of assembly, and usages, and customs. I should think,
that the courts of Connecticut are the proper tribunals to decide, whether laws, contrary to the
constitution thereof, are void. In the present case they have, both in the inferior and superior courts,
determined that the Resolution (or law) in question was not contrary to either their state, or the federal,
constitution.
To show that the resolution was contrary to the constitution of the United States, it was contended that
the words, ex post facto law, have a precise and accurate meaning, and convey but one idea to
professional men, which is, "by matter of after fact; by something after the fact." And Co. Litt. 241.
Fearnes Con. Rem. (Old Ed.) 175 and 203. Powell on Devises 113, 133. 134. were cited; and the table to
Coke's Reports (by Wilson) title ex post facto, was referred to. There is no doubt that a man may be a
trespasser from the beginning, by matter of after fact; as where an entry is given by law, and the party
abuses it; or where the law gives a distress, and the party kills, or works, the distress.
I admit, an act unlawful in the beginning may, in some cases, become lawful by matter of after fact.
I also agree, that the words "ex post facto" have the meaning contended for, and no other, in the cases
cited, and in all similar cases; where they are used unconnected with, and without relation to, Legislative
acts, or laws.
There appears to me a manifest distinction between the case where one fact relates to, and affects,

Calder v. Bull, 3 U.S. 386 (1798)
another fact, as where an after fact, by operation of law, makes a former fact, either lawful or unlawful;
and the case where a law made after a fact done, is to operate on, and to affect, such fact. In the first case
both the acts are done by private persons. In the second case the first act is done by a private person, and
the second act is done by the legislature to affect the first act.
I believe that but one instance can be found in which a British judge called a statute, that affected
contracts made before the statute, an ex post facto law; but the judges of Great Britain always considered
penal statutes, that created crimes, or encreased the punishment of them, as ex post facto laws.
If the term ex post facto law is to be construed to include and to prohibit the enacting any law after a
fact, it will greatly restrict the power of the federal and state legislatures; and the consequences of such a
construction may not be foreseen.
If the prohibition to make no ex post facto law extends to all laws made after the fact, the two
prohibitions, not to make any thing but gold and silver coin a tender in payment of debts; and not to pass
any law impairing the obligation of contracts, were improper and unnecessary. [3 U.S. 386, 394]
It was further urged, that if the provision does not extend to prohibit the making any law after a fact, then
all choses in action; all lands by Devise; all personal property by bequest, or distribution; by Elegit; by
execution; by judgments, particularly on torts; will be unprotected from the legislative power of the
states; rights vested may be divested at the will and pleasure of the state legislatures; and, therefore, that
the true construction and meaning of the prohibition is, that the states pass no law to deprive a citizen of
any right vested in him by existing laws.
It is not to be presumed, that the federal or state legislatures will pass laws to deprive citizens of rights
vested in them by existing laws; unless for the benefit of the whole community; and on making full
satisfaction. The restraint against making any ex post facto laws was not considered, by the framers of
the constitution, as extending to prohibit the depriving a citizen even of a vested right to property; or the
provision, "that private property should not be taken for PUBLIC use, without just compensation," was
unnecessary.
It seems to me, that the right of property, in its origin, could only arise from compact express, or implied,
and I think it the better opinion, that the right, as well as the mode, or manner, of acquiring property, and
of alienating or transferring, inheriting, or transmitting it, is conferred by society; is regulated by civil
institution, and is always subject to the rules prescribed by positive law. When I say that a right is vested
in a citizen, I mean, that he has the power to do certain actions; or to possess certain things, according to
the law of the land.
If any one has a right to property such right is a perfect and exclusive right; but no one can have such
right before he has acquired a better right to the property, than any other person in the world: a right,
therefore, only to recover property cannot be called a perfect and exclusive right. I cannot agree, that a
right to property vested in Calder and wife, in consequence of the decree (of the 21st. of March 1783)
disapproving of the will of Morrison, the Grandson. If the will was valid, Mrs. Calder could have no
right, as heiress of Morrison, the physician; but if the will was set aside, she had an undoubted title.
The resolution (or law) alone had no manner of effect on any right whatever vested in Calder and wife.
The Resolution (or law) combined with the new hearing, and the decision, in virtue of it, took away their
right to recover the property in question. But when combined they took away no right of property vested
in Calder and wife; because the decree against the will (21st. March 1783) did not vest in or transfer any

Calder v. Bull, 3 U.S. 386 (1798)
property to them. [3 U.S. 386, 395]

I am under a necessity to give a construction, or explanation of the words, "ex post facto law," because
they have not any certain meaning attached to them. But I will not go farther than I feel myself bound to
do; and if I ever exercise the jurisdiction I will not decide any law to be void, but in a very clear case.
I am of opinion, that the decree of the Supreme Court of Errors of Connecticut be affirmed, with costs.
PATERSON, Justice. The Constitution of Connecticut is made up of usages, and it appears that its
Legislature have, from the beginning, exercised the power of granting new trials. This has been
uniformly the case till the year 1762, when this power was, by a legislative act, imparted to the superior
and county courts. But the act does not remove or annihilate the pre-existing power of the Legislature, in
this particular; it only communicates to other authorities a concurrence of jurisdiction, as to the awarding
of new trials. And the fact is, that the Legislature have, in two instances, exercised this power since the
passing of the law in 1762. They acted in a double capacity, as a house of legislation, with undefined
authority, and also as a court of judicature in certain exigencies. Whether the latter arose from the
indefinite nature of their legislative powers, or in some other way, it is not necessary to discuss. From the
best information, however, which I have been able to collect on this subject, it appears, that the
Legislature, or general court of Connecticut, originally possessed, and exercised all legislative, executive,
and judicial authority; and that, from time to time, they distributed the two latter in such manner as they
thought proper; but without parting with the general superintending power, or the right of exercising the
same, whenever they should judge it expedient. But be this as it may, it is sufficient for the present to
observe, that they have on certain occasions, excercised judicial authority from the commencement of
their civil polity. This usage makes up part of the Constitution of Connecticut, and we are bound to
consider it as such, unless it be inconsistent with the Constitution of the United States. True it is, that the
awarding of new trials falls properly within the province of the judiciary; but if the Legislature of
Connecticut have been in the uninterrupted exercise of this authority, in certain cases, we must, in such
cases, respect their decisions as flowing from a competent jurisdiction, or constitutional organ. And
therefore we may, in the present instance, consider the Legislature of the state, as having acted in their
customary judicial capacity. If so, there is an end of the question. For if the power, thus exercised, comes
more properly within the description of a judicial than of a legislative power; and if by usage or the [3
U.S. 386, 396] Constitution, which, in Connecticut, are synonimous terms, the Legislature of that state
acted in both capacities; then in the case now before us, it would be fair to consider the awarding of a
new trial, as an act emanating from the judiciary side of the department. But as this view of the subject
militates against the Plaintiffs in error, their counsel has contended for a reversal of the judgment, on the
ground, that the awarding of a new trial, was the effect of a legislative act, and that it is unconstitutional,
because an ex post facto law. For the sake of ascertaining the meaning of these terms, I will consider the
resolution of the General court of Connecticut, as the exercise of a legislative and not a judicial authority.
The question, then, which arises on the pleadings in this cause, is, whether the resolution of the
Legislature of Connecticut, be an ex post facto law, within the meaning of the Constitution of the United
States? I am of opinion, that it is not. The words, ex post facto, when applied to a law, have a technical
meaning, and, in legal phraseology, refer to crimes, pains, and penalties. Judge Blackstone's description
of the terms is clear and accurate. "There is, says he, a still more unreasonable method than this, which is
called making of laws, ex post facto, when after an action, indifferent in itself, is committed, the
Legislator, then, for the first time, declares it to have been a crime, and inflicts a punishment upon the
person who has committed it. Here it is impossible, that the party could foresee that an action, innocent
when it was done, should be afterwards converted to guilt by a subsequent law; he had, therefore, no

Calder v. Bull, 3 U.S. 386 (1798)
cause to abstain from it; and all punishment for not abstaining, must, of consequence, be cruel and
unjust." 1 Bl. Com. 46. Here the meaning, annexed to the terms ex post facto laws, unquestionably refers
to crimes, and nothing else. The historic page abundantly evinces, that the power of passing such laws
should be withheld from legislators; as it is a dangerous instrument in the hands of bold, unprincipled,
aspiring, and party men, and has been two often used to effect the most detestable purposes.
On inspecting such of our state Constitutions, as take notice of laws made ex post facto, we shall find,
that they are understood in the same sense.
The Constitution of Massachusetts, article 24th of the Declaration of rights:
"Laws made to punish for actions done before the existence of such laws, and which have not been
declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental
principles of a free government."
The Constitution of Delaware, article 11th of the Declaration of Rights: [3 U.S. 386, 397]
"That retrospective laws punishing offences committed before the existence of such laws, are oppressive
and unjust, and ought not to be made."
The Constitution of Maryland, article 15th of the Declaration of Rights:
"That retrospective laws, punishing facts committed before the existence of such laws, and by them only
declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law
ought to be made."
The Constitution of North Carolina, article 24th of the Declaration of Rights:
"That retrospective laws, punishing facts committed before the existence of such laws, and by them only
declared criminal, are oppressive, unjust, and incompatible with liberty; wherefore no ex post facto law
ought to be made."
From the above passages it appears, that ex post facto laws have an appropriate signification; they extend
to penal statutes, and no further; they are restricted in legal estimation to the creation, and, perhaps,
enhancement of crimes, pains and penalties. The enhancement of a crime, or penalty, seems to come
within the same mischief as the creation of a crime or penalty; and therefore they may be classed
together.
Again, the words of the Constitution of the United States are, "That no State shall pass any bill of
attainder, ex post facto law, or law impairing the obligation of contracts." Article 1st. section 10.
Where is the necessity or use of the latter words, if a law impairing the obligation of contracts, be
comprehended within the terms ex post facto law? It is obvious from the specification of contracts in the
last member of the clause, that the framers of the Constitution, did not understand or use the words in the
sense contended for on the part of the Plaintiffs in Error. They understood and used the words in their
known and appropriate signification, as referring to crimes, pains, and penalties, and no further. The
arrangement of the distinct members of this section, necessarily points to this meaning.
I had an ardent desire to have extended the provision in the Constitution to retrospective laws in general.
There is neither policy nor safety in such laws; and, therefore, I have always had a strong aversion

Calder v. Bull, 3 U.S. 386 (1798)
against them. It may, in general, be truly observed of retrospective laws of every description, that they
neither accord with sound legislation, nor the fundamental principles of the social compact. But on full
consideration, I am convinced, that ex post facto laws must be limited in the manner already expressed;
they must be taken in their technical, which is also their common and general, acceptation, and are not to
be understood in their literal sense. [3 U.S. 386, 398]
IREDELL, Justice. Though I concur in the general result of the opinions, which have been delivered, I
cannot entirely adopt the reasons that are assigned upon the occasion.
From the best information to be collected, relative to the Constitution of Connecticut, it appears, that the
Legislature of that State has been in the uniform, uninterrupted, habit of exercising a general
superintending power over its courts of law, by granting new trials. It may, indeed, appear strange to
some of us, that in any form, there should exist a power to grant, with respect to suits depending or
adjudged, new rights of trial, new privileges of proceeding, not previously recognized and regulated by
positive institutions; but such is the established usage of Connecticut, and it is obviously consistent with
the general superintending authority of her Legislature Nor is it altogether without some sanction for a
Legislature to act as a court of justice. In England, we know, that one branch of the Parliament, the house
of Lords, not only exercises a judicial power in cases of impeachment, and for the trial of its own
members, but as the court of dernier resort, takes cognizance of many suits at law, and in equity: And
that in construction of law, the jurisdiction there exercised is by the King in full Parliament; which shows
that, in its origin, the causes were probably heard before the whole Parliament. When Connecticut was
settled, the right of empowering her Legislature to superintend the Courts of Justice, was, I presume,
early assumed; and its expediency, as applied to the local circumstances and municipal policy of the
State, is sanctioned by a long and uniform practice. The power, however, is judicial in its nature; and
whenever it is exercised, as in the present instance, it is an exercise of judicial, not of legislative,
authority.
But, let us, for a moment, suppose, that the resolution, granting a new trial, was a legislative act, it will
by no means follow, that it is an act affected by the constitutional prohibition, that "no State shall pass
any ex post facto law." I will endeavour to state the general principles, which influence me, on this point,
succinctly and clearly, though I have not had an opportunity to reduce my opinion to writing.
If, then, a government, composed of Legislative, Executive and Judicial departments, were established,
by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably
be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power
could never interpose to pronounce it void. It is true, that some speculative jurists have held, that a
legislative act against natural justice must, in itself, be void; but I cannot think that, under such a
government, any Court of Justice would possess a power to declare it so. Sir William Blackstone, having
put the strong case of an act of Parliament, which [3 U.S. 386, 399] should authorise a man to try his own
cause, explicitly adds, that even in that case, "there is no court that has power to defeat the intent of the
Legislature, when couched in such evident and express words, as leave no doubt whether it was the intent
of the Legislature, or no." 1 Bl. Com. 91.
In order, therefore, to guard against so great an evil, it has been the policy of all the American states,
which have, individually, framed their state constitutions since the revolution, and of the people of the
United States, when they framed the Federal Constitution, to define with precision the objects of the
legislative power, and to restrain its exercise within marked and settled boundaries. If any act of

Calder v. Bull, 3 U.S. 386 (1798)
Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably

void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court
will never resort to that authority, but in a clear and urgent case. If, on the other hand, the Legislature of
the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of
their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their
judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no
fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could
properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had
passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural
justice. There are then but two lights, in which the subject can be viewed: 1st. If the Legislature pursue
the authority delegated to them, their acts are valid. 2nd. If they transgress the boundaries of that
authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the
people, to whom alone they are responsible for the faithful discharge of their trust: but in the latter case,
they violate a fundamental law, which must be our guide, whenever we are called upon as judges to
determine the validity of a legislative act.
Still, however, in the present instance, the act or resolution of the Legislature of Connecticut, cannot be
regarded as an ex post facto law; for, the true construction of the prohibition extends to criminal, not to
civil, cases. It is only in criminal cases, indeed, in which the danger to be guarded against, is greatly to be
apprehended. The history of every country in Europe will furnish flagrant instances of tyranny exercised
under the pretext of penal dispensations. Rival factions, in their efforts to crush each other, have
superseded all the forms, and suppressed all the sentiments, of justice; while attainders, on the principle
of retaliation and proscription, have marked all the [3 U.S. 386, 400] vicissitudes of party triumph. The
temptation to such abuses of power is unfortunately too alluring for human virtue; and, therefore, the
framers of the American Constitutions have wisely denied to the respective Legislatures, Federal as well
as State, the possession of the power itself: They shall not pass any ex post facto law; or, in other words,
they shall not inflict a punishment for any act, which was innocent at the time it was committed; nor
increase the degree of punishment previously denounced for any specific offence.
The policy, the reason and humanity, of the prohibition, do not, I repeat, extend to civil cases, to cases
that merely affect the private property of citizens. Some of the most necessary and important acts of
Legislation are, on the contrary, founded upon the principle, that private rights must yield to public
exigences. Highways are run through private grounds. Fortifications, Light-houses, and other public
edifices, are necessarilly sometimes built upon the soil owned by individuals. In such, and similar cases,
if the owners should refuse voluntarily to accommodate the public, they must be constrained, as far as the
public necessities require; and justice is done, by allowing them a reasonable equivalent. Without the
possession of this power the operations of Government would often be obstructed, and society itself
would be endangered. It is not sufficient to urge, that the power may be abused, for, such is the nature of
all power, such is the tendency of every human institution: and, it might as fairly be said, that the power
of taxation, which is only circumscribed by the discretion of the Body, in which it is vested, ought not to
be granted, because the Legislature, disregarding its true objects, might, for visionary and useless
projects, impose a tax to the amount of nineteen shillings in the pound. We must be content to limit
power where we can, and where we cannot, consistently with its use, we must be content to repose a
salutary confidence. It is our consolation that there never existed a Government, in ancient or modern
times, more free from danger in this respect, than the Governments of America.
Upon the whole, though there cannot be a case, in which an ex post facto law in criminal matters is

Calder v. Bull, 3 U.S. 386 (1798)
requisite, or justifiable (for Providence never can intend to promote the prosperity of any country by bad
means) yet, in the present instance the objection does not arise: Because, 1st. if the act of the Legislature
of Connecticut was a judicial act, it is not within the words of the Constitution; and 2nd. even if it was a
legislative act, it is not within the meaning of the prohibition.
CUSHING, Justice. The case appears to me to be clear of all difficulty, taken either way. If the act is a
judicial act, it is not touched by the Federal Constitution: and, if it is a legislative [3 U.S. 386, 401] act, it is
maintained and justified by the ancient and uniform practice of the state of Connecticut.
JUDGMENT affirmed.
1. The case of the Earl of Strafford, in 1641.

2. The case of Sir John Fenwick, in 1696.
3. The banishment of Lord Clarendon, 1669 (19 Ca. 2. c. 10.) and of the Bishop of Atterbury, in 1723, (9
Geo. 1. c. 17.)
4. The Coventry act, in 1670, (22 & 23 Car. 2 c. 1.)

U.S. Supreme Court
CALDER v. BULL, 3 U.S. 386 (Dall.) (1798)
Calder et Wife,
v.
Bull et Wife.
August Term, 1798
In error from the State of Connecticut. The cause was argued at the last
term, (in the absence of THE CHIEF JUSTICE) and now the court delivered
their opinions seriatim.
CHASE, Justice. The decision of one question determines (in my opinion),

the present dispute. I shall, therefore, state from the record no more of
the case, than I think necessary for the consideration of that question
only.
The Legislature of Connecticut, on the 2nd Thursday of May 1795, passed a

resolution or law, which, for the reasons assigned, set aside a decree of
the court of Probate for Harford, on the 21st of March 1793, which decree
disapproved of the will of Normand Morrison (the grandson) made the 21st of
August 1779, and refused to record the said will; and granted a new hearing
by the said Court of Probate, with liberty of appeal therefrom, in six
months. A new hearing was had, in virtue of this resolution, or law, before
the said Court of Probate, who, on the 27th of July 1795, approved the said
will, and ordered it to be recorded. At August 1795, appeal was then had to
the superior court at Harford, who at February term 1796, affirmed the
decree of the Court of Probate. Appeal was had to the Supreme Court of
errors of Connecticut, who, in June 1796, adjudged, that there were no
errors. More than 18 months elapsed from the decree of the Court of Probate
(on the 1st of March 1793) and thereby Caleb Bull and wife were barred of
all right [3 U.S. 386, 387] of appeal, by a statute of Connecticut. There
was no law of that State whereby a new hearing, or trial, before the said
Court of Probate might be obtained. Calder and wife claim the premises in
question, in right of his wife, as heiress of N. Morrison, physician; Bull
and wife claim under the will of N. Morrison, the grandson.
The Council for the Plaintiffs in error, contend, that the said resolution
or law of the Legislature of Connecticut, granting a new hearing, in the
above case, is an ex post facto law, prohibited by the Constitution of the
United States; that any law of the Federal government, or of any of the
State governments, contrary to the Constitution of the United States, is
void; and that this court possesses the power to declare such law void.
It appears to me a self-evident proposition, that the several State

Legislatures retain all the powers of legislation, delegated to them by the
State Constitutions; which are not EXPRESSLY taken away by the Constitution
of the United States. The establishing courts of justice, the appointment of
Judges, and the making regulations for the administration of justice, within
each State, according to its laws, on all subjects not entrusted to the
Federal Government, appears to me to be the peculiar and exclusive province,
and duty of the State Legislatures: All the powers delegated by the people
of the United States to the Federal Government are defined, and NO
CONSTRUCTIVE powers can be exercised by it, and all the powers that remain
in the State Governments are indefinite; except only in the Constitution of
Massachusetts.
The effect of the resolution or law of Connecticut, above stated, is to

revise a decision of one of its Inferior Courts, called the Court of Probate

for Harford, and to direct a new hearing of the case by the same Court of
Probate, that passed the decree against the will of Normand Morrison. By the
existing law of Connecticut a right to recover certain property had vested
in Calder and wife (the appellants) in consequence of a decision of a court
of justice, but, in virtue of a subsequent resolution or law, and the new
hearing thereof, and the decision in consequence, this right to recover
certain property was divested, and the right to the property declared to be
in Bull and wife, the appellees. The sole enquiry is, whether this
resolution or law of Connecticut, having such operation, is an ex post facto
law, within the prohibition of the Federal Constitution?
Whether the Legislature of any of the States can revise and correct by law,
a decision of any of its Courts of Justice, although not prohibited by the
Constitution of the State, is a question of very great importance, and not
necessary NOW to be determined; because the resolution or law in question
does not go so far. I cannot subscribe to the omnipotence of a State [3 U.S.
386, 388] Legislature, or that it is absolute and without control; although
its authority should not be expressly restrained by the Constitution, or
fundamental law, of the State. The people of the United States erected their
Constitutions, or forms of government, to establish justice, to promote the
general welfare, to secure the blessings of liberty; and to protect their
persons and property from violence. The purposes for which men enter into
society will determine the nature and terms of the social compact; and as
they are the foundation of the legislative power, they will decide what are
the proper objects of it: The nature, and ends of legislative power will
limit the exercise of it. This fundamental principle flows from the very
nature of our free Republican governments, that no man should be compelled
to do what the laws do not require; nor to refrain from acts which the laws
permit. There are acts which the Federal, or State, Legislature cannot do,
without exceeding their authority. There are certain vital principles in our
free Republican governments, which will determine and over-rule an apparent
and flagrant abuse of legislative power; as to authorize manifest injustice
by positive law; or to take away that security for personal liberty, or
private property, for the protection whereof of the government was
established. An ACT of the Legislature (for I cannot call it a law) contrary
to the great first principles of the social compact, cannot be considered a
rightful exercise of legislative authority. The obligation of a law in
governments established on express compact, and on republican principles,
must be determined by the nature of the power, on which it is founded. A few
instances will suffice to explain what I mean. A law that punished a citizen
for an innocent action, or, in other words, for an act, which, when done,
was in violation of no existing law; a law that destroys, or impairs, the
lawful private contracts of citizens; a law that makes a man a Judge in his
own cause; or a law that takes property from A. and gives it to B: It is
against all reason and justice, for a people to entrust a Legislature with
SUCH powers; and, therefore, it cannot be presumed that they have done it.
The genius, the nature, and the spirit, of our State Governments, amount to
a prohibition of such acts of legislation; and the general principles of law
and reason forbid them. The Legislature may enjoin, permit, forbid, and
punish; they may declare new crimes; and establish rules of conduct for all
its citizens in future cases; they may command what is right, and prohibit
what is wrong; but they cannot change innocence into guilt; or punish
innocence as a crime; or violate the right of an antecedent lawful private
contract; or the right of private property. To maintain that our Federal, or
State, Legislature possesses such powers, if they had not been expressly
restrained; would, [3 U.S. 386, 389] in my opinion, be a political heresy,
altogether inadmissible in our free republican governments.
ALL the restrictions contained in the Constitution of the United States on

the power of the State Legislatures, were provided in favour of the
authority of the Federal Government. The prohibition against their making

any ex post facto laws was introduced for greater caution, and very probably
arose from the knowledge, that the Parliament of Great Britain claimed and
exercised a power to pass such laws, under the denomination of bills of
attainder, or bills of pains and penalties; the first inflicting capital,
and the other less, punishment. These acts were legislative judgments; and
an exercise of judicial power. Sometimes they respected the crime, by
declaring acts to be treason, which were not treason, when committed;[1] at
other times, they violated the rules of evidence (to supply a deficiency of
legal proof) by admitting one witness, when the existing law required two;
by receiving evidence without oath; or the oath of the wife against the
husband; or other testimony, which the courts of justice would not admit;[2]
at other times they inflicted punishments, where the party was not, by law,
liable to any punishment;[3] and in other cases, they inflicted greater
punishment, than the law annexed to the offence.[4] -- The ground for the
exercise of such legislative power was this, that the safety of the kingdom
depended on the death, or other punishment, of the offender: as if traitors,
when discovered, could be so formidable, or the government so insecure! With
very few exceptions, the advocates of such laws were stimulated by ambition,
or personal resentment, and vindictive malice. To prevent such, and similar,
acts of violence and injustice, I believe, the Federal and State
Legislatures, were prohibited from passing any bill of attainder; or any ex
post facto law.
The Constitution of the United States, article 1, section 9, prohibits the

Legislature of the United States from passing any ex post facto law; and, in
section 10, lays several restrictions on the authority of the Legislatures
of the several states; and, among them, "that no state shall pass any ex
post facto law." It may be remembered, that the legislatures of several of
the states, to wit, Massachusetts, Pennsylvania, Delaware, Maryland, and
North and South Carolina, are expressly prohibited, by their state
Constitutions, from passing any ex post facto law. [3 U.S. 386, 390]
I shall endeavour to show what law is to be considered an ex post facto law,

within the words and meaning of the prohibition in the Federal Constitution.
The prohibition, "that no state shall pass any ex post facto law,"
necessarily requires some explanation; for, naked and without explanation,
it is unintelligible, and means nothing. Literally, it is only, that a law
shall not be passed concerning, and after the fact, or thing done, or action
committed. I would ask, what fact; of what nature, or kind; and by whom
done? That Charles 1st. king of England, was beheaded; that Oliver Cromwell
was Protector of England; that Louis 16th, late King of France, was
guillotined; are all facts, that have happened; but it would be nonsense to
suppose, that the States were prohibited from making any law after either of
these events, and with reference thereto. The prohibition, in the letter, is
not to pass any law concerning, and after the fact; but the plain and
obvious meaning and intention of the prohibition is this; that the
Legislatures of the several states, shall not pass laws, after a fact done
by a subject, or citizen, which shall have relation to such fact, and shall
punish him for having done it. The prohibition considered in this light, is
an additional bulwark in favour of the personal security of the subject, to
protect his person from punishment by legislative acts, having a
retrospective operation. I do not think it was inserted to secure the
citizen in his private rights, of either property, or contracts. The
prohibitions not to make any thing but gold and silver coin a tender in
payment of debts, and not to pass any law impairing the obligation of
contracts, were inserted to secure private rights; but the restriction not
to pass any ex post facto law, was to secure the person of the subject from
injury, or punishment, in consequence of such law. If the prohibition
against making ex post facto laws was intended to secure personal rights
from being affected, or injured, by such laws, and the prohibition is
sufficiently extensive for that object, the other restraints, I have

enumerated, were unnecessary, and therefore improper; for both of them are
retrospective.
I will state what laws I consider ex post facto laws, within the words and
the intent of the prohibition. 1st. Every law that makes an action , done
before the passing of the law, and which was innocent when done, criminal;
and punishes such action. 2nd. Every law that aggravates a crime, or makes
it greater than it was, when committed. 3rd. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than the law required
at the time of the commission of the offence, in order to convict the
offender. [3 U.S. 386, 391] All these, and similar laws, are manifestly
unjust and oppressive. In my opinion, the true distinction is between ex
post facto laws, and retrospective laws. Every ex post facto law must
necessarily be retrospective; but every retrospective law is not an ex post
facto law: The former, only, are prohibited. Every law that takes away, or
impairs, rights vested, agreeably to existing laws, is retrospective, and is
generally unjust; and may be oppressive; and it is a good general rule, that
a law should have no retrospect: but there are cases in which laws may
justly, and for the benefit of the community, and also of individuals,
relate to a time antecedent to their commencement; as statutes of oblivion,
or of pardon. They are certainly retrospective, and literally both
concerning, and after, the facts committed. But I do not consider any law ex
post facto, within the prohibition, that mollifies the rigor of the criminal
law; but only those that create, or aggravate, the crime; or encrease the
punishment, or change the rules of evidence, for the purpose of conviction.
Every law that is to have an operation before the making thereof, as to
commence at an antecedent time; or to save time from the statute of
limitations; or to excuse acts which were unlawful, and before committed,
and the like; is retrospective. But such laws may be proper or necessary, as
the case may be. There is a great and apparent difference between making an
UNLAWFUL act LAWFUL; and the making an innocent action criminal, and
punishing it as a CRIME. The expressions "ex post facto laws," are
technical, they had been in use long before the Revolution, and had acquired
an appropriate meaning, by Legislators, Lawyers, and Authors. The celebrated
and judicious Sir William Blackstone, in his commentaries, considers an ex
post facto law precisely in the same light I have done. His opinion is
confirmed by his successor, Mr. Wooddeson; and by the author of the
Federalist, who I esteem superior to both, for his extensive and accurate
knowledge of the true principles of Government.
I also rely greatly on the definition, or explanation of EX POST FACTO LAWS,

as given by the Conventions of Massachusetts, Maryland, and North Carolina;
in their several Constitutions, or forms of Government.
In the declaration of rights, by the convention of Massachusetts, part 1st.

sect. 24, "Laws made to punish actions done before the existence of such
laws, and which have not been declared CRIMES by preceeding laws, are
unjust, etc."
In the declaration of rights, by the convention of Maryland, art. 15th,

"Retrospective laws punishing facts committed before the existence of such
laws, and by them only declared criminal, are oppressive, etc." [3 U.S. 386,
392]
In the declaration of rights by the convention of North Carolina, art. 24th,

I find the same definition, precisely in the same words, as in the Maryland
constitution.
In the declaration of Rights by the convention of Delaware, art. 11th, the

same definition was clearly intended, but inaccurately expressed; by saying

"laws punishing offences (instead of actions, or facts) committed before the
existence of such laws, are oppressive, etc."
I am of opinion, that the fact, contemplated by the prohibition, and not to

be affected by a subsequent law, was some fact to be done by a Citizen, or
Subject.
In 2nd Lord Raymond 1352, Raymond, Justice, called the stat. 7 Geo. 1st.
stat. 2 par 8, about registering Contracts for South Sea Stock, an ex post
facto law; because it affected Contracts made before the statute.
In the present case, there is no fact done by Bull and wife Plaintiffs in
Error, that is in any manner affected by the law or resolution of
Connecticut: It does not concern, or relate to, any act done by them. The
decree of the Court of Probate of Harford (on the 21st, March) in
consequence of which Calder and wife claim a right to the property in
question, was given before the said law or resolution, and in that sense,
was affected and set aside by it; and in consequence of the law allowing a
hearing and the decision in favor of the will, they have lost, what they
would have been entitled to, if the Law or resolution, and the decision in
consequence thereof, had not been made. The decree of the Court of probate
is the only fact, on which the law or resolution operates. In my judgment
the case of the Plaintiffs in Error, is not within the letter of the
prohibition; and, for the reasons assigned, I am clearly of opinion, that
it is not within the intention of the prohibition; and if within the
intention, but out of the letter, I should not, therefore, consider myself
justified to continue it within the prohibition, and therefore that the
whole was void.
It was argued by the Counsel for the plaintiffs in error, that the
Legislature of Connecticut had no constitutional power to make the
resolution (or law) in question, granting a new hearing, etc.
Without giving an opinion, at this time, whether this Court has

jurisdiction to decide that any law made by Congress, contrary to the
Constitution of the United States, is void; I am fully satisfied that this
court has no jurisdiction to determine that any law of any state
Legislature, contrary to the Constitution of such state, is void. Further,
if this court had such jurisdiction, yet it does not appear to me, that the
resolution (or law) in question, is contrary to the charter of Connecticut,
or its constitution, which is said by counsel to be composed of its charter,
[3 U.S. 386, 393] acts of assembly, and usages, and customs. I should
think, that the courts of Connecticut are the proper tribunals to decide,
whether laws, contrary to the constitution thereof, are void. In the present
case they have, both in the inferior and superior courts, determined that
the Resolution (or law) in question was not contrary to either their state,
or the federal, constitution.
To show that the resolution was contrary to the constitution of the United
States, it was contended that the words, ex post facto law, have a precise
and accurate meaning, and convey but one idea to professional men, which is,
"by matter of after fact; by something after the fact." And Co. Litt. 241.
Fearnes Con. Rem. (Old Ed.) 175 and 203. Powell on Devises 113, 133. 134.
were cited; and the table to Coke's Reports (by Wilson) title ex post facto,
was referred to. There is no doubt that a man may be a trespasser from the
beginning, by matter of after fact; as where an entry is given by law, and
the party abuses it; or where the law gives a distress, and the party kills,
or works, the distress.
I admit, an act unlawful in the beginning may, in some cases, become lawful

by matter of after fact.
I also agree, that the words "ex post facto" have the meaning contended for,
and no other, in the cases cited, and in all similar cases; where they are
used unconnected with, and without relation to, Legislative acts, or laws.
There appears to me a manifest distinction between the case where one fact
relates to, and affects, another fact, as where an after fact, by operation
of law, makes a former fact, either lawful or unlawful; and the case where a
law made after a fact done, is to operate on, and to affect, such fact. In
the first case both the acts are done by private persons. In the second case
the first act is done by a private person, and the second act is done by the
legislature to affect the first act.
I believe that but one instance can be found in which a British judge called
a statute, that affected contracts made before the statute, an ex post facto
law; but the judges of Great Britain always considered penal statutes, that
created crimes, or encreased the punishment of them, as ex post facto laws.
If the term ex post facto law is to be construed to include and to prohibit

the enacting any law after a fact, it will greatly restrict the power of
the federal and state legislatures; and the consequences of such a
construction may not be foreseen.
If the prohibition to make no ex post facto law extends to all laws made
after the fact, the two prohibitions, not to make any thing but gold and
silver coin a tender in payment of debts; and not to pass any law impairing
the obligation of contracts, were improper and unnecessary. [3 U.S. 386,
394]
It was further urged, that if the provision does not extend to prohibit the
making any law after a fact, then all choses in action; all lands by Devise;
all personal property by bequest, or distribution; by Elegit; by execution;
by judgments, particularly on torts; will be unprotected from the
legislative power of the states; rights vested may be divested at the will
and pleasure of the state legislatures; and, therefore, that the true
construction and meaning of the prohibition is, that the states pass no law
to deprive a citizen of any right vested in him by existing laws.
It is not to be presumed, that the federal or state legislatures will pass

laws to deprive citizens of rights vested in them by existing laws; unless
for the benefit of the whole community; and on making full satisfaction. The
restraint against making any ex post facto laws was not considered, by the
framers of the constitution, as extending to prohibit the depriving a
citizen even of a vested right to property; or the provision, "that private
property should not be taken for PUBLIC use, without just compensation," was
unnecessary.
It seems to me, that the right of property, in its origin, could only arise
from compact express, or implied, and I think it the better opinion, that
the right, as well as the mode, or manner, of acquiring property, and of
alienating or transferring, inheriting, or transmitting it, is conferred by
society; is regulated by civil institution, and is always subject to the
rules prescribed by positive law. When I say that a right is vested in a
citizen, I mean, that he has the power to do certain actions; or to possess
certain things, according to the law of the land.
If any one has a right to property such right is a perfect and exclusive
right; but no one can have such right before he has acquired a better right
to the property, than any other person in the world: a right, therefore,
only to recover property cannot be called a perfect and exclusive right. I

cannot agree, that a right to property vested in Calder and wife, in

consequence of the decree (of the 21st. of March 1783) disapproving of the
will of Morrison, the Grandson. If the will was valid, Mrs. Calder could
have no right, as heiress of Morrison, the physician; but if the will was
set aside, she had an undoubted title.
The resolution (or law) alone had no manner of effect on any right whatever
vested in Calder and wife. The Resolution (or law) combined with the new
hearing, and the decision, in virtue of it, took away their right to recover
the property in question. But when combined they took away no right of
property vested in Calder and wife; because the decree against the will
(21st. March 1783) did not vest in or transfer any property to them. [3 U.S.
386, 395]
I am under a necessity to give a construction, or explanation of the words,

"ex post facto law," because they have not any certain meaning attached to
them. But I will not go farther than I feel myself bound to do; and if I
ever exercise the jurisdiction I will not decide any law to be void, but in
a very clear case.
I am of opinion, that the decree of the Supreme Court of Errors of

Connecticut be affirmed, with costs.
PATERSON, Justice. The Constitution of Connecticut is made up of usages, and

it appears that its Legislature have, from the beginning, exercised the
power of granting new trials. This has been uniformly the case till the year
1762, when this power was, by a legislative act, imparted to the superior
and county courts. But the act does not remove or annihilate the
pre-existing power of the Legislature, in this particular; it only
communicates to other authorities a concurrence of jurisdiction, as to the
awarding of new trials. And the fact is, that the Legislature have, in two
instances, exercised this power since the passing of the law in 1762. They
acted in a double capacity, as a house of legislation, with undefined
authority, and also as a court of judicature in certain exigencies. Whether
the latter arose from the indefinite nature of their legislative powers, or
in some other way, it is not necessary to discuss. From the best
information, however, which I have been able to collect on this subject, it
appears, that the Legislature, or general court of Connecticut, originally
possessed, and exercised all legislative, executive, and judicial authority;
and that, from time to time, they distributed the two latter in such manner
as they thought proper; but without parting with the general superintending
power, or the right of exercising the same, whenever they should judge it
expedient. But be this as it may, it is sufficient for the present to
observe, that they have on certain occasions, excercised judicial authority
from the commencement of their civil polity. This usage makes up part of the
Constitution of Connecticut, and we are bound to consider it as such, unless
it be inconsistent with the Constitution of the United States. True it is,
that the awarding of new trials falls properly within the province of the
judiciary; but if the Legislature of Connecticut have been in the
uninterrupted exercise of this authority, in certain cases, we must, in
such cases, respect their decisions as flowing from a competent
jurisdiction, or constitutional organ. And therefore we may, in the present
instance, consider the Legislature of the state, as having acted in their
customary judicial capacity. If so, there is an end of the question. For if
the power, thus exercised, comes more properly within the description of a
judicial than of a legislative power; and if by usage or the [3 U.S. 386,
396] Constitution, which, in Connecticut, are synonimous terms, the
Legislature of that state acted in both capacities; then in the case now
before us, it would be fair to consider the awarding of a new trial, as an
act emanating from the judiciary side of the department. But as this view of
the subject militates against the Plaintiffs in error, their counsel has

contended for a reversal of the judgment, on the ground, that the awarding
of a new trial, was the effect of a legislative act, and that it is
unconstitutional, because an ex post facto law. For the sake of ascertaining
the meaning of these terms, I will consider the resolution of the General
court of Connecticut, as the exercise of a legislative and not a judicial
authority. The question, then, which arises on the pleadings in this cause,
is, whether the resolution of the Legislature of Connecticut, be an ex post
facto law, within the meaning of the Constitution of the United States? I am
of opinion, that it is not. The words, ex post facto, when applied to a law,
have a technical meaning, and, in legal phraseology, refer to crimes, pains,
and penalties. Judge Blackstone's description of the terms is clear and
accurate. "There is, says he, a still more unreasonable method than this,
which is called making of laws, ex post facto, when after an action,
indifferent in itself, is committed, the Legislator, then, for the first
time, declares it to have been a crime, and inflicts a punishment upon the
person who has committed it. Here it is impossible, that the party could
foresee that an action, innocent when it was done, should be afterwards
converted to guilt by a subsequent law; he had, therefore, no cause to
abstain from it; and all punishment for not abstaining, must, of
consequence, be cruel and unjust." 1 Bl. Com. 46. Here the meaning, annexed
to the terms ex post facto laws, unquestionably refers to crimes, and
nothing else. The historic page abundantly evinces, that the power of
passing such laws should be withheld from legislators; as it is a dangerous
instrument in the hands of bold, unprincipled, aspiring, and party men, and
has been two often used to effect the most detestable purposes.
On inspecting such of our state Constitutions, as take notice of laws made

ex post facto, we shall find, that they are understood in the same sense.
The Constitution of Massachusetts, article 24th of the Declaration of

rights:
"Laws made to punish for actions done before the existence of such laws, and
which have not been declared crimes by preceding laws, are unjust,
oppressive, and inconsistent with the fundamental principles of a free
government."
The Constitution of Delaware, article 11th of the Declaration of Rights: [3

U.S. 386, 397]
"That retrospective laws punishing offences committed before the existence

of such laws, are oppressive and unjust, and ought not to be made."
The Constitution of Maryland, article 15th of the Declaration of Rights:
"That retrospective laws, punishing facts committed before the existence of

such laws, and by them only declared criminal, are oppressive, unjust, and
incompatible with liberty; wherefore no ex post facto law ought to be made."
The Constitution of North Carolina, article 24th of the Declaration of

Rights:
"That retrospective laws, punishing facts committed before the existence of

such laws, and by them only declared criminal, are oppressive, unjust, and
incompatible with liberty; wherefore no ex post facto law ought to be made."
From the above passages it appears, that ex post facto laws have an
appropriate signification; they extend to penal statutes, and no further;
they are restricted in legal estimation to the creation, and, perhaps,
enhancement of crimes, pains and penalties. The enhancement of a crime, or
penalty, seems to come within the same mischief as the creation of a crime

or penalty; and therefore they may be classed together.
Again, the words of the Constitution of the United States are, "That no
State shall pass any bill of attainder, ex post facto law, or law impairing
the obligation of contracts." Article 1st. section 10.
Where is the necessity or use of the latter words, if a law impairing the
obligation of contracts, be comprehended within the terms ex post facto law?
It is obvious from the specification of contracts in the last member of the
clause, that the framers of the Constitution, did not understand or use the
words in the sense contended for on the part of the Plaintiffs in Error.
They understood and used the words in their known and appropriate
signification, as referring to crimes, pains, and penalties, and no
further. The arrangement of the distinct members of this section,
necessarily points to this meaning.
I had an ardent desire to have extended the provision in the Constitution to

retrospective laws in general. There is neither policy nor safety in such
laws; and, therefore, I have always had a strong aversion against them. It
may, in general, be truly observed of retrospective laws of every
description, that they neither accord with sound legislation, nor the
fundamental principles of the social compact. But on full consideration, I
am convinced, that ex post facto laws must be limited in the manner already
expressed; they must be taken in their technical, which is also their common
and general, acceptation, and are not to be understood in their literal
sense. [3 U.S. 386, 398]
IREDELL, Justice. Though I concur in the general result of the opinions,

which have been delivered, I cannot entirely adopt the reasons that are
assigned upon the occasion.
From the best information to be collected, relative to the Constitution of

Connecticut, it appears, that the Legislature of that State has been in the
uniform, uninterrupted, habit of exercising a general superintending power
over its courts of law, by granting new trials. It may, indeed, appear
strange to some of us, that in any form, there should exist a power to
grant, with respect to suits depending or adjudged, new rights of trial,
new privileges of proceeding, not previously recognized and regulated by
positive institutions; but such is the established usage of Connecticut,
and it is obviously consistent with the general superintending authority of
her Legislature Nor is it altogether without some sanction for a Legislature
to act as a court of justice. In England, we know, that one branch of the
Parliament, the house of Lords, not only exercises a judicial power in cases
of impeachment, and for the trial of its own members, but as the court of
dernier resort, takes cognizance of many suits at law, and in equity: And
that in construction of law, the jurisdiction there exercised is by the King
in full Parliament; which shows that, in its origin, the causes were
probably heard before the whole Parliament. When Connecticut was settled,
the right of empowering her Legislature to superintend the Courts of
Justice, was, I presume, early assumed; and its expediency, as applied to
the local circumstances and municipal policy of the State, is sanctioned by
a long and uniform practice. The power, however, is judicial in its nature;
and whenever it is exercised, as in the present instance, it is an exercise
of judicial, not of legislative, authority.
But, let us, for a moment, suppose, that the resolution, granting a new
trial, was a legislative act, it will by no means follow, that it is an act
affected by the constitutional prohibition, that "no State shall pass any ex
post facto law." I will endeavour to state the general principles, which
influence me, on this point, succinctly and clearly, though I have not had
an opportunity to reduce my opinion to writing.

If, then, a government, composed of Legislative, Executive and Judicial

departments, were established, by a Constitution, which imposed no limits on
the legislative power, the consequence would inevitably be, that whatever
the legislative power chose to enact, would be lawfully enacted, and the
judicial power could never interpose to pronounce it void. It is true, that
some speculative jurists have held, that a legislative act against natural
justice must, in itself, be void; but I cannot think that, under such a
government, any Court of Justice would possess a power to declare it so. Sir
William Blackstone, having put the strong case of an act of Parliament,
which [3 U.S. 386, 399] should authorise a man to try his own cause,
explicitly adds, that even in that case, "there is no court that has power
to defeat the intent of the Legislature, when couched in such evident and
express words, as leave no doubt whether it was the intent of the
Legislature, or no." 1 Bl. Com. 91.
In order, therefore, to guard against so great an evil, it has been the

policy of all the American states, which have, individually, framed their
state constitutions since the revolution, and of the people of the United
States, when they framed the Federal Constitution, to define with precision
the objects of the legislative power, and to restrain its exercise within
marked and settled boundaries. If any act of Congress, or of the Legislature
of a state, violates those constitutional provisions, it is unquestionably
void; though, I admit, that as the authority to declare it void is of a
delicate and awful nature, the Court will never resort to that authority,
but in a clear and urgent case. If, on the other hand, the Legislature of
the Union, or the Legislature of any member of the Union, shall pass a law,
within the general scope of their constitutional power, the Court cannot
pronounce it to be void, merely because it is, in their judgment, contrary
to the principles of natural justice. The ideas of natural justice are
regulated by no fixed standard: the ablest and the purest men have differed
upon the subject; and all that the Court could properly say, in such an
event, would be, that the Legislature (possessed of an equal right of
opinion) had passed an act which, in the opinion of the judges, was
inconsistent with the abstract principles of natural justice. There are then
but two lights, in which the subject can be viewed: 1st. If the Legislature
pursue the authority delegated to them, their acts are valid. 2nd. If they
transgress the boundaries of that authority, their acts are invalid. In the
former case, they exercise the discretion vested in them by the people, to
whom alone they are responsible for the faithful discharge of their trust:
but in the latter case, they violate a fundamental law, which must be our
guide, whenever we are called upon as judges to determine the validity of a
legislative act.
Still, however, in the present instance, the act or resolution of the

Legislature of Connecticut, cannot be regarded as an ex post facto law; for,
the true construction of the prohibition extends to criminal, not to civil,
cases. It is only in criminal cases, indeed, in which the danger to be
guarded against, is greatly to be apprehended. The history of every country
in Europe will furnish flagrant instances of tyranny exercised under the
pretext of penal dispensations. Rival factions, in their efforts to crush
each other, have superseded all the forms, and suppressed all the
sentiments, of justice; while attainders, on the principle of retaliation
and proscription, have marked all the [3 U.S. 386, 400] vicissitudes of
party triumph. The temptation to such abuses of power is unfortunately too
alluring for human virtue; and, therefore, the framers of the American
Constitutions have wisely denied to the respective Legislatures, Federal as
well as State, the possession of the power itself: They shall not pass any
ex post facto law; or, in other words, they shall not inflict a punishment
for any act, which was innocent at the time it was committed; nor increase
the degree of punishment previously denounced for any specific offence.

The policy, the reason and humanity, of the prohibition, do not, I repeat,
extend to civil cases, to cases that merely affect the private property of
citizens. Some of the most necessary and important acts of Legislation are,
on the contrary, founded upon the principle, that private rights must yield
to public exigences. Highways are run through private grounds.
Fortifications, Light-houses, and other public edifices, are necessarilly
sometimes built upon the soil owned by individuals. In such, and similar
cases, if the owners should refuse voluntarily to accommodate the public,
they must be constrained, as far as the public necessities require; and
justice is done, by allowing them a reasonable equivalent. Without the
possession of this power the operations of Government would often be
obstructed, and society itself would be endangered. It is not sufficient to
urge, that the power may be abused, for, such is the nature of all power,
such is the tendency of every human institution: and, it might as fairly be
said, that the power of taxation, which is only circumscribed by the
discretion of the Body, in which it is vested, ought not to be granted,
because the Legislature, disregarding its true objects, might, for
visionary and useless projects, impose a tax to the amount of nineteen
shillings in the pound. We must be content to limit power where we can, and
where we cannot, consistently with its use, we must be content to repose a
salutary confidence. It is our consolation that there never existed a
Government, in ancient or modern times, more free from danger in this
respect, than the Governments of America.
Upon the whole, though there cannot be a case, in which an ex post facto law
in criminal matters is requisite, or justifiable (for Providence never can
intend to promote the prosperity of any country by bad means) yet, in the
present instance the objection does not arise: Because, 1st. if the act of
the Legislature of Connecticut was a judicial act, it is not within the
words of the Constitution; and 2nd. even if it was a legislative act, it is
not within the meaning of the prohibition.
CUSHING, Justice. The case appears to me to be clear of all difficulty,

taken either way. If the act is a judicial act, it is not touched by the
Federal Constitution: and, if it is a legislative [3 U.S. 386, 401] act,
it is maintained and justified by the ancient and uniform practice of the
state of Connecticut.
JUDGMENT affirmed.
1. The case of the Earl of Strafford, in 1641.
2. The case of Sir John Fenwick, in 1696.
3. The banishment of Lord Clarendon, 1669 (19 Ca. 2. c. 10.) and of the
Bishop of Atterbury, in 1723, (9 Geo. 1. c. 17.)
4. The Coventry act, in 1670, (22 & 23 Car. 2 c. 1.)

Calder v. Bull, 3 U.S. 386 (1798): Commentary by Jon Roland
Calder v. Bull, 3 U.S. 386 (1798)

The opinion in this case is one of the more useful of the early Supreme Court opinions for establishing
the original understanding of several of the key elements of the Constitution. Chief Justice Samuel Chase
and Justice William Paterson might have presided at the travesties of due process in the Sedition Act
trials of Thomas Cooper in 1800 and Matthew Lyon in 1798, respectively, which would lead to Chase
being impeached and tried, but at least in this case their judicial insight was not impaired by partisan
intemperance, and they bequeathed to us important guidance.
The following points are a restatement of the points made less clearly in this opinion:
1. Constitutional government and the courts are subject to natural law principles that define natural
rights that the Constitution recognizes but does not create.
2. The basis for constitutions is the social compact, which involves agreement among members of
society to defend one another from injustice.
3. An indication, if not a holding, that federal courts, or at least the Supreme Court, have jurisdiction
to rule an act of Congress unconstitutional, if it conflicts with the U.S. Constitution, which would
later be asserted in Marbury v. Madison,[1] although that was also not a holding but only dictum.
4. Acceptance of jurisdiction of a case between private parties who were citizens of the same state,
on appeal from the highest court of the state, on a question "arising under this Constitution",
although that was not one of the enumerated jurisdictions,[2] implying that jurisdiction was not
limited to the enumerated jurisdictions, but also included federal question cases outside the
enumeration.
5. An assertion that federal courts, or at least the Supreme Court, have jurisdiction to rule an act of a
state legislature unconstitutional, if it conflicts with the U.S. Constitution.
6. The above lays the basis for federal courts, or at least the Supreme Court, to have jurisdiction on a
federal question in a case between a citizen and his own state, although that was not one of the
enumerated jurisdictions, contrary to the later holding in Barron v. Baltimore.[3]
7. The prohibitions against ex post facto laws, and by implication, bills of attainder, while intended
mainly for criminal penalties, such as disablements of life, limb, or liberty, but also include
disablements of property, when such disablements are of a vested right in property.
8. The law treats individuals as two persons, a private person with private rights, and a public person
with public rights, which are those that are constitutionally protected.
9. The vesting of a property right is the elevation of a private property right into a public property
right, entitled to the due process protections of a criminal proceeding or the just compensation
protections of the Fifth Amendment, or, as in this case, the prohibitions of ex post facto laws and
bills of attainder, indicating the equivalence of these concepts. Chase attempts to define vested
right but does so only partially.
10. In constructing provisions of the Constitution, Justices Chase and Paterson presume that provisions
of the Constitution are not redundant, which is not valid, since several of the provisions state
overlapping or redundant concepts.
http://www.constitution.org/ussc/003-386jr.htm (1 of 3) [1/9/2001 7:46:39 PM]

This case raises fundamental questions about just what is the difference between a civil and a criminal
proceeding.
Any judicial petition is to disable some rights of the defendant. A civil case is to disable private rights of
the defendant, and the plaintiff may be either a private person or a government representing its people. It
may seek damages for a prior injury, under common law, or injunction, specific performance of a
contract, or mandamus of a public duty, under equity. A criminal case is to disable public rights of the
defendant, which can include life, limb, liberty, or vested property, and although it may be prosecuted by
a private person, must be prosecuted in the name of the people, in accordance with a public statute
prohibiting an act of the defendant, which prescribes disablements of public rights as a penalty for that
act.
A criminally prohibited act can be malum in se, an actual injury to someone, or malum prohibitum, which
is normally justified as an attempt to prevent injury. But opening legislation to preventive measures is
dangerous. Punishing people for their past offenses can be justified as prevention of future crimes, and
past crimes are indeed usually the best predictors of future crimes, but when legislators try to use acts
other than crimes as predictors of crimes, and prohibit those alleged predictive acts, they are disabling the
right of the people to engage in such acts for innocent purposes.
Preventive legislation was not unknown to the Founders, but most of their criminal legislation presumed
an act which was an injury to a victim. The difficulty with preventative statutory prohibitions is that they
involve disablement of everyone's rights on a theory of causation that may not be valid, and may have
unintended consequences that are worse than the intended ones. The prohibition of alcohol by
constitutional amendment was a classic failure of this kind, and the present "war on drugs" seems to be
another one. All too often the predictors chosen are weak or dubious causes of the evil the measure seeks
to avoid, and are beneficial in other ways that may greatly exceed the hazards.
Although historically bills of attainder have sometimes imposed punishment legislatively for past acts
which may have already been prohibited as crimes, or acts not prohibited as crimes when committed,
which would be make them ex post facto laws, some have been justified as preventive, and sought to
avoid political opposition by being imposed on a minority class or faction out of power. This would
make bills of attainder the legislative equivalent of civil injunctive or mandamus relief, but without the
trouble and expense of the plaintiff proving he would be injured if the relief sought is not granted. If done
for alleged past acts that were crimes, it is disablement of public rights without due process of law, but if
preventive, it is disablement of public rights for possible future acts, and that is in clear conflict with the
purpose of government being the protection of rights. Rights may sometimes conflict and need to be
balanced, but actual rights must be balanced against actual rights. It does not work to disable actual rights
to prevent possible future infringements of rights that may never occur.
These considerations also open the question of the constitutionality of punitive damages in civil cases.
They imply that such punitive damages are necessarily of a character that requires criminal due process.
There is no constitutional prohibition against combining civil and criminal cases in a single action, but
punitive damages must be imposed by a unanimous verdict of a jury of twelve, based on proof beyond a
reasonable doubt, with all the due process protections of criminal trials.
The linking of ex post facto laws and bills of attainder to criminal actions fails to consider that the
purpose of these provisions is protection of the rights of defendants, and it matters little, except perhaps
to the reputation of the defendant, whether the action is called "civil" or "criminal" if the right sought to

be disabled is the same. A competency hearing that seeks to confine the defendant to a mental institution
is a petition to disable the liberty of the defendant, and as such must be accorded the same due process
protections that a "criminal" action would have that sought to imprison the defendant. For the defendant
there is little difference between confinement in a mental institution and confinement in a penal
institution.
1. Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803).
2. Art. III Sec. 2 Cl. 1.
3. Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833).
Text Version | Decision | Contents

Calder v. Bull, 3 U.S. 386 (1798)
The opinion in this case is one of the more useful of the early Supreme
Court opinions for establishing the original understanding of several of the
key elements of the Constitution. Chief Justice Samuel Chase and Justice
William Paterson might have presided at the travesties of due process in the
Sedition Act trials of Thomas Cooper in 1800 and Matthew Lyon in 1798,
respectively, which would lead to Chase being impeached and tried, but at
least in this case their judicial insight was not impaired by partisan
intemperance, and they bequeathed to us important guidance.
The following points are a restatement of the points made less clearly in
this opinion:
1.Constitutional government and the courts are subject to natural law

principles that define natural rights that the Constitution recognizes
but does not create.
2.The basis for constitutions is the social compact, which involves
agreement among members of society to defend one another from
injustice.
3.An indication, if not a holding, that federal courts, or at least the
Supreme Court, have jurisdiction to rule an act of Congress
unconstitutional, if it conflicts with the U.S. Constitution, which
would later be asserted in Marbury v. Madison,[1] although that
was also not a holding but only dictum.
4.Acceptance of jurisdiction of a case between private parties who
were citizens of the same state, on appeal from the highest court of
the state, on a question "arising under this Constitution", although
that was not one of the enumerated jurisdictions,[2] implying that
jurisdiction was not limited to the enumerated jurisdictions, but also
included federal question cases outside the enumeration.
5.An assertion that federal courts, or at least the Supreme Court,
have jurisdiction to rule an act of a state legislature unconstitutional,
if it conflicts with the U.S. Constitution.
6.The above lays the basis for federal courts, or at least the Supreme
Court, to have jurisdiction on a federal question in a case between
a citizen and his own state, although that was not one of the
enumerated jurisdictions, contrary to the later holding in Barron v.
Baltimore.[3]
7.The prohibitions against ex post facto laws, and by implication, bills
of attainder, while intended mainly for criminal penalties, such as
disablements of life, limb, or liberty, but also include disablements
of property, when such disablements are of a vested right in
property.
8.The law treats individuals as two persons, a private person with
private rights, and a public person with public rights, which are
those that are constitutionally protected.
9.The vesting of a property right is the elevation of a private
property right into a public property right, entitled to the due
process protections of a criminal proceeding or the just
compensation protections of the Fifth Amendment, or, as in this
case, the prohibitions of ex post facto laws and bills of attainder,
indicating the equivalence of these concepts. Chase attempts to
define vested right but does so only partially.
10.In constructing provisions of the Constitution, Justices Chase and
Paterson presume that provisions of the Constitution are not
redundant, which is not valid, since several of the provisions state
overlapping or redundant concepts.
http://www.constitution.org/ussc/003-386jr.txt (1 of 3) [1/9/2001 7:46:48 PM]

This case raises fundamental questions about just what is the difference
between a civil and a criminal proceeding.
Any judicial petition is to disable some rights of the defendant. A civil

case is to disable private rights of the defendant, and the plaintiff may be
either a private person or a government representing its people. It may seek
damages for a prior injury, under common law, or injunction, specific
performance of a contract, or mandamus of a public duty, under equity. A
criminal case is to disable public rights of the defendant, which can
include life, limb, liberty, or vested property, and although it may be
prosecuted by a private person, must be prosecuted in the name of the
people, in accordance with a public statute prohibiting an act of the
defendant, which prescribes disablements of public rights as a penalty for
that act.
A criminally prohibited act can be malum in se, an actual injury to someone,

or malum prohibitum, which is normally justified as an attempt to prevent
injury. But opening legislation to preventive measures is dangerous.
Punishing people for their past offenses can be justified as prevention of
future crimes, and past crimes are indeed usually the best predictors of
future crimes, but when legislators try to use acts other than crimes as
predictors of crimes, and prohibit those alleged predictive acts, they are
disabling the right of the people to engage in such acts for innocent
purposes.
Preventive legislation was not unknown to the Founders, but most of their
criminal legislation presumed an act which was an injury to a victim. The
difficulty with preventative statutory prohibitions is that they involve
disablement of everyone's rights on a theory of causation that may not be
valid, and may have unintended consequences that are worse than the intended
ones. The prohibition of alcohol by constitutional amendment was a classic
failure of this kind, and the present "war on drugs" seems to be another
one. All too often the predictors chosen are weak or dubious causes of the
evil the measure seeks to avoid, and are beneficial in other ways that may
greatly exceed the hazards.
Although historically bills of attainder have sometimes imposed punishment

legislatively for past acts which may have already been prohibited as
crimes, or acts not prohibited as crimes when committed, which would be make
them ex post facto laws, some have been justified as preventive, and sought
to avoid political opposition by being imposed on a minority class or
faction out of power. This would make bills of attainder the legislative
equivalent of civil injunctive or mandamus relief, but without the trouble
and expense of the plaintiff proving he would be injured if the relief
sought is not granted. If done for alleged past acts that were crimes, it is
disablement of public rights without due process of law, but if preventive,
it is disablement of public rights for possible future acts, and that is in
clear conflict with the purpose of government being the protection of
rights. Rights may sometimes conflict and need to be balanced, but actual
rights must be balanced against actual rights. It does not work to disable
actual rights to prevent possible future infringements of rights that may
never occur.
These considerations also open the question of the constitutionality of

punitive damages in civil cases. They imply that such punitive damages are
necessarily of a character that requires criminal due process. There is no
constitutional prohibition against combining civil and criminal cases in a
single action, but punitive damages must be imposed by a unanimous verdict
of a jury of twelve, based on proof beyond a reasonable doubt, with all the
due process protections of criminal trials.

The linking of ex post facto laws and bills of attainder to criminal actions
fails to consider that the purpose of these provisions is protection of the
rights of defendants, and it matters little, except perhaps to the
reputation of the defendant, whether the action is called "civil" or
"criminal" if the right sought to be disabled is the same. A competency
hearing that seeks to confine the defendant to a mental institution is a
petition to disable the liberty of the defendant, and as such must be
accorded the same due process protections that a "criminal" action would
have that sought to imprison the defendant. For the defendant there is
little difference between confinement in a mental institution and
confinement in a penal institution.
1. Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803).
2. Art. III Sec. 2 Cl. 1.
3. Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833).

Marbury v. Madison, 5 U.S. 137 (1803)
Supreme Court of the United States

Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)
MR. JUSTICE MARSHALL delivered the opinion of the Court.
In the order in which the court has viewed this subject, the following questions have been considered and
decided.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this court?
. . . It is . . . the opinion of the court,
That, by signing the commission of Mr. Marbury, the President of the United States
appointed him a justice of peace, for the county of Washington in the District of Columbia;
and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive
testimony of the verity of the signature, and of the completion of the appointment; and that
the appointment conferred on him a legal right to the office for the space of five years.
That, having this legal title to the office, he has a consequent right to the commission; a
refusal to deliver which, is a plain violation of that right, for which the laws of this country
afford him a remedy.
It remains to be enquired whether,
3. He is entitled to the remedy for which applies. This depends on,
1. The nature of the writ applied for and
2. The power of this court.
. . . This, then, is a plain case for mandamus, either to deliver the commission, or a copy of it from the
record; and it only remains to be enquired, whether it can issue from this court.
The act to establish the judicial courts of the United States authorizes the Supreme Court "to issue writs
of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons
holding office, under the authority of the United States."
The Secretary of State, being a person holding an office under the authority of the United States, is
precisely within the letter of the description and if this court is not authorized to issue a writ of
mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely
incapable of conferring the authority, and assigning the duties which its words purport to confer and
assign.
The Constitution vests the whole judicial power of the United States in one supreme court, and such
inferior courts as Congress shall, from time to time, ordain and establish. This power is expressly
extended to all cases arising under the laws of the United States; and, consequently, in some form, may
be exercised over the present case; because the right claimed is given by a law of the United States.
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In the distribution of this power it is declared that "the Supreme Court shall have original jurisdiction in
all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a
party. In all other cases, the Supreme Court shall have appellate jurisdiction."
It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts,
is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or
restrictive words, the power remains to the legislature to assign original jurisdiction to that court in other
cases than those specified in the article which has been recited; provided those cases belong to the
judicial power of the United States.
If it had been intended to leave it in the discretion of the legislature to apportion the judicial power
between the Supreme and inferior courts according to the will of that body, it would certainly have been
useless to have proceeded further than to have defined the judicial power, and the tribunals in which it
should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning. If
Congress remains at liberty to give this court appellate jurisdiction, where the Constitution has declared
their jurisdiction shall be original; and original jurisdiction where the Constitution has declared it shall be
appellate, the distribution of jurisdiction made in the Constitution is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this
case, a negative or exclusive sense must be given to them, or they have no operation at all.
It cannot he presumed that any clause in the Constitution is intended to be without effect; and, therefore,
such a construction is inadmissible unless the words require it.
. . . To enable this court, then to issue a mandamus, it must be shown to be an exercise of appellate
jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and
that, if it be the will of the legislature that a mandamus should be used for that purpose, that will must be
obeyed. This is true, yet the jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause
already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to
courts, yet to issue such a writ to an officer for the delivery of a paper is in effect the same as to sustain
an original action for that paper, and, therefore, seems not to belong to appellate, but to original
jurisdiction. Neither is it necessary, in such a case as this, to enable the court to exercise its appellate
jurisdiction.
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the
United States, to issue writs of mandamus to public officers, appears not to be warranted by the
Constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
The question, whether an act repugnant to the Constitution can become the law of the land, is a question
deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It
seems only necessary to recognize certain principles, supposed to have been long and well established, to
decide it.
That the people have an original right to establish, for their future government, such principles as, in their
opinion, shall most conduce to their own happiness is the basis on which the whole American fabric had

been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be
frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the
authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to different departments their
respective powers. It may either stop here, or establish certain limits not to be transcended by those
departments.
The government of the United States is of the latter description. The powers of the legislature are defined
and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what
purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits
may, at any time, be passed by those intended to be restrained? The distinction between a government
with limited and unlimited powers is abolished if those limits do not confine the persons on whom they
are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain
to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature
may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior paramount
law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other
acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if
the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a
power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them as forming the fundamental
and paramount law of the nation, and consequently, the theory of every such government must be, that an
act of the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and is, consequently, to be considered by this
court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the
further consideration of this subject.
If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity,
bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it
constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established
in theory; and would seem at first view, an absurdity too gross to be insisted on. It shall, however,
receive a more attentive consideration.
It is emphatically the province and duty of the judicial department to say what the law is. Those who
apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the operation of each.
So if a law be in opposition to the Constitution; if both the law and the constitution apply to a particular
case, so that the court must either decide that case conformably to the law, disregarding the Constitution;
or conformably to the Constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty.
If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of

the legislature, the Constitution, and not such ordinary act, must govern the case to which they both
apply.
Those, then, who controvert the principle that the Constitution is to be considered, in court, as a
paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the
Constitution, and see only the law.
This doctrine would subvert the very foundation of all written constitutions. It would declare that an act
which, according to the principles and theory of our government, is entirely void, is yet, in practice,
completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such
act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a
practical and real omnipotence, with the same breath which professes to restrict their powers within
narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions
— a written constitution — would of itself be sufficient, in America, where written constitutions have
been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the
Constitution of the United States furnish additional arguments in favor of its rejection.
The judicial power of the United States is extended to all cases arising under the Constitution.
Could it be the intention of those who gave this power to say that, in using it, the Constitution should not
be looked into? That a case arising under the Constitution should be decided without examining the
instrument under which it rises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the judges. And if they can open it at all,
what part of it are they forbidden to read or to obey?
There are many other parts of the Constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the
export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered
in such a case? Ought the judges to close their eyes on the Constitution, and see only the law?
The Constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it; must the court
condemn to death those victims who the Constitution endeavours to preserve?
"No person," says the Constitution, "shall be convicted of treason unless on the testimony of two
witnesses to the same overt act, or on confession in open court."
Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for
them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare
one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield
to the legislative act?
From these, and many other selections which might be made, it is apparent that the framers of the
Constitution contemplated that instrument as a rule for the government of courts, as well as of the

legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an
especial manner to their conduct in their official character. How immoral to impose it on them, if they
were to be used as the instruments, and the knowing instruments, for violating what they swear to
support?
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion
on this subject. It is in these words: "I do solemnly swear that I will administer justice without respect to
persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge
all the duties incumbent on me as —, according to the best of my abilities and understanding agreeably to
the Constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that
Constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe, or take this oath,
becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the
land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those
only which shall he made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the
principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is
void; and that courts, as well as other departments, are bound by that instrument.
The rule must be
Discharged.

http://www.constitution.org/ussc/005-137a.txt
Marbury v. Madison
5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803)
MR. JUSTICE MARSHALL delivered the opinion of the Court.
In the order in which the court has viewed this subject, the following
questions have been considered and decided.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws
of his country afford him a remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this

court?
. . . It is . . . the opinion of the court,
1. That, by signing the commission of Mr. Marbury, the President of the

United States appointed him a justice of peace, for the county of
Washington in the District of Columbia; and that the seal of the United
States, affixed thereto by the Secretary of State, is conclusive
testimony of the verity of the signature, and of the completion of the
appointment; and that the appointment conferred on him a legal right to
the office for the space of five years.
2. That, having this legal title to the office, he has a consequent

right to the commission; a refusal to deliver which, is a plain
violation of that right, for which the laws of this country afford him a
remedy.
It remains to be enquired whether,
3. He is entitled to the remedy for which applies. This depends on,
1. The nature of the writ applied for and
2. The power of this court.
. . . This, then, is a plain case for mandamus, either to deliver the

commission, or a copy of it from the record; and it only remains to be
enquired, whether it can issue from this court.
The act to establish the judicial courts of the United States authorizes the
Supreme Court "to issue writs of mandamus in cases warranted by the
principles and usages of law, to any courts appointed, or persons holding
office, under the authority of the United States."
The Secretary of State, being a person holding an office under the authority
of the United States, is precisely within the letter of the description and
if this court is not authorized to issue a writ of mandamus to such an
officer, it must be because the law is unconstitutional, and therefore
absolutely incapable of conferring the authority, and assigning the duties
which its words purport to confer and assign.
The Constitution vests the whole judicial power of the United States in one
supreme court, and such inferior courts as Congress shall, from time to
time, ordain and establish. This power is expressly extended to all cases
arising under the laws of the United States; and, consequently, in some
form, may be exercised over the present case; because the right claimed is
given by a law of the United States.
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In the distribution of this power it is declared that "the Supreme Court

shall have original jurisdiction in all cases affecting ambassadors, other
public ministers and consuls, and those in which a state shall be a party.
In all other cases, the Supreme Court shall have appellate jurisdiction."
It has been insisted at the bar, that, as the original grant of jurisdiction
to the Supreme and inferior courts, is general, and the clause assigning
original jurisdiction to the Supreme Court contains no negative or
restrictive words, the power remains to the legislature to assign original
jurisdiction to that court in other cases than those specified in the
article which has been recited; provided those cases belong to the judicial
power of the United States.
If it had been intended to leave it in the discretion of the legislature to

apportion the judicial power between the Supreme and inferior courts
according to the will of that body, it would certainly have been useless to
have proceeded further than to have defined the judicial power, and the
tribunals in which it should be vested. The subsequent part of the section
is mere surplusage, is entirely without meaning. If Congress remains at
liberty to give this court appellate jurisdiction, where the Constitution
has declared their jurisdiction shall be original; and original jurisdiction
where the Constitution has declared it shall be appellate, the distribution
of jurisdiction made in the Constitution is form without substance.
Affirmative words are often, in their operation, negative of other objects

than those affirmed; and in this case, a negative or exclusive sense must be
given to them, or they have no operation at all.
It cannot he presumed that any clause in the Constitution is intended to be

without effect; and, therefore, such a construction is inadmissible unless
the words require it.
. . . To enable this court, then to issue a mandamus, it must be shown to be

an exercise of appellate jurisdiction, or to be necessary to enable them to
exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be
exercised in a variety of forms, and that, if it be the will of the
legislature that a mandamus should be used for that purpose, that will must
be obeyed. This is true, yet the jurisdiction must be appellate, not
original.
It is the essential criterion of appellate jurisdiction that it revises and

corrects the proceedings in a cause already instituted, and does not create
that cause. Although, therefore, a mandamus may be directed to courts, yet
to issue such a writ to an officer for the delivery of a paper is in effect
the same as to sustain an original action for that paper, and, therefore,
seems not to belong to appellate, but to original jurisdiction. Neither is
it necessary, in such a case as this, to enable the court to exercise its
appellate jurisdiction.
The authority, therefore, given to the Supreme Court by the act establishing
the judicial courts of the United States, to issue writs of mandamus to
public officers, appears not to be warranted by the Constitution; and it
becomes necessary to inquire whether a jurisdiction so conferred can be
exercised.
The question, whether an act repugnant to the Constitution can become the
law of the land, is a question deeply interesting to the United States; but,
happily, not of an intricacy proportioned to its interest. It seems only

necessary to recognize certain principles, supposed to have been long and

well established, to decide it.
That the people have an original right to establish, for their future
government, such principles as, in their opinion, shall most conduce to
their own happiness is the basis on which the whole American fabric had been
erected. The exercise of this original right is a very great exertion; nor
can it, nor ought it, to be frequently repeated. The principles, therefore,
so established, are deemed fundamental. And as the authority from which they
proceed is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government, and assigns to
different departments their respective powers. It may either stop here, or
establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers
of the legislature are defined and limited; and that those limits may not be
mistaken, or forgotten, the Constitution is written. To what purpose are
powers limited, and to what purpose is that limitation committed to writing,
if these limits may, at any time, be passed by those intended to be
restrained? The distinction between a government with limited and unlimited
powers is abolished if those limits do not confine the persons on whom they
are imposed, and if acts prohibited and acts allowed are of equal
obligation. It is a proposition too plain to be contested, that the
Constitution controls any legislative act repugnant to it; or, that the
legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is

either a superior paramount law, unchangeable by ordinary means, or it is on
a level with ordinary legislative acts, and, like other acts, is alterable
when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act

contrary to the Constitution is not law: if the latter part be true, then
written constitutions are absurd attempts on the part of the people to limit
a power in its own nature illimitable.
Certainly all those who have framed written constitutions contemplate them
as forming the fundamental and paramount law of the nation, and
consequently, the theory of every such government must be, that an act of
the legislature, repugnant to the constitution, is void.
This theory is essentially attached to a written constitution, and is,

consequently, to be considered by this court as one of the fundamental
principles of our society. It is not therefore to be lost sight of in the
further consideration of this subject.
If an act of the legislature, repugnant to the Constitution, is void, does

it, notwithstanding its invalidity, bind the courts, and oblige them to give
it effect? Or, in other words, though it be not law, does it constitute a
rule as operative as if it was a law? This would be to overthrow in fact
what was established in theory; and would seem at first view, an absurdity
too gross to be insisted on. It shall, however, receive a more attentive
consideration.
It is emphatically the province and duty of the judicial department to say

what the law is. Those who apply the rule to particular cases must, of
necessity, expound and interpret that rule. If two laws conflict with each
other, the courts must decide on the operation of each.
So if a law be in opposition to the Constitution; if both the law and the

constitution apply to a particular case, so that the court must either

decide that case conformably to the law, disregarding the Constitution; or
conformably to the Constitution, disregarding the law; the court must
determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty.
If, then, the courts are to regard the Constitution, and the Constitution is
superior to any ordinary act of the legislature, the Constitution, and not
such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be

considered, in court, as a paramount law, are reduced to the necessity of
maintaining that courts must close their eyes on the Constitution, and see
only the law.
This doctrine would subvert the very foundation of all written

constitutions. It would declare that an act which, according to the
principles and theory of our government, is entirely void, is yet, in
practice, completely obligatory. It would declare that if the legislature
shall do what is expressly forbidden, such act, notwithstanding the express
prohibition, is in reality effectual. It would be giving to the legislature
a practical and real omnipotence, with the same breath which professes to
restrict their powers within narrow limits. It is prescribing limits and
declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement
on political institutions -- a written constitution -- would of itself be
sufficient, in America, where written constitutions have been viewed with so
much reverence, for rejecting the construction. But the peculiar expressions
of the Constitution of the United States furnish additional arguments in
favor of its rejection.
The judicial power of the United States is extended to all cases arising
under the Constitution.
Could it be the intention of those who gave this power to say that, in using
it, the Constitution should not be looked into? That a case arising under
the Constitution should be decided without examining the instrument under
which it rises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the judges. And
if they can open it at all, what part of it are they forbidden to read or to
obey?
There are many other parts of the Constitution which serve to illustrate
this subject.
It is declared that "no tax or duty shall be laid on articles exported from
any state." Suppose a duty on the export of cotton, of tobacco, or of flour;
and a suit instituted to recover it. Ought judgment to be rendered in such a
case? Ought the judges to close their eyes on the Constitution, and see only
the law?
The Constitution declares that "no bill of attainder or ex post facto law
shall be passed."
If, however, such a bill should be passed and a person should be prosecuted
under it; must the court condemn to death those victims who the Constitution
endeavours to preserve?

"No person," says the Constitution, "shall be convicted of treason unless on

the testimony of two witnesses to the same overt act, or on confession in
open court."
Here the language of the Constitution is addressed especially to the courts.

It prescribes, directly for them, a rule of evidence not to be departed
from. If the legislature should change that rule, and declare one witness,
or a confession out of court, sufficient for conviction, must the
constitutional principle yield to the legislative act?
From these, and many other selections which might be made, it is apparent
that the framers of the Constitution contemplated that instrument as a rule
for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This
oath certainly applies in an especial manner to their conduct in their
official character. How immoral to impose it on them, if they were to be
used as the instruments, and the knowing instruments, for violating what
they swear to support?
The oath of office, too, imposed by the legislature, is completely

demonstrative of the legislative opinion on this subject. It is in these
words: "I do solemnly swear that I will administer justice without respect
to persons, and do equal right to the poor and to the rich; and that I will
faithfully and impartially discharge all the duties incumbent on me as --,
according to the best of my abilities and understanding agreeably to the
Constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the Constitution
of the United States, if that Constitution forms no rule for his government?
If it is closed upon him, and cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To
prescribe, or take this oath, becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what

shall be the supreme law of the land, the Constitution itself is first
mentioned; and not the laws of the United States generally, but those only
which shall he made in pursuance of the Constitution, have that rank.
Thus, the particular phraseology of the Constitution of the United States

confirms and strengthens the principle, supposed to be essential to all
written constitutions, that a law repugnant to the Constitution is void; and
that courts, as well as other departments, are bound by that instrument.
The rule must be
Discharged.


The dictum in this case has been the subject of a great deal of commentary, but before going on to adding
some more, something should be said about the actual holding and decree, which are wrong. Marbury
was claiming a property right in a commission as Justice of the Peace granted to him by the outgoing
President John Adams as one of his final acts, against a refusal to accept delivery of the commission by
Madison, as a cabinet official under President Jefferson, the successor to Adams. Chief Justice Marshall
ruled that Marbury had such a property right, but that the Supreme Court lacked the constitutional
authority to issue a writ of mandamus to Madison, and the Judiciary Act of 1789 was unconstitutional in
assigning it original jurisdiction for such a writ of mandamus.
This decision must be regarded as political. Marshall was afraid of being impeached and removed from
the Court if he ruled in favor of Marbury. Pressure was strong to do that for Justice Samuel Chase, who
would be tried in the Senate two years later for his part in the Alien and Sedition Acts trials. So Marshall
temporized in this case, but in so doing also delivered one of the more important dicta that would guide
further jurisprudence ever since.
Did Marbury have a property interest in his commission? No, he did not. He would have had under the
British monarchical constitution, but under the Constitution for the United States, there can be no
property right in an appointment to a public office. Even if there were, the procedure established of
granting a commission that did not become effective until delivered and accepted made the grant
incomplete without the acceptance, just as a grant deed of real property is not complete until delivered
and accepted by the grantee. Madison had the authority to refuse to accept delivery, and when he did, any
rights Marbury might have had terminated. The right had not vested.
Does the Court have the authority to issue a writ of mandamus to an executive branch official? Of course
it does. Any order of any court is an order to an executive branch official. It might be directed primarily
at a civilian, but implicit is the authority to an official to enforce it if the subject of the order fails to
comply.
On the other hand, Marshall is correct on one point. If the official refused to obey the order there is not
much the court can do about it. At that point the only remaining remedy is removal from office, and
perhaps prosecution after removal.
So, the Judiciary Act of 1789 was not unconstitutional on this point. However, the dictum explaining the
duty of the court to rule a statute unconstitutional if it was in conflict with the constitution was sound, as
far as it went. The problem was that it left the impression that this was the exercise of a power of the
court that only the court had. The misleading statement was, "It is emphatically the province and duty of
the judicial department to say what the law is." It is misleading because it connotes that as the "province"
is is exclusive of the other departments. The logic of constitutional republican government is that
everyone, not just the courts, and not just public officials, has the duty to enforce the law, and, where
conflicts in the law arise, resolve those conflicts and apply the correct law. When one of the laws in
conflict is the constitution, then the duty is of constitutional review, which is only judicial review when it
is judges that happen to do it. It is not an exclusive power of the courts. It is a duty of everyone subject to
the Constitution.

So what happens if the Supreme Court rules in a case that a statute is unconstitutional, but the Congress
or the President disagrees with them? They are bound to respect the decision in that case, unless they
have strong enough conviction of the wrongness of the decision to refuse to abide by it, but the ruling
does not remove the statute from the books. It could still be enforced by the Executive in other cases. But
the Court is indicating by its decision that it will not enforce the statute in other cases, and that any
attempt to do so by the other branches will not be productive. Confronted with that refusal by the
Judiciary to enforce, it is to be expected that the Executive will stop trying to enforce it, and the Congress
will stop trying to fund it. It takes all three branches to cooperate in establishing and enforcing a law, and
the refusal of any one of them defeats the effort.
The same principle extends to civilians. If jurors refuse to convict under a criminal statute that at least
one of them considers to be unconstitutional, then the enforcement of the act fails, and it becomes a dead
letter. If the required majority of the jury in a civil case fail to support the plaintiff in an action authorized
by law, then that law becomes moot.
This also points to the conclusion that under a constitutional requirement for unanimous verdicts of
twelve jurors in criminal trials, if the objective is to have a 50 percent chance of a prosecution succeeding
in obtaining a guilty verdict, and the jury is selected at random from the population, then there needs to
be at least 94 percent support for the criminal statute in the community. If there is not, then
mathematically there is a better than 50 percent chance that in a random jury of twelve at least one of
them will disagree with the law enough to refuse to convict someone of violating it. The choice of a jury
size of twelve is not an accident of history. As it happens, human societies have historically had an
average of about six percent of their populations who were disposed to delinquency if not disciplined by
the other 94 percent, who tend by nature to not engage in delinquent behavior even without the sanction
of law. However, whenever a majority of less than 94 percent has attempted to impose its morality on the
remainder by criminal laws, the result has, in general, been counterproductive and even destructive of
social cohesion and respect for law and lawmaking. This indicates that a constitution should require that
any criminal laws be passed by a legislative majority of at least 94 percent.
Text Version | Opinion | Contents

The dictum in this case has been the subject of a great deal of commentary,
but before going on to adding some more, something should be said about the
actual holding and decree, which are wrong. Marbury was claiming a property
right in a commission as Justice of the Peace granted to him by the outgoing
President John Adams as one of his final acts, against a refusal to accept
delivery of the commission by Madison, as a cabinet official under President
Jefferson, the successor to Adams. Chief Justice Marshall ruled that Marbury
had such a property right, but that the Supreme Court lacked the
constitutional authority to issue a writ of mandamus to Madison, and the
Judiciary Act of 1789 was unconstitutional in assigning it original
jurisdiction for such a writ of mandamus.
This decision must be regarded as political. Marshall was afraid of being

impeached and removed from the Court if he ruled in favor of Marbury.
Pressure was strong to do that for Justice Samuel Chase, who would be tried
in the Senate two years later for his part in the Alien and Sedition Acts
trials. So Marshall temporized in this case, but in so doing also delivered
one of the more important dicta that would guide further jurisprudence ever
since.
Did Marbury have a property interest in his commission? No, he did not. He
would have had under the British monarchical constitution, but under the
Constitution for the United States, there can be no property right in an
appointment to a public office. Even if there were, the procedure
established of granting a commission that did not become effective until
delivered and accepted made the grant incomplete without the acceptance,
just as a grant deed of real property is not complete until delivered and
accepted by the grantee. Madison had the authority to refuse to accept
delivery, and when he did, any rights Marbury might have had terminated. The
right had not vested.
Does the Court have the authority to issue a writ of mandamus to an

executive branch official? Of course it does. Any order of any court is an
order to an executive branch official. It might be directed primarily at a
civilian, but implicit is the authority to an official to enforce it if the
subject of the order fails to comply.
On the other hand, Marshall is correct on one point. If the official refused
to obey the order there is not much the court can do about it. At that point
the only remaining remedy is removal from office, and perhaps prosecution
after removal.
So, the Judiciary Act of 1789 was not unconstitutional on this point.
However, the dictum explaining the duty of the court to rule a statute
unconstitutional if it was in conflict with the constitution was sound, as
far as it went. The problem was that it left the impression that this was
the exercise of a power of the court that only the court had. The misleading
statement was, "It is emphatically the province and duty of the judicial
department to say what the law is." It is misleading because it connotes
that as the "province" is is exclusive of the other departments. The logic
of constitutional republican government is that everyone, not just the
courts, and not just public officials, has the duty to enforce the law, and,
where conflicts in the law arise, resolve those conflicts and apply the
correct law. When one of the laws in conflict is the constitution, then the
duty is of constitutional review, which is only judicial review when it is
judges that happen to do it. It is not an exclusive power of the courts. It
is a duty of everyone subject to the Constitution.

So what happens if the Supreme Court rules in a case that a statute is

unconstitutional, but the Congress or the President disagrees with them?
They are bound to respect the decision in that case, unless they have strong
enough conviction of the wrongness of the decision to refuse to abide by it,
but the ruling does not remove the statute from the books. It could still be
enforced by the Executive in other cases. But the Court is indicating by its
decision that it will not enforce the statute in other cases, and that any
attempt to do so by the other branches will not be productive. Confronted
with that refusal by the Judiciary to enforce, it is to be expected that the
Executive will stop trying to enforce it, and the Congress will stop trying
to fund it. It takes all three branches to cooperate in establishing and
enforcing a law, and the refusal of any one of them defeats the effort.
The same principle extends to civilians. If jurors refuse to convict under a

criminal statute that at least one of them considers to be unconstitutional,
then the enforcement of the act fails, and it becomes a dead letter. If the
required majority of the jury in a civil case fail to support the plaintiff
in an action authorized by law, then that law becomes moot.
This also points to the conclusion that under a constitutional requirement

for unanimous verdicts of twelve jurors in criminal trials, if the objective
is to have a 50 percent chance of a prosecution succeeding in obtaining a
guilty verdict, and the jury is selected at random from the population, then
there needs to be at least 94 percent support for the criminal statute in
the community. If there is not, then mathematically there is a better than
50 percent chance that in a random jury of twelve at least one of them will
disagree with the law enough to refuse to convict someone of violating it.
The choice of a jury size of twelve is not an accident of history. As it
happens, human societies have historically had an average of about six
percent of their populations who were disposed to delinquency if not
disciplined by the other 94 percent, who tend by nature to not engage in
delinquent behavior even without the sanction of law. However, whenever a
majority of less than 94 percent has attempted to impose its morality on the
remainder by criminal laws, the result has, in general, been
counterproductive and even destructive of social cohesion and respect for
law and lawmaking. This indicates that a constitution should require that
any criminal laws be passed by a legislative majority of at least 94
percent.

United States v. Hudson, 7 Cranch 32 (1812)
SUPREME COURT U.S.

[United States v. Hudson, 7 Cranch 32 (1812)]
THE UNITED STATES
v.
HUDSON AND GOODWIN
1812
Feb. 13th
Absent ... Washington, Justice
[Syllabus:] The courts of the U. States have no common law jurisdiction in cases of libel against the
government of the United States. But they have the power to fine for contempts, to imprison for
contumacy, and to enforce the observance of their orders, &c.
THIS was a case certified from the Circuit Court for the District of Connecticut, in which, upon
argument of a general demurrer to an indictment for a libel on the President and Congress of the United
States, contained in the Connecticut Currant, of the 7th of May, 1806, charging them with having in
secret voted two millions of dollars as a present to Bonaparte for leave to make a treaty with Spain, the
judges of that court were divided in opinion upon the question, whether the Circuit Court of the United
States had a common law jurisdiction in cases of libel.
PINKNEY, Attorney General, in behalf of the United States, and DANA for the Defendants, declined
arguing the case.
The Court, having taken time to consider, the following opinion was delivered (on the last day of the
term, all the judges being present) by JOHNSON, J.
The only question which this case presents is, whether the Circuit Courts of the United States can
exercise a common law jurisdiction in criminal cases. We state it thus broadly because a decision on a
case of libel will apply to every case in which jurisdiction is not vested in those courts by statute.
Although this question is brought up now for the first time to be decided by this Court, we consider it as
having been long since settled in public opinion. In no other case for many years has this jurisdiction
been asserted; and the general acquiescence of legal men shews the prevalence of opinion in favor of the
negative of the proposition.
The course of reasoning which leads to this conclusion is simple, obvious, and admits of but little
illustration. The powers of the general Government are made up of concessions from the several states —
whatever is not expressly given to the former, the latter expressly reserve. The judicial power of the
United States is a constituent part of those concessions — that power is to be exercised by Courts
organized for the purpose, and brought into existence by an effort of the legislative powers of the Union.
Of all the Courts which the United States may, under their general powers, constitute, one only, the
Supreme Court, possesses jurisdiction derived immediately from the constitution, and of which the
legislative power cannot deprive it. All other Courts created by the general Government possess no
jurisdiction but what is given them by the power that creates them, and can be vested with none but what
the power ceded to the general Government will authorize them to confer.

It is not necessary to inquire whether the general Government, in any and what extent, possesses the
power of conferring on its Courts a jurisdiction in cases similar to the present; it is enough that such
jurisdiction has not been conferred by any legislative act, if it does not result to those Courts as a
consequence of their creation.
And such is the opinion of the majority of the Court: For, the power which congress possess to create
Courts of inferior jurisdiction, necessarily implies the power to limit the jurisdiction of those Courts to
particular objects; and when a Court is created, and its operations confined to certain specific objects,
with what propriety can it assume to itself a jurisdiction — much more extended — in its nature very
indefinite — applicable to a great variety of subjects — varying in every state in the Union — and with
regard to which there exists no definite criterion of distribution between the district and Circuit Courts of
the same district?
The only ground on which it has ever been contended that this jurisdiction could be maintained is, that,
upon the formation of any political body, an implied power to preserve its own existence and promote the
end and object of its creation, necessarily results to it. But without examining how far this consideration
is applicable to the peculiar character of our constitution, it may be remarked that it is a principle by no
means peculiar to the common law. It is coeval, probably, with the first formation of a limited
Government; belongs to a system of universal law, and may as well support the assumption of many
other powers as those more peculiarly acknowledged by the common law of England.
But if admitted as applicable to the state of things in this country, the consequence would not result from
it which is here contended for. If it may communicate certain implied powers to the general Government,
it would not follow that the Courts of that Government are vested with jurisdiction over any particular act
done by an individual in supposed violation of the peace and dignity of the sovereign power. The
legislative authority of the Union must first make an act a crime, affix a punishment for it, and declare
the Court that shall have jurisdiction of the offence.
Certain implied powers must necessarily result to our Courts of justice from the nature of their
institution. But jurisdiction of crimes against the state is not among those powers. To fine for contempt
— imprison for contumacy — inforce the observance of order, &c. are powers which cannot be
dispensed with in a Court, because they are necessary to the exercise of all others: and so far our Courts
no doubt possess powers not immediately derived from statute; but all exercise of criminal jurisdiction in
common law cases we are of opinion is not within their implied powers.

SUPREME COURT U.S.
[United States v. Hudson, 7 Cranch 32 (1812)]
THE UNITED STATES

v.
HUDSON AND GOODWIN
1812
Feb. 13th
Absent ... Washington, Justice
[Syllabus:] The courts of the U. States have no common law jurisdiction in

cases of libel against the government of the United States. But they have
the power to fine for contempts, to imprison for contumacy, and to enforce
the observance of their orders, &c.
THIS was a case certified from the Circuit Court for the District of
Connecticut, in which, upon argument of a general demurrer to an indictment
for a libel on the President and Congress of the United States, contained in
the Connecticut Currant, of the 7th of May, 1806, charging them with having
in secret voted two millions of dollars as a present to Bonaparte for leave
to make a treaty with Spain, the judges of that court were divided in
opinion upon the question, whether the Circuit Court of the United States
had a common law jurisdiction in cases of libel.
PINKNEY, Attorney General, in behalf of the United States, and DANA for the
Defendants, declined arguing the case.
The Court, having taken time to consider, the following opinion was
delivered (on the last day of the term, all the judges being present) by
JOHNSON, J.
The only question which this case presents is, whether the Circuit Courts of
the United States can exercise a common law jurisdiction in criminal cases.
We state it thus broadly because a decision on a case of libel will apply to
every case in which jurisdiction is not vested in those courts by statute.
Although this question is brought up now for the first time to be decided by
this Court, we consider it as having been long since settled in public
opinion. In no other case for many years has this jurisdiction been
asserted; and the general acquiescence of legal men shews the prevalence of
opinion in favor of the negative of the proposition.
The course of reasoning which leads to this conclusion is simple, obvious,

and admits of but little illustration. The powers of the general Government
are made up of concessions from the several states -- whatever is not
expressly given to the former, the latter expressly reserve. The judicial
power of the United States is a constituent part of those concessions --
that power is to be exercised by Courts organized for the purpose, and
brought into existence by an effort of the legislative powers of the Union.
Of all the Courts which the United States may, under their general powers,
constitute, one only, the Supreme Court, possesses jurisdiction derived
immediately from the constitution, and of which the legislative power cannot
deprive it. All other Courts created by the general Government possess no
jurisdiction but what is given them by the power that creates them, and can
be vested with none but what the power ceded to the general Government will
authorize them to confer.
It is not necessary to inquire whether the general Government, in any and

what extent, possesses the power of conferring on its Courts a jurisdiction

in cases similar to the present; it is enough that such jurisdiction has not
been conferred by any legislative act, if it does not result to those Courts
as a consequence of their creation.
And such is the opinion of the majority of the Court: For, the power which
congress possess to create Courts of inferior jurisdiction, necessarily
implies the power to limit the jurisdiction of those Courts to particular
objects; and when a Court is created, and its operations confined to certain
specific objects, with what propriety can it assume to itself a jurisdiction
-- much more extended -- in its nature very indefinite -- applicable to a
great variety of subjects -- varying in every state in the Union -- and with
regard to which there exists no definite criterion of distribution between
the district and Circuit Courts of the same district?
The only ground on which it has ever been contended that this jurisdiction
could be maintained is, that, upon the formation of any political body, an
implied power to preserve its own existence and promote the end and object
of its creation, necessarily results to it. But without examining how far
this consideration is applicable to the peculiar character of our
constitution, it may be remarked that it is a principle by no means peculiar
to the common law. It is coeval, probably, with the first formation of a
limited Government; belongs to a system of universal law, and may as well
support the assumption of many other powers as those more peculiarly
acknowledged by the common law of England.
But if admitted as applicable to the state of things in this country, the

consequence would not result from it which is here contended for. If it may
communicate certain implied powers to the general Government, it would not
follow that the Courts of that Government are vested with jurisdiction over
any particular act done by an individual in supposed violation of the peace
and dignity of the sovereign power. The legislative authority of the Union
must first make an act a crime, affix a punishment for it, and declare the
Court that shall have jurisdiction of the offence.
Certain implied powers must necessarily result to our Courts of justice from
the nature of their institution. But jurisdiction of crimes against the
state is not among those powers. To fine for contempt -- imprison for
contumacy -- inforce the observance of order, &c. are powers which cannot be
dispensed with in a Court, because they are necessary to the exercise of all
others: and so far our Courts no doubt possess powers not immediately
derived from statute; but all exercise of criminal jurisdiction in common
law cases we are of opinion is not within their implied powers.

United States v. Hudson, 7 Cranch 32 (1812): Commentary

The correct decision in this case is not supported by an adequate opinion, which does little more than
assert what was common opinion, without showing how it derived logically from the Constitution.
The argument is correct that the general government and its courts cannot legitimately exercise powers
not delegated to them by the Constitution, and that the jurisdiction for common law crimes was not
conferred by a legislative act, but omits that there was no delegation of power to Congress to confer such
jurisdiction, or to the courts to enforce common law crimes in the absence of statute, in the way civil
common law powers were delegated to them.
Under the U.S. Constitution, there are only three kinds of criminal jurisdiction: territorial, subject, and
personal. The national Congress has general territorial criminal jurisdiction only over the territory of
federal enclaves created under Art. I Sec. 8 Cl. 17. At the time of this case it had subject jurisdiction only
over (1) treason (Art. III Sec. 3 Cl. 2), (2) counterfeiting (Art. I Sec. 8 Cl. 6), (3) piracy and felonies on
the high seas (Art. I Sec. 8 Cl. 10), and (4) offences against the laws of nations (Art. I Sec. 8 Cl. 10). The
only subjects of personal jurisdiction are military personnel and militia personnel when in actual federal
service (Art. I Sec. 8 Cl. 16).
But even within these limits, the jurisdiction is only delegated as powers to Congress to enact legislation.
The only powers delegated to the courts are to decide civil cases and enforce legislation. Enforcement of
criminal common law is not delegated to the courts.
It might be argued that the criminal common law, like the civil, was incorporated into the Constitution in
its state as of the date of ratification, if only by implication, but this proposition is inconsistent with the
prohibitions on ex post facto laws, because any common law crime is essentially ex post facto, simply
because it was not enacted prior to the offence, but only upon sentencing. It does not work to argue that a
sentence in a prior case, establishing a precedent for offenses of that kind, creates a criminal common
law that is not ex post facto. There is always some difference, between the circumstances of the past and
present offense and sentence, that makes a present case different enough to cast an ex post facto character
to the sentence in the present case.
The opinion is also incorrect concerning the powers of contempt, contumacy, and order enforcement
being implied by the Constitution. They should be, but the framers neglected to provide for them, and for
the sake of consistency, this is a defect that should be corrected by amendment. It could reasonably be
argued that criminal sanctions for contempt, contumacy, and order enforcement are implied powers of
the above delegated criminal powers in cases involving such offenses, but there is no logical basis for the
imposition of penalties, even fines, for such violations in civil cases, or, of course, for criminal penalties
based on any of the other noncriminal delegated powers. Civil and criminal powers are distinct, and the
latter cannot be implied by the former, nor was it considered so by the Framers.

The correct decision in this case is not supported by an adequate opinion,

which does little more than assert what was common opinion, without showing
how it derived logically from the Constitution.
The argument is correct that the general government and its courts cannot
legitimately exercise powers not delegated to them by the Constitution, and
that the jurisdiction for common law crimes was not conferred by a
legislative act, but omits that there was no delegation of power to Congress
to confer such jurisdiction, or to the courts to enforce common law crimes
in the absence of statute, in the way civil common law powers were delegated
to them.
Under the U.S. Constitution, there are only three kinds of criminal
jurisdiction: territorial, subject, and personal. The national Congress has
general territorial criminal jurisdiction only over the territory of federal
enclaves created under Art. I Sec. 8 Cl. 17. At the time of this case it had
subject jurisdiction only over (1) treason (Art. III Sec. 3 Cl. 2), (2)
counterfeiting (Art. I Sec. 8 Cl. 6), (3) piracy and felonies on the high
seas (Art. I Sec. 8 Cl. 10), and (4) offences against the laws of nations
(Art. I Sec. 8 Cl. 10). The only subjects of personal jurisdiction are
military personnel and militia personnel when in actual federal service
(Art. I Sec. 8 Cl. 16).
But even within these limits, the jurisdiction is only delegated as powers
to Congress to enact legislation. The only powers delegated to the courts
are to decide civil cases and enforce legislation. Enforcement of criminal
common law is not delegated to the courts.
It might be argued that the criminal common law, like the civil, was
incorporated into the Constitution in its state as of the date of
ratification, if only by implication, but this proposition is inconsistent
with the prohibitions on ex post facto laws, because any common law crime is
essentially ex post facto, simply because it was not enacted prior to the
offence, but only upon sentencing. It does not work to argue that a sentence
in a prior case, establishing a precedent for offenses of that kind, creates
a criminal common law that is not ex post facto. There is always some
difference, between the circumstances of the past and present offense and
sentence, that makes a present case different enough to cast an ex post
facto character to the sentence in the present case.
The opinion is also incorrect concerning the powers of contempt, contumacy,

and order enforcement being implied by the Constitution. They should be, but
the framers neglected to provide for them, and for the sake of consistency,
this is a defect that should be corrected by amendment. It could reasonably
be argued that criminal sanctions for contempt, contumacy, and order
enforcement are implied powers of the above delegated criminal powers in
cases involving such offenses, but there is no logical basis for the
imposition of penalties, even fines, for such violations in civil cases, or,
of course, for criminal penalties based on any of the other noncriminal
delegated powers. Civil and criminal powers are distinct, and the latter
cannot be implied by the former, nor was it considered so by the Framers.

McCulloch v. Maryland, 17 U.S. 316 (1819)

Syllabus
Congress has power to incorporate a bank.

The Act of the 10th of April, 1816, ch. 44, to "incorporate the subscribers to the Bank of the United
States" is a law made in pursuance of the Constitution.
The Government of the Union, though limited in its powers, is supreme within its sphere of action, and
its laws, when made in pursuance of the Constitution, form the supreme law of the land.
There is nothing in the Constitution of the United States similar to the Articles of Confederation, which
exclude incidental or implied powers.
If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate,
which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to
carry it into effect.
The power of establishing a corporation is not a distinct sovereign power or end of Government, but only
the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate
means of exercising any of the powers given by the Constitution to the Government of the Union, it may
be exercised by that Government.
If a certain means to carry into effect of any of the powers expressly given by the Constitution to the
Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its
necessity is a question of legislative discretion, not of judicial cognizance.
The Bank of the United States has, constitutionally, a right to establish its branches or offices of discount
and deposit within any state.
The State within which such branch may be established cannot, without violating the Constitution, tax
that branch.
The State governments have no right to tax any of the constitutional means employed by the Government
of the Union to execute its constitutional powers.
The States have no power, by taxation or otherwise, to retard, impede, burthen, or in any manner control
the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the
national Government.
This principle does not extend to a tax paid by the real property of the Bank of the United States in
common with the other real property in a particular state, nor to a tax imposed on the proprietary interest
which the citizens of that State may hold in this institution, in common with other property of the same
description throughout the State.
This was an action of debt, brought by the defendant in error, John James, who sued as well for himself
as for the State of Maryland, in the County Court of Baltimore County, in the said State, against the
plaintiff in error, McCulloch, to recover certain penalties, under the act of the Legislature of Maryland
http://www.constitution.org/ussc/017-316_.htm (1 of 3) [1/9/2001 7:47:58 PM]

hereafter mentioned. Judgment being rendered against the plaintiff in error, upon the following statement
of facts agreed and submitted to the court by the parties, was affirmed by the Court of Appeals of the
State of Maryland, the highest court of law of said State, and the cause was brought by writ of error to
this Court.
It is admitted by the parties in this cause, by their counsel, that there was passed, on the 10th day of
April, 1816, by the Congress of the United States, an act entitled, "an act to incorporate the subscribers to
the Bank of the United States;" and that there was passed on the 11th day of February, 1818, by the
General Assembly of Maryland, an act, entitled, "an act to impose a tax on all banks, or branches thereof,
in the State of Maryland, not chartered by the legislature," [p*318] which said acts are made part of this
Statement, and it is agreed, may be read from the statute books in which they are respectively printed. It
is further admitted that the President, directors and company of the Bank of the United States,
incorporated by the act of Congress aforesaid, did organize themselves, and go into full operation, in the
City of Philadelphia, in the State of Pennsylvania, in pursuance of the said act, and that they did on the
___ day of _____ 1817, establish a branch of the said bank, or an office of discount and deposit, in the
City of Baltimore, in the State of Maryland, which has, from that time until the first day of May 1818,
ever since transacted and carried on business as a bank, or office of discount and deposit, and as a branch
of the said Bank of the United States, by issuing bank notes and discounting promissory notes, and
performing other operations usual and customary for banks to do and perform, under the authority and by
the direction of the said President, directors and company of the Bank of the United States, established at
Philadelphia as aforesaid. It is further admitted that the said President, directors and company of the said
bank had no authority to establish the said branch, or office of discount and deposit, at the City of
Baltimore, from the State of Maryland, otherwise than the said State having adopted the Constitution of
the United States and composing one of the States of the Union. It is further admitted that James William
McCulloch, the defendant below, being the cashier of the said branch, or office of discount and [p*319]
deposit did, on the several days set forth in the declaration in this cause, issue the said respective bank
notes therein described, from the said branch or office, to a certain George Williams, in the City of
Baltimore, in part payment of a promissory note of the said Williams, discounted by the said branch or
office, which said respective bank notes were not, nor was either of them, so issued on stamped paper in
the manner prescribed by the act of assembly aforesaid. It is further admitted that the said President,
directors and company of the Bank of the United States, and the said branch, or office of discount and
deposit have not, nor has either of them, paid in advance, or otherwise, the sum of $15,000, to the
Treasurer of the Western Shore, for the use of the State of Maryland, before the issuing of the said notes,
or any of them, nor since those periods. And it is further admitted that the Treasurer of the Western Shore
of Maryland, under the direction of the Governor and Council of the said State, was ready, and offered to
deliver to the said President, directors and company of the said bank, and to the said branch, or office of
discount and deposit, stamped paper of the kind and denomination required and described in the said act
of assembly.
The question submitted to the Court for their decision in this case is as to the validity of the said act of
the General Assembly of Maryland on the ground of its being repugnant to the Constitution of the United
States and the act of Congress aforesaid, or to one of them. Upon the foregoing statement of facts and the
pleadings in this cause (all errors in [p*320] which are hereby agreed to be mutually released), if the
Court should be of opinion that the plaintiffs are entitled to recover, then judgment, it is agreed, shall be
entered for the plaintiffs for $2,500 and costs of suit. B ut if the Court should be of opinion that the
plaintiffs are not entitled to recover upon the statement and pleadings aforesaid, then judgment of non

pros shall be entered, with costs to the defendant.

It is agreed that either party may appeal from the decision of the County Court to the Court of Appeals,
and from the decision of the Court of Appeals to the Supreme Court of the United States, according to
the modes and usages of law, and have the same benefit of this statement of facts in the same manner as
could be had if a jury had been sworn and impanneled in this cause and a special verdict had been found,
or these facts had appeared and been stated in an exception taken to the opinion of the Court, and the
Court's direction to the jury thereon.
Contents | Text Version

http://www.constitution.org/ussc/017-316_.txt
Syllabus
The Act of the 10th of April, 1816, ch. 44, to "incorporate the subscribers
to the Bank of the United States" is a law made in pursuance of the
Constitution.
The Government of the Union, though limited in its powers, is supreme within
its sphere of action, and its laws, when made in pursuance of the
Constitution, form the supreme law of the land.
There is nothing in the Constitution of the United States similar to the

Articles of Confederation, which exclude incidental or implied powers.
If the end be legitimate, and within the scope of the Constitution, all the
means which are appropriate, which are plainly adapted to that end, and
which are not prohibited, may constitutionally be employed to carry it into
effect.
The power of establishing a corporation is not a distinct sovereign power or

end of Government, but only the means of carrying into effect other powers
which are sovereign. Whenever it becomes an appropriate means of exercising
any of the powers given by the Constitution to the Government of the Union,
it may be exercised by that Government.
If a certain means to carry into effect of any of the powers expressly given
by the Constitution to the Government of the Union be an appropriate
measure, not prohibited by the Constitution, the degree of its necessity is
a question of legislative discretion, not of judicial cognizance.
The Bank of the United States has, constitutionally, a right to establish

its branches or offices of discount and deposit within any state.
The State within which such branch may be established cannot, without
violating the Constitution, tax that branch.
The State governments have no right to tax any of the constitutional means
employed by the Government of the Union to execute its constitutional
powers.
The States have no power, by taxation or otherwise, to retard, impede,

burthen, or in any manner control the operations of the constitutional laws
enacted by Congress to carry into effect the powers vested in the national
Government.
This principle does not extend to a tax paid by the real property of the
Bank of the United States in common with the other real property in a
particular state, nor to a tax imposed on the proprietary interest which the
citizens of that State may hold in this institution, in common with other
property of the same description throughout the State.
This was an action of debt, brought by the defendant in error, John James,
who sued as well for himself as for the State of Maryland, in the County
Court of Baltimore County, in the said State, against the plaintiff in
error, McCulloch, to recover certain penalties, under the act of the
Legislature of Maryland hereafter mentioned. Judgment being rendered against
the plaintiff in error, upon the following statement of facts agreed and
submitted to the court by the parties, was affirmed by the Court of Appeals
http://www.constitution.org/ussc/017-316_.txt (1 of 3) [1/9/2001 7:48:06 PM]

of the State of Maryland, the highest court of law of said State, and the
cause was brought by writ of error to this Court.
It is admitted by the parties in this cause, by their counsel, that there

was passed, on the 10th day of April, 1816, by the Congress of the United
States, an act entitled, "an act to incorporate the subscribers to the Bank
of the United States;" and that there was passed on the 11th day of
February, 1818, by the General Assembly of Maryland, an act, entitled, "an
act to impose a tax on all banks, or branches thereof, in the State of
Maryland, not chartered by the legislature," [p*318] which said acts are
made part of this Statement, and it is agreed, may be read from the statute
books in which they are respectively printed. It is further admitted that
the President, directors and company of the Bank of the United States,
incorporated by the act of Congress aforesaid, did organize themselves, and
go into full operation, in the City of Philadelphia, in the State of
Pennsylvania, in pursuance of the said act, and that they did on the ___ day
of _____ 1817, establish a branch of the said bank, or an office of discount
and deposit, in the City of Baltimore, in the State of Maryland, which has,
from that time until the first day of May 1818, ever since transacted and
carried on business as a bank, or office of discount and deposit, and as a
branch of the said Bank of the United States, by issuing bank notes and
discounting promissory notes, and performing other operations usual and
customary for banks to do and perform, under the authority and by the
direction of the said President, directors and company of the Bank of the
United States, established at Philadelphia as aforesaid. It is further
admitted that the said President, directors and company of the said bank had
no authority to establish the said branch, or office of discount and
deposit, at the City of Baltimore, from the State of Maryland, otherwise
than the said State having adopted the Constitution of the United States and
composing one of the States of the Union. It is further admitted that James
William McCulloch, the defendant below, being the cashier of the said
branch, or office of discount and [p*319] deposit did, on the several days
set forth in the declaration in this cause, issue the said respective bank
notes therein described, from the said branch or office, to a certain George
Williams, in the City of Baltimore, in part payment of a promissory note of
the said Williams, discounted by the said branch or office, which said
respective bank notes were not, nor was either of them, so issued on stamped
paper in the manner prescribed by the act of assembly aforesaid. It is
further admitted that the said President, directors and company of the Bank
of the United States, and the said branch, or office of discount and deposit
have not, nor has either of them, paid in advance, or otherwise, the sum of
$15,000, to the Treasurer of the Western Shore, for the use of the State of
Maryland, before the issuing of the said notes, or any of them, nor since
those periods. And it is further admitted that the Treasurer of the Western
Shore of Maryland, under the direction of the Governor and Council of the
said State, was ready, and offered to deliver to the said President,
directors and company of the said bank, and to the said branch, or office of
discount and deposit, stamped paper of the kind and denomination required
and described in the said act of assembly.
The question submitted to the Court for their decision in this case is as to
the validity of the said act of the General Assembly of Maryland on the
ground of its being repugnant to the Constitution of the United States and
the act of Congress aforesaid, or to one of them. Upon the foregoing
statement of facts and the pleadings in this cause (all errors in [p*320]
which are hereby agreed to be mutually released), if the Court should be of
opinion that the plaintiffs are entitled to recover, then judgment, it is
agreed, shall be entered for the plaintiffs for $2,500 and costs of suit. B
ut if the Court should be of opinion that the plaintiffs are not entitled to
recover upon the statement and pleadings aforesaid, then judgment of non

It is agreed that either party may appeal from the decision of the County
Court to the Court of Appeals, and from the decision of the Court of Appeals
to the Supreme Court of the United States, according to the modes and usages
of law, and have the same benefit of this statement of facts in the same
manner as could be had if a jury had been sworn and impanneled in this cause
and a special verdict had been found, or these facts had appeared and been
stated in an exception taken to the opinion of the Court, and the Court's
direction to the jury thereon.


ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND
Syllabus
The Act of the 10th of April, 1816, ch. 44, to "incorporate the subscribers to the Bank of the United
States" is a law made in pursuance of the Constitution.
The Government of the Union, though limited in its powers, is supreme within its sphere of action, and
its laws, when made in pursuance of the Constitution, form the supreme law of the land.
There is nothing in the Constitution of the United States similar to the Articles of Confederation, which
exclude incidental or implied powers.
If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate,
which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to
carry it into effect.
The power of establishing a corporation is not a distinct sovereign power or end of Government, but only
the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate
means of exercising any of the powers given by the Constitution to the Government of the Union, it may
be exercised by that Government.
If a certain means to carry into effect of any of the powers expressly given by the Constitution to the
Government of the Union be an appropriate measure, not prohibited by the Constitution, the degree of its
necessity is a question of legislative discretion, not of judicial cognizance.
The Bank of the United States has, constitutionally, a right to establish its branches or offices of discount
and deposit within any state.
The State within which such branch may be established cannot, without violating the Constitution, tax
that branch.
The State governments have no right to tax any of the constitutional means employed by the Government
of the Union to execute its constitutional powers.
The States have no power, by taxation or otherwise, to retard, impede, burthen, or in any manner control
the operations of the constitutional laws enacted by Congress to carry into effect the powers vested in the
national Government.
This principle does not extend to a tax paid by the real property of the Bank of the United States in
common with the other real property in a particular state, nor to a tax imposed on the proprietary interest
which the citizens of that State may hold in this institution, in common with other property of the same
description throughout the State.

This was an action of debt, brought by the defendant in error, John James, who sued as well for himself
as for the State of Maryland, in the County Court of Baltimore County, in the said State, against the
plaintiff in error, McCulloch, to recover certain penalties, under the act of the Legislature of Maryland
hereafter mentioned. Judgment being rendered against the plaintiff in error, upon the following statement
of facts agreed and submitted to the court by the parties, was affirmed by the Court of Appeals of the
State of Maryland, the highest court of law of said State, and the cause was brought by writ of error to
this Court.
It is admitted by the parties in this cause, by their counsel, that there was passed, on the 10th day of
April, 1816, by the Congress of the United States, an act entitled, "an act to incorporate the subscribers to
the Bank of the United States;" and that there was passed on the 11th day of February, 1818, by the
General Assembly of Maryland, an act, entitled, "an act to impose a tax on all banks, or branches thereof,
in the State of Maryland, not chartered by the legislature," [p*318] which said acts are made part of this
Statement, and it is agreed, may be read from the statute books in which they are respectively printed. It
is further admitted that the President, directors and company of the Bank of the United States,
incorporated by the act of Congress aforesaid, did organize themselves, and go into full operation, in the
City of Philadelphia, in the State of Pennsylvania, in pursuance of the said act, and that they did on the
___ day of _____ 1817, establish a branch of the said bank, or an office of discount and deposit, in the
City of Baltimore, in the State of Maryland, which has, from that time until the first day of May 1818,
ever since transacted and carried on business as a bank, or office of discount and deposit, and as a branch
of the said Bank of the United States, by issuing bank notes and discounting promissory notes, and
performing other operations usual and customary for banks to do and perform, under the authority and by
the direction of the said President, directors and company of the Bank of the United States, established at
Philadelphia as aforesaid. It is further admitted that the said President, directors and company of the said
bank had no authority to establish the said branch, or office of discount and deposit, at the City of
Baltimore, from the State of Maryland, otherwise than the said State having adopted the Constitution of
the United States and composing one of the States of the Union. It is further admitted that James William
McCulloch, the defendant below, being the cashier of the said branch, or office of discount and [p*319]
deposit did, on the several days set forth in the declaration in this cause, issue the said respective bank
notes therein described, from the said branch or office, to a certain George Williams, in the City of
Baltimore, in part payment of a promissory note of the said Williams, discounted by the said branch or
office, which said respective bank notes were not, nor was either of them, so issued on stamped paper in
the manner prescribed by the act of assembly aforesaid. It is further admitted that the said President,
directors and company of the Bank of the United States, and the said branch, or office of discount and
deposit have not, nor has either of them, paid in advance, or otherwise, the sum of $15,000, to the
Treasurer of the Western Shore, for the use of the State of Maryland, before the issuing of the said notes,
or any of them, nor since those periods. And it is further admitted that the Treasurer of the Western Shore
of Maryland, under the direction of the Governor and Council of the said State, was ready, and offered to
deliver to the said President, directors and company of the said bank, and to the said branch, or office of
discount and deposit, stamped paper of the kind and denomination required and described in the said act
of assembly.
The question submitted to the Court for their decision in this case is as to the validity of the said act of
the General Assembly of Maryland on the ground of its being repugnant to the Constitution of the United
States and the act of Congress aforesaid, or to one of them. Upon the foregoing statement of facts and the
pleadings in this cause (all errors in [p*320] which are hereby agreed to be mutually released), if the

Court should be of opinion that the plaintiffs are entitled to recover, then judgment, it is agreed, shall be
entered for the plaintiffs for $2,500 and costs of suit. B ut if the Court should be of opinion that the
plaintiffs are not entitled to recover upon the statement and pleadings aforesaid, then judgment of non
It is agreed that either party may appeal from the decision of the County Court to the Court of Appeals,
and from the decision of the Court of Appeals to the Supreme Court of the United States, according to
the modes and usages of law, and have the same benefit of this statement of facts in the same manner as
could be had if a jury had been sworn and impanneled in this cause and a special verdict had been found,
or these facts had appeared and been stated in an exception taken to the opinion of the Court, and the
Court's direction to the jury thereon.
Copy of the act of the Legislature of the State of Maryland, referred to in the preceding Statement.
An act to impose a tax on all banks or branches thereof, in the State of Maryland not chartered by the
legislature
Be it enacted by the General Assembly of Maryland that if any bank has established or shall, without
authority from the State first had and obtained establish any branch, office of discount and [p*321]
deposit, or office of pay and receipt in any part of this State, it shall not be lawful for the said branch,
office of discount and deposit, or office of pay and receipt to issue notes, in any manner, of any other
denomination than five, ten, twenty, fifty, one hundred, five hundred and one thousand dollars, and no
note shall be issued except upon stamped paper of the following denominations; that is to say, every five
dollar note shall be upon a stamp of ten cents; every ten dollar note, upon a stamp of twenty cents; every
twenty dollar note, upon a stamp of thirty cents; every fifty dollar note, upon a stamp of fifty cents; every
one hundred dollar note, upon a stamp of one dollar; every five hundred dollar note, upon a stamp of ten
dollars; and every thousand dollar note, upon a stamp of twenty dollars; which paper shall be furnished
by the Treasurer of the Western Shore, under the direction of the Governor and Council, to be paid for
upon delivery; provided always that any institution of the above description may relieve itself from the
operation of the provisions aforesaid by paying annually, in advance, to the Treasurer of the Western
Shore, for the use of State, the sum of $15,000.
And be it enacted that the President, cashier, each of the directors and officers of every institution
established or to be established as aforesaid, offending against the provisions aforesaid shall forfeit a sum
of $500 for each and every offence, and every person having any agency in circulating any note
aforesaid, not stamped as aforesaid directed, shall forfeit a sum not exceeding $100, [p*322] every
penalty aforesaid to be recovered by indictment or action of debt in the county court of the county where
the offence shall be committed, one-half to the informer and the other half to the use of the State.
And be it enacted that this act shall be in full force and effect from and after the first day of May next.
[p*400]
Opinions
MARSHALL, C.J., Opinion of the Court
MARSHALL, Chief Justice, delivered the opinion of the Court.

In the case now to be determined, the defendant, a sovereign State, denies the obligation of a law enacted
by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has
been passed by the legislature of that State. The Constitution of our country, in its most interesting and
vital parts, is to be considered, the conflicting powers of the Government of the Union and of its
members, as marked in that Constitution, are to be discussed, and an opinion given which may
essentially influence the great operations of the Government. No tribunal can approach such a question
without a deep sense of its importance, and of the awful responsibility involved in its decision. But it
must be decided peacefully, or remain a source of [p*401] hostile legislation, perhaps, of hostility of a
still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On
the Supreme Court of the United States has the Constitution of our country devolved this important duty.
The first question made in the cause is -- has Congress power to incorporate a bank?
It has been truly said that this can scarcely be considered as an open question entirely unprejudiced by
the former proceedings of the Nation respecting it. The principle now contested was introduced at a very
early period of our history, has been recognised by many successive legislatures, and has been acted
upon by the Judicial Department, in cases of peculiar delicacy, as a law of undoubted obligation.
It will not be denied that a bold and daring usurpation might be resisted after an acquiescence still longer
and more complete than this. But it is conceived that a doubtful question, one on which human reason
may pause and the human judgment be suspended, in the decision of which the great principles of liberty
are not concerned, but the respective powers of those who are equally the representatives of the people,
are to be adjusted, if not put at rest by the practice of the Government, ought to receive a considerable
impression from that practice. An exposition of the Constitution, deliberately established by legislative
acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.
The power now contested was exercised by the first Congress elected under the present Constitution.
[p*402] The bill for incorporating the Bank of the United States did not steal upon an unsuspecting
legislature and pass unobserved. Its principle was completely understood, and was opposed with equal
zeal and ability. After being resisted first in the fair and open field of debate, and afterwards in the
executive cabinet, with as much persevering talent as any measure has ever experienced, and being
supported by arguments which convinced minds as pure and as intelligent as this country can boast, it
became a law. The original act was permitted to expire, but a short experience of the embarrassments to
which the refusal to revive it exposed the Government convinced those who were most prejudiced
against the measure of its necessity, and induced the passage of the present law. It would require no
ordinary share of intrepidity to assert that a measure adopted under these circumstances was a bold and
plain usurpation to which the Constitution gave no countenance. These observations belong to the cause;
but they are not made under the impression that, were the question entirely new, the law would be found
irreconcilable with the Constitution.
In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in
the construction of the Constitution, to consider that instrument not as emanating from the people, but as
the act of sovereign and independent States. The powers of the General Government, it has been said, are
delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the
States, who alone possess supreme dominion. [p*403]
It would be difficult to sustain this proposition. The convention which framed the Constitution was
indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere

proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the
United States with a request that it might be submitted to a convention of delegates, chosen in each State
by the people thereof, under the recommendation of its legislature, for their assent and ratification.
This mode of proceeding was adopted, and by the convention, by Congress, and by the State legislatures,
the instrument was submitted to the people. They acted upon it in the only manner in which they can act
safely, effectively and wisely, on such a subject -- by assembling in convention. It is true, they assembled
in their several States -- and where else should they have assembled? No political dreamer was ever wild
enough to think of breaking down the lines which separate the States, and of compounding the American
people into one common mass. Of consequence, when they act, they act in their States. But the measures
they adopt do not, on that account, cease to be the measures of the people themselves, or become the
measures of the State governments.
From these conventions the Constitution derives its whole authority. The government proceeds directly
from the people; is "ordained and established" in the name of the people, and is declared to be ordained,
in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure [p*404]
the blessings of liberty to themselves and to their posterity.
The assent of the States in their sovereign capacity is implied in calling a convention, and thus submitting
that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was
final. It required not the affirmance, and could not be negatived, by the State Governments. The
Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.
It has been said that the people had already surrendered all their powers to the State sovereignties, and
had nothing more to give. But surely the question whether they may resume and modify the powers
granted to Government does not remain to be settled in this country. Much more might the legitimacy of
the General Government be doubted had it been created by the States. The powers delegated to the State
sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created
by themselves. To the formation of a league such as was the Confederation, the State sovereignties were
certainly competent. But when, "in order to form a more perfect union," it was deemed necessary to
change this alliance into an effective Government, possessing great and sovereign powers and acting
directly on the people, the necessity of referring it to the people, and of deriving its powers directly from
them, was felt and acknowledged by all. The Government of the Union then (whatever may be the
influence of this fact on the case) is, [p*405] emphatically and truly, a Government of the people. In
form and in substance, it emanates from them. Its powers are granted by them, and are to be exercised
directly on them, and for their benefit.
This Government is acknowledged by all to be one of enumerated powers. The principle that it can
exercise only the powers granted to it would seem too apparent to have required to be enforced by all
those arguments which its enlightened friends, while it was depending before the people, found it
necessary to urge; that principle is now universally admitted. But the question respecting the extent of the
powers actually granted is perpetually arising, and will probably continue to arise so long as our system
shall exist. In discussing these questions, the conflicting powers of the General and State Governments
must be brought into view, and the supremacy of their respective laws, when they are in opposition, must
be settled.
If any one proposition could command the universal assent of mankind, we might expect it would be this
-- that the Government of the Union, though limited in its powers, is supreme within its sphere of action.

This would seem to result necessarily from its nature. It is the Government of all; its powers are
delegated by all; it represents all, and acts for all. Though any one State may be willing to control its
operations, no State is willing to allow others to control them. The nation, on those subjects on which it
can act, must necessarily bind its component parts. But this question is not left to mere reason; the people
have, in express terms, decided it by saying, [p*406] "this Constitution, and the laws of the United
States, which shall be made in pursuance thereof," "shall be the supreme law of the land," and by
requiring that the members of the State legislatures and the officers of the executive and judicial
departments of the States shall take the oath of fidelity to it. The Government of the United States, then,
though limited in its powers, is supreme, and its laws, when made in pursuance of the Constitution, form
the supreme law of the land, "anything in the Constitution or laws of any State to the contrary
notwithstanding."
Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But
there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or
implied powers and which requires that everything granted shall be expressly and minutely described.
Even the 10th Amendment, which was framed for the purpose of quieting the excessive jealousies which
had been excited, omits the word "expressly," and declares only that the powers "not delegated to the
United States, nor prohibited to the States, are reserved to the States or to the people," thus leaving the
question whether the particular power which may become the subject of contest has been delegated to the
one Government, or prohibited to the other, to depend on a fair construction of the whole instrument. The
men who drew and adopted this amendment had experienced the embarrassments resulting from the
insertion of this word in the Articles [p*407] of Confederation, and probably omitted it to avoid those
embarrassments. A Constitution, to contain an accurate detail of all the subdivisions of which its great
powers will admit, and of all the means by which they may be carried into execution, would partake of
the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably
never be understood by the public. Its nature, therefore, requires that only its great outlines should be
marked, its important objects designated, and the minor ingredients which compose those objects be
deduced from the nature of the objects themselves. That this idea was entertained by the framers of the
American Constitution is not only to be inferred from the nature of the instrument, but from the
language. Why else were some of the limitations found in the 9th section of the 1st article introduced? It
is also in some degree warranted by their having omitted to use any restrictive term which might prevent
its receiving a fair and just interpretation. In considering this question, then, we must never forget that it
is a Constitution we are expounding.
Although, among the enumerated powers of Government, we do not find the word "bank" or
"incorporation," we find the great powers, to lay and collect taxes; to borrow money; to regulate
commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the
purse, all the external relations, and no inconsiderable portion of the industry of the nation are intrusted
to its Government. It can never be pretended [p*408] that these vast powers draw after them others of
inferior importance merely because they are inferior. Such an idea can never be advanced. But it may
with great reason be contended that a Government intrusted with such ample powers, on the due
execution of which the happiness and prosperity of the Nation so vitally depends, must also be intrusted
with ample means for their execution. The power being given, it is the interest of the Nation to facilitate
its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog
and embarrass its execution by withholding the most appropriate means. Throughout this vast republic,
from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and

expended, armies are to be marched and supported. The exigencies of the Nation may require that the
treasure raised in the north should be transported to the south that raised in the east, conveyed to the
west, or that this order should be reversed. Is that construction of the Constitution to be preferred which
would render these operations difficult, hazardous and expensive? Can we adopt that construction (unless
the words imperiously require it) which would impute to the framers of that instrument, when granting
these powers for the public good, the intention of impeding their exercise, by withholding a choice of
means? If, indeed, such be the mandate of the Constitution, we have only to obey; but that instrument
does not profess to enumerate the means by which the powers it confers may be executed; nor does it
prohibit the creation of a corporation, [p*409] if the existence of such a being be essential, to the
beneficial exercise of those powers. It is, then, the subject of fair inquiry how far such means may be
employed.
It is not denied that the powers given to the Government imply the ordinary means of execution. That, for
example, of raising revenue and applying it to national purposes is admitted to imply the power of
conveying money from place to place as the exigencies of the Nation may require, and of employing the
usual means of conveyance. But it is denied that the Government has its choice of means, or that it may
employ the most convenient means if, to employ them, it be necessary to erect a corporation. On what
foundation does this argument rest? O n this alone: the power of creating a corporation is one
appertaining to sovereignty, and is not expressly conferred on Congress. This is true. But all legislative
powers appertain to sovereignty. The original power of giving the law on any subject whatever is a
sovereign power, and if the Government of the Union is restrained from creating a corporation as a
means for performing its functions, on the single reason that the creation of a corporation is an act of
sovereignty, if the sufficiency of this reason be acknowledged, there would be some difficulty in
sustaining the authority of Congress to pass other laws for the accomplishment of the same objects. The
Government which has a right to do an act and has imposed on it the duty of performing that act must,
according to the dictates of reason, be allowed [p*410] to select the means, and those who contend that it
may not select any appropriate means that one particular mode of effecting the object is excepted take
upon themselves the burden of establishing that exception.
The creation of a corporation, it is said, appertains to sovereignty. This is admitted. But to what portion
of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of
sovereignty are divided between the Government of the Union and those of the States. They are each
sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects
committed to the other. We cannot comprehend that train of reasoning, which would maintain that the
extent of power granted by the people is to be ascertained not by the nature and terms of the grant, but by
its date. Some State Constitutions were formed before, some since, that of the United States. We cannot
believe that their relation to each other is in any degree dependent upon this circumstance. Their
respective powers must, we think, be precisely the same as if they had been formed at the same time. Had
they been formed at the same time, and had the people conferred on the General Government the power
contained in the Constitution, and on the States the whole residuum of power, would it have been
asserted that the Government of the Union was not sovereign, with respect to those objects which were
intrusted to it, in relation to which its laws were declared to be supreme? If this could not have been
asserted, we cannot well comprehend the process of reasoning [p*411] which maintains that a power
appertaining to sovereignty cannot be connected with that vast portion of it which is granted to the
General Government, so far as it is calculated to subserve the legitimate objects of that Government. The
power of creating a corporation, though appertaining to sovereignty, is not, like the power of making war

or levying taxes or of regulating commerce, a great substantive and independent power which cannot be
implied as incidental to other powers or used as a means of executing them. It is never the end for which
other powers are exercised, but a means by which other objects are accomplished. No contributions are
made to charity for the sake of an incorporation, but a corporation is created to administer the charity; no
seminary of learning is instituted in order to be incorporated, but the corporate character is conferred to
subserve the purposes of education. No city was ever built with the sole object of being incorporated, but
is incorporated as affording the best means of being well governed. The power of creating a corporation
is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is
therefore perceived why it may not pass as incidental to those powers which are expressly given if it be a
direct mode of executing them.
But the Constitution of the United States has not left the right of Congress to employ the necessary
means for the execution of the powers conferred on the Government to general reasoning. To its
enumeration of powers is added that of making all [p*412] laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers vested by this Constitution in the
Government of the United States or in any department thereof.
The counsel for the State of Maryland have urged various arguments to prove that this clause, though in
terms a grant of power, is not so in effect, but is really restrictive of the general right which might
otherwise be implied of selecting means for executing the enumerated powers. In support of this
proposition, they have found it necessary to contend that this clause was inserted for the purpose of
conferring on Congress the power of making laws. That, without it, doubts might be entertained whether
Congress could exercise its powers in the form of legislation.
But could this be the object for which it was inserted? A Government is created by the people having
legislative, executive and judicial powers. Its legislative powers are vested in a Congress, which is to
consist of a senate and house of representatives. Each house may determine the rule of its proceedings,
and it is declared that every bill which shall have passed both houses shall, before it becomes a law, be
presented to the President of the United States. The 7th section describes the course of proceedings by
which a bill shall become a law, and then the 8th section enumerates the powers of Congress. Could it be
necessary to say that a legislature should exercise legislative powers, in the shape of legislation? After
allowing each house to prescribe [p*413] its own course of proceeding, after describing the manner in
which a bill should become a law, would it have entered into the mind of a single member of the
convention that an express power to make laws was necessary to enable the legislature to make them?
That a legislature, endowed with legislative powers, can legislate is a proposition too self-evident to have
been questioned.
But the argument on which most reliance is placed is drawn from that peculiar language of this clause.
Congress is not empowered by it to make all laws which may have relation to the powers conferred on
the Government, but such only as may be "necessary and proper" for carrying them into execution. The
word "necessary" is considered as controlling the whole sentence, and as limiting the right to pass laws
for the execution of the granted powers to such as are indispensable, and without which the power would
be nugatory. That it excludes the choice of means, and leaves to Congress in each case that only which is
most direct and simple.
Is it true that this is the sense in which the word "necessary" is always used? Does it always import an
absolute physical necessity so strong that one thing to which another may be termed necessary cannot

exist without that other? We think it does not. If reference be had to its use in the common affairs of the
world or in approved authors, we find that it frequently imports no more than that one thing is
convenient, or useful, or essential to another. To employ the means necessary to an end is generally
understood as employing any means calculated to [p*414] produce the end, and not as being confined to
those single means without which the end would be entirely unattainable. Such is the character of human
language that no word conveys to the mind in all situations one single definite idea, and nothing is more
common than to use words in a figurative sense. Almost all compositions contain words which, taken in
a their rigorous sense, would convey a meaning different from that which is obviously intended. It is
essential to just construction that many words which import something excessive should be understood in
a more mitigated sense -- in that sense which common usage justifies. The word "necessary" is of this
description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison, and is
often connected with other words which increase or diminish the impression the mind receives of the
urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To
no mind would the same idea be conveyed by these several phrases. The comment on the word is well
illustrated by the passage cited at the bar from the 10th section of the 1st article of the Constitution. It is,
we think, impossible to compare the sentence which prohibits a State from laying "imposts, or duties on
imports or exports, except what may be absolutely necessary for executing its inspection laws," with that
which authorizes Congress "to make all laws which shall be necessary and proper for carrying into
execution" the powers of the General Government without feeling a conviction that the convention
understood itself to change materially [p*415] the meaning of the word "necessary," by prefixing the
word "absolutely." This word, then, like others, is used in various senses, and, in its construction, the
subject, the context, the intention of the person using them are all to be taken into view.
Let this be done in the case under consideration. The subject is the execution of those great powers on
which the welfare of a Nation essentially depends. It must have been the intention of those who gave
these powers to insure, so far as human prudence could insure, their beneficial execution. This could not
be done by confiding the choice of means to such narrow limits as not to leave it in the power of
Congress to adopt any which might be appropriate, and which were conducive to the end. This provision
is made in a Constitution intended to endure for ages to come, and consequently to be adapted to the
various crises of human affairs. To have prescribed the means by which Government should, in all future
time, execute its powers would have been to change entirely the character of the instrument and give it
the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for
exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as
they occur. To have declared that the best means shall not be used, but those alone without which the
power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself
of experience, to exercise its reason, and to accommodate its legislation to circumstances. [p*416]
If we apply this principle of construction to any of the powers of the Government, we shall find it so
pernicious in its operation that we shall be compelled to discard it. The powers vested in Congress may
certainly be carried into execution, without prescribing an oath of office. The power to exact this security
for the faithful performance of duty is not given, nor is it indispensably necessary. The different
departments may be established; taxes may be imposed and collected; armies and navies may be raised
and maintained; and money may be borrowed, without requiring an oath of office. It might be argued
with as much plausibility as other incidental powers have been assailed that the convention was not
unmindful of this subject. The oath which might be exacted -- that of fidelity to the Constitution -- is
prescribed, and no other can be required. Yet he would be charged with insanity who should contend that

the legislature might not superadd to the oath directed by the Constitution such other oath of office as its
wisdom might suggest.
So, with respect to the whole penal code of the United States, whence arises the power to punish in cases
not prescribed by the Constitution? All admit that the Government may legitimately punish any violation
of its laws, and yet this is not among the enumerated powers of Congress. The right to enforce the
observance of law by punishing its infraction might be denied with the more plausibility because it is
expressly given in some cases.
Congress is empowered "to provide for the punishment [p*417] of counterfeiting the securities and
current coin of the United States," and "to define and punish piracies and felonies committed on the high
seas, and offences against the law of nations." The several powers of Congress may exist in a very
imperfect State, to be sure, but they may exist and be carried into execution, although no punishment
should be inflicted, in cases where the right to punish is not expressly given.
Take, for example, the power "to establish post-offices and post-roads." This power is executed by the
single act of making the establishment. But from this has been inferred the power and duty of carrying
the mail along the post road from one post office to another. And from this implied power has again been
inferred the right to punish those who steal letters from the post office, or rob the mail. It may be said
with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably
necessary to the establishment of a post office and post road. This right is indeed essential to the
beneficial exercise of the power, but not indispensably necessary to its existence. So, of the punishment
of the crimes of stealing or falsifying a record or process of a Court of the United States, or of perjury in
such Court. To punish these offences is certainly conducive to the due administration of justice. But
Courts may exist, and may decide the causes brought before them, though such crimes escape
punishment.
The baneful influence of this narrow construction on all the operations of the Government, and the
absolute [p*418] impracticability of maintaining it without rendering the Government incompetent to its
great objects, might be illustrated by numerous examples drawn from the Constitution and from our laws.
The good sense of the public has pronounced without hesitation that the power of punishment appertains
to sovereignty, and may be exercised, whenever the sovereign has a right to act, as incidental to his
Constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used
although not indispensably necessary. It is a right incidental to the power, and conducive to its beneficial
exercise.
If this limited construction of the word "necessary" must be abandoned in order to punish, whence is
derived the rule which would reinstate it when the Government would carry its powers into execution by
means not vindictive in their nature? If the word "necessary" means "needful," "requisite," "essential,"
"conducive to," in order to let in the power of punishment for the infraction of law, why is it not equally
comprehensive when required to authorize the use of means which facilitate the execution of the powers
of Government, without the infliction of punishment?
In ascertaining the sense in which the word "necessary" is used in this clause of the Constitution, we may
derive some aid from that with which it it is associated. Congress shall have power "to make all laws
which shall be necessary and proper to carry into execution" the powers of the Government. If the word
"necessary" was used in that strict and rigorous sense for which the counsel for the State of [p*419]
Maryland contend, it would be an extraordinary departure from the usual course of the human mind, as

exhibited in composition, to add a word the only possible effect of which is to qualify that strict and
rigorous meaning, to present to the mind the idea of some choice of means of legislation not strained and
compressed within the narrow limits for which gentlemen contend.
But the argument which most conclusively demonstrates the error of the construction contended for by
the counsel for the State of Maryland is founded on the intention of the convention as manifested in the
whole clause. To waste time and argument in proving that, without it, Congress might carry its powers
into execution would be not much less idle than to hold a lighted taper to the sun. As little can it be
required to prove that, in the absence of this clause, Congress would have some choice of means. That it
might employ those which, in its judgment, would most advantageously effect the object to be
accomplished. That any means adapted to the end, any means which tended directly to the execution of
the Constitutional powers of the Government, were in themselves Constitutional. This clause, as
construed by the State of Maryland, would abridge, and almost annihilate, this useful and necessary right
of the legislature to select its means. That this could not be intended is, we should think, had it not been
already controverted, too apparent for controversy.
We think so for the following reasons:
1st. The clause is placed among the powers of Congress, not among the limitations on those powers.
[p*420]
2d. Its terms purport to enlarge, not to diminish, the powers vested in the Government. It purports to be
an additional power, not a restriction on those already granted. No reason has been or can be assigned for
thus concealing an intention to narrow the discretion of the National Legislature under words which
purport to enlarge it. The framers of the Constitution wished its adoption, and well knew that it would be
endangered by its strength, not by its weakness. Had they been capable of using language which would
convey to the eye one idea and, after deep reflection, impress on the mind another, they would rather
have disguised the grant of power than its limitation. If, then, their intention had been, by this clause, to
restrain the free use of means which might otherwise have been implied, that intention would have been
inserted in another place, and would have been expressed in terms resembling these. "In carrying into
execution the foregoing powers, and all others," &c., "no laws shall be passed but such as are necessary
and proper." Had the intention been to make this clause restrictive, it would unquestionably have been so
in form, as well as in effect.
The result of the most careful and attentive consideration bestowed upon this clause is that, if it does not
enlarge, it cannot be construed to restrain, the powers of Congress, or to impair the right of the legislature
to exercise its best judgment in the selection of measures to carry into execution the Constitutional
powers of the Government. If no other motive for its insertion can be suggested, a sufficient one is found
in the desire to remove all doubts respecting [p*421] the right to legislate on that vast mass of incidental
powers which must be involved in the Constitution if that instrument be not a splendid bauble.
We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to
be transcended. But we think the sound construction of the Constitution must allow to the national
legislature that discretion with respect to the means by which the powers it confers are to be carried into
execution which will enable that body to perform the high duties assigned to it in the manner most
beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the Constitution, are Constitutional.[*]

That a corporation must be considered as a means not less usual, not of higher dignity, not more
requiring a particular specification than other means has been sufficiently proved. If we look to the origin
of corporations, to the manner in which they have been framed in that Government from which we have
derived most of our legal principles and ideas, or to the uses to which they have been applied, we find no
reason to suppose that a Constitution, omitting, and wisely omitting, to enumerate all the means for
carrying into execution the great powers vested in Government, ought to have specified this. Had it been
intended to grant this power as one which should be distinct and independent, to be exercised in any case
whatever, it [p*422] would have found a place among the enumerated powers of the Government. But
being considered merely as a means, to be employed only for the purpose of carrying into execution the
given powers, there could be no motive for particularly mentioning it.
The propriety of this remark would seem to be generally acknowledged by the universal acquiescence in
the construction which has been uniformly put on the 3d section of the 4th article of the Constitution.
The power to "make all needful rules and regulations respecting the territory or other property belonging
to the United States" is not more comprehensive than the power "to make all laws which shall be
necessary and proper for carrying into execution" the powers of the Government. Yet all admit the
constitutionality of a Territorial Government, which is a corporate body.
If a corporation may be employed, indiscriminately with other means, to carry into execution the powers
of the Government, no particular reason can be assigned for excluding the use of a bank, if required for
its fiscal operations. To use one must be within the discretion of Congress if it be an appropriate mode of
executing the powers of Government. That it is a convenient, a useful, and essential instrument in the
prosecution of its fiscal operations is not now a subject of controversy. All those who have been
concerned in the administration of our finances have concurred in representing its importance and
necessity, and so strongly have they been felt that Statesmen of the first class, whose previous opinions
[p*423] against it had been confirmed by every circumstance which can fix the human judgment, have
yielded those opinions to the exigencies of the nation. Under the Confederation, Congress, justifying the
measure by its necessity, transcended, perhaps, its powers to obtain the advantage of a bank; and our own
legislation attests the universal conviction of the utility of this measure. The time has passed away when
it can be necessary to enter into any discussion in order to prove the importance of this instrument as a
means to effect the legitimate objects of the Government.
But were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the
decree of its necessity, as has been very justly observed, is to be discussed in another place. Should
Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or
should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects
not intrusted to the Government, it would become the painful duty of this tribunal, should a case
requiring such a decision come before it, to say that such an act was not the law of the land. But where
the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government,
to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes
the judicial department and to tread on legislative ground. This Court disclaims all pretensions to such a
power. [p*424]
After this declaration, it can scarcely be necessary to say that the existence of State banks can have no
possible influence on the question. No trace is to be found in the Constitution of an intention to create a
dependence of the Government of the Union on those of the States, for the execution of the great powers

assigned to it. Its means are adequate to its ends, and on those means alone was it expected to rely for the
accomplishment of its ends. To impose on it the necessity of resorting to means which it cannot control,
which another Government may furnish or withhold, would render its course precarious, the result of its
measures uncertain, and create a dependence on other Governments which might disappoint its most
important designs, and is incompatible with the language of the Constitution. But were it otherwise, the
choice of means implies a right to choose a national bank in preference to State banks, and Congress
alone can make the election.
After the most deliberate consideration, it is the unanimous and decided opinion of this Court that the act
to incorporate the Bank of the United States is a law made in pursuance of the Constitution, and is a part
of the supreme law of the land.
The branches, proceeding from the same stock and being conducive to the complete accomplishment of
the object, are equally constitutional. It would have been unwise to locate them in the charter, and it
would be unnecessarily inconvenient to employ the legislative power in making those subordinate
arrangements. The great duties of the bank are prescribed; those duties require branches; and the bank
itself [p*425] may, we think, be safely trusted with the selection of places where those branches shall be
fixed, reserving always to the Government the right to require that a branch shall be located where it may
be deemed necessary.
It being the opinion of the Court that the act incorporating the bank is constitutional, and that the power
of establishing a branch in the State of Maryland might be properly exercised by the bank itself, we
proceed to inquire:
2. Whether the State of Maryland may, without violating the Constitution, tax that branch?
That the power of taxation is one of vital importance; that it is retained by the States; that it is not
abridged by the grant of a similar power to the Government of the Union; that it is to be concurrently
exercised by the two Governments -- are truths which have never been denied. But such is the paramount
character of the Constitution that its capacity to withdraw any subject from the action of even this power
is admitted. The States are expressly forbidden to lay any duties on imports or exports except what may
be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be
conceded -- if it may restrain a State from the exercise of its taxing power on imports and exports -- the
same paramount character would seem to restrain, as it certainly may restrain, a State from such other
exercise of this power as is in its nature incompatible with, and repugnant to, the constitutional laws of
the Union. A law absolutely repugnant to another as entirely [p*426] repeals that other as if express
terms of repeal were used.
On this ground, the counsel for the bank place its claim to be exempted from the power of a State to tax
its operations. There is no express provision for the case, but the claim has been sustained on a principle
which so entirely pervades the Constitution, is so intermixed with the materials which compose it, so
interwoven with its web, so blended with its texture, as to be incapable of being separated from it without
rending it into shreds.
This great principle is that the Constitution and the laws made in pursuance thereof are supreme; that
they control the Constitution and laws of the respective States, and cannot be controlled by them. From
this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or
error of which, and on their application to this case, the cause has been supposed to depend. These are,

1st. That a power to create implies a power to preserve; 2d. That a power to destroy, if wielded by a
different hand, is hostile to, and incompatible with these powers to create and to preserve; 3d. That,
where this repugnancy exists, that authority which is supreme must control, not yield to that over which
it is supreme.
These propositions, as abstract truths, would perhaps never be controverted. Their application to this
case, however, has been denied, and both in maintaining the affirmative and the negative, a splendor of
eloquence, and strength of argument seldom if ever surpassed have been displayed. [p*427]
The power of Congress to create and, of course, to continue the bank was the subject of the preceding
part of this opinion, and is no longer to be considered as questionable.
That the power of taxing it by the States may be exercised so as to destroy it is too obvious to be denied.
But taxation is said to be an absolute power which acknowledges no other limits than those expressly
prescribed in the Constitution, and, like sovereign power of every other description, is intrusted to the
discretion of those who use it. But the very terms of this argument admit that the sovereignty of the State,
in the article of taxation itself, is subordinate to, and may be controlled by, the Constitution of the United
States. How far it has been controlled by that instrument must be a question of construction. In making
this construction, no principle, not declared, can be admissible which would defeat the legitimate
operations of a supreme Government. It is of the very essence of supremacy to remove all obstacles to its
action within its own sphere, and so to modify every power vested in subordinate governments as to
exempt its own operations from their own influence. This effect need not be stated in terms. It is so
involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not
make it more certain. We must, therefore, keep it in view while construing the Constitution.
The argument on the part of the State of Maryland is not that the States may directly resist a law of
Congress, but that they may exercise their [p*428] acknowledged powers upon it, and that the
Constitution leaves them this right, in the confidence that they will not abuse it. Before we proceed to
examine this argument and to subject it to test of the Constitution, we must be permitted to bestow a few
considerations on the nature and extent of this original right of taxation, which is acknowledged to
remain with the States. It is admitted that the power of taxing the people and their property is essential to
the very existence of Government, and may be legitimately exercised on the objects to which it is
applicable, to the utmost extent to which the Government may choose to carry it. The only security
against the abuse of this power is found in the structure of the Government itself. In imposing a tax, the
legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and
oppressive taxation.
The people of a State, therefore, give to their Government a right of taxing themselves and their property,
and as the exigencies of Government cannot be limited, they prescribe no limits to the exercise of this
right, resting confidently on the interest of the legislator and on the influence of the constituent over their
representative to guard them against its abuse. But the means employed by the Government of the Union
have no such security, nor is the right of a State to tax them sustained by the same theory. Those means
are not given by the people of a particular State, not given by the constituents of the legislature which
claim the right to tax them, but by the people of all the States They are given by all, [p*429] for the
benefit of all -- and, upon theory, should be subjected to that Government only which belongs to all.
It may be objected to this definition that the power of taxation is not confined to the people and property
of a State. It may be exercised upon every object brought within its jurisdiction.

This is true. But to what source do we trace this right? It is obvious that it is an incident of sovereignty,
and is coextensive with that to which it is an incident. All subjects over which the sovereign power of a
State extends are objects of taxation, but those over which it does not extend are, upon the soundest
principles, exempt from taxation. This proposition may almost be pronounced self-evident.
The sovereignty of a State extends to everything which exists by its own authority or is introduced by its
permission, but does it extend to those means which are employed by Congress to carry into execution
powers conferred on that body by the people of the United States? We think it demonstrable that it does
not. Those powers are not given by the people of a single State. They are given by the people of the
United States, to a Government whose laws, made in pursuance of the Constitution, are declared to be
supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over
them.
If we measure the power of taxation residing in a State by the extent of sovereignty which the people of a
single State possess and can confer on its Government, we have an intelligible standard, applicable
[p*430] to every case to which the power may be applied. We have a principle which leaves the power of
taxing the people and property of a State unimpaired; which leaves to a State the command of all its
resources, and which places beyond its reach all those powers which are conferred by the people of the
United States on the Government of the Union, and all those means which are given for the purpose of
carrying those powers into execution. We have a principle which is safe for the States and safe for the
Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a
repugnancy between a right in one Government to pull down what there is an acknowledged right in
another to build up; from the incompatibility of a right in one Government to destroy what there is a right
in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department,
what degree of taxation is the legitimate use and what degree may amount to the abuse of the power. The
attempt to use it on the means employed by the Government of the Union, in pursuance of the
Constitution, is itself an abuse because it is the usurpation of a power which the people of a single State
cannot give.
We find, then, on just theory, a total failure of this original right to tax the means employed by the
Government of the Union, for the execution of its powers. The right never existed, and the question
whether it has been surrendered cannot arise.
But, waiving this theory for the present, let us resume the inquiry, whether this power can be exercised
[p*431] by the respective States, consistently with a fair construction of the Constitution?
That the power to tax involves the power to destroy; that the power to destroy may defeat and render
useless the power to create; that there is a plain repugnance in conferring on one Government a power to
control the constitutional measures of another, which other, with respect to those very measures, is
declared to be supreme over that which exerts the control, are propositions not to be denied. But all
inconsistencies are to be reconciled by the magic of the word CONFIDENCE. Taxation, it is said, does
not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to
presume which would banish that confidence which is essential to all Government.
But is this a case of confidence? Would the people of any one State trust those of another with a power to
control the most insignificant operations of their State Government? We know they would not. Why,
then, should we suppose that the people of any one State should be willing to trust those of another with

a power to control the operations of a Government to which they have confided their most important and
most valuable interests? In the Legislature of the Union alone are all represented. The Legislature of the
Union alone, therefore, can be trusted by the people with the power of controlling measures which
concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we
must consider it is as it really is. [p*432]
If we apply the principle for which the State of Maryland contends, to the Constitution generally, we
shall find it capable of changing totally the character of that instrument. We shall find it capable of
arresting all the measures of the Government, and of prostrating it at the foot of the States. The American
people have declared their Constitution and the laws made in pursuance thereof to be supreme, but this
principle would transfer the supremacy, in fact, to the States.
If the States may tax one instrument, employed by the Government in the execution of its powers, they
may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax
patent rights; they may tax the papers of the custom house; they may tax judicial process; they may tax
all the means employed by the Government to an excess which would defeat all the ends of Government.
This was not intended by the American people. They did not design to make their Government dependent
on the States.
Gentlemen say they do not claim the right to extend State taxation to these objects. They limit their
pretensions to property. But on what principle is this distinction made? Those who make it have
furnished no reason for it, and the principle for which they contend denies it. They contend that the
power of taxation has no other limit than is found in the 10th section of the 1st article of the Constitution;
that, with respect to everything else, the power of the States is supreme, and admits of no control. If this
be true, the distinction between property and [p*433] other subjects to which the power of taxation is
applicable is merely arbitrary, and can never be sustained. This is not all. If the controlling power of the
States be established, if their supremacy as to taxation be acknowledged, what is to restrain their
exercising control in any shape they may please to give it? Their sovereignty is not confined to taxation;
that is not the only mode in which it might be displayed. The question is, in truth, a question of
supremacy, and if the right of the States to tax the means employed by the General Government be
conceded, the declaration that the Constitution and the laws made in pursuance thereof shall be the
supreme law of the land is empty and unmeaning declamation.
In the course of the argument, the Federalist has been quoted, and the opinions expressed by the authors
of that work have been justly supposed to be entitled to great respect in expounding the Constitution. No
tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which
may arise in the progress of our Government, a right to judge of their correctness must be retained; and to
understand the argument, we must examine the proposition it maintains and the objections against which
it is directed. The subject of those numbers from which passages have been cited is the unlimited power
of taxation which is vested in the General Government. The objection to this unlimited power, which the
argument seeks to remove, is stated with fulness and clearness. It is that an indefinite power of taxation
in the latter (the Government [p*434] of the Union) might, and probably would, in time, deprive the
former (the Government of the States) of the means of providing for their own necessities, and would
subject them entirely to the mercy of the National Legislature. As the laws of the Union are to become
the supreme law of the land; as it is to have power to pass all laws that may be necessary for carrying into
execution the authorities with which it is proposed to vest it; the National Government might, at any
time, abolish the taxes imposed for State objects upon the pretence of an interference with its own. It

might allege a necessity for doing this, in order to give efficacy to the national revenues; and thus, all the
resources of taxation might, by degrees, become the subjects of federal monopoly, to the entire exclusion
and destruction of the State Governments.
The objections to the Constitution which are noticed in these numbers were to the undefined power of the
Government to tax, not to the incidental privilege of exempting its own measures from State taxation.
The consequences apprehended from this undefined power were that it would absorb all the objects of
taxation, "to the exclusion and destruction of the State Governments." The arguments of the Federalist
are intended to prove the fallacy of these apprehensions, not to prove that the Government was incapable
of executing any of its powers without exposing the means it employed to the embarrassments of State
taxation. Arguments urged against these objections and these apprehensions are to be understood as
relating to the points they [p*435] mean to prove. Had the authors of those excellent essays been asked
whether they contended for that construction of the Constitution which would place within the reach of
the States those measures which the Government might adopt for the execution of its powers, no man
who has read their instructive pages will hesitate to admit that their answer must have been in the
negative.
It has also been insisted that, as the power of taxation in the General and State Governments is
acknowledged to be concurrent, every argument which would sustain the right of the General
Government to tax banks chartered by the States, will equally sustain the right of the States to tax banks
chartered by the General Government.
But the two cases are not on the same reason. The people of all the States have created the General
Government, and have conferred upon it the general power of taxation. The people of all the States, and
the States themselves, are represented in Congress, and, by their representatives, exercise this power.
When they tax the chartered institutions of the States, they tax their constituents, and these taxes must be
uniform. But when a State taxes the operations of the Government of the United States, it acts upon
institutions created not by their own constituents, but by people over whom they claim no control. It acts
upon the measures of a Government created by others as well as themselves, for the benefit of others in
common with themselves. The difference is that which always exists, and always must exist, between the
action of the whole on a [p*436] part, and the action of a part on the whole -- between the laws of a
Government declared to be supreme, and those of a Government which, when in opposition to those
laws, is not supreme.
But if the full application of this argument could be admitted, it might bring into question the right of
Congress to tax the State banks, and could not prove the rights of the States to tax the Bank of the United
States.
The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that
the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control
the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in
the General Government. This is, we think, the unavoidable consequence of that supremacy which the
Constitution has declared.
We are unanimously of opinion that the law passed by the Legislature of Maryland, imposing a tax on
the Bank of the United States is unconstitutional and void.
This opinion does not deprive the States of any resources which they originally possessed. It does not

extend to a tax paid by the real property of the bank, in common with the other real property within the
State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in
common with other property of the same description throughout the State. But this is a tax on the
operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the
Government [p*437] of the Union to carry its powers into execution. Such a tax must be
unconstitutional.
JUDGMENT. This cause came on to be heard, on the transcript of the record of the Court of Appeals of
the State of Maryland, and was argued by counsel; on consideration whereof, it is the opinion of this
Court that the act of the Legislature of Maryland is contrary to the Constitution of the United States, and
void, and therefore that the said Court of Appeals of the State of Maryland erred, in affirming the
judgment of the Baltimore County Court, in which judgment was rendered against James W. McCulloch;
but that the said Court of Appeals of Maryland ought to have reversed the said judgment of the said
Baltimore County Court, and ought to have given judgment for the said appellant, McCulloch. It is,
therefore, adjudged and ordered that the said judgment of the said Court of Appeals of the State of
Maryland in this case be, and the same hereby is, reversed and annulled. And this Court, proceeding to
render such judgment as the said Court of Appeals should have rendered, it is further adjudged and
ordered that the judgment of the said Baltimore County Court be reversed and annulled, and that
judgment be entered in the said Baltimore County Court for the said James W. McCulloch.
* See Montague v. Richardson, 24 Conn. 348.

ERROR TO THE COURT OF APPEALS OF THE STATE OF MARYLAND
Syllabus
The Act of the 10th of April, 1816, ch. 44, to "incorporate the subscribers
to the Bank of the United States" is a law made in pursuance of the
Constitution.
The Government of the Union, though limited in its powers, is supreme

within its sphere of action, and its laws, when made in pursuance of the
Constitution, form the supreme law of the land.
There is nothing in the Constitution of the United States similar to the

Articles of Confederation, which exclude incidental or implied powers.
If the end be legitimate, and within the scope of the Constitution, all the
means which are appropriate, which are plainly adapted to that end, and
which are not prohibited, may constitutionally be employed to carry it into
effect.
The power of establishing a corporation is not a distinct sovereign power

or end of Government, but only the means of carrying into effect other
powers which are sovereign. Whenever it becomes an appropriate means of
exercising any of the powers given by the Constitution to the Government of
the Union, it may be exercised by that Government.
If a certain means to carry into effect of any of the powers expressly

given by the Constitution to the Government of the Union be an appropriate
measure, not prohibited by the Constitution, the degree of its necessity is
a question of legislative discretion, not of judicial cognizance.
The Bank of the United States has, constitutionally, a right to establish

its branches or offices of discount and deposit within any state.
The State within which such branch may be established cannot, without
violating the Constitution, tax that branch.
The State governments have no right to tax any of the constitutional means
employed by the Government of the Union to execute its constitutional
powers.
The States have no power, by taxation or otherwise, to retard, impede,

burthen, or in any manner control the operations of the constitutional laws
enacted by Congress to carry into effect the powers vested in the national
Government.
This principle does not extend to a tax paid by the real property of the
Bank of the United States in common with the other real property in a
particular state, nor to a tax imposed on the proprietary interest which
the citizens of that State may hold in this institution, in common with
other property of the same description throughout the State.
This was an action of debt, brought by the defendant in error, John James,
who sued as well for himself as for the State of Maryland, in the County
Court of Baltimore County, in the said State, against the plaintiff in
error, McCulloch, to recover certain penalties, under the act of the
Legislature of Maryland hereafter mentioned. Judgment being rendered

against the plaintiff in error, upon the following statement of facts

agreed and submitted to the court by the parties, was affirmed by the Court
of Appeals of the State of Maryland, the highest court of law of said
State, and the cause was brought by writ of error to this Court.
It is admitted by the parties in this cause, by their counsel, that there

was passed, on the 10th day of April, 1816, by the Congress of the United
States, an act entitled, "an act to incorporate the subscribers to the Bank
of the United States;" and that there was passed on the 11th day of
February, 1818, by the General Assembly of Maryland, an act, entitled, "an
act to impose a tax on all banks, or branches thereof, in the State of
Maryland, not chartered by the legislature," [p*318] which said acts are
made part of this Statement, and it is agreed, may be read from the statute
books in which they are respectively printed. It is further admitted that
the President, directors and company of the Bank of the United States,
incorporated by the act of Congress aforesaid, did organize themselves, and
go into full operation, in the City of Philadelphia, in the State of
Pennsylvania, in pursuance of the said act, and that they did on the ___
day of _____ 1817, establish a branch of the said bank, or an office of
discount and deposit, in the City of Baltimore, in the State of Maryland,
which has, from that time until the first day of May 1818, ever since
transacted and carried on business as a bank, or office of discount and
deposit, and as a branch of the said Bank of the United States, by issuing
bank notes and discounting promissory notes, and performing other
operations usual and customary for banks to do and perform, under the
authority and by the direction of the said President, directors and company
of the Bank of the United States, established at Philadelphia as aforesaid.
It is further admitted that the said President, directors and company of
the said bank had no authority to establish the said branch, or office of
discount and deposit, at the City of Baltimore, from the State of Maryland,
otherwise than the said State having adopted the Constitution of the United
States and composing one of the States of the Union. It is further admitted
that James William McCulloch, the defendant below, being the cashier of the
said branch, or office of discount and [p*319] deposit did, on the several
days set forth in the declaration in this cause, issue the said respective
bank notes therein described, from the said branch or office, to a certain
George Williams, in the City of Baltimore, in part payment of a promissory
note of the said Williams, discounted by the said branch or office, which
said respective bank notes were not, nor was either of them, so issued on
stamped paper in the manner prescribed by the act of assembly aforesaid. It
is further admitted that the said President, directors and company of the
Bank of the United States, and the said branch, or office of discount and
deposit have not, nor has either of them, paid in advance, or otherwise,
the sum of $15,000, to the Treasurer of the Western Shore, for the use of
the State of Maryland, before the issuing of the said notes, or any of
them, nor since those periods. And it is further admitted that the
Treasurer of the Western Shore of Maryland, under the direction of the
Governor and Council of the said State, was ready, and offered to deliver
to the said President, directors and company of the said bank, and to the
said branch, or office of discount and deposit, stamped paper of the kind
and denomination required and described in the said act of assembly.
The question submitted to the Court for their decision in this case is as
to the validity of the said act of the General Assembly of Maryland on the
ground of its being repugnant to the Constitution of the United States and
the act of Congress aforesaid, or to one of them. Upon the foregoing
statement of facts and the pleadings in this cause (all errors in [p*320]
which are hereby agreed to be mutually released), if the Court should be of
opinion that the plaintiffs are entitled to recover, then judgment, it is
agreed, shall be entered for the plaintiffs for $2,500 and costs of suit. B
ut if the Court should be of opinion that the plaintiffs are not entitled

to recover upon the statement and pleadings aforesaid, then judgment of non
It is agreed that either party may appeal from the decision of the County
Court to the Court of Appeals, and from the decision of the Court of
Appeals to the Supreme Court of the United States, according to the modes
and usages of law, and have the same benefit of this statement of facts in
the same manner as could be had if a jury had been sworn and impanneled in
this cause and a special verdict had been found, or these facts had
appeared and been stated in an exception taken to the opinion of the Court,
and the Court's direction to the jury thereon.
Copy of the act of the Legislature of the State of Maryland, referred to in

the preceding Statement.
An act to impose a tax on all banks or branches thereof, in the State of

Maryland not chartered by the legislature
Be it enacted by the General Assembly of Maryland that if any bank has

established or shall, without authority from the State first had and
obtained establish any branch, office of discount and [p*321] deposit, or
office of pay and receipt in any part of this State, it shall not be lawful
for the said branch, office of discount and deposit, or office of pay and
receipt to issue notes, in any manner, of any other denomination than five,
ten, twenty, fifty, one hundred, five hundred and one thousand dollars, and
no note shall be issued except upon stamped paper of the following
denominations; that is to say, every five dollar note shall be upon a stamp
of ten cents; every ten dollar note, upon a stamp of twenty cents; every
twenty dollar note, upon a stamp of thirty cents; every fifty dollar note,
upon a stamp of fifty cents; every one hundred dollar note, upon a stamp of
one dollar; every five hundred dollar note, upon a stamp of ten dollars;
and every thousand dollar note, upon a stamp of twenty dollars; which paper
shall be furnished by the Treasurer of the Western Shore, under the
direction of the Governor and Council, to be paid for upon delivery;
provided always that any institution of the above description may relieve
itself from the operation of the provisions aforesaid by paying annually,
in advance, to the Treasurer of the Western Shore, for the use of State,
the sum of $15,000.
And be it enacted that the President, cashier, each of the directors and
officers of every institution established or to be established as
aforesaid, offending against the provisions aforesaid shall forfeit a sum
of $500 for each and every offence, and every person having any agency in
circulating any note aforesaid, not stamped as aforesaid directed, shall
forfeit a sum not exceeding $100, [p*322] every penalty aforesaid to be
recovered by indictment or action of debt in the county court of the county
where the offence shall be committed, one-half to the informer and the
other half to the use of the State.
And be it enacted that this act shall be in full force and effect from and
after the first day of May next. [p*400]
Opinions
MARSHALL, Chief Justice, delivered the opinion of the Court.
In the case now to be determined, the defendant, a sovereign State, denies

the obligation of a law enacted by the legislature of the Union, and the
plaintiff, on his part, contests the validity of an act which has been
passed by the legislature of that State. The Constitution of our country,
in its most interesting and vital parts, is to be considered, the
conflicting powers of the Government of the Union and of its members, as
marked in that Constitution, are to be discussed, and an opinion given
which may essentially influence the great operations of the Government. No
tribunal can approach such a question without a deep sense of its
importance, and of the awful responsibility involved in its decision. But
it must be decided peacefully, or remain a source of [p*401] hostile
legislation, perhaps, of hostility of a still more serious nature; and if
it is to be so decided, by this tribunal alone can the decision be made. On
the Supreme Court of the United States has the Constitution of our country
devolved this important duty.
The first question made in the cause is -- has Congress power to

incorporate a bank?
It has been truly said that this can scarcely be considered as an open
question entirely unprejudiced by the former proceedings of the Nation
respecting it. The principle now contested was introduced at a very early
period of our history, has been recognised by many successive legislatures,
and has been acted upon by the Judicial Department, in cases of peculiar
delicacy, as a law of undoubted obligation.
It will not be denied that a bold and daring usurpation might be resisted
after an acquiescence still longer and more complete than this. But it is
conceived that a doubtful question, one on which human reason may pause and
the human judgment be suspended, in the decision of which the great
principles of liberty are not concerned, but the respective powers of those
who are equally the representatives of the people, are to be adjusted, if
not put at rest by the practice of the Government, ought to receive a
considerable impression from that practice. An exposition of the
Constitution, deliberately established by legislative acts, on the faith of
which an immense property has been advanced, ought not to be lightly
disregarded.
The power now contested was exercised by the first Congress elected under
the present Constitution. [p*402] The bill for incorporating the Bank of
the United States did not steal upon an unsuspecting legislature and pass
unobserved. Its principle was completely understood, and was opposed with
equal zeal and ability. After being resisted first in the fair and open
field of debate, and afterwards in the executive cabinet, with as much
persevering talent as any measure has ever experienced, and being supported
by arguments which convinced minds as pure and as intelligent as this
country can boast, it became a law. The original act was permitted to
expire, but a short experience of the embarrassments to which the refusal
to revive it exposed the Government convinced those who were most
prejudiced against the measure of its necessity, and induced the passage of
the present law. It would require no ordinary share of intrepidity to
assert that a measure adopted under these circumstances was a bold and
plain usurpation to which the Constitution gave no countenance. These
observations belong to the cause; but they are not made under the
impression that, were the question entirely new, the law would be found
irreconcilable with the Constitution.
In discussing this question, the counsel for the State of Maryland have
deemed it of some importance, in the construction of the Constitution, to
consider that instrument not as emanating from the people, but as the act
of sovereign and independent States. The powers of the General Government,
it has been said, are delegated by the States, who alone are truly

sovereign, and must be exercised in subordination to the States, who alone

possess supreme dominion. [p*403]
It would be difficult to sustain this proposition. The convention which

framed the Constitution was indeed elected by the State legislatures. But
the instrument, when it came from their hands, was a mere proposal, without
obligation or pretensions to it. It was reported to the then existing
Congress of the United States with a request that it might be submitted to
a convention of delegates, chosen in each State by the people thereof,
under the recommendation of its legislature, for their assent and
ratification.
This mode of proceeding was adopted, and by the convention, by Congress,

and by the State legislatures, the instrument was submitted to the people.
They acted upon it in the only manner in which they can act safely,
effectively and wisely, on such a subject -- by assembling in convention.
It is true, they assembled in their several States -- and where else should
they have assembled? No political dreamer was ever wild enough to think of
breaking down the lines which separate the States, and of compounding the
American people into one common mass. Of consequence, when they act, they
act in their States. But the measures they adopt do not, on that account,
cease to be the measures of the people themselves, or become the measures
of the State governments.
From these conventions the Constitution derives its whole authority. The
government proceeds directly from the people; is "ordained and established"
in the name of the people, and is declared to be ordained, in order to form
a more perfect union, establish justice, insure domestic tranquillity, and
secure [p*404] the blessings of liberty to themselves and to their
posterity.
The assent of the States in their sovereign capacity is implied in calling

a convention, and thus submitting that instrument to the people. But the
people were at perfect liberty to accept or reject it, and their act was
final. It required not the affirmance, and could not be negatived, by the
State Governments. The Constitution, when thus adopted, was of complete
obligation, and bound the State sovereignties.
It has been said that the people had already surrendered all their powers
to the State sovereignties, and had nothing more to give. But surely the
question whether they may resume and modify the powers granted to
Government does not remain to be settled in this country. Much more might
the legitimacy of the General Government be doubted had it been created by
the States. The powers delegated to the State sovereignties were to be
exercised by themselves, not by a distinct and independent sovereignty
created by themselves. To the formation of a league such as was the
Confederation, the State sovereignties were certainly competent. But when,
"in order to form a more perfect union," it was deemed necessary to change
this alliance into an effective Government, possessing great and sovereign
powers and acting directly on the people, the necessity of referring it to
the people, and of deriving its powers directly from them, was felt and
acknowledged by all. The Government of the Union then (whatever may be the
influence of this fact on the case) is, [p*405] emphatically and truly, a
Government of the people. In form and in substance, it emanates from them.
Its powers are granted by them, and are to be exercised directly on them,
and for their benefit.
This Government is acknowledged by all to be one of enumerated powers. The

principle that it can exercise only the powers granted to it would seem too
apparent to have required to be enforced by all those arguments which its
enlightened friends, while it was depending before the people, found it

necessary to urge; that principle is now universally admitted. But the

question respecting the extent of the powers actually granted is
perpetually arising, and will probably continue to arise so long as our
system shall exist. In discussing these questions, the conflicting powers
of the General and State Governments must be brought into view, and the
supremacy of their respective laws, when they are in opposition, must be
settled.
If any one proposition could command the universal assent of mankind, we

might expect it would be this -- that the Government of the Union, though
limited in its powers, is supreme within its sphere of action. This would
seem to result necessarily from its nature. It is the Government of all;
its powers are delegated by all; it represents all, and acts for all.
Though any one State may be willing to control its operations, no State is
willing to allow others to control them. The nation, on those subjects on
which it can act, must necessarily bind its component parts. But this
question is not left to mere reason; the people have, in express terms,
decided it by saying, [p*406] "this Constitution, and the laws of the
United States, which shall be made in pursuance thereof," "shall be the
supreme law of the land," and by requiring that the members of the State
legislatures and the officers of the executive and judicial departments of
the States shall take the oath of fidelity to it. The Government of the
United States, then, though limited in its powers, is supreme, and its
laws, when made in pursuance of the Constitution, form the supreme law of
the land, "anything in the Constitution or laws of any State to the
contrary notwithstanding."
Among the enumerated powers, we do not find that of establishing a bank or

creating a corporation. But there is no phrase in the instrument which,
like the Articles of Confederation, excludes incidental or implied powers
and which requires that everything granted shall be expressly and minutely
described. Even the 10th Amendment, which was framed for the purpose of
quieting the excessive jealousies which had been excited, omits the word
"expressly," and declares only that the powers "not delegated to the United
States, nor prohibited to the States, are reserved to the States or to the
people," thus leaving the question whether the particular power which may
become the subject of contest has been delegated to the one Government, or
prohibited to the other, to depend on a fair construction of the whole
instrument. The men who drew and adopted this amendment had experienced the
embarrassments resulting from the insertion of this word in the Articles
[p*407] of Confederation, and probably omitted it to avoid those
embarrassments. A Constitution, to contain an accurate detail of all the
subdivisions of which its great powers will admit, and of all the means by
which they may be carried into execution, would partake of the prolixity of
a legal code, and could scarcely be embraced by the human mind. It would
probably never be understood by the public. Its nature, therefore, requires
that only its great outlines should be marked, its important objects
designated, and the minor ingredients which compose those objects be
deduced from the nature of the objects themselves. That this idea was
entertained by the framers of the American Constitution is not only to be
inferred from the nature of the instrument, but from the language. Why else
were some of the limitations found in the 9th section of the 1st article
introduced? It is also in some degree warranted by their having omitted to
use any restrictive term which might prevent its receiving a fair and just
interpretation. In considering this question, then, we must never forget
that it is a Constitution we are expounding.
Although, among the enumerated powers of Government, we do not find the

word "bank" or "incorporation," we find the great powers, to lay and
collect taxes; to borrow money; to regulate commerce; to declare and
conduct a war; and to raise and support armies and navies. The sword and

the purse, all the external relations, and no inconsiderable portion of the
industry of the nation are intrusted to its Government. It can never be
pretended [p*408] that these vast powers draw after them others of inferior
importance merely because they are inferior. Such an idea can never be
advanced. But it may with great reason be contended that a Government
intrusted with such ample powers, on the due execution of which the
happiness and prosperity of the Nation so vitally depends, must also be
intrusted with ample means for their execution. The power being given, it
is the interest of the Nation to facilitate its execution. It can never be
their interest, and cannot be presumed to have been their intention, to
clog and embarrass its execution by withholding the most appropriate means.
Throughout this vast republic, from the St. Croix to the Gulf of Mexico,
from the Atlantic to the Pacific, revenue is to be collected and expended,
armies are to be marched and supported. The exigencies of the Nation may
require that the treasure raised in the north should be transported to the
south that raised in the east, conveyed to the west, or that this order
should be reversed. Is that construction of the Constitution to be
preferred which would render these operations difficult, hazardous and
expensive? Can we adopt that construction (unless the words imperiously
require it) which would impute to the framers of that instrument, when
granting these powers for the public good, the intention of impeding their
exercise, by withholding a choice of means? If, indeed, such be the mandate
of the Constitution, we have only to obey; but that instrument does not
profess to enumerate the means by which the powers it confers may be
executed; nor does it prohibit the creation of a corporation, [p*409] if
the existence of such a being be essential, to the beneficial exercise of
those powers. It is, then, the subject of fair inquiry how far such means
may be employed.
It is not denied that the powers given to the Government imply the ordinary
means of execution. That, for example, of raising revenue and applying it
to national purposes is admitted to imply the power of conveying money from
place to place as the exigencies of the Nation may require, and of
employing the usual means of conveyance. But it is denied that the
Government has its choice of means, or that it may employ the most
convenient means if, to employ them, it be necessary to erect a
corporation. On what foundation does this argument rest? O n this alone:
the power of creating a corporation is one appertaining to sovereignty, and
is not expressly conferred on Congress. This is true. But all legislative
powers appertain to sovereignty. The original power of giving the law on
any subject whatever is a sovereign power, and if the Government of the
Union is restrained from creating a corporation as a means for performing
its functions, on the single reason that the creation of a corporation is
an act of sovereignty, if the sufficiency of this reason be acknowledged,
there would be some difficulty in sustaining the authority of Congress to
pass other laws for the accomplishment of the same objects. The Government
which has a right to do an act and has imposed on it the duty of performing
that act must, according to the dictates of reason, be allowed [p*410] to
select the means, and those who contend that it may not select any
appropriate means that one particular mode of effecting the object is
excepted take upon themselves the burden of establishing that exception.
The creation of a corporation, it is said, appertains to sovereignty. This

is admitted. But to what portion of sovereignty does it appertain? Does it
belong to one more than to another? In America, the powers of sovereignty
are divided between the Government of the Union and those of the States.
They are each sovereign with respect to the objects committed to it, and
neither sovereign with respect to the objects committed to the other. We
cannot comprehend that train of reasoning, which would maintain that the
extent of power granted by the people is to be ascertained not by the
nature and terms of the grant, but by its date. Some State Constitutions

were formed before, some since, that of the United States. We cannot
believe that their relation to each other is in any degree dependent upon
this circumstance. Their respective powers must, we think, be precisely the
same as if they had been formed at the same time. Had they been formed at
the same time, and had the people conferred on the General Government the
power contained in the Constitution, and on the States the whole residuum
of power, would it have been asserted that the Government of the Union was
not sovereign, with respect to those objects which were intrusted to it, in
relation to which its laws were declared to be supreme? If this could not
have been asserted, we cannot well comprehend the process of reasoning
[p*411] which maintains that a power appertaining to sovereignty cannot be
connected with that vast portion of it which is granted to the General
Government, so far as it is calculated to subserve the legitimate objects
of that Government. The power of creating a corporation, though
appertaining to sovereignty, is not, like the power of making war or
levying taxes or of regulating commerce, a great substantive and
independent power which cannot be implied as incidental to other powers or
used as a means of executing them. It is never the end for which other
powers are exercised, but a means by which other objects are accomplished.
No contributions are made to charity for the sake of an incorporation, but
a corporation is created to administer the charity; no seminary of learning
is instituted in order to be incorporated, but the corporate character is
conferred to subserve the purposes of education. No city was ever built
with the sole object of being incorporated, but is incorporated as
affording the best means of being well governed. The power of creating a
corporation is never used for its own sake, but for the purpose of
effecting something else. No sufficient reason is therefore perceived why
it may not pass as incidental to those powers which are expressly given if
it be a direct mode of executing them.
But the Constitution of the United States has not left the right of
Congress to employ the necessary means for the execution of the powers
conferred on the Government to general reasoning. To its enumeration of
powers is added that of making all [p*412] laws which shall be necessary
and proper for carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the Government of the United States
or in any department thereof.
The counsel for the State of Maryland have urged various arguments to prove
that this clause, though in terms a grant of power, is not so in effect,
but is really restrictive of the general right which might otherwise be
implied of selecting means for executing the enumerated powers. In support
of this proposition, they have found it necessary to contend that this
clause was inserted for the purpose of conferring on Congress the power of
making laws. That, without it, doubts might be entertained whether Congress
could exercise its powers in the form of legislation.
But could this be the object for which it was inserted? A Government is
created by the people having legislative, executive and judicial powers.
Its legislative powers are vested in a Congress, which is to consist of a
senate and house of representatives. Each house may determine the rule of
its proceedings, and it is declared that every bill which shall have passed
both houses shall, before it becomes a law, be presented to the President
of the United States. The 7th section describes the course of proceedings
by which a bill shall become a law, and then the 8th section enumerates the
powers of Congress. Could it be necessary to say that a legislature should
exercise legislative powers, in the shape of legislation? After allowing
each house to prescribe [p*413] its own course of proceeding, after
describing the manner in which a bill should become a law, would it have
entered into the mind of a single member of the convention that an express
power to make laws was necessary to enable the legislature to make them?

That a legislature, endowed with legislative powers, can legislate is a

proposition too self-evident to have been questioned.
But the argument on which most reliance is placed is drawn from that
peculiar language of this clause. Congress is not empowered by it to make
all laws which may have relation to the powers conferred on the Government,
but such only as may be "necessary and proper" for carrying them into
execution. The word "necessary" is considered as controlling the whole
sentence, and as limiting the right to pass laws for the execution of the
granted powers to such as are indispensable, and without which the power
would be nugatory. That it excludes the choice of means, and leaves to
Congress in each case that only which is most direct and simple.
Is it true that this is the sense in which the word "necessary" is always
used? Does it always import an absolute physical necessity so strong that
one thing to which another may be termed necessary cannot exist without
that other? We think it does not. If reference be had to its use in the
common affairs of the world or in approved authors, we find that it
frequently imports no more than that one thing is convenient, or useful, or
essential to another. To employ the means necessary to an end is generally
understood as employing any means calculated to [p*414] produce the end,
and not as being confined to those single means without which the end would
be entirely unattainable. Such is the character of human language that no
word conveys to the mind in all situations one single definite idea, and
nothing is more common than to use words in a figurative sense. Almost all
compositions contain words which, taken in a their rigorous sense, would
convey a meaning different from that which is obviously intended. It is
essential to just construction that many words which import something
excessive should be understood in a more mitigated sense -- in that sense
which common usage justifies. The word "necessary" is of this description.
It has not a fixed character peculiar to itself. It admits of all degrees
of comparison, and is often connected with other words which increase or
diminish the impression the mind receives of the urgency it imports. A
thing may be necessary, very necessary, absolutely or indispensably
necessary. To no mind would the same idea be conveyed by these several
phrases. The comment on the word is well illustrated by the passage cited
at the bar from the 10th section of the 1st article of the Constitution. It
is, we think, impossible to compare the sentence which prohibits a State
from laying "imposts, or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws," with that which
authorizes Congress "to make all laws which shall be necessary and proper
for carrying into execution" the powers of the General Government without
feeling a conviction that the convention understood itself to change
materially [p*415] the meaning of the word "necessary," by prefixing the
word "absolutely." This word, then, like others, is used in various senses,
and, in its construction, the subject, the context, the intention of the
person using them are all to be taken into view.
Let this be done in the case under consideration. The subject is the
execution of those great powers on which the welfare of a Nation
essentially depends. It must have been the intention of those who gave
these powers to insure, so far as human prudence could insure, their
beneficial execution. This could not be done by confiding the choice of
means to such narrow limits as not to leave it in the power of Congress to
adopt any which might be appropriate, and which were conducive to the end.
This provision is made in a Constitution intended to endure for ages to
come, and consequently to be adapted to the various crises of human
affairs. To have prescribed the means by which Government should, in all
future time, execute its powers would have been to change entirely the
character of the instrument and give it the properties of a legal code. It
would have been an unwise attempt to provide by immutable rules for

exigencies which, if foreseen at all, must have been seen dimly, and which
can be best provided for as they occur. To have declared that the best
means shall not be used, but those alone without which the power given
would be nugatory, would have been to deprive the legislature of the
capacity to avail itself of experience, to exercise its reason, and to
accommodate its legislation to circumstances. [p*416]
If we apply this principle of construction to any of the powers of the

Government, we shall find it so pernicious in its operation that we shall
be compelled to discard it. The powers vested in Congress may certainly be
carried into execution, without prescribing an oath of office. The power to
exact this security for the faithful performance of duty is not given, nor
is it indispensably necessary. The different departments may be
established; taxes may be imposed and collected; armies and navies may be
raised and maintained; and money may be borrowed, without requiring an oath
of office. It might be argued with as much plausibility as other incidental
powers have been assailed that the convention was not unmindful of this
subject. The oath which might be exacted -- that of fidelity to the
Constitution -- is prescribed, and no other can be required. Yet he would
be charged with insanity who should contend that the legislature might not
superadd to the oath directed by the Constitution such other oath of office
as its wisdom might suggest.
So, with respect to the whole penal code of the United States, whence
arises the power to punish in cases not prescribed by the Constitution? All
admit that the Government may legitimately punish any violation of its
laws, and yet this is not among the enumerated powers of Congress. The
right to enforce the observance of law by punishing its infraction might be
denied with the more plausibility because it is expressly given in some
cases.
Congress is empowered "to provide for the punishment [p*417] of

counterfeiting the securities and current coin of the United States," and
"to define and punish piracies and felonies committed on the high seas, and
offences against the law of nations." The several powers of Congress may
exist in a very imperfect State, to be sure, but they may exist and be
carried into execution, although no punishment should be inflicted, in
cases where the right to punish is not expressly given.
Take, for example, the power "to establish post-offices and post-roads."
This power is executed by the single act of making the establishment. But
from this has been inferred the power and duty of carrying the mail along
the post road from one post office to another. And from this implied power
has again been inferred the right to punish those who steal letters from
the post office, or rob the mail. It may be said with some plausibility
that the right to carry the mail, and to punish those who rob it, is not
indispensably necessary to the establishment of a post office and post
road. This right is indeed essential to the beneficial exercise of the
power, but not indispensably necessary to its existence. So, of the
punishment of the crimes of stealing or falsifying a record or process of a
Court of the United States, or of perjury in such Court. To punish these
offences is certainly conducive to the due administration of justice. But
Courts may exist, and may decide the causes brought before them, though
such crimes escape punishment.
The baneful influence of this narrow construction on all the operations of

the Government, and the absolute [p*418] impracticability of maintaining it
without rendering the Government incompetent to its great objects, might be
illustrated by numerous examples drawn from the Constitution and from our
laws. The good sense of the public has pronounced without hesitation that
the power of punishment appertains to sovereignty, and may be exercised,

whenever the sovereign has a right to act, as incidental to his

Constitutional powers. It is a means for carrying into execution all
sovereign powers, and may be used although not indispensably necessary. It
is a right incidental to the power, and conducive to its beneficial
exercise.
If this limited construction of the word "necessary" must be abandoned in

order to punish, whence is derived the rule which would reinstate it when
the Government would carry its powers into execution by means not
vindictive in their nature? If the word "necessary" means "needful,"
"requisite," "essential," "conducive to," in order to let in the power of
punishment for the infraction of law, why is it not equally comprehensive
when required to authorize the use of means which facilitate the execution
of the powers of Government, without the infliction of punishment?
In ascertaining the sense in which the word "necessary" is used in this

clause of the Constitution, we may derive some aid from that with which it
it is associated. Congress shall have power "to make all laws which shall
be necessary and proper to carry into execution" the powers of the
Government. If the word "necessary" was used in that strict and rigorous
sense for which the counsel for the State of [p*419] Maryland contend, it
would be an extraordinary departure from the usual course of the human
mind, as exhibited in composition, to add a word the only possible effect
of which is to qualify that strict and rigorous meaning, to present to the
mind the idea of some choice of means of legislation not strained and
compressed within the narrow limits for which gentlemen contend.
But the argument which most conclusively demonstrates the error of the
construction contended for by the counsel for the State of Maryland is
founded on the intention of the convention as manifested in the whole
clause. To waste time and argument in proving that, without it, Congress
might carry its powers into execution would be not much less idle than to
hold a lighted taper to the sun. As little can it be required to prove
that, in the absence of this clause, Congress would have some choice of
means. That it might employ those which, in its judgment, would most
advantageously effect the object to be accomplished. That any means adapted
to the end, any means which tended directly to the execution of the
Constitutional powers of the Government, were in themselves Constitutional.
This clause, as construed by the State of Maryland, would abridge, and
almost annihilate, this useful and necessary right of the legislature to
select its means. That this could not be intended is, we should think, had
it not been already controverted, too apparent for controversy.
We think so for the following reasons:
1st. The clause is placed among the powers of Congress, not among the
limitations on those powers. [p*420]
2d. Its terms purport to enlarge, not to diminish, the powers vested in the
Government. It purports to be an additional power, not a restriction on
those already granted. No reason has been or can be assigned for thus
concealing an intention to narrow the discretion of the National
Legislature under words which purport to enlarge it. The framers of the
Constitution wished its adoption, and well knew that it would be endangered
by its strength, not by its weakness. Had they been capable of using
language which would convey to the eye one idea and, after deep reflection,
impress on the mind another, they would rather have disguised the grant of
power than its limitation. If, then, their intention had been, by this
clause, to restrain the free use of means which might otherwise have been
implied, that intention would have been inserted in another place, and
would have been expressed in terms resembling these. "In carrying into

execution the foregoing powers, and all others," &c., "no laws shall be
passed but such as are necessary and proper." Had the intention been to
make this clause restrictive, it would unquestionably have been so in form,
as well as in effect.
The result of the most careful and attentive consideration bestowed upon
this clause is that, if it does not enlarge, it cannot be construed to
restrain, the powers of Congress, or to impair the right of the legislature
to exercise its best judgment in the selection of measures to carry into
execution the Constitutional powers of the Government. If no other motive
for its insertion can be suggested, a sufficient one is found in the desire
to remove all doubts respecting [p*421] the right to legislate on that vast
mass of incidental powers which must be involved in the Constitution if
that instrument be not a splendid bauble.
We admit, as all must admit, that the powers of the Government are limited,
and that its limits are not to be transcended. But we think the sound
construction of the Constitution must allow to the national legislature
that discretion with respect to the means by which the powers it confers
are to be carried into execution which will enable that body to perform the
high duties assigned to it in the manner most beneficial to the people. Let
the end be legitimate, let it be within the scope of the Constitution, and
all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the
Constitution, are Constitutional.[*]
That a corporation must be considered as a means not less usual, not of

higher dignity, not more requiring a particular specification than other
means has been sufficiently proved. If we look to the origin of
corporations, to the manner in which they have been framed in that
Government from which we have derived most of our legal principles and
ideas, or to the uses to which they have been applied, we find no reason to
suppose that a Constitution, omitting, and wisely omitting, to enumerate
all the means for carrying into execution the great powers vested in
Government, ought to have specified this. Had it been intended to grant
this power as one which should be distinct and independent, to be exercised
in any case whatever, it [p*422] would have found a place among the
enumerated powers of the Government. But being considered merely as a
means, to be employed only for the purpose of carrying into execution the
given powers, there could be no motive for particularly mentioning it.
The propriety of this remark would seem to be generally acknowledged by the

universal acquiescence in the construction which has been uniformly put on
the 3d section of the 4th article of the Constitution. The power to "make
all needful rules and regulations respecting the territory or other
property belonging to the United States" is not more comprehensive than the
power "to make all laws which shall be necessary and proper for carrying
into execution" the powers of the Government. Yet all admit the
constitutionality of a Territorial Government, which is a corporate body.
If a corporation may be employed, indiscriminately with other means, to

carry into execution the powers of the Government, no particular reason can
be assigned for excluding the use of a bank, if required for its fiscal
operations. To use one must be within the discretion of Congress if it be
an appropriate mode of executing the powers of Government. That it is a
convenient, a useful, and essential instrument in the prosecution of its
fiscal operations is not now a subject of controversy. All those who have
been concerned in the administration of our finances have concurred in
representing its importance and necessity, and so strongly have they been
felt that Statesmen of the first class, whose previous opinions [p*423]
against it had been confirmed by every circumstance which can fix the human

judgment, have yielded those opinions to the exigencies of the nation.

Under the Confederation, Congress, justifying the measure by its necessity,
transcended, perhaps, its powers to obtain the advantage of a bank; and our
own legislation attests the universal conviction of the utility of this
measure. The time has passed away when it can be necessary to enter into
any discussion in order to prove the importance of this instrument as a
means to effect the legitimate objects of the Government.
But were its necessity less apparent, none can deny its being an
appropriate measure; and if it is, the decree of its necessity, as has been
very justly observed, is to be discussed in another place. Should Congress,
in the execution of its powers, adopt measures which are prohibited by the
Constitution, or should Congress, under the pretext of executing its
powers, pass laws for the accomplishment of objects not intrusted to the
Government, it would become the painful duty of this tribunal, should a
case requiring such a decision come before it, to say that such an act was
not the law of the land. But where the law is not prohibited, and is really
calculated to effect any of the objects intrusted to the Government, to
undertake here to inquire into the decree of its necessity would be to pass
the line which circumscribes the judicial department and to tread on
legislative ground. This Court disclaims all pretensions to such a power.
[p*424]
After this declaration, it can scarcely be necessary to say that the

existence of State banks can have no possible influence on the question. No
trace is to be found in the Constitution of an intention to create a
dependence of the Government of the Union on those of the States, for the
execution of the great powers assigned to it. Its means are adequate to its
ends, and on those means alone was it expected to rely for the
accomplishment of its ends. To impose on it the necessity of resorting to
means which it cannot control, which another Government may furnish or
withhold, would render its course precarious, the result of its measures
uncertain, and create a dependence on other Governments which might
disappoint its most important designs, and is incompatible with the
language of the Constitution. But were it otherwise, the choice of means
implies a right to choose a national bank in preference to State banks, and
Congress alone can make the election.
After the most deliberate consideration, it is the unanimous and decided

opinion of this Court that the act to incorporate the Bank of the United
States is a law made in pursuance of the Constitution, and is a part of the
supreme law of the land.
The branches, proceeding from the same stock and being conducive to the
complete accomplishment of the object, are equally constitutional. It would
have been unwise to locate them in the charter, and it would be
unnecessarily inconvenient to employ the legislative power in making those
subordinate arrangements. The great duties of the bank are prescribed;
those duties require branches; and the bank itself [p*425] may, we think,
be safely trusted with the selection of places where those branches shall
be fixed, reserving always to the Government the right to require that a
branch shall be located where it may be deemed necessary.
It being the opinion of the Court that the act incorporating the bank is
constitutional, and that the power of establishing a branch in the State of
Maryland might be properly exercised by the bank itself, we proceed to
inquire:
2. Whether the State of Maryland may, without violating the Constitution,

tax that branch?

That the power of taxation is one of vital importance; that it is retained

by the States; that it is not abridged by the grant of a similar power to
the Government of the Union; that it is to be concurrently exercised by the
two Governments -- are truths which have never been denied. But such is the
paramount character of the Constitution that its capacity to withdraw any
subject from the action of even this power is admitted. The States are
expressly forbidden to lay any duties on imports or exports except what may
be absolutely necessary for executing their inspection laws. If the
obligation of this prohibition must be conceded -- if it may restrain a
State from the exercise of its taxing power on imports and exports -- the
same paramount character would seem to restrain, as it certainly may
restrain, a State from such other exercise of this power as is in its
nature incompatible with, and repugnant to, the constitutional laws of the
Union. A law absolutely repugnant to another as entirely [p*426] repeals
that other as if express terms of repeal were used.
On this ground, the counsel for the bank place its claim to be exempted
from the power of a State to tax its operations. There is no express
provision for the case, but the claim has been sustained on a principle
which so entirely pervades the Constitution, is so intermixed with the
materials which compose it, so interwoven with its web, so blended with its
texture, as to be incapable of being separated from it without rending it
into shreds.
This great principle is that the Constitution and the laws made in
pursuance thereof are supreme; that they control the Constitution and laws
of the respective States, and cannot be controlled by them. From this,
which may be almost termed an axiom, other propositions are deduced as
corollaries, on the truth or error of which, and on their application to
this case, the cause has been supposed to depend. These are, 1st. That a
power to create implies a power to preserve; 2d. That a power to destroy,
if wielded by a different hand, is hostile to, and incompatible with these
powers to create and to preserve; 3d. That, where this repugnancy exists,
that authority which is supreme must control, not yield to that over which
it is supreme.
These propositions, as abstract truths, would perhaps never be

controverted. Their application to this case, however, has been denied, and
both in maintaining the affirmative and the negative, a splendor of
eloquence, and strength of argument seldom if ever surpassed have been
displayed. [p*427]
The power of Congress to create and, of course, to continue the bank was
the subject of the preceding part of this opinion, and is no longer to be
considered as questionable.
That the power of taxing it by the States may be exercised so as to destroy

it is too obvious to be denied. But taxation is said to be an absolute
power which acknowledges no other limits than those expressly prescribed in
the Constitution, and, like sovereign power of every other description, is
intrusted to the discretion of those who use it. But the very terms of this
argument admit that the sovereignty of the State, in the article of
taxation itself, is subordinate to, and may be controlled by, the
Constitution of the United States. How far it has been controlled by that
instrument must be a question of construction. In making this construction,
no principle, not declared, can be admissible which would defeat the
legitimate operations of a supreme Government. It is of the very essence of
supremacy to remove all obstacles to its action within its own sphere, and
so to modify every power vested in subordinate governments as to exempt its
own operations from their own influence. This effect need not be stated in
terms. It is so involved in the declaration of supremacy, so necessarily

implied in it, that the expression of it could not make it more certain. We
must, therefore, keep it in view while construing the Constitution.
The argument on the part of the State of Maryland is not that the States
may directly resist a law of Congress, but that they may exercise their
[p*428] acknowledged powers upon it, and that the Constitution leaves them
this right, in the confidence that they will not abuse it. Before we
proceed to examine this argument and to subject it to test of the
Constitution, we must be permitted to bestow a few considerations on the
nature and extent of this original right of taxation, which is acknowledged
to remain with the States. It is admitted that the power of taxing the
people and their property is essential to the very existence of Government,
and may be legitimately exercised on the objects to which it is applicable,
to the utmost extent to which the Government may choose to carry it. The
only security against the abuse of this power is found in the structure of
the Government itself. In imposing a tax, the legislature acts upon its
constituents. This is, in general, a sufficient security against erroneous
and oppressive taxation.
The people of a State, therefore, give to their Government a right of

taxing themselves and their property, and as the exigencies of Government
cannot be limited, they prescribe no limits to the exercise of this right,
resting confidently on the interest of the legislator and on the influence
of the constituent over their representative to guard them against its
abuse. But the means employed by the Government of the Union have no such
security, nor is the right of a State to tax them sustained by the same
theory. Those means are not given by the people of a particular State, not
given by the constituents of the legislature which claim the right to tax
them, but by the people of all the States They are given by all, [p*429]
for the benefit of all -- and, upon theory, should be subjected to that
Government only which belongs to all.
It may be objected to this definition that the power of taxation is not

confined to the people and property of a State. It may be exercised upon
every object brought within its jurisdiction.
This is true. But to what source do we trace this right? It is obvious that
it is an incident of sovereignty, and is coextensive with that to which it
is an incident. All subjects over which the sovereign power of a State
extends are objects of taxation, but those over which it does not extend
are, upon the soundest principles, exempt from taxation. This proposition
may almost be pronounced self-evident.
The sovereignty of a State extends to everything which exists by its own

authority or is introduced by its permission, but does it extend to those
means which are employed by Congress to carry into execution powers
conferred on that body by the people of the United States? We think it
demonstrable that it does not. Those powers are not given by the people of
a single State. They are given by the people of the United States, to a
Government whose laws, made in pursuance of the Constitution, are declared
to be supreme. Consequently, the people of a single State cannot confer a
sovereignty which will extend over them.
If we measure the power of taxation residing in a State by the extent of

sovereignty which the people of a single State possess and can confer on
its Government, we have an intelligible standard, applicable [p*430] to
every case to which the power may be applied. We have a principle which
leaves the power of taxing the people and property of a State unimpaired;
which leaves to a State the command of all its resources, and which places
beyond its reach all those powers which are conferred by the people of the
United States on the Government of the Union, and all those means which are

given for the purpose of carrying those powers into execution. We have a
principle which is safe for the States and safe for the Union. We are
relieved, as we ought to be, from clashing sovereignty; from interfering
powers; from a repugnancy between a right in one Government to pull down
what there is an acknowledged right in another to build up; from the
incompatibility of a right in one Government to destroy what there is a
right in another to preserve. We are not driven to the perplexing inquiry,
so unfit for the judicial department, what degree of taxation is the
legitimate use and what degree may amount to the abuse of the power. The
attempt to use it on the means employed by the Government of the Union, in
pursuance of the Constitution, is itself an abuse because it is the
usurpation of a power which the people of a single State cannot give.
We find, then, on just theory, a total failure of this original right to

tax the means employed by the Government of the Union, for the execution of
its powers. The right never existed, and the question whether it has been
surrendered cannot arise.
But, waiving this theory for the present, let us resume the inquiry,
whether this power can be exercised [p*431] by the respective States,
consistently with a fair construction of the Constitution?
That the power to tax involves the power to destroy; that the power to
destroy may defeat and render useless the power to create; that there is a
plain repugnance in conferring on one Government a power to control the
constitutional measures of another, which other, with respect to those very
measures, is declared to be supreme over that which exerts the control, are
propositions not to be denied. But all inconsistencies are to be reconciled
by the magic of the word CONFIDENCE. Taxation, it is said, does not
necessarily and unavoidably destroy. To carry it to the excess of
destruction would be an abuse, to presume which would banish that
confidence which is essential to all Government.
But is this a case of confidence? Would the people of any one State trust
those of another with a power to control the most insignificant operations
of their State Government? We know they would not. Why, then, should we
suppose that the people of any one State should be willing to trust those
of another with a power to control the operations of a Government to which
they have confided their most important and most valuable interests? In the
Legislature of the Union alone are all represented. The Legislature of the
Union alone, therefore, can be trusted by the people with the power of
controlling measures which concern all, in the confidence that it will not
be abused. This, then, is not a case of confidence, and we must consider it
is as it really is. [p*432]
If we apply the principle for which the State of Maryland contends, to the
Constitution generally, we shall find it capable of changing totally the
character of that instrument. We shall find it capable of arresting all the
measures of the Government, and of prostrating it at the foot of the
States. The American people have declared their Constitution and the laws
made in pursuance thereof to be supreme, but this principle would transfer
the supremacy, in fact, to the States.
If the States may tax one instrument, employed by the Government in the
execution of its powers, they may tax any and every other instrument. They
may tax the mail; they may tax the mint; they may tax patent rights; they
may tax the papers of the custom house; they may tax judicial process; they
may tax all the means employed by the Government to an excess which would
defeat all the ends of Government. This was not intended by the American
people. They did not design to make their Government dependent on the
States.

Gentlemen say they do not claim the right to extend State taxation to these
objects. They limit their pretensions to property. But on what principle is
this distinction made? Those who make it have furnished no reason for it,
and the principle for which they contend denies it. They contend that the
power of taxation has no other limit than is found in the 10th section of
the 1st article of the Constitution; that, with respect to everything else,
the power of the States is supreme, and admits of no control. If this be
true, the distinction between property and [p*433] other subjects to which
the power of taxation is applicable is merely arbitrary, and can never be
sustained. This is not all. If the controlling power of the States be
established, if their supremacy as to taxation be acknowledged, what is to
restrain their exercising control in any shape they may please to give it?
Their sovereignty is not confined to taxation; that is not the only mode in
which it might be displayed. The question is, in truth, a question of
supremacy, and if the right of the States to tax the means employed by the
General Government be conceded, the declaration that the Constitution and
the laws made in pursuance thereof shall be the supreme law of the land is
empty and unmeaning declamation.
In the course of the argument, the Federalist has been quoted, and the
opinions expressed by the authors of that work have been justly supposed to
be entitled to great respect in expounding the Constitution. No tribute can
be paid to them which exceeds their merit; but in applying their opinions
to the cases which may arise in the progress of our Government, a right to
judge of their correctness must be retained; and to understand the
argument, we must examine the proposition it maintains and the objections
against which it is directed. The subject of those numbers from which
passages have been cited is the unlimited power of taxation which is vested
in the General Government. The objection to this unlimited power, which the
argument seeks to remove, is stated with fulness and clearness. It is that
an indefinite power of taxation in the latter (the Government [p*434] of
the Union) might, and probably would, in time, deprive the former (the
Government of the States) of the means of providing for their own
necessities, and would subject them entirely to the mercy of the National
Legislature. As the laws of the Union are to become the supreme law of the
land; as it is to have power to pass all laws that may be necessary for
carrying into execution the authorities with which it is proposed to vest
it; the National Government might, at any time, abolish the taxes imposed
for State objects upon the pretence of an interference with its own. It
might allege a necessity for doing this, in order to give efficacy to the
national revenues; and thus, all the resources of taxation might, by
degrees, become the subjects of federal monopoly, to the entire exclusion
and destruction of the State Governments.
The objections to the Constitution which are noticed in these numbers were
to the undefined power of the Government to tax, not to the incidental
privilege of exempting its own measures from State taxation. The
consequences apprehended from this undefined power were that it would
absorb all the objects of taxation, "to the exclusion and destruction of
the State Governments." The arguments of the Federalist are intended to
prove the fallacy of these apprehensions, not to prove that the Government
was incapable of executing any of its powers without exposing the means it
employed to the embarrassments of State taxation. Arguments urged against
these objections and these apprehensions are to be understood as relating
to the points they [p*435] mean to prove. Had the authors of those
excellent essays been asked whether they contended for that construction of
the Constitution which would place within the reach of the States those
measures which the Government might adopt for the execution of its powers,
no man who has read their instructive pages will hesitate to admit that
their answer must have been in the negative.

It has also been insisted that, as the power of taxation in the General and
State Governments is acknowledged to be concurrent, every argument which
would sustain the right of the General Government to tax banks chartered by
the States, will equally sustain the right of the States to tax banks
chartered by the General Government.
But the two cases are not on the same reason. The people of all the States
have created the General Government, and have conferred upon it the general
power of taxation. The people of all the States, and the States themselves,
are represented in Congress, and, by their representatives, exercise this
power. When they tax the chartered institutions of the States, they tax
their constituents, and these taxes must be uniform. But when a State taxes
the operations of the Government of the United States, it acts upon
institutions created not by their own constituents, but by people over whom
they claim no control. It acts upon the measures of a Government created by
others as well as themselves, for the benefit of others in common with
themselves. The difference is that which always exists, and always must
exist, between the action of the whole on a [p*436] part, and the action of
a part on the whole -- between the laws of a Government declared to be
supreme, and those of a Government which, when in opposition to those laws,
is not supreme.
But if the full application of this argument could be admitted, it might

bring into question the right of Congress to tax the State banks, and could
not prove the rights of the States to tax the Bank of the United States.
The Court has bestowed on this subject its most deliberate consideration.
The result is a conviction that the States have no power, by taxation or
otherwise, to retard, impede, burden, or in any manner control the
operations of the constitutional laws enacted by Congress to carry into
execution the powers vested in the General Government. This is, we think,
the unavoidable consequence of that supremacy which the Constitution has
declared.
We are unanimously of opinion that the law passed by the Legislature of

Maryland, imposing a tax on the Bank of the United States is
unconstitutional and void.
This opinion does not deprive the States of any resources which they
originally possessed. It does not extend to a tax paid by the real property
of the bank, in common with the other real property within the State, nor
to a tax imposed on the interest which the citizens of Maryland may hold in
this institution, in common with other property of the same description
throughout the State. But this is a tax on the operations of the bank, and
is, consequently, a tax on the operation of an instrument employed by the
Government [p*437] of the Union to carry its powers into execution. Such a
tax must be unconstitutional.
JUDGMENT. This cause came on to be heard, on the transcript of the record

of the Court of Appeals of the State of Maryland, and was argued by
counsel; on consideration whereof, it is the opinion of this Court that the
act of the Legislature of Maryland is contrary to the Constitution of the
United States, and void, and therefore that the said Court of Appeals of
the State of Maryland erred, in affirming the judgment of the Baltimore
County Court, in which judgment was rendered against James W. McCulloch;
but that the said Court of Appeals of Maryland ought to have reversed the
said judgment of the said Baltimore County Court, and ought to have given
judgment for the said appellant, McCulloch. It is, therefore, adjudged and
ordered that the said judgment of the said Court of Appeals of the State of
Maryland in this case be, and the same hereby is, reversed and annulled.

And this Court, proceeding to render such judgment as the said Court of
Appeals should have rendered, it is further adjudged and ordered that the
judgment of the said Baltimore County Court be reversed and annulled, and
that judgment be entered in the said Baltimore County Court for the said
James W. McCulloch.
* See Montague v. Richardson, 24 Conn. 348.


This case can be considered one of the first major departures from strict Jeffersonian construction of the
Constitution, and it laid the basis for a long train of further departures that continues to plague
constitutional jurisprudence to this day. However, it is also an example of how bad cases badly argued
produce bad precedents. Although we might consider CJ Marshall to have wrongly decided the case, a
large part of the problem is that neither side argued competently in support of a correct interpretation of
the Constitution.
First, governments can but usually do not create corporations. Their incorporators do, although a
government or another corporation can in principle be an incorporator like any individual. And the
limited liability of their shareholders arises from public notice that they are dealing with a limited
liability corporation, which public notice is delivered by calling themselves a "corporation" or some
name with the same meaning. What a government does is grant a monopoly for the use of the name of
the corporation, which would otherwise have to identify itself in ways that could distinguish it from other
corporations with the same name, as by specifying the incorporators, date and place of incorporation, etc.
(Yes, I know this doctrine flies in the face of much jurisprudence, but that conflicting jurisprudence is
wrong.)
As to whether the federal government had and has the power to incorporate a bank or other corporation, I
would say that it does -- on federal territory to which Congress has been ceded exclusive jurisdiction
under I.8.17. That is, some group of persons could incorporate a bank on such territory and the federal
government, being the only government available, could grant a monopoly on the use of the name.
But the federal government did not and does not have the power to create a private monopoly, or to
empower a private organization to act as a federal agency. Executive power must be delegated only to
individuals under a chain of command that culminates in the presidency. In other words, they must be
public employees, executing federal laws. Not a bank performing banking functions.
So a bank could be incorporated in the District of Columbia, but it could not be granted monopoly
powers, or the status of a federal agency. Could it open branches in other states? Yes, if banks
incorporated in one state could open branches in other states, then so could a bank incorporated in the
District of Columbia.
Now to the issue of the case. Could the State of Maryland tax the bank incorporated in the District of
Columbia? Yes, but only on the same basis as it could tax any bank incorporated in Maryland or in
another state. Equal protection of the laws. No state taxation of interstate commerce.
So CJ Marshall got it mostly wrong in his opinion, but the State of Maryland was wrong, too. The proper
decision was to reduce the tax on the bank to the same rate it would have been if it had been incorporated
in Maryland, applied only to its assets and operations within Maryland, and to refund to the bank any
taxes paid in excess of that. Maryland demanded it all, and got nothing, and in doing so created a terrible
precedent.
Now to another question. Whether a power delegated to government has as necessary and proper implied
powers the power to impose penalties for violations. The answer is that in the absence of a specific
delegation of criminal powers, that is, the powers to disable the rights of life, limb, or liberty, the only
powers that are implied to enforce a power are civil, that is disablement of the right to property. In other

words, it might impose fines, and confiscate property to pay them, but not throw anyone in prison, or flog
them, or hang them. Civil and criminal penalties are distinct powers, and the one cannot be inferred from
the other.
So the only powers to disable life, limb, or liberty for offenses against its law on state territory were for
(1) counterfeiting [I:8:6], (1) treason [III:3:2], (3) piracy and felonies on the high seas [I:8:10], and (4)
offenses against the laws of nations [I:8:10], (These last two are sometimes combined into one, but they
are distinct.) and (5) violation of lawful military or militia orders, including the call-up [I:8:14].
Subsequent amendments have added a few subjects: (6) enslavement [Amd. 13], (7) violation of civil
rights by a state agent [Amd. 14], (8) abridgement of someone's right to vote based on race, color, or
previous servitude [Amd. 15], (9) abridgement of someone's right to vote based on sex [Amd. 19], (10)
abridgement of someone's right to vote based on nonpayment of a tax [Amd. 24], and (11) abridgement
of someone's right to vote based on his or her age if he or she is age 18 or over [Amd. 26].
That still leaves federal territory under I.8.17, where the federal government has broad police powers,
similar to those of a state, although as in a state, not unlimited powers. It also has broad powers under
IV.3 to organize a (non-state-ceded) territory, but not to exercise police powers there. That is, it can
create jurisdictions which can then make their own laws, but the powers thus exercised would derive
from the people of those jurisdictions, not from Congress. (Yes, I know this is also against established
jurisprudence, but once again, established jurisprudence is wrong on a great many matters.)
So does the federal government have the power to impose criminal penalties for, say, perjury or
obstruction of justice on state territory? Only if it is essential to prosecution for violation of a violation of
a statute authorized under one of the delegated penal powers above. In other words, one could be
prosecuted for perjury in connection with a violation for counterfeiting, but not in connection with some
other violation which was not itself punishable with a criminal penalty, such as a firearms violation.
And CJ Marshall was clearly wrong about the federal government being supreme within its "sphere of
action". The Constitution does not contain delegations of spheres of action. It contain delegations of
powers, and powers that are limited even within their spheres of action, as well as prohibited outside of
them.

This case can be considered one of the first major departures from strict
Jeffersonian construction of the Constitution, and it laid the basis for a
long train of further departures that continues to plague constitutional
jurisprudence to this day. However, it is also an example of how bad cases
badly argued produce bad precedents. Although we might consider CJ Marshall
to have wrongly decided the case, a large part of the problem is that
neither side argued competently in support of a correct interpretation of
the Constitution.
First, governments can but usually do not create corporations. Their

incorporators do, although a government or another corporation can in
principle be an incorporator like any individual. And the limited liability
of their shareholders arises from public notice that they are dealing with a
limited liability corporation, which public notice is delivered by calling
themselves a "corporation" or some name with the same meaning. What a
government does is grant a monopoly for the use of the name of the
corporation, which would otherwise have to identify itself in ways that
could distinguish it from other corporations with the same name, as by
specifying the incorporators, date and place of incorporation, etc. (Yes, I
know this doctrine flies in the face of much jurisprudence, but that
conflicting jurisprudence is wrong.)
As to whether the federal government had and has the power to incorporate a
bank or other corporation, I would say that it does -- on federal territory
to which Congress has been ceded exclusive jurisdiction under I.8.17. That
is, some group of persons could incorporate a bank on such territory and the
federal government, being the only government available, could grant a
monopoly on the use of the name.
But the federal government did not and does not have the power to create a
private monopoly, or to empower a private organization to act as a federal
agency. Executive power must be delegated only to individuals under a chain
of command that culminates in the presidency. In other words, they must be
public employees, executing federal laws. Not a bank performing banking
functions.
So a bank could be incorporated in the District of Columbia, but it could

not be granted monopoly powers, or the status of a federal agency. Could it
open branches in other states? Yes, if banks incorporated in one state could
open branches in other states, then so could a bank incorporated in the
District of Columbia.
Now to the issue of the case. Could the State of Maryland tax the bank
incorporated in the District of Columbia? Yes, but only on the same basis as
it could tax any bank incorporated in Maryland or in another state. Equal
protection of the laws. No state taxation of interstate commerce.
So CJ Marshall got it mostly wrong in his opinion, but the State of Maryland
was wrong, too. The proper decision was to reduce the tax on the bank to the
same rate it would have been if it had been incorporated in Maryland,
applied only to its assets and operations within Maryland, and to refund to
the bank any taxes paid in excess of that. Maryland demanded it all, and got
nothing, and in doing so created a terrible precedent.
Now to another question. Whether a power delegated to government has as

necessary and proper implied powers the power to impose penalties for
violations. The answer is that in the absence of a specific delegation of
criminal powers, that is, the powers to disable the rights of life, limb, or
liberty, the only powers that are implied to enforce a power are civil, that

is disablement of the right to property. In other words, it might impose

fines, and confiscate property to pay them, but not throw anyone in prison,
or flog them, or hang them. Civil and criminal penalties are distinct
powers, and the one cannot be inferred from the other.
So the only powers to disable life, limb, or liberty for offenses against
its law on state territory were for (1) counterfeiting [I:8:6], (1) treason
[III:3:2], (3) piracy and felonies on the high seas [I:8:10], and (4)
offenses against the laws of nations [I:8:10], (These last two are sometimes
combined into one, but they are distinct.) and (5) violation of lawful
military or militia orders, including the call-up [I:8:14]. Subsequent
amendments have added a few subjects: (6) enslavement [Amd. 13], (7)
violation of civil rights by a state agent [Amd. 14], (8) abridgement of
someone's right to vote based on race, color, or previous servitude [Amd.
15], (9) abridgement of someone's right to vote based on sex [Amd. 19], (10)
abridgement of someone's right to vote based on nonpayment of a tax [Amd.
24], and (11) abridgement of someone's right to vote based on his or her age
if he or she is age 18 or over [Amd. 26].
That still leaves federal territory under I.8.17, where the federal
government has broad police powers, similar to those of a state, although as
in a state, not unlimited powers. It also has broad powers under IV.3 to
organize a (non-state-ceded) territory, but not to exercise police powers
there. That is, it can create jurisdictions which can then make their own
laws, but the powers thus exercised would derive from the people of those
jurisdictions, not from Congress. (Yes, I know this is also against
established jurisprudence, but once again, established jurisprudence is
wrong on a great many matters.)
So does the federal government have the power to impose criminal penalties
for, say, perjury or obstruction of justice on state territory? Only if it
is essential to prosecution for violation of a violation of a statute
authorized under one of the delegated penal powers above. In other words,
one could be prosecuted for perjury in connection with a violation for
counterfeiting, but not in connection with some other violation which was
not itself punishable with a criminal penalty, such as a firearms violation.
And CJ Marshall was clearly wrong about the federal government being supreme
within its "sphere of action". The Constitution does not contain delegations
of spheres of action. It contain delegations of powers, and powers that are
limited even within their spheres of action, as well as prohibited outside
of them.

Gibbons v. Ogden, 22 U.S. 1 (1824)

APPEAL FROM THE COURT
FOR THE TRIAL OF IMPEACHMENTS AND CORRECTION OF ERRORS
OF THE STATE OF NEW YORK
Syllabus
The laws of New York granting to Robert R. Livingston and Robert Fulton the exclusive right of
navigating the waters of that State with steamboats are in collision with the acts of Congress regulating
the coasting trade, which, being made in pursuance of the Constitution, are supreme, and the State laws
must yield to that supremacy, even though enacted in pursuance of powers acknowledged to remain in
the States.
The power of regulating commerce extends to the regulation of navigation.
The power to regulate commerce extends to every species of commercial intercourse between the United
States and foreign nations, and among the several States. It does not stop at the external boundary of a
State.
But it does not extend to a commerce which is completely internal.
The power to regulate commerce is general, and has no limitations but such as are prescribed in the
Constitution itself.
The power to regulate commerce, so far as it extends, is exclusively vested in Congress, and no part of it
can be exercised by a State.
A license under the acts of Congress for regulating the coasting trade gives a permission to carry on that
trade.
State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those
which respect turnpike roads, ferries, &c. are not within the power granted to Congress.
The license is not merely intended to confer the national character.
The power of regulating commerce extends to navigation carried on by vessels exclusively employed in
transporting passengers.
The power of regulating commerce extends to vessels propelled by steam or fire as well as to those
navigated by the instrumentality of wind and sails.
Aaron Ogden filed his bill in the Court of Chancery of that State, against Thomas Gibbons, setting forth
the several acts of the Legislature thereof, enacted for the purpose of securing to Robert R. Livingston
and Robert Fulton the [p*2] exclusive navigation of all the waters within the jurisdiction of that State,
with boats moved by fire or steam, for a term of years which has not yet expired, and authorizing the
Chancellor to award an injunction restraining any person whatever from navigating those waters with
boats of that description. The bill stated an assignment from Livingston and Fulton to one John R.
Livingston, and from him to the complainant, Ogden, of the right to navigate the waters between

Elizabethtown, and other places in New Jersey, and the City of New York, and that Gibbons, the
defendant below, was in possession of two steamboats, called the Stoudinger and the Bellona, which
were actually employed in running between New York and Elizabethtown, in violation of the exclusive
privilege conferred on the complainant, and praying an injunction to restrain the said Gibbons from using
the said boats, or any other propelled by fire or steam, in navigating the waters within the territory of
New York. The injunction having been awarded, the answer of Gibbons was filed, in which he stated that
the boats employed by him were duly enrolled and licensed to be employed in carrying on the coasting
trade under the Act of Congress, passed the 18th of February, 1793, c. 3. entitled, "An act for enrolling
and licensing ships and vessels to be employed in the coasting trade and fisheries, and for regulating the
same." And the defendant insisted on his right, in virtue of such licenses, to navigate the waters between
Elizabethtown and the City of New York, the said acts of the Legislature of the [p*3] State of New York
to the contrary notwithstanding. At the hearing, the Chancellor perpetuated the injunction, being of the
opinion that the said acts were not repugnant to the Constitution and laws of the United States, and were
valid. This decree was affirmed in the Court for the Trial of Impeachments and Correction of Errors,
which is the highest Court of law and equity in the State, before which the cause could be carried, and it
was thereupon brought to this Court by appeal. [p*186]
Opinions
Mr. Chief Justice MARSHALL delivered the opinion of the Court, and, after stating the case, proceeded
as follows:
The appellant contends that this decree is erroneous because the laws which purport to give the exclusive
privilege it sustains are repugnant to the Constitution and laws of the United States.
They are said to be repugnant:
1st. To that clause in the Constitution which authorizes Congress to regulate commerce.
2d. To that which authorizes Congress to promote the progress of science and useful arts.
The State of New York maintains the Constitutionality of these laws, and their Legislature, their Council
of Revision, and their Judges, have repeatedly concurred in this opinion. It is supported by great names
— by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No
tribunal can approach the decision of this question without feeling a just and real respect for that opinion
which is sustained by such authority, but it is the province of this Court, while it respects, not to bow to it
implicitly, and the Judges must exercise, in the examination of the subject, that understanding which
Providence has bestowed upon them, with that independence which the people of the United [p*187]
States expect from this department of the government.
As preliminary to the very able discussions of the Constitution which we have heard from the bar, and as
having some influence on its construction, reference has been made to the political situation of these
States anterior to its formation. It has been said that they were sovereign, were completely independent,
and were connected with each other only by a league. This is true. But, when these allied sovereigns
converted their league into a government, when they converted their Congress of Ambassadors, deputed
to deliberate on their common concerns and to recommend measures of general utility, into a Legislature,

empowered to enact laws on the most interesting subjects, the whole character in which the States appear
underwent a change, the extent of which must be determined by a fair consideration of the instrument by
which that change was effected.
This instrument contains an enumeration of powers expressly granted by the people to their government.
It has been said that these powers ought to be construed strictly. But why ought they to be so construed?
Is there one sentence in the Constitution which gives countenance to this rule? In the last of the
enumerated powers, that which grants expressly the means for carrying all others into execution,
Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this
limitation on the means which may be used is not extended to the powers which are conferred, nor is
there one sentence in [p*188] the Constitution which has been pointed out by the gentlemen of the bar or
which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves
justified in adopting it. What do gentlemen mean by a "strict construction?" If they contend only against
that enlarged construction, which would extend words beyond their natural and obvious import, we might
question the application of the term, but should not controvert the principle. If they contend for that
narrow construction which, in support or some theory not to be found in the Constitution, would deny to
the government those powers which the words of the grant, as usually understood, import, and which are
consistent with the general views and objects of the instrument; for that narrow construction which
would cripple the government and render it unequal to the object for which it is declared to be instituted,
and to which the powers given, as fairly understood, render it competent; then we cannot perceive the
propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded.
As men whose intentions require no concealment generally employ the words which most directly and
aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and
the people who adopted it, must be understood to have employed words in their natural sense, and to
have intended what they have said. If, from the imperfection of human language, there should be serious
doubts respecting the extent of any given power, it is a well settled rule that the objects [p*189] for
which it was given, especially when those objects are expressed in the instrument itself, should have
great influence in the construction. We know of no reason for excluding this rule from the present case.
The grant does not convey power which might be beneficial to the grantor if retained by himself, or
which can enure solely to the benefit of the grantee, but is an investment of power for the general
advantage, in the hands of agents selected for that purpose, which power can never be exercised by the
people themselves, but must be placed in the hands of agents or lie dormant. We know of no rule for
construing the extent of such powers other than is given by the language of the instrument which confers
them, taken in connexion with the purposes for which they were conferred.
The words are, "Congress shall have power to regulate commerce with foreign nations, and among the
several States, and with the Indian tribes."
The subject to be regulated is commerce, and our Constitution being, as was aptly said at the bar, one of
enumeration, and not of definition, to ascertain the extent of the power, it becomes necessary to settle the
meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the
interchange of commodities, and do not admit that it comprehends navigation. This would restrict a
general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic,
but it is something more: it is intercourse. It describes the commercial [p*190] intercourse between
nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that
intercourse. The mind can scarcely conceive a system for regulating commerce between nations which
shall exclude all laws concerning navigation, which shall be silent on the admission of the vessels of the

one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals
in the actual employment of buying and selling or of barter.
If commerce does not include navigation, the government of the Union has no direct power over that
subject, and can make no law prescribing what shall constitute American vessels or requiring that they
shall be navigated by American seamen. Yet this power has been exercised from the commencement of
the government, has been exercised with the consent of all, and has been understood by all to be a
commercial regulation. All America understands, and has uniformly understood, the word "commerce" to
comprehend navigation. It was so understood, and must have been so understood, when the Constitution
was framed. The power over commerce, including navigation, was one of the primary objects for which
the people of America adopted their government, and must have been contemplated in forming it. The
convention must have used the word in that sense, because all have understood it in that sense, and the
attempt to restrict it comes too late.
If the opinion that "commerce," as the word is used in the Constitution, comprehends navigation [p*191]
also, requires any additional confirmation, that additional confirmation is, we think, furnished by the
words of the instrument itself.
It is a rule of construction acknowledged by all that the exceptions from a power mark its extent, for it
would be absurd, as well as useless, to except from a granted power that which was not granted — that
which the words of the grant could not comprehend. If, then, there are in the Constitution plain
exceptions from the power over navigation, plain inhibitions to the exercise of that power in a particular
way, it is a proof that those who made these exceptions, and prescribed these inhibitions, understood the
power to which they applied as being granted.
The 9th section of the 1st article declares that "no preference shall be given, by any regulation of
commerce or revenue, to the ports of one State over those of another." This clause cannot be understood
as applicable to those laws only which are passed for the purposes of revenue, because it is expressly
applied to commercial regulations, and the most obvious preference which can be given to one port over
another in regulating commerce relates to navigation. But the subsequent part of the sentence is still more
explicit. It is, "nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties, in
another." These words have a direct reference to navigation.
The universally acknowledged power of the government to impose embargoes must also be considered as
showing that all America is united [p*192] in that construction which comprehends navigation in the
word commerce. Gentlemen have said in argument that this is a branch of the war-making power, and
that an embargo is an instrument of war, not a regulation of trade.
That it may be, and often is, used as an instrument of war cannot be denied. An embargo may be imposed
for the purpose of facilitating the equipment or manning of a fleet, or for the purpose of concealing the
progress of an expedition preparing to sail from a particular port. In these, and in similar cases, it is a
military instrument, and partakes of the nature of war. But all embargoes are not of this description. They
are sometimes resorted to without a view to war, and with a single view to commerce. In such case, an
embargo is no more a war measure than a merchantman is a ship of war because both are vessels which
navigate the ocean with sails and seamen.
When Congress imposed that embargo which, for a time, engaged the attention of every man in the
United States, the avowed object of the law was the protection of commerce, and the avoiding of war. By

its friends and its enemies, it was treated as a commercial, not as a war, measure. The persevering
earnestness and zeal with which it was opposed in a part of our country which supposed its interests to be
vitally affected by the act, cannot be forgotten. A want of acuteness in discovering objections to a
measure to which they felt the most deep-rooted hostility will not be imputed to those who were arrayed
in opposition [p*193] to this. Yet they never suspected that navigation was no branch of trade, and was
therefore not comprehended in the power to regulate commerce. They did, indeed, contest the
constitutionality of the act, but, on a principle which admits the construction for which the appellant
contends. They denied that the particular law in question was made in pursuance of the Constitution not
because the power could not act directly on vessels, but because a perpetual embargo was the
annihilation, and not the regulation, of commerce. In terms, they admitted the applicability of the words
used in the Constitution to vessels, and that in a case which produced a degree and an extent of
excitement calculated to draw forth every principle on which legitimate resistance could be sustained. No
example could more strongly illustrate the universal understanding of the American people on this
subject.
The word used in the Constitution, then, comprehends, and has been always understood to comprehend,
navigation within its meaning, and a power to regulate navigation is as expressly granted as if that term
had been added to the word "commerce."
To what commerce does this power extend? The Constitution informs us, to commerce "with foreign
nations, and among the several States, and with the Indian tribes."
It has, we believe, been universally admitted that these words comprehend every species of commercial
intercourse between the United States and foreign nations. No sort of trade can be [p*194] carried on
between this country and any other to which this power does not extend. It has been truly said that
"commerce," as the word is used in the Constitution, is a unit every part of which is indicated by the
term.
If this be the admitted meaning of the word in its application to foreign nations, it must carry the same
meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which
alters it.
The subject to which the power is next applied is to commerce "among the several States." The word
"among" means intermingled with. A thing which is among others is intermingled with them. Commerce
among the States cannot stop at the external boundary line of each State, but may be introduced into the
interior.
It is not intended to say that these words comprehend that commerce which is completely internal, which
is carried on between man and man in a State, or between different parts of the same State, and which
does not extend to or affect other States. Such a power would be inconvenient, and is certainly
unnecessary.
Comprehensive as the word "among" is, it may very properly be restricted to that commerce which
concerns more States than one. The phrase is not one which would probably have been selected to
indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the
enumeration of the particular classes of commerce to which the power was to be extended would not
have been made had the intention [p*195] been to extend the power to every description. The
enumeration presupposes something not enumerated, and that something, if we regard the language or

the subject of the sentence, must be the exclusively internal commerce of a State. The genius and
character of the whole government seem to be that its action is to be applied to all the external concerns
of the nation, and to those internal concerns which affect the States generally, but not to those which are
completely within a particular State, which do not affect other States, and with which it is not necessary
to interfere for the purpose of executing some of the general powers of the government. The completely
internal commerce of a State, then, may be considered as reserved for the State itself.
But, in regulating commerce with foreign nations, the power of Congress does not stop at the
jurisdictional lines of the several States. It would be a very useless power if it could not pass those lines.
The commerce of the United States with foreign nations is that of the whole United States. Every district
has a right to participate in it. The deep streams which penetrate our country in every direction pass
through the interior of almost every State in the Union, and furnish the means of exercising this right. If
Congress has the power to regulate it, that power must be exercised whenever the subject exists. If it
exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the
power of Congress may be exercised within a State.
This principle is, if possible, still more clear, when [p*196] applied to commerce "among the several
States." They either join each other, in which case they are separated by a mathematical line, or they are
remote from each other, in which case other States lie between them. What is commerce "among" them,
and how is it to be conducted? Can a trading expedition between two adjoining States, commence and
terminate outside of each? And if the trading intercourse be between two States remote from each other,
must it not commence in one, terminate in the other, and probably pass through a third? Commerce
among the States must, of necessity, be commerce with the States. In the regulation of trade with the
Indian tribes, the action of the law, especially when the Constitution was made, was chiefly within a
State. The power of Congress, then, whatever it may be, must be exercised within the territorial
jurisdiction of the several States. The sense of the nation on this subject is unequivocally manifested by
the provisions made in the laws for transporting goods by land between Baltimore and Providence,
between New York and Philadelphia, and between Philadelphia and Baltimore.
We are now arrived at the inquiry — What is this power?
It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This
power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and
acknowledges no limitations other than are prescribed in the Constitution. These are expressed in plain
terms, and do not affect the [p*197] questions which arise in this case, or which have been discussed at
the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified
objects, is plenary as to those objects, the power over commerce with foreign nations, and among the
several States, is vested in Congress as absolutely as it would be in a single government, having in its
Constitution the same restrictions on the exercise of the power as are found in the Constitution of the
United States. The wisdom and the discretion of Congress, their identity with the people, and the
influence which their constituents possess at elections are, in this, as in many other instances, as that, for
example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse.
They are the restraints on which the people must often they solely, in all representative governments.
The power of Congress, then, comprehends navigation, within the limits of every State in the Union, so
far as that navigation may be in any manner connected with "commerce with foreign nations, or among
the several States, or with the Indian tribes." It may, of consequence, pass the jurisdictional line of New

York and act upon the very waters to which the prohibition now under consideration applies.
But it has been urged with great earnestness that, although the power of Congress to regulate commerce
with foreign nations and among the several States be coextensive with the subject itself, and have no
other limits than are prescribed in the Constitution, yet the States may severally [p*198] exercise the
same power, within their respective jurisdictions. In support of this argument, it is said that they
possessed it as an inseparable attribute of sovereignty, before the formation of the Constitution, and still
retain it except so far as they have surrendered it by that instrument; that this principle results from the
nature of the government, and is secured by the tenth amendment; that an affirmative grant of power is
not exclusive unless in its own nature it be such that the continued exercise of it by the former possessor
is inconsistent with the grant, and that this is not of that description.
The appellant, conceding these postulates except the last, contends that full power to regulate a particular
subject implies the whole power, and leaves no residuum; that a grant of the whole is incompatible with
the existence of a right in another to any part of it.
Both parties have appealed to the Constitution, to legislative acts, and judicial decisions, and have drawn
arguments from all these sources to support and illustrate the propositions they respectively maintain.
The grant of the power to lay and collect taxes is, like the power to regulate commerce, made in general
terms, and has never been understood to interfere with the exercise of the same power by the State, and
hence has been drawn an argument which has been applied to the question under consideration. But the
two grants are not, it is conceived, similar in their terms or their nature. Although many of the powers
formerly [p*199] exercised by the States are transferred to the government of the Union, yet the State
governments remain, and constitute a most important part of our system. The power of taxation is
indispensable to their existence, and is a power which, in its own nature, is capable of residing in, and
being exercised by, different authorities at the same time. We are accustomed to see it placed, for
different purposes, in different hands. Taxation is the simple operation of taking small portions from a
perpetually accumulating mass, susceptible of almost infinite division, and a power in one to take what is
necessary for certain purposes is not, in its nature, incompatible with a power in another to take what is
necessary for other purposes. Congress is authorized to lay and collect taxes, &c. to pay the debts and
provide for the common defence and general welfare of the United States. This does not interfere with
the power of the States to tax for the support of their own governments, nor is the exercise of that power
by the States an exercise of any portion of the power that is granted to the United States. In imposing
taxes for State purposes, they are not doing what Congress is empowered to do. Congress is not
empowered to tax for those purposes which are within the exclusive province of the States. When, then,
each government exercises the power of taxation, neither is exercising the power of the other. But, when
a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising
the very power that is granted to Congress, [p*200] and is doing the very thing which Congress is
authorized to do. There is no analogy, then, between the power of taxation and the power of regulating
commerce.
In discussing the question whether this power is still in the States, in the case under consideration, we
may dismiss from it the inquiry whether it is surrendered by the mere grant to Congress, or is retained
until Congress shall exercise the power. We may dismiss that inquiry because it has been exercised, and
the regulations which Congress deemed it proper to make are now in full operation. The sole question is
can a State regulate commerce with foreign nations and among the States while Congress is regulating it?

The counsel for the respondent answer this question in the affirmative, and rely very much on the
restrictions in the 10th section as supporting their opinion. They say very truly that limitations of a power
furnish a strong argument in favour of the existence of that power, and that the section which prohibits
the States from laying duties on imports or exports proves that this power might have been exercised had
it not been expressly forbidden, and consequently that any other commercial regulation, not expressly
forbidden, to which the original power of the State was competent may still be made.
That this restriction shows the opinion of the Convention that a State might impose duties on exports and
imports, if not expressly forbidden, will be conceded, but that it follows as a consequence [p*201] from
this concession that a State may regulate commerce with foreign nations and among the States cannot be
admitted.
We must first determine whether the act of laying "duties or imposts on imports or exports" is considered
in the Constitution as a branch of the taxing power, or of the power to regulate commerce. We think it
very clear that it is considered as a branch of the taxing power. It is so treated in the first clause of the 8th
section: "Congress shall have power to lay and collect taxes, duties, imposts, and excises;" and, before
commerce is mentioned, the rule by which the exercise of this power must be governed is declared. It is
that all duties, imposts, and excises shall be uniform. In a separate clause of the enumeration, the power
to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts and as
being a new power, not before conferred. The Constitution, then, considers these powers as substantive,
and distinct from each other, and so places them in the enumeration it contains. The power of imposing
duties on imports is classed with the power to levy taxes, and that seems to be its natural place. But the
power to levy taxes could never be considered as abridging the right of the States on that subject, and
they might, consequently, have exercised it by levying duties on imports or exports, had the Constitution
contained no prohibition on this subject. This prohibition, then, is an exception from the acknowledged
power of the States [p*202] to levy taxes, not from the questionable power to regulate commerce.
"A duty of tonnage" is as much a tax as a duty on imports or exports, and the reason which induced the
prohibition of those taxes extends to this also. This tax may be imposed by a State, with the consent of
Congress, and it may be admitted that Congress cannot give a right to a State in virtue of its own powers.
But a duty of tonnage being part of the power of imposing taxes, its prohibition may certainly be made to
depend on Congress, without affording any implication respecting a power to regulate commerce. It is
true that duties may often be, and in fact often are, imposed on tonnage with a view to the regulation of
commerce, but they may be also imposed with a view to revenue, and it was therefore a prudent
precaution to prohibit the States from exercising this power. The idea that the same measure might,
according to circumstances, be arranged with different classes of power was no novelty to the framers of
our Constitution. Those illustrious statesmen and patriots had been, many of them, deeply engaged in the
discussions which preceded the war of our revolution, and all of them were well read in those
discussions. The right to regulate commerce, even by the imposition of duties, was not controverted, but
the right to impose a duty for the purpose of revenue produced a war as important, perhaps, in its
consequences to the human race as any the world has ever witnessed.
These restrictions, then, are on the taxing power, [p*203] not on that to regulate commerce, and
presuppose the existence of that which they restrain, not of that which they do not purport to restrain.
But the inspection laws are said to be regulations of commerce, and are certainly recognised in the
Constitution as being passed in the exercise of a power remaining with the States.

That inspection laws may have a remote and considerable influence on commerce will not be denied, but
that a power to regulate commerce is the source from which the right to pass them is derived cannot be
admitted. The object of inspection laws is to improve the quality of articles produced by the labour of a
country, to fit them for exportation, or, it may be, for domestic use. They act upon the subject before it
becomes an article of foreign commerce or of commerce among the States, and prepare it for that
purpose. They form a portion of that immense mass of legislation which embraces everything within the
territory of a State not surrendered to the General Government; all which can be most advantageously
exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as
well as laws for regulating the internal commerce of a State, and those which respect turnpike roads,
ferries, &c., are component parts of this mass.
No direct general power over these objects is granted to Congress, and, consequently, they remain
subject to State legislation. If the legislative power of the Union can reach them, it must be for national
purposes, it must be where the [p*204] power is expressly given for a special purpose or is clearly
incidental to some power which is expressly given. It is obvious that the government of the Union, in the
exercise of its express powers — that, for example, of regulating commerce with foreign nations and
among the States — may use means that may also be employed by a State in the exercise of its
acknowledged powers — that, for example, of regulating commerce within the State. If Congress license
vessels to sail from one port to another in the same State, the act is supposed to be necessarily incidental
to the power expressly granted to Congress, and implies no claim of a direct power to regulate the purely
internal commerce of a State or to act directly on its system of police. So, if a State, in passing laws on
subjects acknowledged to be within its control, and with a view to those subjects, shall adopt a measure
of the same character with one which Congress may adopt, it does not derive its authority from the
particular power which has been granted, but from some other, which remains with the State and may be
executed by the same means. All experience shows that the same measures, or measures scarcely
distinguishable from each other, may flow from distinct powers, but this does not prove that the powers
themselves are identical. Although the means used in their execution may sometimes approach each
other so nearly as to be confounded, there are other situations in which they are sufficiently distinct to
establish their individuality.
In our complex system, presenting the rare and difficult scheme of one General Government whose
[p*205] action extends over the whole but which possesses only certain enumerated powers, and of
numerous State governments which retain and exercise all powers not delegated to the Union, contests
respecting power must arise. Were it even otherwise, the measures taken by the respective governments
to execute their acknowledged powers would often be of the same description, and might sometimes
interfere. This, however, does not prove that the one is exercising, or has a right to exercise, the powers
of the other.
The acts of Congress passed in 1796 and 1799, 2 U.S.L. 345, 3 U.S.L. 126, empowering and directing
the officers of the General Government to conform to and assist in the execution of the quarantine and
health laws of a State proceed, it is said, upon the idea that these laws are constitutional. It is undoubtedly
true that they do proceed upon that idea, and the constitutionality of such laws has never, so far as we are
informed, been denied. But they do not imply an acknowledgment that a State may rightfully regulate
commerce with foreign nations or among the States, for they do not imply that such laws are an exercise
of that power, or enacted with a view to it. On the contrary, they are treated as quarantine and health
laws, are so denominated in the acts of Congress, and are considered as flowing from the acknowledged
power of a State to provide for the health of its citizens. But as it was apparent that some of the

provisions made for this purpose and in virtue of this power might [p*206] interfere with and be affected
by the laws of the United States made for the regulation of commerce, Congress, in that spirit of harmony
and conciliation which ought always to characterize the conduct of governments standing in the relation
which that of the Union and those of the States bear to each other, has directed its officers to aid in the
execution of these laws, and has, in some measure, adapted its own legislation to this object by making
provisions in aid of those of the States. But, in making these provisions, the opinion is unequivocally
manifested that Congress may control the State laws so far as it may be necessary to control them for the
regulation of commerce. The act passed in 1803, 3 U.S.L. 529, prohibiting the importation of slaves into
any State which shall itself prohibit their importation, implies, it is said, an admission that the States
possessed the power to exclude or admit them, from which it is inferred that they possess the same power
with respect to other articles.
If this inference were correct, if this power was exercised not under any particular clause in the
Constitution, but in virtue of a general right over the subject of commerce, to exist as long as the
Constitution itself, it might now be exercised. Any State might now import African slaves into its own
territory. But it is obvious that the power of the States over this subject, previous to the year 1808,
constitutes an exception to the power of [p*207] Congress to regulate commerce, and the exception is
expressed in such words, as to manifest clearly the intention to continue the preexisting right of the States
to admit or exclude, for a limited period. The words are the migration or importation of such persons as
any of the States, now existing, shall think proper to admit shall not be prohibited by the Congress prior
to the year 1808.
The whole object of the exception is to preserve the power to those States which might be disposed to
exercise it, and its language seems to the Court to convey this idea unequivocally. The possession of this
particular power, then, during the time limited in the Constitution, cannot be admitted to prove the
possession of any other similar power.
It has been said that the act of August 7, 1789, acknowledges a concurrent power in the States to regulate
the conduct of pilots, and hence is inferred an admission of their concurrent right with Congress to
regulate commerce with foreign nations and amongst the States. But this inference is not, we think,
justified by the fact.
Although Congress cannot enable a State to legislate, Congress may adopt the provisions of a State on
any subject. When the government of the Union was brought into existence, it found a system for the
regulation of its pilots in full force in every State. The act which has been mentioned adopts this system,
and gives it the same validity as if its provisions had been specially made by Congress. But the act, it
may be said, is prospective also, and the adoption of laws to be made [p*208] in future presupposes the
right in the maker to legislate on the subject.
The act unquestionably manifests an intention to leave this subject entirely to the States until Congress
should think proper to interpose, but the very enactment of such a law indicates an opinion that it was
necessary, that the existing system would not be applicable to the new state of things unless expressly
applied to it by Congress. But this section is confined to pilots within the "bays, inlets, rivers, harbours,
and ports of the United States," which are, of course, in whole or in part, also within the limits of some
particular state. The acknowledged power of a State to regulate its police, its domestic trade, and to
govern its own citizens may enable it to legislate on this subject to a considerable extent, and the
adoption of its system by Congress, and the application of it to the whole subject of commerce, does not

seem to the Court to imply a right in the States so to apply it of their own authority. But the adoption of
the State system being temporary, being only "until further legislative provision shall be made by
Congress," shows conclusively an opinion that Congress could control the whole subject, and might
adopt the system of the States or provide one of its own.
A State, it is said, or even a private citizen, may construct light houses. But gentlemen must be aware that
if this proves a power in a State to regulate commerce, it proves that the same power is in the citizen.
States or individuals who own lands may, if not forbidden by law, [p*209] erect on those lands what
buildings they please, but this power is entirely distinct from that of regulating commerce, and may, we
presume, be restrained if exercised so as to produce a public mischief.
These acts were cited at the bar for the purpose of showing an opinion in Congress that the States
possess, concurrently with the Legislature of the Union, the power to regulate commerce with foreign
nations and among the States. Upon reviewing them, we think they do not establish the proposition they
were intended to prove. They show the opinion that the States retain powers enabling them to pass the
laws to which allusion has been made, not that those laws proceed from the particular power which has
been delegated to Congress.
It has been contended by the counsel for the appellant that, as the word "to regulate" implies in its nature
full power over the thing to be regulated, it excludes necessarily the action of all others that would
perform the same operation on the same thing. That regulation is designed for the entire result, applying
to those parts which remain as they were, as well as to those which are altered. It produces a uniform
whole which is as much disturbed and deranged by changing what the regulating power designs to leave
untouched as that on which it has operated.
There is great force in this argument, and the Court is not satisfied that it has been refuted.
Since, however, in exercising the power of regulating their own purely internal affairs, whether [p*210]
of trading or police, the States may sometimes enact laws the validity of which depends on their
interfering with, and being contrary to, an act of Congress passed in pursuance of the Constitution, the
Court will enter upon the inquiry whether the laws of New York, as expounded by the highest tribunal of
that State, have, in their application to this case, come into collision with an act of Congress and deprived
a citizen of a right to which that act entitles him. Should this collision exist, it will be immaterial whether
those laws were passed in virtue of a concurrent power "to regulate commerce with foreign nations and
among the several States" or in virtue of a power to regulate their domestic trade and police. In one case
and the other, the acts of New York must yield to the law of Congress, and the decision sustaining the
privilege they confer against a right given by a law of the Union must be erroneous.
This opinion has been frequently expressed in this Court, and is founded as well on the nature of the
government as on the words of the Constitution. In argument, however, it has been contended that, if a
law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law
passed by Congress in pursuance of the Constitution, they affect the subject and each other like equal
opposing powers.
But the framers of our Constitution foresaw this state of things, and provided for it by declaring the
supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any act [p*211]
inconsistent with the Constitution is produced by the declaration that the Constitution is the supreme law.
The appropriate application of that part of the clause which confers the same supremacy on laws and

treaties is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in
the execution of acknowledged State powers, interfere with, or are contrary to, the laws of Congress
made in pursuance of the Constitution or some treaty made under the authority of the United States. In
every such case, the act of Congress or the treaty is supreme, and the law of the State, though enacted in
the exercise of powers not controverted, must yield to it.
In pursuing this inquiry at the bar, it has been said that the Constitution does not confer the right of
intercourse between State and State. That right derives its source from those laws whose authority is
acknowledged by civilized man throughout the world. This is true. The Constitution found it an existing
right, and gave to Congress the power to regulate it. In the exercise of this power, Congress has passed
"an act for enrolling or licensing ships or vessels to be employed in the coasting trade and fisheries, and
for regulating the same." The counsel for the respondent contend that this act does not give the right to
sail from port to port, but confines itself to regulating a preexisting right so far only as to confer certain
privileges on enrolled and licensed vessels in its exercise.
It will at once occur that, when a Legislature [p*212] attaches certain privileges and exemptions to the
exercise of a right over which its control is absolute, the law must imply a power to exercise the right.
The privileges are gone if the right itself be annihilated. It would be contrary to all reason, and to the
course of human affairs, to say that a State is unable to strip a vessel of the particular privileges attendant
on the exercise of a right, and yet may annul the right itself; that the State of New York cannot prevent an
enrolled and licensed vessel, proceeding from Elizabethtown, in New Jersey, to New York, from
enjoying, in her course, and on her entrance into port, all the privileges conferred by the act of Congress,
but can shut her up in her own port, and prohibit altogether her entering the waters and ports of another
State. To the Court, it seems very clear that the whole act on the subject of the coasting trade, according
to those principles which govern the construction of statutes, implies unequivocally an authority to
licensed vessels to carry on the coasting trade.
But we will proceed briefly to notice those sections which bear more directly on the subject.
The first section declares that vessels enrolled by virtue of a previous law, and certain other vessels
enrolled as described in that act, and having a license in force, as is by the act required, and no others,
shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels
employed in the coasting trade.
This section seems to the Court to contain a positive enactment that the the vessels it describes shall
[p*213] be entitled to the privileges of ships or vessels employed in the coasting trade. These privileges
cannot be separated from the trade and cannot be enjoyed unless the trade may be prosecuted. The grant
of the privilege is an idle, empty form, conveying nothing, unless it convey the right to which the
privilege is attached and in the exercise of which its whole value consists. To construe these words
otherwise than as entitling the ships or vessels described to carry on the coasting trade would be, we
think, to disregard the apparent intent of the act.
The fourth section directs the proper officer to grant to a vessel qualified to receive it, "a license for
carrying on the coasting trade," and prescribes its form. After reciting the compliance of the applicant
with the previous requisites of the law, the operative words of the instrument are, license is hereby
granted for the said steamboat Bellona to be employed in carrying on the coasting trade for one year from
the date hereof, and no longer.

These are not the words of the officer, they are the words of the legislature, and convey as explicitly the
authority the act intended to give, and operate as effectually, as if they had been inserted in any other part
of the act, than in the license itself.
The word "license" means permission or authority, and a license to do any particular thing is a
permission or authority to do that thing, and if granted by a person having power to grant it, transfers to
the grantee the right to do whatever it purports to authorize. It certainly transfers to [p*214] him all the
right which the grantor can transfer, to do what is within the terms of the license.
Would the validity or effect of such an instrument be questioned by the respondent, if executed by
persons claiming regularly under the laws of New York?
The license must be understood to be what it purports to be, a legislative authority to the steamboat
Bellona "to be employed in carrying on the coasting trade, for one year from this date."
It has been denied that these words authorize a voyage from New Jersey to New York. It is true that no
ports are specified, but it is equally true that the words used are perfectly intelligible, and do confer such
authority as unquestionably as if the ports had been mentioned. The coasting trade is a term well
understood. The law has defined it, and all know its meaning perfectly. The act describes with great
minuteness the various operations of a vessel engaged in it, and it cannot, we think, be doubted that a
voyage from New Jersey to New York is one of those operations.
Notwithstanding the decided language of the license, it has also been maintained that it gives no right to
trade, and that its sole purpose is to confer the American character.
The answer given to this argument that the American character is conferred by the enrollment, and not by
the license, is, we think, founded too clearly in the words of the law to require the support of any
additional observations. The enrollment of vessels designed for the coasting trade corresponds precisely
with the registration of vessels [p*215] designed for the foreign trade, and requires every circumstance
which can constitute the American character. The license can be granted only to vessels already enrolled,
if they be of the burthen of twenty tons and upwards, and requires no circumstance essential to the
American character. The object of the license, then, cannot be to ascertain the character of the vessel, but
to do what it professes to do — that is, to give permission to a vessel already proved by her enrollment to
be American, to carry on the coasting trade.
But if the license be a permit to carry on the coasting trade, the respondent denies that these boats were
engaged in that trade, or that the decree under consideration has restrained them from prosecuting it. The
boats of the appellant were, we are told, employed in the transportation of passengers, and this is no part
of that commerce which Congress may regulate.
If, as our whole course of legislation on this subject shows, the power of Congress has been universally
understood in America to comprehend navigation, it is a very persuasive, if not a conclusive, argument to
prove that the construction is correct, and if it be correct, no clear distinction is perceived between the
power to regulate vessels employed in transporting men for hire and property for hire. The subject is
transferred to Congress, and no exception to the grant can be admitted which is not proved by the words
or the nature of the thing. A coasting vessel employed in the transportation of passengers is as much a
portion of the American marine as one employed [p*216] in the transportation of a cargo, and no reason
is perceived why such vessel should be withdrawn from the regulating power of that government which
has been thought best fitted for the purpose generally. The provisions of the law respecting native

seamen and respecting ownership are as applicable to vessels carrying men as to vessels carrying
manufactures, and no reason is perceived why the power over the subject should not be placed in the
same hands. The argument urged at the bar rests on the foundation that the power of Congress does not
extend to navigation as a branch of commerce, and can only be applied to that subject incidentally and
occasionally. But if that foundation be removed, we must show some plain, intelligible distinction,
supported by the Constitution or by reason, for discriminating between the power of Congress over
vessels employed in navigating the same seas. We can perceive no such distinction.
If we refer to the Constitution, the inference to be drawn from it is rather against the distinction. The
section which restrains Congress from prohibiting the migration or importation of such persons as any of
the States may think proper to admit until the year 1808 has always been considered as an exception from
the power to regulate commerce, and certainly seems to class migration with importation. Migration
applies as appropriately to voluntary as importation does to involuntary arrivals, and, so far as an
exception from a power proves its existence, this section proves that the power to regulate commerce
applies equally [p*217] to the regulation of vessels employed in transporting men, who pass from place
to place voluntarily, and to those who pass involuntarily.
If the power reside in Congress, as a portion of the general grant to regulate commerce, then acts
applying that power to vessels generally must be construed as comprehending all vessels. If none appear
to be excluded by the language of the act, none can be excluded by construction. Vessels have always
been employed to a greater or less extent in the transportation of passengers, and have never been
supposed to be, on that account, withdrawn from the control or protection of Congress. Packets which
ply along the coast, as well as those which make voyages between Europe and America, consider the
transportation of passengers as an important part of their business. Yet it has never been suspected that
the general laws of navigation did not apply to them.
The duty act, sections 23 and 46, contains provisions respecting passengers, and shows that vessels
which transport them have the same rights, and must perform the same duties, with other vessels. They
are governed by the general laws of navigation.
In the progress of things, this seems to have grown into a particular employment, and to have attracted
the particular attention of government. Congress was no longer satisfied with comprehending vessels
engaged specially in this business, within those provisions which were intended for vessels generally,
and, on the 2d of March, 1819, passed "an act regulating passenger ships and [p*218] vessels." This wise
and humane law provides for the safety and comfort of passengers, and for the communication of
everything concerning them which may interest the government, to the Department of State, but makes
no provision concerning the entry of the vessel or her conduct in the waters of the United States. This, we
think, shows conclusively the sense of Congress (if, indeed, any evidence to that point could be required)
that the preexisting regulations comprehended passenger ships among others, and, in prescribing the
same duties, the Legislature must have considered them as possessing the same rights.
If, then, it were even true that the Bellona and the Stoudinger were employed exclusively in the
conveyance of passengers between New York and New Jersey, it would not follow that this occupation
did not constitute a part of the coasting trade of the United States, and was not protected by the license
annexed to the answer. But we cannot perceive how the occupation of these vessels can be drawn into
question in the case before the Court. The laws of New York, which grant the exclusive privilege set up
by the respondent, take no notice of the employment of vessels, and relate only to the principle by which

they are propelled. Those laws do not inquire whether vessels are engaged in transporting men or
merchandise, but whether they are moved by steam or wind. If by the former, the waters of New York
are closed against them, though their cargoes be dutiable goods, which the laws of the [p*219] United
States permit them to enter and deliver in New York. If by the latter, those waters are free to them though
they should carry passengers only. In conformity with the law is the bill of the plaintiff in the State
Court. The bill does not complain that the Bellona and the Stoudinger carry passengers, but that they are
moved by steam. This is the injury of which he complains, and is the sole injury against the continuance
of which he asks relief. The bill does not even allege specially that those vessels were employed in the
transportation of passengers, but says generally that they were employed "in the transportation of
passengers, or otherwise." The answer avers only that they were employed in the coasting trade, and
insists on the right to carry on any trade authorized by the license. No testimony is taken, and the writ of
injunction and decree restrain these licensed vessels not from carrying passengers, but from being moved
through the waters of New York by steam for any purpose whatever.
The questions, then, whether the conveyance of passengers be a part of the coasting trade and whether a
vessel can be protected in that occupation by a coasting license are not, and cannot be, raised in this case.
The real and sole question seems to be whether a steam machine in actual use deprives a vessel of the
privileges conferred by a license.
In considering this question, the first idea which presents itself is that the laws of Congress for the
regulation of commerce do not look to the [p*220] principle by which vessels are moved. That subject is
left entirely to individual discretion, and, in that vast and complex system of legislative enactment
concerning it, which embraces everything that the Legislature thought it necessary to notice, there is not,
we believe, one word respecting the peculiar principle by which vessels are propelled through the water,
except what may be found in a single act granting a particular privilege to steamboats. With this
exception, every act, either prescribing duties or granting privileges, applies to every vessel, whether
navigated by the instrumentality of wind or fire, of sails or machinery. The whole weight of proof, then,
is thrown upon him who would introduce a distinction to which the words of the law give no
countenance.
If a real difference could be admitted to exist between vessels carrying passengers and others, it has
already been observed that there is no fact in this case which can bring up that question. And, if the
occupation of steamboats be a matter of such general notoriety that the Court may be presumed to know
it, although not specially informed by the record, then we deny that the transportation of passengers is
their exclusive occupation. It is a matter of general history that, in our western waters, their principal
employment is the transportation of merchandise, and all know that, in the waters of the Atlantic, they
are frequently so employed.
But all inquiry into this subject seems to the Court to be put completely at rest by the act already [p*221]
mentioned, entitled, "An act for the enrolling and licensing of steamboats."
This act authorizes a steamboat employed, or intended to be employed, only in a river or bay of the
United States, owned wholly or in part by an alien, resident within the United States, to be enrolled and
licensed as if the same belonged to a citizen of the United States.
This act demonstrates the opinion of Congress that steamboats may be enrolled and licensed, in common
with vessels using sails. They are, of course, entitled to the same privileges, and can no more be
restrained from navigating waters and entering ports which are free to such vessels than if they were

wafted on their voyage by the winds, instead of being propelled by the agency of fire. The one element
may be as legitimately used as the other for every commercial purpose authorized by the laws of the
Union, and the act of a State inhibiting the use of either to any vessel having a license under the act of
Congress comes, we think, in direct collision with that act.
As this decides the cause, it is unnecessary to enter in an examination of that part of the Constitution
which empowers Congress to promote the progress of science and the useful arts.
The Court is aware that, in stating the train of reasoning by which we have been conducted to this result,
much time has been consumed in the attempt to demonstrate propositions which may have been thought
axioms. It is felt that the tediousness inseparable from the endeavour to prove that which is already clear
is imputable to [p*222] a considerable part of this opinion. But it was unavoidable. The conclusion to
which we have come depends on a chain of principles which it was necessary to preserve unbroken, and
although some of them were thought nearly self-evident, the magnitude of the question, the weight of
character belonging to those from whose judgment we dissent, and the argument at the bar demanded
that we should assume nothing.
Powerful and ingenious minds, taking as postulates that the powers expressly granted to the government
of the Union are to be contracted by construction into the narrowest possible compass and that the
original powers of the States are retained if any possible construction will retain them may, by a course
of well digested but refined and metaphysical reasoning founded on these premises, explain away the
Constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use.
They may so entangle and perplex the understanding as to obscure principles which were before thought
quite plain, and induce doubts where, if the mind were to pursue its own course, none would be
perceived. In such a case, it is peculiarly necessary to recur to safe and fundamental principles to sustain
those principles, and when sustained, to make them the tests of the arguments to be examined.
JOHNSON, J., Concurring Opinion

Mr. Justice JOHNSON.
The judgment entered by the Court in this cause, has my entire approbation, but, having adopted my
conclusions on views [p*223] of the subject materially different from those of my brethren, I feel it
incumbent on me to exhibit those views. I have also another inducement: in questions of great
importance and great delicacy, I feel my duty to the public best discharged by an effort to maintain my
opinions in my own way.
In attempts to construe the Constitution, I have never found much benefit resulting from the inquiry
whether the whole or any part of it is to be construed strictly or literally. The simple, classical, precise,
yet comprehensive language in which it is couched leaves, at most, but very little latitude for
construction, and when its intent and meaning is discovered, nothing remains but to execute the will of
those who made it in the best manner to effect the purposes intended. The great and paramount purpose
was to unite this mass of wealth and power, for the protection of the humblest individual, his rights, civil
and political, his interests and prosperity, are the sole end; the rest are nothing but the means. But the
principal of those means, one so essential as to approach nearer the characteristics of an end, was the
independence and harmony of the States that they may the better subserve the purposes of cherishing and
protecting the respective families of this great republic.

The strong sympathies, rather than the feeble government, which bound the States together during a
common war dissolved on the return of peace, and the very principles which gave rise to the war of the
revolution began to threaten the [p*224] Confederacy with anarchy and ruin. The States had resisted a
tax imposed by the parent State, and now reluctantly submitted to, or altogether rejected, the moderate
demands of the Confederation. Everyone recollects the painful and threatening discussions which arose
on the subject of the five percent. duty. Some States rejected it altogether; others insisted on collecting it
themselves; scarcely any acquiesced without reservations, which deprived it altogether of the character of
a national measure; and at length, some repealed the laws by which they had signified their acquiescence.
For a century, the States had submitted, with murmurs, to the commercial restrictions imposed by the
parent State; and now, finding themselves in the unlimited possession of those powers over their own
commerce which they had so long been deprived of and so earnestly coveted, that selfish principle
which, well controlled, is so salutary, and which, unrestricted, is so unjust and tyrannical, guided by
inexperience and jealousy, began to show itself in iniquitous laws and impolitic measures from which
grew up a conflict of commercial regulations destructive to the harmony of the States and fatal to their
commercial interests abroad.
This was the immediate cause that led to the forming of a convention.
As early as 1778, the subject had been pressed upon the attention of Congress by a memorial from the
State of New Jersey, and in 1781, we find a resolution presented to that body by one of [p*225] the most
enlightened men of his day, Dr. Witherspoon, affirming that it is indispensably necessary that the United
States, in Congress assembled, should be vested with a right of superintending the commercial
regulations of every State that none may take place that shall be partial or contrary to the common
interests.
The resolution of Virginia, January 21, 1781, appointing her commissioners to meet commissioners from
other States, expresses their purpose to be to take into consideration the trade of the United States, to
consider how far an uniform system in their commercial regulations may be necessary to their common
interests and their permanent harmony.
And Mr. Madison's resolution, which led to that measure, is introduced by a preamble entirely explicit to
this point:
Whereas, the relative situation of the United States has been found, on trial, to require
uniformity in their commercial regulations as the only effectual policy for obtaining, in the
ports of foreign nations, a stipulation of privileges reciprocal to those enjoyed by the
subjects of such nations in the ports of the United States, for preventing animosities, which
cannot fail to arise among the several States, from the interference of partial and separate
regulations, &c. "therefore, resolved," &c.
The history of the times will therefore sustain the opinion that the grant of power over commerce, if
intended to be commensurate with the evils existing and the purpose of remedying those [p*226] evils,
could be only commensurate with the power of the States over the subject. And this opinion is supported
by a very remarkable evidence of the general understanding of the whole American people when the
grant was made.
There was not a State in the Union in which there did not at that time exist a variety of commercial
regulations; concerning which it is too much to suppose that the whole ground covered by those

regulations was immediately assumed by actual legislation under the authority of the Union. But where
was the existing statute on this subject that a State attempted to execute? or by what State was it ever
thought necessary to repeal those statutes? By common consent, those laws dropped lifeless from their
statute books for want of the sustaining power that had been relinquished to Congress.
And the plain and direct import of the words of the grant is consistent with this general understanding.
The words of the Constitution are, "Congress shall have power to regulate commerce with foreign
nations, and among the several States, and with the Indian tribes."
It is not material, in my view of the subject, to inquire whether the article a or the should be prefixed to
the word "power." Either or neither will produce the same result: if either, it is clear that the article "the"
would be the proper one, since the next preceding grant of power is certainly exclusive, to-wit: "to
borrow money on the credit [p*227] of the United States." But mere verbal criticism I reject.
My opinion is founded on the application of the words of the grant to the subject of it.
The "power to regulate commerce" here meant to be granted was that power to regulate commerce which
previously existed in the States. But what was that power? The States were unquestionably supreme, and
each possessed that power over commerce which is acknowledged to reside in every sovereign State. The
definition and limits of that power are to be sought among the features of international law, and, as it was
not only admitted but insisted on by both parties in argument that, "unaffected by a state of war, by
treaties, or by municipal regulations, all commerce among independent States was legitimate," there is no
necessity to appeal to the oracles of the jus commune for the correctness of that doctrine. The law of
nations, regarding man as a social animal, pronounces all commerce legitimate in a state of peace until
prohibited by positive law. The power of a sovereign state over commerce therefore amounts to nothing
more than a power to limit and restrain it at pleasure. And since the power to prescribe the limits to its
freedom necessarily implies the power to determine what shall remain unrestrained, it follows that the
power must be exclusive; it can reside but in one potentate, and hence the grant of this power carries with
it the whole subject, leaving nothing for the State to act upon.
And such has been the practical construction of [p*228] the act. Were every law on the subject of
commerce repealed tomorrow, all commerce would be lawful, and, in practice, merchants never inquire
what is permitted, but what is forbidden commerce. Of all the endless variety of branches of foreign
commerce now carried on to every quarter of the world, I know of no one that is permitted by act of
Congress any otherwise than by not being forbidden. No statute of the United States that I know of was
ever passed to permit a commerce unless in consequence of its having been prohibited by some previous
statute.
I speak not here of the treaty-making power, for that is not exercised under the grant now under
consideration. I confine my observation to laws properly so called. And even where freedom of
commercial intercourse is made a subject of stipulation in a treaty, it is generally with a view to the
removal of some previous restriction, or the introduction of some new privilege, most frequently, is
identified with the return to a state of peace. But another view of the subject leads directly to the same
conclusion. Power to regulate foreign commerce is given in the same words, and in the same breath, as it
were, with that over the commerce of the States and with the Indian tribes. But the power to regulate
foreign commerce is necessarily exclusive. The States are unknown to foreign nations, their sovereignty
exists only with relation to each other and the General Government. Whatever regulations foreign

commerce should be subjected to in the ports of the Union, the General Government would be [p*229]
held responsible for them, and all other regulations but those which Congress had imposed would be
regarded by foreign nations as trespasses and violations of national faith and comity.
But the language which grants the power as to one description of commerce grants it as to all, and, in
fact, if ever the exercise of a right or acquiescence in a construction could be inferred from
contemporaneous and continued assent, it is that of the exclusive effect of this grant.
A right over the subject has never been pretended to in any instance except as incidental to the exercise
of some other unquestionable power.
The present is an instance of the assertion of that kind, as incidental to a municipal power; that of
superintending the internal concerns of a State, and particularly of extending protection and patronage, in
the shape of a monopoly, to genius and enterprise.
The grant to Livingston and Fulton interferes with the freedom of intercourse, and on this principle, its
constitutionality is contested.
When speaking of the power of Congress over navigation, I do not regard it as a power incidental to that
of regulating commerce; I consider it as the thing itself, inseparable from it as vital motion is from vital
existence.
Commerce, in its simplest signification, means an exchange of goods, but in the advancement of society,
labour, transportation, intelligence, care, and various mediums of exchange become commodities, and
enter into commerce, the subject, [p*230] the vehicle, the agent, and their various operations become the
objects of commercial regulation. Shipbuilding, the carrying trade, and propagation of seamen are such
vital agents of commercial prosperity that the nation which could not legislate over these subjects would
not possess power to regulate commerce.
That such was the understanding of the framers of the Constitution is conspicuous from provisions
contained in that instrument.
The first clause of the 9th section not only considers the right of controlling personal ingress or
migration, as implied in the powers previously vested in Congress over commerce, but acknowledges it
as a legitimate subject of revenue. And, although the leading object of this section undoubtedly was the
importation of slaves, yet the words are obviously calculated to comprise persons of all descriptions, and
to recognise in Congress a power to prohibit where the States permit, although they cannot permit when
the States prohibit. The treaty-making power undoubtedly goes further. So the fifth clause of the same
section furnishes an exposition of the sense of the Convention as to the power of Congress over
navigation: "nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in
another."
But it is almost labouring to prove a self-evident proposition, since the sense of mankind, the practice of
the world, the contemporaneous assumption and continued exercise of the power, and universal
acquiescence, have so clearly established [p*231] the right of Congress over navigation, and the
transportation of both men and their goods, as not only incidental to, but actually of the essence of, the
power to regulate commerce. As to the transportation of passengers, and passengers in a steamboat, I
consider it as having been solemnly recognised by the State of New York as a subject both of
commercial regulation and of revenue. She has imposed a transit duty upon steamboat passengers

arriving at Albany, and unless this be done in the exercise of her control over personal intercourse, as
incident to internal commerce, I know not on what principle the individual has been subjected to this tax.
The subsequent imposition upon the steamboat itself appears to be but a commutation, and operates as an
indirect, instead of a direct, tax upon the same subject. The passenger pays it at last.
It is impossible, with the views which I entertain of the principle on which the commercial privileges of
the people of the United States among themselves rests, to concur in the view which this Court takes of
the effect of the coasting license in this cause. I do not regard it as the foundation of the right set up in
behalf of the appellant. If there was any one object riding over every other in the adoption of the
Constitution, it was to keep the commercial intercourse among the States free from all invidious and
partial restraints. And I cannot overcome the conviction that, if the licensing act was repealed tomorrow,
the rights of the appellant to a reversal of the decision complained of would be as [p*232] strong as it is
under this license. One half the doubts in life arise from the defects of language, and if this instrument
had been called an exemption instead of a license, it would have given a better idea of its character.
Licensing acts, in fact, in legislation, are universally restraining acts, as, for example, acts licensing
gaming houses, retailers of spiritous liquors, &c. The act in this instance is distinctly of that character,
and forms part of an extensive system the object of which is to encourage American shipping and place
them on an equal footing with the shipping of other nations. Almost every commercial nation reserves to
its own subjects a monopoly of its coasting trade, and a countervailing privilege in favour of American
shipping is contemplated in the whole legislation of the United States on this subject. It is not to give the
vessel an American character that the license is granted; that effect has been correctly attributed to the act
of her enrollment. But it is to confer on her American privileges, as contradistinguished from foreign,
and to preserve the government from fraud by foreigners in surreptitiously intruding themselves into the
American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole
system is projected. Many duties and formalities are necessarily imposed upon the American foreign
commerce which would be burdensome in the active coasting trade of the States, and can be dispensed
with. A higher rate of tonnage also is imposed, and this license entitles the vessels that take it to those
exemptions, but to nothing more. [p*233] A common register equally entitles vessels to carry on the
coasting trade, although it does not exempt them from the forms of foreign commerce or from
compliance with the 16th and 17th sections of the enrolling act. And even a foreign vessel may be
employed coastwise upon complying with the requisitions of the 24th section. I consider the license
therefore as nothing more than what it purports to be, according to the first section of this act, conferring
on the licensed vessel certain privileges in that trade not conferred on other vessels; but the abstract right
of commercial intercourse, stripped of those privileges, is common to all.
Yet there is one view in which the license may be allowed considerable influence in sustaining the
decision of this Court.
It has been contended that the grants of power to the United States over any subject do not necessarily
paralyze the arm of the States or deprive them of the capacity to act on the same subject. This can be the
effect only of prohibitory provisions in their own Constitutions, or in that of the General Government.
The vis vitae of power is still existing in the States, if not extinguished by the Constitution of the United
States. That, although as to all those grants of power which may be called aboriginal, with relation to the
Government, brought into existence by the Constitution, they, of course, are out of the reach of State
power, yet, as to all concessions of powers which previously existed in the States, it was otherwise. The
practice of our Government certainly [p*234] has been, on many subjects, to occupy so much only of the
field opened to them as they think the public interests require. Witness the jurisdiction of the Circuit

Courts, limited both as to cases and as to amount, and various other instances that might to cited. But the
license furnishes a full answer to this objection, for, although one grant of power over commerce, should
not be deemed a total relinquishment of power over the subject, but amounting only to a power to
assume, still the power of the States must be at an end, so far as the United States have, by their
legislative act, taken the subject under their immediate superintendence. So far as relates to the
commerce coastwise, the act under which this license is granted contains a full expression of Congress
on this subject. Vessels, from five tons upwards, carrying on the coasting trade are made the subject of
regulation by that act. And this license proves that this vessel has complied with that act, and been
regularly ingrafted into one class of the commercial marine of the country.
It remains, to consider the objections to this opinion, as presented by the counsel for the appellee. On
those which had relation to the particular character of this boat, whether as a steamboat or a ferry boat, I
have only to remark that, in both those characters, she is expressly recognised as an object of the
provisions which relate to licenses.
The 12th section of the Act of 1793 has these words: "That when the master of any ship or vessel, ferry
boats excepted, shall be changed," &c. And the act which exempts licensed steamboats [p*235] from the
provisions against alien interests shows such boats to be both objects of the licensing act and objects of
that act when employed exclusively within our bays and rivers.
But the principal objections to these opinions arise,
1st. From the unavoidable action of some of the municipal powers of the States upon
commercial subjects.
2d. From passages in the Constitution which are supposed to imply a concurrent power in
the States in regulating commerce.
It is no objection to the existence of distinct, substantive powers that, in their application, they bear upon
the same subject. The same bale of goods, the same cask of provisions, or the same ship that may be the
subject of commercial regulation may also be the vehicle of disease. And the health laws that require
them to be stopped and ventilated are no more intended as regulations on commerce than the laws which
permit their importation are intended to innoculate the community with disease. Their different purposes
mark the distinction between the powers brought into action, and while frankly exercised, they can
produce no serious collision. As to laws affecting ferries, turnpike roads, and other subjects of the same
class, so far from meriting the epithet of commercial regulations, they are, in fact, commercial facilities
for which, by the consent of mankind, a compensation is paid upon the same principle that the whole
commercial world submit to pay light money to the Danes. Inspection laws are of a more equivocal
nature, and it is obvious that [p*236] the Constitution has viewed that subject with much solicitude. But
so far from sustaining an inference in favour of the power of the States over commerce, I cannot but
think that the guarded provisions of the 10th section on this subject furnish a strong argument against that
inference. It was obvious that inspection laws must combine municipal with commercial regulations, and,
while the power over the subject is yielded to the States, for obvious reasons, an absolute control is given
over State legislation on the subject, as far as that legislation may be exercised, so as to affect the
commerce of the country. The inferences to be correctly drawn from this whole article appear to me to be
altogether in favour of the exclusive grants to Congress of power over commerce, and the reverse of that
which the appellee contends for.

This section contains the positive restrictions imposed by the Constitution upon State power. The first
clause of it specifies those powers which the States are precluded from exercising, even though the
Congress were to permit them. The second, those which the States may exercise with the consent of
Congress. And here the sedulous attention to the subject of State exclusion from commercial power is
strongly marked. Not satisfied with the express grant to the United States of the power over commerce,
this clause negatives the exercise of that power to the States as to the only two objects which could ever
tempt them to assume the exercise of that power, to-wit, the collection of a revenue from imposts and
duties on imports and exports, or from a tonnage duty. As [p*237] to imposts on imports or exports, such
a revenue might have been aimed at directly, by express legislation, or indirectly, in the form of
inspection laws, and it became necessary to guard against both. Hence, first, the consent of Congress to
such imposts or duties is made necessary, and, as to inspection laws, it is limited to the minimum of
expenses. Then the money so raised shall be paid into the Treasury of the United States, or may be sued
for, since it is declared to be for their use. And lastly, all such laws may be modified or repealed by an
act of Congress. It is impossible for a right to be more guarded. As to a tonnage duty that could be
recovered in but one way, and a sum so raised, being obviously necessary for the execution of health
laws and other unavoidable port expenses, it was intended that it should go into the State treasuries, and
nothing more was required therefore than the consent of Congress. But this whole clause, as to these two
subjects, appears to have been introduced ex abundanti cautela, to remove every temptation to an attempt
to interfere with the powers of Congress over commerce, and to show how far Congress might consent to
permit the States to exercise that power. Beyond those limits, even by the consent of Congress, they
could not exercise it. And thus we have the whole effect of the clause. The inference which counsel
would deduce from it is neither necessary nor consistent with the general purpose of the clause.
But instances have been insisted on with much confidence in argument in which, by municipal [p*238]
laws, particular regulations respecting their cargoes have been imposed upon shipping in the ports of the
United States, and one in which forfeiture was made the penalty of disobedience.
Until such laws have been tested by exceptions to their constitutionality, the argument certainly wants
much of the force attributed to it; but, admitting their constitutionality, they present only the familiar case
of punishment inflicted by both governments upon the same individual. He who robs the mail may also
steal the horse that carries it, and would unquestionably be subject to punishment at the same time under
the laws of the State in which the crime is committed and under those of the United States. And these
punishments may interfere, and one render it impossible to inflict the other, and yet the two governments
would be acting under powers that have no claim to identity.
It would be in vain to deny the possibility of a clashing and collision between the measures of the two
governments. The line cannot be drawn with sufficient distinctness between the municipal powers of the
one and the commercial powers of the other. In some points, they meet and blend so as scarcely to admit
of separation. Hitherto, the only remedy has been applied which the case admits of — that of a frank and
candid cooperation for the general good. Witness the laws of Congress requiring its officers to respect
the inspection laws of the States and to aid in enforcing their health laws, that which surrenders to the
States the superintendence of pilotage, and the [p*239] many laws passed to permit a tonnage duty to be
levied for the use of their ports. Other instances could be cited abundantly to prove that collision must be
sought to be produced, and when it does arise, the question must be decided how far the powers of
Congress are adequate to put it down. Wherever the powers of the respective governments are frankly
exercised, with a distinct view to the ends of such powers, they may act upon the same object, or use the
same means, and yet the powers be kept perfectly distinct. A resort to the same means therefore is no

argument to prove the identity of their respective powers.

I have not touched upon the right of the States to grant patents for inventions or improvements generally,
because it does not necessarily arise in this cause. It is enough for all the purposes of this decision if they
cannot exercise it so as to restrain a free intercourse among the States.
DECREE. This cause came on to be heard on the transcript of the record of the Court for the Trial of
Impeachments and Correction of Errors of the State of New York, and was argued by counsel. On
consideration whereof, this Court is of opinion that the several licenses to the steamboats the Stoudinger
and the Bellona to carry on the coasting trade, which are set up by the appellant Thomas Gibbons in his
answer to the bill of the respondent, Aaron Ogden, filed in the Court of Chancery for the State of New
York, which were granted under an act of Congress, passed in pursuance of the Constitution of the
[p*240] United States, gave full authority to those vessels to navigate the waters of the United States, by
steam or otherwise, for the purpose of carrying on the coasting trade, any law of the State of New York
to the contrary notwithstanding, and that so much of the several laws of the State of New York as
prohibits vessels, licensed according to the laws of the United States, from navigating the waters of the
State of New York by means of fire or steam is repugnant to the said Constitution, and void. This Court
is therefore of opinion that the decree of the Court of New York for the Trial of Impeachments and the
Correction of Errors affirming the decree of the Chancellor of that State, which perpetually enjoins the
said Thomas Gibbons, the appellant, from navigating the waters of the State of New York with the
steamboats the Stoudinger and the Bellona by steam or fire, is erroneous, and ought to be reversed, and
the same is hereby reversed and annulled, and this Court doth further DIRECT, ORDER, and DECREE that
the bill of the said Aaron Ogden be dismissed, and the same is hereby dismissed accordingly.
Contents | Text Version | Home | Constitution Society

APPEAL FROM THE COURT

FOR THE TRIAL OF IMPEACHMENTS AND
CORRECTION OF ERRORS
OF THE STATE OF NEW YORK
Syllabus
The laws of New York granting to Robert R. Livingston and Robert Fulton
the exclusive right of navigating the waters of that State with
steamboats are in collision with the acts of Congress regulating the
coasting trade, which, being made in pursuance of the Constitution, are
supreme, and the State laws must yield to that supremacy, even though
enacted in pursuance of powers acknowledged to remain in the States.
The power of regulating commerce extends to the regulation of

navigation.
The power to regulate commerce extends to every species of commercial

intercourse between the United States and foreign nations, and among
the several States. It does not stop at the external boundary of a
State.
But it does not extend to a commerce which is completely internal.
The power to regulate commerce is general, and has no limitations but

such as are prescribed in the Constitution itself.
The power to regulate commerce, so far as it extends, is exclusively

vested in Congress, and no part of it can be exercised by a State.
A license under the acts of Congress for regulating the coasting trade
gives a permission to carry on that trade.
State inspection laws, health laws, and laws for regulating the
internal commerce of a State, and those which respect turnpike roads,
ferries, &c. are not within the power granted to Congress.
The license is not merely intended to confer the national character.
The power of regulating commerce extends to navigation carried on by

vessels exclusively employed in transporting passengers.
The power of regulating commerce extends to vessels propelled by steam

or fire as well as to those navigated by the instrumentality of wind
and sails.
Aaron Ogden filed his bill in the Court of Chancery of that State,
against Thomas Gibbons, setting forth the several acts of the
Legislature thereof, enacted for the purpose of securing to Robert R.
Livingston and Robert Fulton the [p*2] exclusive navigation of all the
waters within the jurisdiction of that State, with boats moved by fire
or steam, for a term of years which has not yet expired, and authorizing
the Chancellor to award an injunction restraining any person whatever
from navigating those waters with boats of that description. The bill
stated an assignment from Livingston and Fulton to one John R.
Livingston, and from him to the complainant, Ogden, of the right to
navigate the waters between Elizabethtown, and other places in New
Jersey, and the City of New York, and that Gibbons, the defendant below,
was in possession of two steamboats, called the Stoudinger and the

Bellona, which were actually employed in running between New York and
Elizabethtown, in violation of the exclusive privilege conferred on the
complainant, and praying an injunction to restrain the said Gibbons from
using the said boats, or any other propelled by fire or steam, in
navigating the waters within the territory of New York. The injunction
having been awarded, the answer of Gibbons was filed, in which he stated
that the boats employed by him were duly enrolled and licensed to be
employed in carrying on the coasting trade under the Act of Congress,
passed the 18th of February, 1793, c. 3. entitled, "An act for enrolling
and licensing ships and vessels to be employed in the coasting trade and
fisheries, and for regulating the same." And the defendant insisted on
his right, in virtue of such licenses, to navigate the waters between
Elizabethtown and the City of New York, the said acts of the Legislature
of the [p*3] State of New York to the contrary notwithstanding. At the
hearing, the Chancellor perpetuated the injunction, being of the opinion
that the said acts were not repugnant to the Constitution and laws of
the United States, and were valid. This decree was affirmed in the Court
for the Trial of Impeachments and Correction of Errors, which is the
highest Court of law and equity in the State, before which the cause
could be carried, and it was thereupon brought to this Court by appeal.
[p*186]
Opinions
Mr. Chief Justice MARSHALL delivered the opinion of the Court, and,
after stating the case, proceeded as follows:
The appellant contends that this decree is erroneous because the laws
which purport to give the exclusive privilege it sustains are repugnant
to the Constitution and laws of the United States.
They are said to be repugnant:
1st. To that clause in the Constitution which authorizes Congress to

regulate commerce.
2d. To that which authorizes Congress to promote the progress of science

and useful arts.
The State of New York maintains the Constitutionality of these laws,

and their Legislature, their Council of Revision, and their Judges, have
repeatedly concurred in this opinion. It is supported by great names --
by names which have all the titles to consideration that virtue,
intelligence, and office can bestow. No tribunal can approach the
decision of this question without feeling a just and real respect for
that opinion which is sustained by such authority, but it is the
province of this Court, while it respects, not to bow to it implicitly,
and the Judges must exercise, in the examination of the subject, that
understanding which Providence has bestowed upon them, with that
independence which the people of the United [p*187] States expect from
this department of the government.
As preliminary to the very able discussions of the Constitution which

we have heard from the bar, and as having some influence on its
construction, reference has been made to the political situation of
these States anterior to its formation. It has been said that they were
sovereign, were completely independent, and were connected with each
other only by a league. This is true. But, when these allied sovereigns
converted their league into a government, when they converted their

Congress of Ambassadors, deputed to deliberate on their common concerns

and to recommend measures of general utility, into a Legislature,
empowered to enact laws on the most interesting subjects, the whole
character in which the States appear underwent a change, the extent of
which must be determined by a fair consideration of the instrument by
which that change was effected.
This instrument contains an enumeration of powers expressly granted by

the people to their government. It has been said that these powers
ought to be construed strictly. But why ought they to be so construed?
Is there one sentence in the Constitution which gives countenance to
this rule? In the last of the enumerated powers, that which grants
expressly the means for carrying all others into execution, Congress is
authorized "to make all laws which shall be necessary and proper" for
the purpose. But this limitation on the means which may be used is not
extended to the powers which are conferred, nor is there one sentence in
[p*188] the Constitution which has been pointed out by the gentlemen of
the bar or which we have been able to discern that prescribes this rule.
We do not, therefore, think ourselves justified in adopting it. What do
gentlemen mean by a "strict construction?" If they contend only against
that enlarged construction, which would extend words beyond their
natural and obvious import, we might question the application of the
term, but should not controvert the principle. If they contend for that
narrow construction which, in support or some theory not to be found in
the Constitution, would deny to the government those powers which the
words of the grant, as usually understood, import, and which are
consistent with the general views and objects of the instrument; for
that narrow construction which would cripple the government and render
it unequal to the object for which it is declared to be instituted, and
to which the powers given, as fairly understood, render it competent;
then we cannot perceive the propriety of this strict construction, nor
adopt it as the rule by which the Constitution is to be expounded. As
men whose intentions require no concealment generally employ the words
which most directly and aptly express the ideas they intend to convey,
the enlightened patriots who framed our Constitution, and the people who
adopted it, must be understood to have employed words in their natural
sense, and to have intended what they have said. If, from the
imperfection of human language, there should be serious doubts
respecting the extent of any given power, it is a well settled rule that
the objects [p*189] for which it was given, especially when those
objects are expressed in the instrument itself, should have great
influence in the construction. We know of no reason for excluding this
rule from the present case. The grant does not convey power which might
be beneficial to the grantor if retained by himself, or which can enure
solely to the benefit of the grantee, but is an investment of power for
the general advantage, in the hands of agents selected for that purpose,
which power can never be exercised by the people themselves, but must be
placed in the hands of agents or lie dormant. We know of no rule for
construing the extent of such powers other than is given by the language
of the instrument which confers them, taken in connexion with the
purposes for which they were conferred.
The words are, "Congress shall have power to regulate commerce with
foreign nations, and among the several States, and with the Indian
tribes."
The subject to be regulated is commerce, and our Constitution being, as

was aptly said at the bar, one of enumeration, and not of definition,
to ascertain the extent of the power, it becomes necessary to settle the
meaning of the word. The counsel for the appellee would limit it to
traffic, to buying and selling, or the interchange of commodities, and

do not admit that it comprehends navigation. This would restrict a

general term, applicable to many objects, to one of its significations.
Commerce, undoubtedly, is traffic, but it is something more: it is
intercourse. It describes the commercial [p*190] intercourse between
nations, and parts of nations, in all its branches, and is regulated by
prescribing rules for carrying on that intercourse. The mind can
scarcely conceive a system for regulating commerce between nations which
shall exclude all laws concerning navigation, which shall be silent on
the admission of the vessels of the one nation into the ports of the
other, and be confined to prescribing rules for the conduct of
individuals in the actual employment of buying and selling or of barter.
If commerce does not include navigation, the government of the Union has
no direct power over that subject, and can make no law prescribing what
shall constitute American vessels or requiring that they shall be
navigated by American seamen. Yet this power has been exercised from the
commencement of the government, has been exercised with the consent of
all, and has been understood by all to be a commercial regulation. All
America understands, and has uniformly understood, the word "commerce"
to comprehend navigation. It was so understood, and must have been so
understood, when the Constitution was framed. The power over commerce,
including navigation, was one of the primary objects for which the
people of America adopted their government, and must have been
contemplated in forming it. The convention must have used the word in
that sense, because all have understood it in that sense, and the
attempt to restrict it comes too late.
If the opinion that "commerce," as the word is used in the

Constitution, comprehends navigation [p*191] also, requires any
additional confirmation, that additional confirmation is, we think,
furnished by the words of the instrument itself.
It is a rule of construction acknowledged by all that the exceptions

from a power mark its extent, for it would be absurd, as well as
useless, to except from a granted power that which was not granted --
that which the words of the grant could not comprehend. If, then, there
are in the Constitution plain exceptions from the power over navigation,
plain inhibitions to the exercise of that power in a particular way, it
is a proof that those who made these exceptions, and prescribed these
inhibitions, understood the power to which they applied as being
granted.
The 9th section of the 1st article declares that "no preference shall
be given, by any regulation of commerce or revenue, to the ports of one
State over those of another." This clause cannot be understood as
applicable to those laws only which are passed for the purposes of
revenue, because it is expressly applied to commercial regulations, and
the most obvious preference which can be given to one port over another
in regulating commerce relates to navigation. But the subsequent part
of the sentence is still more explicit. It is, "nor shall vessels bound
to or from one State be obliged to enter, clear, or pay duties, in
another." These words have a direct reference to navigation.
The universally acknowledged power of the government to impose embargoes

must also be considered as showing that all America is united [p*192] in
that construction which comprehends navigation in the word commerce.
Gentlemen have said in argument that this is a branch of the war-making
power, and that an embargo is an instrument of war, not a regulation of
trade.
That it may be, and often is, used as an instrument of war cannot be

denied. An embargo may be imposed for the purpose of facilitating the

equipment or manning of a fleet, or for the purpose of concealing the
progress of an expedition preparing to sail from a particular port. In
these, and in similar cases, it is a military instrument, and partakes
of the nature of war. But all embargoes are not of this description.
They are sometimes resorted to without a view to war, and with a single
view to commerce. In such case, an embargo is no more a war measure than
a merchantman is a ship of war because both are vessels which navigate
the ocean with sails and seamen.
When Congress imposed that embargo which, for a time, engaged the
attention of every man in the United States, the avowed object of the
law was the protection of commerce, and the avoiding of war. By its
friends and its enemies, it was treated as a commercial, not as a war,
measure. The persevering earnestness and zeal with which it was opposed
in a part of our country which supposed its interests to be vitally
affected by the act, cannot be forgotten. A want of acuteness in
discovering objections to a measure to which they felt the most
deep-rooted hostility will not be imputed to those who were arrayed in
opposition [p*193] to this. Yet they never suspected that navigation was
no branch of trade, and was therefore not comprehended in the power to
regulate commerce. They did, indeed, contest the constitutionality of
the act, but, on a principle which admits the construction for which the
appellant contends. They denied that the particular law in question was
made in pursuance of the Constitution not because the power could not
act directly on vessels, but because a perpetual embargo was the
annihilation, and not the regulation, of commerce. In terms, they
admitted the applicability of the words used in the Constitution to
vessels, and that in a case which produced a degree and an extent of
excitement calculated to draw forth every principle on which legitimate
resistance could be sustained. No example could more strongly illustrate
the universal understanding of the American people on this subject.
The word used in the Constitution, then, comprehends, and has been
always understood to comprehend, navigation within its meaning, and a
power to regulate navigation is as expressly granted as if that term
had been added to the word "commerce."
To what commerce does this power extend? The Constitution informs us, to
commerce "with foreign nations, and among the several States, and with
the Indian tribes."
It has, we believe, been universally admitted that these words

comprehend every species of commercial intercourse between the United
States and foreign nations. No sort of trade can be [p*194] carried on
between this country and any other to which this power does not extend.
It has been truly said that "commerce," as the word is used in the
Constitution, is a unit every part of which is indicated by the term.
If this be the admitted meaning of the word in its application to

foreign nations, it must carry the same meaning throughout the sentence,
and remain a unit, unless there be some plain intelligible cause which
alters it.
The subject to which the power is next applied is to commerce "among the
several States." The word "among" means intermingled with. A thing which
is among others is intermingled with them. Commerce among the States
cannot stop at the external boundary line of each State, but may be
introduced into the interior.
It is not intended to say that these words comprehend that commerce

which is completely internal, which is carried on between man and man

in a State, or between different parts of the same State, and which does
not extend to or affect other States. Such a power would be
inconvenient, and is certainly unnecessary.
Comprehensive as the word "among" is, it may very properly be restricted

to that commerce which concerns more States than one. The phrase is not
one which would probably have been selected to indicate the completely
interior traffic of a State, because it is not an apt phrase for that
purpose, and the enumeration of the particular classes of commerce to
which the power was to be extended would not have been made had the
intention [p*195] been to extend the power to every description. The
enumeration presupposes something not enumerated, and that something, if
we regard the language or the subject of the sentence, must be the
exclusively internal commerce of a State. The genius and character of
the whole government seem to be that its action is to be applied to all
the external concerns of the nation, and to those internal concerns
which affect the States generally, but not to those which are completely
within a particular State, which do not affect other States, and with
which it is not necessary to interfere for the purpose of executing some
of the general powers of the government. The completely internal
commerce of a State, then, may be considered as reserved for the State
itself.
But, in regulating commerce with foreign nations, the power of Congress

does not stop at the jurisdictional lines of the several States. It
would be a very useless power if it could not pass those lines. The
commerce of the United States with foreign nations is that of the whole
United States. Every district has a right to participate in it. The deep
streams which penetrate our country in every direction pass through the
interior of almost every State in the Union, and furnish the means of
exercising this right. If Congress has the power to regulate it, that
power must be exercised whenever the subject exists. If it exists within
the States, if a foreign voyage may commence or terminate at a port
within a State, then the power of Congress may be exercised within a
State.
This principle is, if possible, still more clear, when [p*196] applied
to commerce "among the several States." They either join each other, in
which case they are separated by a mathematical line, or they are
remote from each other, in which case other States lie between them.
What is commerce "among" them, and how is it to be conducted? Can a
trading expedition between two adjoining States, commence and terminate
outside of each? And if the trading intercourse be between two States
remote from each other, must it not commence in one, terminate in the
other, and probably pass through a third? Commerce among the States
must, of necessity, be commerce with the States. In the regulation of
trade with the Indian tribes, the action of the law, especially when
the Constitution was made, was chiefly within a State. The power of
Congress, then, whatever it may be, must be exercised within the
territorial jurisdiction of the several States. The sense of the nation
on this subject is unequivocally manifested by the provisions made in
the laws for transporting goods by land between Baltimore and
Providence, between New York and Philadelphia, and between Philadelphia
and Baltimore.
We are now arrived at the inquiry -- What is this power?
It is the power to regulate, that is, to prescribe the rule by which

commerce is to be governed. This power, like all others vested in
Congress, is complete in itself, may be exercised to its utmost extent,

and acknowledges no limitations other than are prescribed in the

Constitution. These are expressed in plain terms, and do not affect the
[p*197] questions which arise in this case, or which have been discussed
at the bar. If, as has always been understood, the sovereignty of
Congress, though limited to specified objects, is plenary as to those
objects, the power over commerce with foreign nations, and among the
several States, is vested in Congress as absolutely as it would be in a
single government, having in its Constitution the same restrictions on
the exercise of the power as are found in the Constitution of the United
States. The wisdom and the discretion of Congress, their identity with
the people, and the influence which their constituents possess at
elections are, in this, as in many other instances, as that, for
example, of declaring war, the sole restraints on which they have
relied, to secure them from its abuse. They are the restraints on which
the people must often they solely, in all representative governments.
The power of Congress, then, comprehends navigation, within the limits

of every State in the Union, so far as that navigation may be in any
manner connected with "commerce with foreign nations, or among the
several States, or with the Indian tribes." It may, of consequence,
pass the jurisdictional line of New York and act upon the very waters to
which the prohibition now under consideration applies.
But it has been urged with great earnestness that, although the power
of Congress to regulate commerce with foreign nations and among the
several States be coextensive with the subject itself, and have no
other limits than are prescribed in the Constitution, yet the States may
severally [p*198] exercise the same power, within their respective
jurisdictions. In support of this argument, it is said that they
possessed it as an inseparable attribute of sovereignty, before the
formation of the Constitution, and still retain it except so far as they
have surrendered it by that instrument; that this principle results from
the nature of the government, and is secured by the tenth amendment;
that an affirmative grant of power is not exclusive unless in its own
nature it be such that the continued exercise of it by the former
possessor is inconsistent with the grant, and that this is not of that
description.
The appellant, conceding these postulates except the last, contends

that full power to regulate a particular subject implies the whole
power, and leaves no residuum; that a grant of the whole is incompatible
with the existence of a right in another to any part of it.
Both parties have appealed to the Constitution, to legislative acts,

and judicial decisions, and have drawn arguments from all these sources
to support and illustrate the propositions they respectively maintain.
The grant of the power to lay and collect taxes is, like the power to
regulate commerce, made in general terms, and has never been understood
to interfere with the exercise of the same power by the State, and hence
has been drawn an argument which has been applied to the question under
consideration. But the two grants are not, it is conceived, similar in
their terms or their nature. Although many of the powers formerly
[p*199] exercised by the States are transferred to the government of the
Union, yet the State governments remain, and constitute a most important
part of our system. The power of taxation is indispensable to their
existence, and is a power which, in its own nature, is capable of
residing in, and being exercised by, different authorities at the same
time. We are accustomed to see it placed, for different purposes, in
different hands. Taxation is the simple operation of taking small
portions from a perpetually accumulating mass, susceptible of almost

infinite division, and a power in one to take what is necessary for

certain purposes is not, in its nature, incompatible with a power in
another to take what is necessary for other purposes. Congress is
authorized to lay and collect taxes, &c. to pay the debts and provide
for the common defence and general welfare of the United States. This
does not interfere with the power of the States to tax for the support
of their own governments, nor is the exercise of that power by the
States an exercise of any portion of the power that is granted to the
United States. In imposing taxes for State purposes, they are not doing
what Congress is empowered to do. Congress is not empowered to tax for
those purposes which are within the exclusive province of the States.
When, then, each government exercises the power of taxation, neither is
exercising the power of the other. But, when a State proceeds to
regulate commerce with foreign nations, or among the several States, it
is exercising the very power that is granted to Congress, [p*200] and is
doing the very thing which Congress is authorized to do. There is no
analogy, then, between the power of taxation and the power of regulating
commerce.
In discussing the question whether this power is still in the States,

in the case under consideration, we may dismiss from it the inquiry
whether it is surrendered by the mere grant to Congress, or is retained
until Congress shall exercise the power. We may dismiss that inquiry
because it has been exercised, and the regulations which Congress deemed
it proper to make are now in full operation. The sole question is can a
State regulate commerce with foreign nations and among the States while
Congress is regulating it?
The counsel for the respondent answer this question in the affirmative,
and rely very much on the restrictions in the 10th section as
supporting their opinion. They say very truly that limitations of a
power furnish a strong argument in favour of the existence of that
power, and that the section which prohibits the States from laying
duties on imports or exports proves that this power might have been
exercised had it not been expressly forbidden, and consequently that any
other commercial regulation, not expressly forbidden, to which the
original power of the State was competent may still be made.
That this restriction shows the opinion of the Convention that a State
might impose duties on exports and imports, if not expressly forbidden,
will be conceded, but that it follows as a consequence [p*201] from
this concession that a State may regulate commerce with foreign nations
and among the States cannot be admitted.
We must first determine whether the act of laying "duties or imposts on

imports or exports" is considered in the Constitution as a branch of
the taxing power, or of the power to regulate commerce. We think it very
clear that it is considered as a branch of the taxing power. It is so
treated in the first clause of the 8th section: "Congress shall have
power to lay and collect taxes, duties, imposts, and excises;" and,
before commerce is mentioned, the rule by which the exercise of this
power must be governed is declared. It is that all duties, imposts, and
excises shall be uniform. In a separate clause of the enumeration, the
power to regulate commerce is given, as being entirely distinct from the
right to levy taxes and imposts and as being a new power, not before
conferred. The Constitution, then, considers these powers as
substantive, and distinct from each other, and so places them in the
enumeration it contains. The power of imposing duties on imports is
classed with the power to levy taxes, and that seems to be its natural
place. But the power to levy taxes could never be considered as
abridging the right of the States on that subject, and they might,

consequently, have exercised it by levying duties on imports or exports,

had the Constitution contained no prohibition on this subject. This
prohibition, then, is an exception from the acknowledged power of the
States [p*202] to levy taxes, not from the questionable power to
regulate commerce.
"A duty of tonnage" is as much a tax as a duty on imports or exports,

and the reason which induced the prohibition of those taxes extends to
this also. This tax may be imposed by a State, with the consent of
Congress, and it may be admitted that Congress cannot give a right to a
State in virtue of its own powers. But a duty of tonnage being part of
the power of imposing taxes, its prohibition may certainly be made to
depend on Congress, without affording any implication respecting a power
to regulate commerce. It is true that duties may often be, and in fact
often are, imposed on tonnage with a view to the regulation of commerce,
but they may be also imposed with a view to revenue, and it was
therefore a prudent precaution to prohibit the States from exercising
this power. The idea that the same measure might, according to
circumstances, be arranged with different classes of power was no
novelty to the framers of our Constitution. Those illustrious statesmen
and patriots had been, many of them, deeply engaged in the discussions
which preceded the war of our revolution, and all of them were well read
in those discussions. The right to regulate commerce, even by the
imposition of duties, was not controverted, but the right to impose a
duty for the purpose of revenue produced a war as important, perhaps, in
its consequences to the human race as any the world has ever witnessed.
These restrictions, then, are on the taxing power, [p*203] not on that
to regulate commerce, and presuppose the existence of that which they
restrain, not of that which they do not purport to restrain.
But the inspection laws are said to be regulations of commerce, and are
certainly recognised in the Constitution as being passed in the
exercise of a power remaining with the States.
That inspection laws may have a remote and considerable influence on

commerce will not be denied, but that a power to regulate commerce is
the source from which the right to pass them is derived cannot be
admitted. The object of inspection laws is to improve the quality of
articles produced by the labour of a country, to fit them for
exportation, or, it may be, for domestic use. They act upon the subject
before it becomes an article of foreign commerce or of commerce among
the States, and prepare it for that purpose. They form a portion of that
immense mass of legislation which embraces everything within the
territory of a State not surrendered to the General Government; all
which can be most advantageously exercised by the States themselves.
Inspection laws, quarantine laws, health laws of every description, as
well as laws for regulating the internal commerce of a State, and those
which respect turnpike roads, ferries, &c., are component parts of this
mass.
No direct general power over these objects is granted to Congress, and,

consequently, they remain subject to State legislation. If the
legislative power of the Union can reach them, it must be for national
purposes, it must be where the [p*204] power is expressly given for a
special purpose or is clearly incidental to some power which is
expressly given. It is obvious that the government of the Union, in the
exercise of its express powers -- that, for example, of regulating
commerce with foreign nations and among the States -- may use means that
may also be employed by a State in the exercise of its acknowledged
powers -- that, for example, of regulating commerce within the State. If

Congress license vessels to sail from one port to another in the same
State, the act is supposed to be necessarily incidental to the power
expressly granted to Congress, and implies no claim of a direct power to
regulate the purely internal commerce of a State or to act directly on
its system of police. So, if a State, in passing laws on subjects
acknowledged to be within its control, and with a view to those
subjects, shall adopt a measure of the same character with one which
Congress may adopt, it does not derive its authority from the particular
power which has been granted, but from some other, which remains with
the State and may be executed by the same means. All experience shows
that the same measures, or measures scarcely distinguishable from each
other, may flow from distinct powers, but this does not prove that the
powers themselves are identical. Although the means used in their
execution may sometimes approach each other so nearly as to be
confounded, there are other situations in which they are sufficiently
distinct to establish their individuality.
In our complex system, presenting the rare and difficult scheme of one
General Government whose [p*205] action extends over the whole but which
possesses only certain enumerated powers, and of numerous State
governments which retain and exercise all powers not delegated to the
Union, contests respecting power must arise. Were it even otherwise,
the measures taken by the respective governments to execute their
acknowledged powers would often be of the same description, and might
sometimes interfere. This, however, does not prove that the one is
exercising, or has a right to exercise, the powers of the other.
The acts of Congress passed in 1796 and 1799, 2 U.S.L. 345, 3 U.S.L.
126, empowering and directing the officers of the General Government to
conform to and assist in the execution of the quarantine and health
laws of a State proceed, it is said, upon the idea that these laws are
constitutional. It is undoubtedly true that they do proceed upon that
idea, and the constitutionality of such laws has never, so far as we are
informed, been denied. But they do not imply an acknowledgment that a
State may rightfully regulate commerce with foreign nations or among the
States, for they do not imply that such laws are an exercise of that
power, or enacted with a view to it. On the contrary, they are treated
as quarantine and health laws, are so denominated in the acts of
Congress, and are considered as flowing from the acknowledged power of a
State to provide for the health of its citizens. But as it was apparent
that some of the provisions made for this purpose and in virtue of this
power might [p*206] interfere with and be affected by the laws of the
United States made for the regulation of commerce, Congress, in that
spirit of harmony and conciliation which ought always to characterize
the conduct of governments standing in the relation which that of the
Union and those of the States bear to each other, has directed its
officers to aid in the execution of these laws, and has, in some
measure, adapted its own legislation to this object by making provisions
in aid of those of the States. But, in making these provisions, the
opinion is unequivocally manifested that Congress may control the State
laws so far as it may be necessary to control them for the regulation of
commerce. The act passed in 1803, 3 U.S.L. 529, prohibiting the
importation of slaves into any State which shall itself prohibit their
importation, implies, it is said, an admission that the States possessed
the power to exclude or admit them, from which it is inferred that they
possess the same power with respect to other articles.
If this inference were correct, if this power was exercised not under
any particular clause in the Constitution, but in virtue of a general
right over the subject of commerce, to exist as long as the Constitution
itself, it might now be exercised. Any State might now import African

slaves into its own territory. But it is obvious that the power of the
States over this subject, previous to the year 1808, constitutes an
exception to the power of [p*207] Congress to regulate commerce, and the
exception is expressed in such words, as to manifest clearly the
intention to continue the preexisting right of the States to admit or
exclude, for a limited period. The words are the migration or
importation of such persons as any of the States, now existing, shall
think proper to admit shall not be prohibited by the Congress prior to
the year 1808.
The whole object of the exception is to preserve the power to those

States which might be disposed to exercise it, and its language seems
to the Court to convey this idea unequivocally. The possession of this
particular power, then, during the time limited in the Constitution,
cannot be admitted to prove the possession of any other similar power.
It has been said that the act of August 7, 1789, acknowledges a

concurrent power in the States to regulate the conduct of pilots, and
hence is inferred an admission of their concurrent right with Congress
to regulate commerce with foreign nations and amongst the States. But
this inference is not, we think, justified by the fact.
Although Congress cannot enable a State to legislate, Congress may adopt

the provisions of a State on any subject. When the government of the
Union was brought into existence, it found a system for the regulation
of its pilots in full force in every State. The act which has been
mentioned adopts this system, and gives it the same validity as if its
provisions had been specially made by Congress. But the act, it may be
said, is prospective also, and the adoption of laws to be made [p*208]
in future presupposes the right in the maker to legislate on the
subject.
The act unquestionably manifests an intention to leave this subject

entirely to the States until Congress should think proper to interpose,
but the very enactment of such a law indicates an opinion that it was
necessary, that the existing system would not be applicable to the new
state of things unless expressly applied to it by Congress. But this
section is confined to pilots within the "bays, inlets, rivers,
harbours, and ports of the United States," which are, of course, in
whole or in part, also within the limits of some particular state. The
acknowledged power of a State to regulate its police, its domestic
trade, and to govern its own citizens may enable it to legislate on this
subject to a considerable extent, and the adoption of its system by
Congress, and the application of it to the whole subject of commerce,
does not seem to the Court to imply a right in the States so to apply it
of their own authority. But the adoption of the State system being
temporary, being only "until further legislative provision shall be
made by Congress," shows conclusively an opinion that Congress could
control the whole subject, and might adopt the system of the States or
provide one of its own.
A State, it is said, or even a private citizen, may construct light

houses. But gentlemen must be aware that if this proves a power in a
State to regulate commerce, it proves that the same power is in the
citizen. States or individuals who own lands may, if not forbidden by
law, [p*209] erect on those lands what buildings they please, but this
power is entirely distinct from that of regulating commerce, and may, we
presume, be restrained if exercised so as to produce a public mischief.
These acts were cited at the bar for the purpose of showing an opinion
in Congress that the States possess, concurrently with the Legislature

of the Union, the power to regulate commerce with foreign nations and
among the States. Upon reviewing them, we think they do not establish
the proposition they were intended to prove. They show the opinion that
the States retain powers enabling them to pass the laws to which
allusion has been made, not that those laws proceed from the particular
power which has been delegated to Congress.
It has been contended by the counsel for the appellant that, as the
word "to regulate" implies in its nature full power over the thing to be
regulated, it excludes necessarily the action of all others that would
perform the same operation on the same thing. That regulation is
designed for the entire result, applying to those parts which remain as
they were, as well as to those which are altered. It produces a uniform
whole which is as much disturbed and deranged by changing what the
regulating power designs to leave untouched as that on which it has
operated.
There is great force in this argument, and the Court is not satisfied
that it has been refuted.
Since, however, in exercising the power of regulating their own purely

internal affairs, whether [p*210] of trading or police, the States may
sometimes enact laws the validity of which depends on their interfering
with, and being contrary to, an act of Congress passed in pursuance of
the Constitution, the Court will enter upon the inquiry whether the
laws of New York, as expounded by the highest tribunal of that State,
have, in their application to this case, come into collision with an act
of Congress and deprived a citizen of a right to which that act entitles
him. Should this collision exist, it will be immaterial whether those
laws were passed in virtue of a concurrent power "to regulate commerce
with foreign nations and among the several States" or in virtue of a
power to regulate their domestic trade and police. In one case and the
other, the acts of New York must yield to the law of Congress, and the
decision sustaining the privilege they confer against a right given by a
law of the Union must be erroneous.
This opinion has been frequently expressed in this Court, and is

founded as well on the nature of the government as on the words of the
Constitution. In argument, however, it has been contended that, if a
law passed by a State, in the exercise of its acknowledged sovereignty,
comes into conflict with a law passed by Congress in pursuance of the
Constitution, they affect the subject and each other like equal
opposing powers.
But the framers of our Constitution foresaw this state of things, and
provided for it by declaring the supremacy not only of itself, but of
the laws made in pursuance of it. The nullity of any act [p*211]
inconsistent with the Constitution is produced by the declaration that
the Constitution is the supreme law. The appropriate application of that
part of the clause which confers the same supremacy on laws and treaties
is to such acts of the State Legislatures as do not transcend their
powers, but, though enacted in the execution of acknowledged State
powers, interfere with, or are contrary to, the laws of Congress made in
pursuance of the Constitution or some treaty made under the authority of
the United States. In every such case, the act of Congress or the treaty
is supreme, and the law of the State, though enacted in the exercise of
powers not controverted, must yield to it.
In pursuing this inquiry at the bar, it has been said that the
Constitution does not confer the right of intercourse between State and
State. That right derives its source from those laws whose authority is

acknowledged by civilized man throughout the world. This is true. The

Constitution found it an existing right, and gave to Congress the power
to regulate it. In the exercise of this power, Congress has passed "an
act for enrolling or licensing ships or vessels to be employed in the
coasting trade and fisheries, and for regulating the same." The counsel
for the respondent contend that this act does not give the right to sail
from port to port, but confines itself to regulating a preexisting right
so far only as to confer certain privileges on enrolled and licensed
vessels in its exercise.
It will at once occur that, when a Legislature [p*212] attaches certain

privileges and exemptions to the exercise of a right over which its
control is absolute, the law must imply a power to exercise the right.
The privileges are gone if the right itself be annihilated. It would be
contrary to all reason, and to the course of human affairs, to say that
a State is unable to strip a vessel of the particular privileges
attendant on the exercise of a right, and yet may annul the right
itself; that the State of New York cannot prevent an enrolled and
licensed vessel, proceeding from Elizabethtown, in New Jersey, to New
York, from enjoying, in her course, and on her entrance into port, all
the privileges conferred by the act of Congress, but can shut her up in
her own port, and prohibit altogether her entering the waters and ports
of another State. To the Court, it seems very clear that the whole act
on the subject of the coasting trade, according to those principles
which govern the construction of statutes, implies unequivocally an
authority to licensed vessels to carry on the coasting trade.
But we will proceed briefly to notice those sections which bear more
directly on the subject.
The first section declares that vessels enrolled by virtue of a

previous law, and certain other vessels enrolled as described in that
act, and having a license in force, as is by the act required, and no
others, shall be deemed ships or vessels of the United States, entitled
to the privileges of ships or vessels employed in the coasting trade.
This section seems to the Court to contain a positive enactment that

the the vessels it describes shall [p*213] be entitled to the privileges
of ships or vessels employed in the coasting trade. These privileges
cannot be separated from the trade and cannot be enjoyed unless the
trade may be prosecuted. The grant of the privilege is an idle, empty
form, conveying nothing, unless it convey the right to which the
privilege is attached and in the exercise of which its whole value
consists. To construe these words otherwise than as entitling the ships
or vessels described to carry on the coasting trade would be, we think,
to disregard the apparent intent of the act.
The fourth section directs the proper officer to grant to a vessel

qualified to receive it, "a license for carrying on the coasting trade,"
and prescribes its form. After reciting the compliance of the applicant
with the previous requisites of the law, the operative words of the
instrument are, license is hereby granted for the said steamboat Bellona
to be employed in carrying on the coasting trade for one year from the
date hereof, and no longer.
These are not the words of the officer, they are the words of the
legislature, and convey as explicitly the authority the act intended to
give, and operate as effectually, as if they had been inserted in any
other part of the act, than in the license itself.
The word "license" means permission or authority, and a license to do

any particular thing is a permission or authority to do that thing, and

if granted by a person having power to grant it, transfers to the
grantee the right to do whatever it purports to authorize. It certainly
transfers to [p*214] him all the right which the grantor can transfer,
to do what is within the terms of the license.
Would the validity or effect of such an instrument be questioned by the

respondent, if executed by persons claiming regularly under the laws of
New York?
The license must be understood to be what it purports to be, a

legislative authority to the steamboat Bellona "to be employed in
carrying on the coasting trade, for one year from this date."
It has been denied that these words authorize a voyage from New Jersey
to New York. It is true that no ports are specified, but it is equally
true that the words used are perfectly intelligible, and do confer such
authority as unquestionably as if the ports had been mentioned. The
coasting trade is a term well understood. The law has defined it, and
all know its meaning perfectly. The act describes with great minuteness
the various operations of a vessel engaged in it, and it cannot, we
think, be doubted that a voyage from New Jersey to New York is one of
those operations.
Notwithstanding the decided language of the license, it has also been

maintained that it gives no right to trade, and that its sole purpose
is to confer the American character.
The answer given to this argument that the American character is

conferred by the enrollment, and not by the license, is, we think,
founded too clearly in the words of the law to require the support of
any additional observations. The enrollment of vessels designed for the
coasting trade corresponds precisely with the registration of vessels
[p*215] designed for the foreign trade, and requires every circumstance
which can constitute the American character. The license can be granted
only to vessels already enrolled, if they be of the burthen of twenty
tons and upwards, and requires no circumstance essential to the American
character. The object of the license, then, cannot be to ascertain the
character of the vessel, but to do what it professes to do -- that is,
to give permission to a vessel already proved by her enrollment to be
American, to carry on the coasting trade.
But if the license be a permit to carry on the coasting trade, the

respondent denies that these boats were engaged in that trade, or that
the decree under consideration has restrained them from prosecuting it.
The boats of the appellant were, we are told, employed in the
transportation of passengers, and this is no part of that commerce which
Congress may regulate.
If, as our whole course of legislation on this subject shows, the power
of Congress has been universally understood in America to comprehend
navigation, it is a very persuasive, if not a conclusive, argument to
prove that the construction is correct, and if it be correct, no clear
distinction is perceived between the power to regulate vessels employed
in transporting men for hire and property for hire. The subject is
transferred to Congress, and no exception to the grant can be admitted
which is not proved by the words or the nature of the thing. A coasting
vessel employed in the transportation of passengers is as much a portion
of the American marine as one employed [p*216] in the transportation of
a cargo, and no reason is perceived why such vessel should be withdrawn
from the regulating power of that government which has been thought best

fitted for the purpose generally. The provisions of the law respecting
native seamen and respecting ownership are as applicable to vessels
carrying men as to vessels carrying manufactures, and no reason is
perceived why the power over the subject should not be placed in the
same hands. The argument urged at the bar rests on the foundation that
the power of Congress does not extend to navigation as a branch of
commerce, and can only be applied to that subject incidentally and
occasionally. But if that foundation be removed, we must show some
plain, intelligible distinction, supported by the Constitution or by
reason, for discriminating between the power of Congress over vessels
employed in navigating the same seas. We can perceive no such
distinction.
If we refer to the Constitution, the inference to be drawn from it is

rather against the distinction. The section which restrains Congress
from prohibiting the migration or importation of such persons as any of
the States may think proper to admit until the year 1808 has always been
considered as an exception from the power to regulate commerce, and
certainly seems to class migration with importation. Migration applies
as appropriately to voluntary as importation does to involuntary
arrivals, and, so far as an exception from a power proves its existence,
this section proves that the power to regulate commerce applies equally
[p*217] to the regulation of vessels employed in transporting men, who
pass from place to place voluntarily, and to those who pass
involuntarily.
If the power reside in Congress, as a portion of the general grant to

regulate commerce, then acts applying that power to vessels generally
must be construed as comprehending all vessels. If none appear to be
excluded by the language of the act, none can be excluded by
construction. Vessels have always been employed to a greater or less
extent in the transportation of passengers, and have never been
supposed to be, on that account, withdrawn from the control or
protection of Congress. Packets which ply along the coast, as well as
those which make voyages between Europe and America, consider the
transportation of passengers as an important part of their business. Yet
it has never been suspected that the general laws of navigation did not
apply to them.
The duty act, sections 23 and 46, contains provisions respecting

passengers, and shows that vessels which transport them have the same
rights, and must perform the same duties, with other vessels. They are
governed by the general laws of navigation.
In the progress of things, this seems to have grown into a particular

employment, and to have attracted the particular attention of
government. Congress was no longer satisfied with comprehending vessels
engaged specially in this business, within those provisions which were
intended for vessels generally, and, on the 2d of March, 1819, passed
"an act regulating passenger ships and [p*218] vessels." This wise and
humane law provides for the safety and comfort of passengers, and for
the communication of everything concerning them which may interest the
government, to the Department of State, but makes no provision
concerning the entry of the vessel or her conduct in the waters of the
United States. This, we think, shows conclusively the sense of Congress
(if, indeed, any evidence to that point could be required) that the
preexisting regulations comprehended passenger ships among others, and,
in prescribing the same duties, the Legislature must have considered
them as possessing the same rights.
If, then, it were even true that the Bellona and the Stoudinger were

employed exclusively in the conveyance of passengers between New York

and New Jersey, it would not follow that this occupation did not
constitute a part of the coasting trade of the United States, and was
not protected by the license annexed to the answer. But we cannot
perceive how the occupation of these vessels can be drawn into question
in the case before the Court. The laws of New York, which grant the
exclusive privilege set up by the respondent, take no notice of the
employment of vessels, and relate only to the principle by which they
are propelled. Those laws do not inquire whether vessels are engaged in
transporting men or merchandise, but whether they are moved by steam or
wind. If by the former, the waters of New York are closed against them,
though their cargoes be dutiable goods, which the laws of the [p*219]
United States permit them to enter and deliver in New York. If by the
latter, those waters are free to them though they should carry
passengers only. In conformity with the law is the bill of the plaintiff
in the State Court. The bill does not complain that the Bellona and the
Stoudinger carry passengers, but that they are moved by steam. This is
the injury of which he complains, and is the sole injury against the
continuance of which he asks relief. The bill does not even allege
specially that those vessels were employed in the transportation of
passengers, but says generally that they were employed "in the
transportation of passengers, or otherwise." The answer avers only that
they were employed in the coasting trade, and insists on the right to
carry on any trade authorized by the license. No testimony is taken, and
the writ of injunction and decree restrain these licensed vessels not
from carrying passengers, but from being moved through the waters of New
York by steam for any purpose whatever.
The questions, then, whether the conveyance of passengers be a part of

the coasting trade and whether a vessel can be protected in that
occupation by a coasting license are not, and cannot be, raised in this
case. The real and sole question seems to be whether a steam machine in
actual use deprives a vessel of the privileges conferred by a license.
In considering this question, the first idea which presents itself is

that the laws of Congress for the regulation of commerce do not look to
the [p*220] principle by which vessels are moved. That subject is left
entirely to individual discretion, and, in that vast and complex system
of legislative enactment concerning it, which embraces everything that
the Legislature thought it necessary to notice, there is not, we
believe, one word respecting the peculiar principle by which vessels are
propelled through the water, except what may be found in a single act
granting a particular privilege to steamboats. With this exception,
every act, either prescribing duties or granting privileges, applies to
every vessel, whether navigated by the instrumentality of wind or fire,
of sails or machinery. The whole weight of proof, then, is thrown upon
him who would introduce a distinction to which the words of the law give
no countenance.
If a real difference could be admitted to exist between vessels

carrying passengers and others, it has already been observed that there
is no fact in this case which can bring up that question. And, if the
occupation of steamboats be a matter of such general notoriety that the
Court may be presumed to know it, although not specially informed by the
record, then we deny that the transportation of passengers is their
exclusive occupation. It is a matter of general history that, in our
western waters, their principal employment is the transportation of
merchandise, and all know that, in the waters of the Atlantic, they are
frequently so employed.
But all inquiry into this subject seems to the Court to be put

completely at rest by the act already [p*221] mentioned, entitled, "An

act for the enrolling and licensing of steamboats."
This act authorizes a steamboat employed, or intended to be employed,

only in a river or bay of the United States, owned wholly or in part by
an alien, resident within the United States, to be enrolled and licensed
as if the same belonged to a citizen of the United States.
This act demonstrates the opinion of Congress that steamboats may be

enrolled and licensed, in common with vessels using sails. They are, of
course, entitled to the same privileges, and can no more be restrained
from navigating waters and entering ports which are free to such
vessels than if they were wafted on their voyage by the winds, instead
of being propelled by the agency of fire. The one element may be as
legitimately used as the other for every commercial purpose authorized
by the laws of the Union, and the act of a State inhibiting the use of
either to any vessel having a license under the act of Congress comes,
we think, in direct collision with that act.
As this decides the cause, it is unnecessary to enter in an examination

of that part of the Constitution which empowers Congress to promote the
progress of science and the useful arts.
The Court is aware that, in stating the train of reasoning by which we

have been conducted to this result, much time has been consumed in the
attempt to demonstrate propositions which may have been thought axioms.
It is felt that the tediousness inseparable from the endeavour to prove
that which is already clear is imputable to [p*222] a considerable part
of this opinion. But it was unavoidable. The conclusion to which we have
come depends on a chain of principles which it was necessary to preserve
unbroken, and although some of them were thought nearly self-evident,
the magnitude of the question, the weight of character belonging to
those from whose judgment we dissent, and the argument at the bar
demanded that we should assume nothing.
Powerful and ingenious minds, taking as postulates that the powers

expressly granted to the government of the Union are to be contracted
by construction into the narrowest possible compass and that the
original powers of the States are retained if any possible construction
will retain them may, by a course of well digested but refined and
metaphysical reasoning founded on these premises, explain away the
Constitution of our country and leave it a magnificent structure indeed
to look at, but totally unfit for use. They may so entangle and perplex
the understanding as to obscure principles which were before thought
quite plain, and induce doubts where, if the mind were to pursue its own
course, none would be perceived. In such a case, it is peculiarly
necessary to recur to safe and fundamental principles to sustain those
principles, and when sustained, to make them the tests of the arguments
to be examined.
JOHNSON, J., Concurring Opinion
Mr. Justice JOHNSON.
The judgment entered by the Court in this cause, has my entire

approbation, but, having adopted my conclusions on views [p*223] of the
subject materially different from those of my brethren, I feel it
incumbent on me to exhibit those views. I have also another inducement:
in questions of great importance and great delicacy, I feel my duty to
the public best discharged by an effort to maintain my opinions in my
own way.

In attempts to construe the Constitution, I have never found much

benefit resulting from the inquiry whether the whole or any part of it
is to be construed strictly or literally. The simple, classical,
precise, yet comprehensive language in which it is couched leaves, at
most, but very little latitude for construction, and when its intent and
meaning is discovered, nothing remains but to execute the will of those
who made it in the best manner to effect the purposes intended. The
great and paramount purpose was to unite this mass of wealth and power,
for the protection of the humblest individual, his rights, civil and
political, his interests and prosperity, are the sole end; the rest are
nothing but the means. But the principal of those means, one so
essential as to approach nearer the characteristics of an end, was the
independence and harmony of the States that they may the better subserve
the purposes of cherishing and protecting the respective families of
this great republic.
The strong sympathies, rather than the feeble government, which bound
the States together during a common war dissolved on the return of
peace, and the very principles which gave rise to the war of the
revolution began to threaten the [p*224] Confederacy with anarchy and
ruin. The States had resisted a tax imposed by the parent State, and now
reluctantly submitted to, or altogether rejected, the moderate demands
of the Confederation. Everyone recollects the painful and threatening
discussions which arose on the subject of the five percent. duty. Some
States rejected it altogether; others insisted on collecting it
themselves; scarcely any acquiesced without reservations, which deprived
it altogether of the character of a national measure; and at length,
some repealed the laws by which they had signified their acquiescence.
For a century, the States had submitted, with murmurs, to the

commercial restrictions imposed by the parent State; and now, finding
themselves in the unlimited possession of those powers over their own
commerce which they had so long been deprived of and so earnestly
coveted, that selfish principle which, well controlled, is so salutary,
and which, unrestricted, is so unjust and tyrannical, guided by
inexperience and jealousy, began to show itself in iniquitous laws and
impolitic measures from which grew up a conflict of commercial
regulations destructive to the harmony of the States and fatal to their
commercial interests abroad.
This was the immediate cause that led to the forming of a convention.
As early as 1778, the subject had been pressed upon the attention of
Congress by a memorial from the State of New Jersey, and in 1781, we
find a resolution presented to that body by one of [p*225] the most
enlightened men of his day, Dr. Witherspoon, affirming that it is
indispensably necessary that the United States, in Congress assembled,
should be vested with a right of superintending the commercial
regulations of every State that none may take place that shall be
partial or contrary to the common interests.
The resolution of Virginia, January 21, 1781, appointing her

commissioners to meet commissioners from other States, expresses their
purpose to be to take into consideration the trade of the United
States, to consider how far an uniform system in their commercial
regulations may be necessary to their common interests and their
permanent harmony.
And Mr. Madison's resolution, which led to that measure, is introduced

by a preamble entirely explicit to this point:

Whereas, the relative situation of the United States has been

found, on trial, to require uniformity in their commercial
regulations as the only effectual policy for obtaining, in the
ports of foreign nations, a stipulation of privileges reciprocal
to those enjoyed by the subjects of such nations in the ports
of the United States, for preventing animosities, which
cannot fail to arise among the several States, from the
interference of partial and separate regulations, &c.
"therefore, resolved," &c.
The history of the times will therefore sustain the opinion that the
grant of power over commerce, if intended to be commensurate with the
evils existing and the purpose of remedying those [p*226] evils, could
be only commensurate with the power of the States over the subject. And
this opinion is supported by a very remarkable evidence of the general
understanding of the whole American people when the grant was made.
There was not a State in the Union in which there did not at that time
exist a variety of commercial regulations; concerning which it is too
much to suppose that the whole ground covered by those regulations was
immediately assumed by actual legislation under the authority of the
Union. But where was the existing statute on this subject that a State
attempted to execute? or by what State was it ever thought necessary to
repeal those statutes? By common consent, those laws dropped lifeless
from their statute books for want of the sustaining power that had been
relinquished to Congress.
And the plain and direct import of the words of the grant is consistent
with this general understanding.
The words of the Constitution are, "Congress shall have power to

regulate commerce with foreign nations, and among the several States,
and with the Indian tribes."
It is not material, in my view of the subject, to inquire whether the

article a or the should be prefixed to the word "power." Either or
neither will produce the same result: if either, it is clear that the
article "the" would be the proper one, since the next preceding grant of
power is certainly exclusive, to-wit: "to borrow money on the credit
[p*227] of the United States." But mere verbal criticism I reject.
My opinion is founded on the application of the words of the grant to

the subject of it.
The "power to regulate commerce" here meant to be granted was that power
to regulate commerce which previously existed in the States. But what
was that power? The States were unquestionably supreme, and each
possessed that power over commerce which is acknowledged to reside in
every sovereign State. The definition and limits of that power are to be
sought among the features of international law, and, as it was not only
admitted but insisted on by both parties in argument that, "unaffected
by a state of war, by treaties, or by municipal regulations, all
commerce among independent States was legitimate," there is no necessity
to appeal to the oracles of the jus commune for the correctness of that
doctrine. The law of nations, regarding man as a social animal,
pronounces all commerce legitimate in a state of peace until prohibited
by positive law. The power of a sovereign state over commerce therefore
amounts to nothing more than a power to limit and restrain it at
pleasure. And since the power to prescribe the limits to its freedom
necessarily implies the power to determine what shall remain

unrestrained, it follows that the power must be exclusive; it can reside

but in one potentate, and hence the grant of this power carries with it
the whole subject, leaving nothing for the State to act upon.
And such has been the practical construction of [p*228] the act. Were
every law on the subject of commerce repealed tomorrow, all commerce
would be lawful, and, in practice, merchants never inquire what is
permitted, but what is forbidden commerce. Of all the endless variety of
branches of foreign commerce now carried on to every quarter of the
world, I know of no one that is permitted by act of Congress any
otherwise than by not being forbidden. No statute of the United States
that I know of was ever passed to permit a commerce unless in
consequence of its having been prohibited by some previous statute.
I speak not here of the treaty-making power, for that is not exercised
under the grant now under consideration. I confine my observation to
laws properly so called. And even where freedom of commercial
intercourse is made a subject of stipulation in a treaty, it is
generally with a view to the removal of some previous restriction, or
the introduction of some new privilege, most frequently, is identified
with the return to a state of peace. But another view of the subject
leads directly to the same conclusion. Power to regulate foreign
commerce is given in the same words, and in the same breath, as it were,
with that over the commerce of the States and with the Indian tribes.
But the power to regulate foreign commerce is necessarily exclusive. The
States are unknown to foreign nations, their sovereignty exists only
with relation to each other and the General Government. Whatever
regulations foreign commerce should be subjected to in the ports of the
Union, the General Government would be [p*229] held responsible for
them, and all other regulations but those which Congress had imposed
would be regarded by foreign nations as trespasses and violations of
national faith and comity.
But the language which grants the power as to one description of

commerce grants it as to all, and, in fact, if ever the exercise of a
right or acquiescence in a construction could be inferred from
contemporaneous and continued assent, it is that of the exclusive effect
of this grant.
A right over the subject has never been pretended to in any instance
except as incidental to the exercise of some other unquestionable power.
The present is an instance of the assertion of that kind, as incidental

to a municipal power; that of superintending the internal concerns of a
State, and particularly of extending protection and patronage, in the
shape of a monopoly, to genius and enterprise.
The grant to Livingston and Fulton interferes with the freedom of

intercourse, and on this principle, its constitutionality is contested.
When speaking of the power of Congress over navigation, I do not regard

it as a power incidental to that of regulating commerce; I consider it
as the thing itself, inseparable from it as vital motion is from vital
existence.
Commerce, in its simplest signification, means an exchange of goods, but

in the advancement of society, labour, transportation, intelligence,
care, and various mediums of exchange become commodities, and enter into
commerce, the subject, [p*230] the vehicle, the agent, and their various
operations become the objects of commercial regulation. Shipbuilding,
the carrying trade, and propagation of seamen are such vital agents of

commercial prosperity that the nation which could not legislate over
these subjects would not possess power to regulate commerce.
That such was the understanding of the framers of the Constitution is

conspicuous from provisions contained in that instrument.
The first clause of the 9th section not only considers the right of
controlling personal ingress or migration, as implied in the powers
previously vested in Congress over commerce, but acknowledges it as a
legitimate subject of revenue. And, although the leading object of this
section undoubtedly was the importation of slaves, yet the words are
obviously calculated to comprise persons of all descriptions, and to
recognise in Congress a power to prohibit where the States permit,
although they cannot permit when the States prohibit. The treaty-making
power undoubtedly goes further. So the fifth clause of the same section
furnishes an exposition of the sense of the Convention as to the power
of Congress over navigation: "nor shall vessels bound to or from one
State be obliged to enter, clear, or pay duties in another."
But it is almost labouring to prove a self-evident proposition, since

the sense of mankind, the practice of the world, the contemporaneous
assumption and continued exercise of the power, and universal
acquiescence, have so clearly established [p*231] the right of Congress
over navigation, and the transportation of both men and their goods, as
not only incidental to, but actually of the essence of, the power to
regulate commerce. As to the transportation of passengers, and
passengers in a steamboat, I consider it as having been solemnly
recognised by the State of New York as a subject both of commercial
regulation and of revenue. She has imposed a transit duty upon steamboat
passengers arriving at Albany, and unless this be done in the exercise
of her control over personal intercourse, as incident to internal
commerce, I know not on what principle the individual has been subjected
to this tax. The subsequent imposition upon the steamboat itself appears
to be but a commutation, and operates as an indirect, instead of a
direct, tax upon the same subject. The passenger pays it at last.
It is impossible, with the views which I entertain of the principle on

which the commercial privileges of the people of the United States among
themselves rests, to concur in the view which this Court takes of the
effect of the coasting license in this cause. I do not regard it as the
foundation of the right set up in behalf of the appellant. If there was
any one object riding over every other in the adoption of the
Constitution, it was to keep the commercial intercourse among the States
free from all invidious and partial restraints. And I cannot overcome
the conviction that, if the licensing act was repealed tomorrow, the
rights of the appellant to a reversal of the decision complained of
would be as [p*232] strong as it is under this license. One half the
doubts in life arise from the defects of language, and if this
instrument had been called an exemption instead of a license, it would
have given a better idea of its character. Licensing acts, in fact, in
legislation, are universally restraining acts, as, for example, acts
licensing gaming houses, retailers of spiritous liquors, &c. The act in
this instance is distinctly of that character, and forms part of an
extensive system the object of which is to encourage American shipping
and place them on an equal footing with the shipping of other nations.
Almost every commercial nation reserves to its own subjects a monopoly
of its coasting trade, and a countervailing privilege in favour of
American shipping is contemplated in the whole legislation of the United
States on this subject. It is not to give the vessel an American
character that the license is granted; that effect has been correctly
attributed to the act of her enrollment. But it is to confer on her

American privileges, as contradistinguished from foreign, and to

preserve the government from fraud by foreigners in surreptitiously
intruding themselves into the American commercial marine, as well as
frauds upon the revenue in the trade coastwise, that this whole system
is projected. Many duties and formalities are necessarily imposed upon
the American foreign commerce which would be burdensome in the active
coasting trade of the States, and can be dispensed with. A higher rate
of tonnage also is imposed, and this license entitles the vessels that
take it to those exemptions, but to nothing more. [p*233] A common
register equally entitles vessels to carry on the coasting trade,
although it does not exempt them from the forms of foreign commerce or
from compliance with the 16th and 17th sections of the enrolling act.
And even a foreign vessel may be employed coastwise upon complying with
the requisitions of the 24th section. I consider the license therefore
as nothing more than what it purports to be, according to the first
section of this act, conferring on the licensed vessel certain
privileges in that trade not conferred on other vessels; but the
abstract right of commercial intercourse, stripped of those privileges,
is common to all.
Yet there is one view in which the license may be allowed considerable
influence in sustaining the decision of this Court.
It has been contended that the grants of power to the United States over any
subject do not necessarily paralyze the arm of the States or deprive them of
the capacity to act on the same subject. This can be the effect only of
prohibitory provisions in their own Constitutions, or in that of the General
Government. The vis vitae of power is still existing in the States, if not
extinguished by the Constitution of the United States. That, although as to
all those grants of power which may be called aboriginal, with relation to
the Government, brought into existence by the Constitution, they, of course,
are out of the reach of State power, yet, as to all concessions of powers
which previously existed in the States, it was otherwise. The practice of
our Government certainly [p*234] has been, on many subjects, to occupy so
much only of the field opened to them as they think the public interests
require. Witness the jurisdiction of the Circuit Courts, limited both as to
cases and as to amount, and various other instances that might to cited. But
the license furnishes a full answer to this objection, for, although one
grant of power over commerce, should not be deemed a total relinquishment of
power over the subject, but amounting only to a power to assume, still the
power of the States must be at an end, so far as the United States have, by
their legislative act, taken the subject under their immediate
superintendence. So far as relates to the commerce coastwise, the act under
which this license is granted contains a full expression of Congress on this
subject. Vessels, from five tons upwards, carrying on the coasting trade are
made the subject of regulation by that act. And this license proves that
this vessel has complied with that act, and been regularly ingrafted into
one class of the commercial marine of the country.
It remains, to consider the objections to this opinion, as presented by

the counsel for the appellee. On those which had relation to the
particular character of this boat, whether as a steamboat or a ferry
boat, I have only to remark that, in both those characters, she is
expressly recognised as an object of the provisions which relate to
licenses.
The 12th section of the Act of 1793 has these words: "That when the
master of any ship or vessel, ferry boats excepted, shall be changed,"
&c. And the act which exempts licensed steamboats [p*235] from the
provisions against alien interests shows such boats to be both objects
of the licensing act and objects of that act when employed exclusively

within our bays and rivers.
But the principal objections to these opinions arise,
1st. From the unavoidable action of some of the municipal

powers of the States upon commercial subjects.
2d. From passages in the Constitution which are supposed

to imply a concurrent power in the States in regulating
commerce.
It is no objection to the existence of distinct, substantive powers

that, in their application, they bear upon the same subject. The same
bale of goods, the same cask of provisions, or the same ship that may be
the subject of commercial regulation may also be the vehicle of disease.
And the health laws that require them to be stopped and ventilated are
no more intended as regulations on commerce than the laws which permit
their importation are intended to innoculate the community with disease.
Their different purposes mark the distinction between the powers brought
into action, and while frankly exercised, they can produce no serious
collision. As to laws affecting ferries, turnpike roads, and other
subjects of the same class, so far from meriting the epithet of
commercial regulations, they are, in fact, commercial facilities for
which, by the consent of mankind, a compensation is paid upon the same
principle that the whole commercial world submit to pay light money to
the Danes. Inspection laws are of a more equivocal nature, and it is
obvious that [p*236] the Constitution has viewed that subject with much
solicitude. But so far from sustaining an inference in favour of the
power of the States over commerce, I cannot but think that the guarded
provisions of the 10th section on this subject furnish a strong argument
against that inference. It was obvious that inspection laws must combine
municipal with commercial regulations, and, while the power over the
subject is yielded to the States, for obvious reasons, an absolute
control is given over State legislation on the subject, as far as that
legislation may be exercised, so as to affect the commerce of the
country. The inferences to be correctly drawn from this whole article
appear to me to be altogether in favour of the exclusive grants to
Congress of power over commerce, and the reverse of that which the
appellee contends for.
This section contains the positive restrictions imposed by the

Constitution upon State power. The first clause of it specifies those
powers which the States are precluded from exercising, even though the
Congress were to permit them. The second, those which the States may
exercise with the consent of Congress. And here the sedulous attention
to the subject of State exclusion from commercial power is strongly
marked. Not satisfied with the express grant to the United States of the
power over commerce, this clause negatives the exercise of that power to
the States as to the only two objects which could ever tempt them to
assume the exercise of that power, to-wit, the collection of a revenue
from imposts and duties on imports and exports, or from a tonnage duty.
As [p*237] to imposts on imports or exports, such a revenue might have
been aimed at directly, by express legislation, or indirectly, in the
form of inspection laws, and it became necessary to guard against both.
Hence, first, the consent of Congress to such imposts or duties is made
necessary, and, as to inspection laws, it is limited to the minimum of
expenses. Then the money so raised shall be paid into the Treasury of
the United States, or may be sued for, since it is declared to be for
their use. And lastly, all such laws may be modified or repealed by an
act of Congress. It is impossible for a right to be more guarded. As to
a tonnage duty that could be recovered in but one way, and a sum so

raised, being obviously necessary for the execution of health laws and
other unavoidable port expenses, it was intended that it should go into
the State treasuries, and nothing more was required therefore than the
consent of Congress. But this whole clause, as to these two subjects,
appears to have been introduced ex abundanti cautela, to remove every
temptation to an attempt to interfere with the powers of Congress over
commerce, and to show how far Congress might consent to permit the
States to exercise that power. Beyond those limits, even by the consent
of Congress, they could not exercise it. And thus we have the whole
effect of the clause. The inference which counsel would deduce from it
is neither necessary nor consistent with the general purpose of the
clause.
But instances have been insisted on with much confidence in argument in

which, by municipal [p*238] laws, particular regulations respecting
their cargoes have been imposed upon shipping in the ports of the United
States, and one in which forfeiture was made the penalty of
disobedience.
Until such laws have been tested by exceptions to their

constitutionality, the argument certainly wants much of the force
attributed to it; but, admitting their constitutionality, they present
only the familiar case of punishment inflicted by both governments upon
the same individual. He who robs the mail may also steal the horse that
carries it, and would unquestionably be subject to punishment at the
same time under the laws of the State in which the crime is committed
and under those of the United States. And these punishments may
interfere, and one render it impossible to inflict the other, and yet
the two governments would be acting under powers that have no claim to
identity.
It would be in vain to deny the possibility of a clashing and collision

between the measures of the two governments. The line cannot be drawn
with sufficient distinctness between the municipal powers of the one and
the commercial powers of the other. In some points, they meet and blend
so as scarcely to admit of separation. Hitherto, the only remedy has
been applied which the case admits of -- that of a frank and candid
cooperation for the general good. Witness the laws of Congress requiring
its officers to respect the inspection laws of the States and to aid in
enforcing their health laws, that which surrenders to the States the
superintendence of pilotage, and the [p*239] many laws passed to permit
a tonnage duty to be levied for the use of their ports. Other instances
could be cited abundantly to prove that collision must be sought to be
produced, and when it does arise, the question must be decided how far
the powers of Congress are adequate to put it down. Wherever the powers
of the respective governments are frankly exercised, with a distinct
view to the ends of such powers, they may act upon the same object, or
use the same means, and yet the powers be kept perfectly distinct. A
resort to the same means therefore is no argument to prove the identity
of their respective powers.
I have not touched upon the right of the States to grant patents for
inventions or improvements generally, because it does not necessarily
arise in this cause. It is enough for all the purposes of this decision
if they cannot exercise it so as to restrain a free intercourse among
the States.
DECREE. This cause came on to be heard on the transcript of the record

of the Court for the Trial of Impeachments and Correction of Errors of
the State of New York, and was argued by counsel. On consideration
whereof, this Court is of opinion that the several licenses to the

steamboats the Stoudinger and the Bellona to carry on the coasting

trade, which are set up by the appellant Thomas Gibbons in his answer to
the bill of the respondent, Aaron Ogden, filed in the Court of Chancery
for the State of New York, which were granted under an act of Congress,
passed in pursuance of the Constitution of the [p*240] United States,
gave full authority to those vessels to navigate the waters of the
United States, by steam or otherwise, for the purpose of carrying on the
coasting trade, any law of the State of New York to the contrary
notwithstanding, and that so much of the several laws of the State of
New York as prohibits vessels, licensed according to the laws of the
United States, from navigating the waters of the State of New York by
means of fire or steam is repugnant to the said Constitution, and void.
This Court is therefore of opinion that the decree of the Court of New
York for the Trial of Impeachments and the Correction of Errors
affirming the decree of the Chancellor of that State, which perpetually
enjoins the said Thomas Gibbons, the appellant, from navigating the
waters of the State of New York with the steamboats the Stoudinger and
the Bellona by steam or fire, is erroneous, and ought to be reversed,
and the same is hereby reversed and annulled, and this Court doth
further DIRECT, ORDER, and DECREE that the bill of the said Aaron Ogden
be dismissed, and the same is hereby dismissed accordingly.

Gibbons v. Ogden, 22 U.S. 1 (1824): Jon Roland

The opinion in this case is one of the more pernicious in Supreme Court jurisprudence. The decree is
essentially correct, but the reasoning leading to it is erroneous. In fairness, there are also problems with
the way the Constitution is worded, which lay the basis for this misconstruction. However, by examining
the evidence of the original understanding of the Founders, we can arrive at a better one.
What Marshall does in this opinion is reach for the conclusion that the national Congress has the
exclusive power to regulate navigation in the coastal waters of the United States, and tries to find the
authority for that power in the Commerce Clause, but does it in a way that lays the basis for other,
broader constructions of the Commerce Clause.
To answer Marshall, it must be agreed that the United States needs the power to regulate navigation in its
coastal waters, but does any clause of the Constitution delegate that power, or did the Framers neglect to
include it? Is navigation "commerce"? If so, then one can conclude that the power rests on the Commerce
Clause, but if "commerce" does not include navigation, then what is the basis for the power, if any?
The correct answer is that the United States does have a limited power to regulate or prohibit navigation
in its coastal waters, but that such power derives from its power of defense, not from the Commerce
Clause. Marshall alludes to this argument, calling it the "war-making" power, but the Constitution
delegates the power to collect taxes to "provide for the common Defense", and it was understood that,
while part of a restrictive clause concerning spending, it referred to a power to defend the nation, and that
such defense can involve doing more than just making war or preparing for it. The power to defend
implies the power to regulate or prohibit navigation in coastal waters or the movement of persons across
national borders.
Part of the problem with this case is that both parties opened the way to the misconstruction by allowing
that the power to regulate interstate commerce included the power to regulate interstate traffic. Ogden at
least should have argued a narrower definition of "commerce".
So how did the Founders understand "commerce" for purposes of the Constitution? First, it is clear from
the examples cited in their debates that they only contemplated commodities, not services. We also find
in the writings of legal scholars of the time the repeated use of phrases like "commerce and traffic" or
"commerce and navigation" to show they meant distinct things by the two terms. They clearly
contemplated commodities being traded across state lines being inspected at checkpoints, probably but
not necessarily on the borders, for compliance with regulations, and perhaps for the assessment of taxes.
On the other hand, they also clearly did not intend to include personal property being carried across a
border for one's own personal use and not for trade. Therefore, an essential element of the definition of
"commerce" was the sale of a commodity or the right to use it.
To further refine the definition, we must examine where the sale takes place. Clearly, for the Founders it
was interstate "commerce" if the owner carried a commodity across a state border for sale to someone in
another state than the state of his origin, so sale in the terminating state would make it "commerce". What
about sale in the originating state? If the buyer took delivery in the originating state, then carried it back
to his own state, not intending to sell it to someone else in his state, it would be his personal property,
and not interstate "commerce", but intrastate, and outside the jurisdiction of Congress. Suppose the sale

took place in the originating state, but the buyer did not take delivery there, but had it shipped to him in
his own terminating state? Again, the Founders would have included that situation within their meaning
of interstate "commerce". From these considerations, we can arrive at a definition: Constitutional
"commerce" is the sale of a commodity from a seller in one state to a buyer in another state together with
the delivery of that commodity from the seller in the originating state to the buyer in the terminating
state.
So where does "traffic" enter the discussion? Clearly, the delivery of a purchased commodity is traffic,
but so is transport of personal property not involved in a sale, and the latter is not "commerce" as defined
above. Therefore, some traffic is "commerce" and some is not. Does this make "traffic" subject to
regulation under the Commerce Clause, as an implied power? After all, both kinds of traffic share the
same roads and navigable waters. The correct answer is, only to the extent necessary to separate
commercial traffic, subject to regulation of the commodity, from noncommercial traffic. This means all
traffic may be routed through inspection checkpoints, to determine whether the cargo is commercial or
not, but once the cargo is determined not to be commercial, the power ends, and is only revived if the
traveler or vessel has the opportunity to pick up additional cargo that might be subject to regulation.
What Marshall does when he says "the sovereignty of Congress, though limited to specified objects, is
plenary as to those objects" is commit a non sequitur when he argues that if a second object, such as
interstate traffic or navigation, is sometimes included within a delegated object, such as the interstate sale
of commodities, therefore it is always included and power is also plenary over that object. First, the
delegations are for subjects, that is, classes of things or activities, not objects, which connotes purpose.
Second, the delegations are not necessarily plenary, although they may be exclusive. The power to
regulate is not the power to prohibit. It is essentially not plenary, because it is not the power to prohibit
all modalities of a thing, but only of some modalities, leaving some remaining, and then only minimally
for a reasonable public purpose. Unreasonable or excessive regulation would be beyond the delegation,
and justiciable on constitutional grounds.
Leaving aside coastal waters, what about traffic and navigation between states? Do states have the power
to regulate it? When questioned about it, James Madison stated that the intent of the Commerce Clause
was not so much to grant the power to regulate commerce to the national government as to remove it
from the states. We can accept that statement as authoritative, but that is not what is stated in the
Constitution. For that intent the Framers should have included a clause in Art. I Sec. 10 prohibiting the
states from impairing traffic or navigation, or regulating commerce, with another state or a foreign
nation. They didn't. Can we infer such a prohibition from the Commerce Clause? Logically, we cannot.
We can argue that if the states had plenary power to impair interstate traffic or navigation, and if the
delegation of power to regulate commerce to Congress is exclusive, then the exercise of their power by
the states would conflict with the power of Congress, and therefore must yield to regulations of
commerce passed by Congress, but in the absence of such regulation, they could exercise such power. In
this case, while there was a conflicting national navigation law, there was no conflicting national
commerce regulation law.
All we can do to forbid the states from impairing traffic or navigation, or the regulation of commerce,
with other states or nations, is rely on the statement by Madison and perhaps other Framers as to their
intent. Such a construction is extraconstitutional, based not even on legislative history but on later
commentary by the lawmakers. The Supreme Court may reasonably base a decision on such
commentary, but it should also declare that such decision is made as a matter of equity, and not to be

considered a constitutional precedent, and recommend that the defect in the Constitution be corrected at
the earliest date by amendment.
However, there are two other matters that need to be discussed. The first is whether the coastal waters of
a state are within the territorial jurisdiction of the state or the nation. The Constitution is silent on this
issue, as are the ratification resolutions of the states that had coastal waters. Originally, the coastal waters
of each state were part of their territories. How did the nation get jurisdiction? Were there cessions of the
coastal waters to the exclusive jurisdiction of Congress under Art. I Sec. 8 Cl. 17? There could have
been, but there weren't. It has been left to the federal courts, and except for the Texas tidelands, the
decision was that the territory of coastal waters belongs to the nation. Such a position is rational policy,
but without legal foundation. It could be resolved by the coastal states ceding the territory, and they
should, but so far most of them haven't.
Clearly, if the coastal waters of a state are within the national jurisdiction, then the state would not have
jurisdiction to license navigation in such waters. That is not the decision in this case, which could be
reasonably interpreted as an implied holding that the coastal waters of a state are within that state's
territorial jurisdiction.
The second matter concerns the Intellectual Property Clause. Marshall mentions it as an argument of the
appellant, but dismisses it, and errs in doing so. The apparent purpose of the license by the State of New
York in this case was to protect the rights of the heir or assign of the inventor of the steamboat, who was
Ogden, to operate steamboats, and therefore was the exercise of a kind of intellectual property right
protection. That raises the question of whether states may grant patent, trademark, or copyright
protection, or whether the delegation of such power to Congress is exclusive. Clearly, the states do grant
name protection to corporations when they charter them, and authorize the filing of assumed names,
which is akin to trademark protection. But could a state extend patent protection within its territory
beyond the expiration of that protection at the federal level, and what happens when a party, free to
market the invention in most states after the expiration of the federal patent, is prohibited from doing so
within the state that extended the patent? The answer is unclear, because a few states do have their own
intellectual property protective laws, mostly involving the theft of trade secrets, but potentially in conflict
with federal protective laws.
Therefore, the way this case should have been decided would have been to find that Gibbons had the
right to use the invention of the steamboats in the absence of a federal patent being held by Ogden, and
that the license from the State of New York impaired commerce between states if the steamboats carried
any commercial cargo, so for such operations, was invalid. Then as long as each steamboat carried at
least one commodity being sold across a state line, it would be exempt from being prohibited by the State
of New York. It could have also held that the Congress has the prior power to regulate or prohibit
navigation in coastal waters under the Defense Clause. The carrying of passengers, being a service,
would not be commerce, and irrelevant to the case.

The opinion in this case is one of the more pernicious in Supreme Court
jurisprudence. The decree is essentially correct, but the reasoning leading
to it is erroneous. In fairness, there are also problems with the way the
Constitution is worded, which lay the basis for this misconstruction.
However, by examining the evidence of the original understanding of the
Founders, we can arrive at a better one.
What Marshall does in this opinion is reach for the conclusion that the
national Congress has the exclusive power to regulate navigation in the
coastal waters of the United States, and tries to find the authority for
that power in the Commerce Clause, but does it in a way that lays the basis
for other, broader constructions of the Commerce Clause.
To answer Marshall, it must be agreed that the United States needs the power
to regulate navigation in its coastal waters, but does any clause of the
Constitution delegate that power, or did the Framers neglect to include it?
Is navigation "commerce"? If so, then one can conclude that the power rests
on the Commerce Clause, but if "commerce" does not include navigation, then
what is the basis for the power, if any?
The correct answer is that the United States does have a limited power to
regulate or prohibit navigation in its coastal waters, but that such power
derives from its power of defense, not from the Commerce Clause. Marshall
alludes to this argument, calling it the "war-making" power, but the
Constitution delegates the power to collect taxes to "provide for the common
Defense", and it was understood that, while part of a restrictive clause
concerning spending, it referred to a power to defend the nation, and that
such defense can involve doing more than just making war or preparing for
it. The power to defend implies the power to regulate or prohibit navigation
in coastal waters or the movement of persons across national borders.
Part of the problem with this case is that both parties opened the way to
the misconstruction by allowing that the power to regulate interstate
commerce included the power to regulate interstate traffic. Ogden at least
should have argued a narrower definition of "commerce".
So how did the Founders understand "commerce" for purposes of the

Constitution? First, it is clear from the examples cited in their debates
that they only contemplated commodities, not services. We also find in the
writings of legal scholars of the time the repeated use of phrases like
"commerce and traffic" or "commerce and navigation" to show they meant
distinct things by the two terms. They clearly contemplated commodities
being traded across state lines being inspected at checkpoints, probably but
not necessarily on the borders, for compliance with regulations, and perhaps
for the assessment of taxes. On the other hand, they also clearly did not
intend to include personal property being carried across a border for one's
own personal use and not for trade. Therefore, an essential element of the
definition of "commerce" was the sale of a commodity or the right to use it.
To further refine the definition, we must examine where the sale takes
place. Clearly, for the Founders it was interstate "commerce" if the owner
carried a commodity across a state border for sale to someone in another
state than the state of his origin, so sale in the terminating state would
make it "commerce". What about sale in the originating state? If the buyer
took delivery in the originating state, then carried it back to his own
state, not intending to sell it to someone else in his state, it would be
his personal property, and not interstate "commerce", but intrastate, and

outside the jurisdiction of Congress. Suppose the sale took place in the
originating state, but the buyer did not take delivery there, but had it
shipped to him in his own terminating state? Again, the Founders would have
included that situation within their meaning of interstate "commerce". From
these considerations, we can arrive at a definition: Constitutional
"commerce" is the sale of a commodity from a seller in one state to a buyer
in another state together with the delivery of that commodity from the
seller in the originating state to the buyer in the terminating state.
So where does "traffic" enter the discussion? Clearly, the delivery of a

purchased commodity is traffic, but so is transport of personal property not
involved in a sale, and the latter is not "commerce" as defined above.
Therefore, some traffic is "commerce" and some is not. Does this make
"traffic" subject to regulation under the Commerce Clause, as an implied
power? After all, both kinds of traffic share the same roads and navigable
waters. The correct answer is, only to the extent necessary to separate
commercial traffic, subject to regulation of the commodity, from
noncommercial traffic. This means all traffic may be routed through
inspection checkpoints, to determine whether the cargo is commercial or not,
but once the cargo is determined not to be commercial, the power ends, and
is only revived if the traveler or vessel has the opportunity to pick up
additional cargo that might be subject to regulation.
What Marshall does when he says "the sovereignty of Congress, though limited
to specified objects, is plenary as to those objects" is commit a non
sequitur when he argues that if a second object, such as interstate traffic
or navigation, is sometimes included within a delegated object, such as the
interstate sale of commodities, therefore it is always included and power is
also plenary over that object. First, the delegations are for subjects, that
is, classes of things or activities, not objects, which connotes purpose.
Second, the delegations are not necessarily plenary, although they may be
exclusive. The power to regulate is not the power to prohibit. It is
essentially not plenary, because it is not the power to prohibit all
modalities of a thing, but only of some modalities, leaving some remaining,
and then only minimally for a reasonable public purpose. Unreasonable or
excessive regulation would be beyond the delegation, and justiciable on
constitutional grounds.
Leaving aside coastal waters, what about traffic and navigation between
states? Do states have the power to regulate it? When questioned about it,
James Madison stated that the intent of the Commerce Clause was not so much
to grant the power to regulate commerce to the national government as to
remove it from the states. We can accept that statement as authoritative,
but that is not what is stated in the Constitution. For that intent the
Framers should have included a clause in Art. I Sec. 10 prohibiting the
states from impairing traffic or navigation, or regulating commerce, with
another state or a foreign nation. They didn't. Can we infer such a
prohibition from the Commerce Clause? Logically, we cannot. We can argue
that if the states had plenary power to impair interstate traffic or
navigation, and if the delegation of power to regulate commerce to Congress
is exclusive, then the exercise of their power by the states would conflict
with the power of Congress, and therefore must yield to regulations of
commerce passed by Congress, but in the absence of such regulation, they
could exercise such power. In this case, while there was a conflicting
national navigation law, there was no conflicting national commerce
regulation law.
All we can do to forbid the states from impairing traffic or navigation, or

the regulation of commerce, with other states or nations, is rely on the
statement by Madison and perhaps other Framers as to their intent. Such a
construction is extraconstitutional, based not even on legislative history

but on later commentary by the lawmakers. The Supreme Court may reasonably
base a decision on such commentary, but it should also declare that such
decision is made as a matter of equity, and not to be considered a
constitutional precedent, and recommend that the defect in the Constitution
be corrected at the earliest date by amendment.
However, there are two other matters that need to be discussed. The first is
whether the coastal waters of a state are within the territorial
jurisdiction of the state or the nation. The Constitution is silent on this
issue, as are the ratification resolutions of the states that had coastal
waters. Originally, the coastal waters of each state were part of their
territories. How did the nation get jurisdiction? Were there cessions of the
coastal waters to the exclusive jurisdiction of Congress under Art. I Sec. 8
Cl. 17? There could have been, but there weren't. It has been left to the
federal courts, and except for the Texas tidelands, the decision was that
the territory of coastal waters belongs to the nation. Such a position is
rational policy, but without legal foundation. It could be resolved by the
coastal states ceding the territory, and they should, but so far most of
them haven't.
Clearly, if the coastal waters of a state are within the national

jurisdiction, then the state would not have jurisdiction to license
navigation in such waters. That is not the decision in this case, which
could be reasonably interpreted as an implied holding that the coastal
waters of a state are within that state's territorial jurisdiction.
The second matter concerns the Intellectual Property Clause. Marshall

mentions it as an argument of the appellant, but dismisses it, and errs in
doing so. The apparent purpose of the license by the State of New York in
this case was to protect the rights of the heir or assign of the inventor of
the steamboat, who was Ogden, to operate steamboats, and therefore was the
exercise of a kind of intellectual property right protection. That raises
the question of whether states may grant patent, trademark, or copyright
protection, or whether the delegation of such power to Congress is
exclusive. Clearly, the states do grant name protection to corporations when
they charter them, and authorize the filing of assumed names, which is akin
to trademark protection. But could a state extend patent protection within
its territory beyond the expiration of that protection at the federal level,
and what happens when a party, free to market the invention in most states
after the expiration of the federal patent, is prohibited from doing so
within the state that extended the patent? The answer is unclear, because a
few states do have their own intellectual property protective laws, mostly
involving the theft of trade secrets, but potentially in conflict with
federal protective laws.
Therefore, the way this case should have been decided would have been to
find that Gibbons had the right to use the invention of the steamboats in
the absence of a federal patent being held by Ogden, and that the license
from the State of New York impaired commerce between states if the
steamboats carried any commercial cargo, so for such operations, was
invalid. Then as long as each steamboat carried at least one commodity being
sold across a state line, it would be exempt from being prohibited by the
State of New York. It could have also held that the Congress has the prior
power to regulate or prohibit navigation in coastal waters under the Defense
Clause. The carrying of passengers, being a service, would not be commerce,
and irrelevant to the case.

Barron v. Baltimore, 32 U.S. 243 (1833)
Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)

Syllabus
The provision in the Fifth Amendment to the Constitution of the United States declaring that private
property shall not be taken for public use without just compensation is intended solely as a limitation on
the exercise of power by the Government of the United States, and is not applicable to the legislation of
the States.
The Constitution was ordained and established by the people of the United States for themselves, for
their own government, and not for the government of individual States. Each State established a
constitution for itself, and in that constitution provided such limitations and restrictions on the powers of
its particular government as its judgment dictated. The people of the United States framed such a
government for the United States as they supposed best adapted to their situation, and best calculated to
promote their interests. The powers they conferred on this government were to be exercised by itself, and
the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the
government created by the instrument. They are limitations of power granted in the instrument itself, not
of distinct governments framed by different persons and for different purposes.
This case was instituted by the plaintiff in error, against the City of Baltimore, under its corporate title of
"The Mayor and City Council of Baltimore," to recover damages for injuries to the wharf property of the
plaintiff, arising from the acts of the corporation. Craig & Barron, of whom the plaintiff was survivor,
were owners of an extensive and highly productive wharf in the eastern section of Baltimore, enjoying, at
the period of their purchase of it, the deepest water in the harbor. The city, in the asserted exercise of its
corporate authority over the harbor, the paving of streets, and regulating grades for paving, and over the
health of Baltimore, diverted from their accustomed and natural course certain streams of water which
flow from the range of hills bordering the city, and diverted them, partly by adopting new grades of
streets, and partly by the necessary results of paving, and partly by mounds, [p*244] embankments and
other artificial means purposely adapted to bend the course of the water to the wharf in question. These
streams becoming very full and violent in rains, carried down with them from the hills and the soil over
which they ran large masses of sand and earth, which they deposited along, and widely in front of the
wharf of the plaintiff. The alleged consequence was that the water was rendered so shallow that it ceased
to be useful for vessels of an important burden, lost its income, and became of little or no value as a
wharf. This injury was asserted to have been inflicted by a series of ordinances of the corporation,
between the years 1815 and 1821; and that the evil was progressive; and that it was active and increasing
even at the institution of this suit in 1822.
At the trial of the cause in the Baltimore county court, the plaintiff gave evidence tending to prove the
original and natural course of the streams, the various works of the corporation from time to time to turn
them in the direction of this wharf, and the ruinous consequences of these measures to the interests of the
plaintiff. It was not asserted by the defendants, that any compensation for the injury was ever made or
proffered, but they justified under the authority they deduced from the charter of the city, granted by the
legislature of Maryland, and under several acts of the legislature conferring powers on the corporation in
regard to the grading and paving of streets, the regulation of the harbor and its waters, and to the health
of the city. They also denied, that the plaintiff had shown any cause of action in the declaration, asserting
that the injury complained of was a matter of public nuisance, and not of special or individual grievance
in the eye of the law. This latter ground was taken on exception, and was also urged as a reason for a

motion in arrest of judgment. On all points, the decision of Baltimore county court was against the
defendants, and a verdict for $4,500 was rendered for the plaintiff. An appeal was taken to the court of
appeals, which reversed the judgment of Baltimore county court, and did not remand the case to that
court for a further trial. From this judgment, the defendant in the court of appeals prosecuted a writ of
error to this court. [p*245]
The counsel for the plaintiff presented the following points: the plaintiff in error will contend that apart
from the legislative sanctions of the state of Maryland, and the acts of the corporation of Baltimore,
holding out special encouragement and protection to interests in wharves constructed on the shores of the
Patapsco river, and particularly of the wharf erected by Craig and the plaintiff, Barron; the right and
profit of wharfage, and use of the water at the wharf, for the objects of navigation, was a vested interest
and incorporeal hereditament, inviolable even by the state except on just compensation for the privation;
but the act of assembly and the ordinance of the City are relied on as enforcing the claim to the
undisturbed enjoyment of the right.
This right was interfered with, and the benefit of this property taken away from the plaintiff by the
corporation avowedly, as the defence showed, for public use, for an object of public interest -- the benefit
more immediately of the community of Baltimore, the individuals, part of the population of Maryland,
known by the corporate title of the Mayor and City Council of Baltimore. The "inhabitants" of Baltimore
are thus incorporated by the Acts of 1796, ch. 68. As a corporation, they are made liable to be sued, and
authorized to sue, to acquire and hold and dispose of property and, within the scope of the powers
conferred by the charter, are allowed to pass ordinance and legislative acts, which it is declared by the
charter shall have the same effect as acts of assembly, and be operative, provided they be not repugnant
to the laws of the state, or the constitution of the state, or of the United States. The plaintiff will contend
accordingly:
1. That the Mayor and City Council of Baltimore, though viewed even as a municipal corporation, is
liable for tort and actual misfeasance, and that it is a tort, and would be so even in the state, acting in her
immediate sovereignty to deprive a citizen of his property, though for public uses, without
indemnification; that, regarding the corporation as acting with the delegated power of the state, the act
complained of is not the less an actionable tort.
2. That this is the case of an authority exercised under a [p*246]
State, the corporation appealing to the legislative acts of Maryland for the discretional power which it has
exercised.
3. That this exercise of authority was repugnant to the constitution of the United States, contravening the
fifth article of the amendments to the constitution, which declares that "private property shall not be
taken for public use, without just compensation," the plaintiff contending, that this article declares
principles which regulate the legislation of the states for the protection of the people in each and all the
states, regarded as citizens of the United States or as inhabitants subject to the laws of the Union.
4. That under the evidence, prayers, and pleadings in the case, the constitutionality of this authority
exercised under the state must have been drawn in question, and that this court has appellate jurisdiction
of the point, from the judgment of the Court of Appeals of Maryland, the highest court of that state, that
point being the essential ground of the plaintiff's pretention in opposition to the power and discussion of
the corporation.

5. That this court, in such appellate cognisance, is not confined to the establishment of an abstract point
of construction, but is empowered to pass upon the right or title of either party, and may therefore
determine all points incidental or preliminary to the question of title and necessary in the course to that
inquiry; that consequently, the question is for this court's determination whether the declaration avers
actionable matter, or whether the complaint is only of a public nuisance, and on that head, the plaintiff
will contend, that special damage is fully shown here, within the principle of the cases where an
individual injury resulting from a public nuisance is deemed actionable, the wrong being merely public
only so long as the law suffered in the particular case is no more than all members of the community
suffer.
Upon these views, the plaintiff contends that the judgment of the court of appeals ought to be reversed.
[p*247]
Text Version | Commentary by Jon Roland

Syllabus
The provision in the Fifth Amendment to the Constitution of the United

States declaring that private property shall not be taken for public use
without just compensation is intended solely as a limitation on the exercise
of power by the Government of the United States, and is not applicable to
the legislation of the States.
The Constitution was ordained and established by the pBarron v. Mayor & City Council of
Baltimore, 32 U.S. 243 (1833)
Syllabus
The provision in the Fifth Amendment to the Constitution of the United States declaring
that private property shall not be taken for public use without
just compensation is intended solely as a limitation on the exercise of power by the
Government of the United States, and is not applicable to the
legislation of the States.
The Constitution was ordained and established by the people of the United States for
themselves, for their own government, and not for the
government of individual States. Each State established a constitution for itself, and in
that constitution provided such limitations and restrictions on the
powers of its particular government as its judgment dictated. The people of the United
States framed such a government for the United States as they
supposed best adapted to their situation, and best calculated to promote their interests.
The powers they conferred on this government were to be
exercised by itself, and the limitations on power, if expressed in general terms, are
naturally and necessarily applicable to the government created by
the instrument. They are limitations of power granted in the instrument itself, not of
distinct governments framed by different persons and for different
purposes.
This case was instituted by the plaintiff in error, against the City of Baltimore, under
its corporate title of "The Mayor and City Council of Baltimore," to
recover damages for injuries to the wharf property of the plaintiff, arising from the
acts of the corporation. Craig & Barron, of whom the plaintiff was
survivor, were owners of an extensive and highly productive wharf in the eastern section
of Baltimore, enjoying, at the period of their purchase of it, the
deepest water in the harbor. The city, in the asserted exercise of its corporate
authority over the harbor, the paving of streets, and regulating grades for
paving, and over the health of Baltimore, diverted from their accustomed and natural
course certain streams of water which flow from the range of hills
bordering the city, and diverted them, partly by adopting new grades of streets, and
partly by the necessary results of paving, and partly by mounds,
[p*244] embankments and other artificial means purposely adapted to bend the course of
the water to the wharf in question. These streams becoming
very full and violent in rains, carried down with them from the hills and the soil over
which they ran large masses of sand and earth, which they
deposited along, and widely in front of the wharf of the plaintiff. The alleged
consequence was that the water was rendered so shallow that it ceased to
be useful for vessels of an important burden, lost its income, and became of little or no
value as a wharf. This injury was asserted to have been inflicted
by a series of ordinances of the corporation, between the years 1815 and 1821; and that
the evil was progressive; and that it was active and increasing
even at the institution of this suit in 1822.
At the trial of the cause in the Baltimore county court, the plaintiff gave evidence
tending to prove the original and natural course of the streams, the

various works of the corporation from time to time to turn them in the direction of this
wharf, and the ruinous consequences of these measures to the
interests of the plaintiff. It was not asserted by the defendants, that any compensation
for the injury was ever made or proffered, but they justified
under the authority they deduced from the charter of the city, granted by the legislature
of Maryland, and under several acts of the legislature conferring
powers on the corporation in regard to the grading and paving of streets, the regulation
of the harbor and its waters, and to the health of the city. They
also denied, that the plaintiff had shown any cause of action in the declaration,
asserting that the injury complained of was a matter of public nuisance,
and not of special or individual grievance in the eye of the law. This latter ground was
taken on exception, and was also urged as a reason for a motion
in arrest of judgment. On all points, the decision of Baltimore county court was against
the defendants, and a verdict for $4,500 was rendered for the
plaintiff. An appeal was taken to the court of appeals, which reversed the judgment of
Baltimore county court, and did not remand the case to that
court for a further trial. From this judgment, the defendant in the court of appeals
prosecuted a writ of error to this court. [p*245]
The counsel for the plaintiff presented the following points: the plaintiff in error will
contend that apart from the legislative sanctions of the state of
Maryland, and the acts of the corporation of Baltimore, holding out special encouragement
and protection to interests in wharves constructed on the
shores of the Patapsco river, and particularly of the wharf erected by Craig and the
plaintiff, Barron; the right and profit of wharfage, and use of the
water at the wharf, for the objects of navigation, was a vested interest and incorporeal
hereditament, inviolable even by the state except on just
compensation for the privation; but the act of assembly and the ordinance of the City are
relied on as enforcing the claim to the undisturbed enjoyment
of the right.
This right was interfered with, and the benefit of this property taken away from the
plaintiff by the corporation avowedly, as the defence showed, for
public use, for an object of public interest -- the benefit more immediately of the
community of Baltimore, the individuals, part of the population of
Maryland, known by the corporate title of the Mayor and City Council of Baltimore. The
"inhabitants" of Baltimore are thus incorporated by the Acts
of 1796, ch. 68. As a corporation, they are made liable to be sued, and authorized to
sue, to acquire and hold and dispose of property and, within the
scope of the powers conferred by the charter, are allowed to pass ordinance and
legislative acts, which it is declared by the charter shall have the
same effect as acts of assembly, and be operative, provided they be not repugnant to the
laws of the state, or the constitution of the state, or of the
United States. The plaintiff will contend accordingly:
1. That the Mayor and City Council of Baltimore, though viewed even as a
municipal corporation, is liable for tort and actual misfeasance, and that
it is a tort, and would be so even in the state, acting in her immediate
sovereignty to deprive a citizen of his property, though for public uses,
without indemnification; that, regarding the corporation as acting with the
delegated power of the state, the act complained of is not the less an
actionable tort.
State, the corporation appealing to the legislative acts of Maryland for the
discretional power which it has exercised.
3. That this exercise of authority was repugnant to the constitution of the

United States, contravening the fifth article of the amendments to the
constitution, which declares that "private property shall not be taken for

public use, without just compensation," the plaintiff contending, that this
article declares principles which regulate the legislation of the states for
the protection of the people in each and all the states, regarded as
citizens of the United States or as inhabitants subject to the laws of the
Union.
4. That under the evidence, prayers, and pleadings in the case, the
constitutionality of this authority exercised under the state must have been
drawn in question, and that this court has appellate jurisdiction of the
point, from the judgment of the Court of Appeals of Maryland, the highest
court of that state, that point being the essential ground of the
plaintiff's pretention in opposition to the power and discussion of the
corporation.
5. That this court, in such appellate cognisance, is not confined to the

establishment of an abstract point of construction, but is empowered to pass
upon the right or title of either party, and may therefore determine all
points incidental or preliminary to the question of title and necessary in
the course to that inquiry; that consequently, the question is for this
court's determination whether the declaration avers actionable matter, or
whether the complaint is only of a public nuisance, and on that head, the
plaintiff will contend, that special damage is fully shown here, within the
principle of the cases where an individual injury resulting from a public
nuisance is deemed actionable, the wrong being merely public only so long as
the law suffered in the particular case is no more than all members of the
community suffer.
Upon these views, the plaintiff contends that the judgment of the court of
appeals ought to be reversed. [p*247] eople of the United States for
themselves, for their own government, and not for the government of
individual States. Each State established a constitution for itself, and in
that constitution provided such limitations and restrictions on the powers
of its particular government as its judgment dictated. The people of the
United States framed such a government for the United States as they
supposed best adapted to their situation, and best calculated to promote
their interests. The powers they conferred on this government were to be
exercised by itself, and the limitations on power, if expressed in general
terms, are naturally and necessarily applicable to the government created by
the instrument. They are limitations of power granted in the instrument
itself, not of distinct governments framed by different persons and for
different purposes.
This case was instituted by the plaintiff in error, against the City of
Baltimore, under its corporate title of "The Mayor and City Council of
Baltimore," to recover damages for injuries to the wharf property of the
plaintiff, arising from the acts of the corporation. Craig & Barron, of whom
the plaintiff was survivor, were owners of an extensive and highly
productive wharf in the eastern section of Baltimore, enjoying, at the
period of their purchase of it, the deepest water in the harbor. The city,
in the asserted exercise of its corporate authority over the harbor, the
paving of streets, and regulating grades for paving, and over the health of
Baltimore, diverted from their accustomed and natural course certain streams
of water which flow from the range of hills bordering the city, and diverted
them, partly by adopting new grades of streets, and partly by the necessary
results of paving, and partly by mounds, [p*244] embankments and other
artificial means purposely adapted to bend the course of the water to the
wharf in question. These streams becoming very full and violent in rains,
carried down with them from the hills and the soil over which they ran large
masses of sand and earth, which they deposited along, and widely in front of
the wharf of the plaintiff. The alleged consequence was that the water was
rendered so shallow that it ceased to be useful for vessels of an important

burden, lost its income, and became of little or no value as a wharf. This
injury was asserted to have been inflicted by a series of ordinances of the
corporation, between the years 1815 and 1821; and that the evil was
progressive; and that it was active and increasing even at the institution
of this suit in 1822.
At the trial of the cause in the Baltimore county court, the plaintiff gave
evidence tending to prove the original and natural course of the streams,
the various works of the corporation from time to time to turn them in the
direction of this wharf, and the ruinous consequences of these measures to
the interests of the plaintiff. It was not asserted by the defendants, that
any compensation for the injury was ever made or proffered, but they
justified under the authority they deduced from the charter of the city,
granted by the legislature of Maryland, and under several acts of the
legislature conferring powers on the corporation in regard to the grading
and paving of streets, the regulation of the harbor and its waters, and to
the health of the city. They also denied, that the plaintiff had shown any
cause of action in the declaration, asserting that the injury complained of
was a matter of public nuisance, and not of special or individual grievance
in the eye of the law. This latter ground was taken on exception, and was
also urged as a reason for a motion in arrest of judgment. On all points,
the decision of Baltimore county court was against the defendants, and a
verdict for $4,500 was rendered for the plaintiff. An appeal was taken to
the court of appeals, which reversed the judgment of Baltimore county court,
and did not remand the case to that court for a further trial. From this
judgment, the defendant in the court of appeals prosecuted a writ of error
to this court. [p*245]
The counsel for the plaintiff presented the following points: the plaintiff
in error will contend that apart from the legislative sanctions of the state
of Maryland, and the acts of the corporation of Baltimore, holding out
special encouragement and protection to interests in wharves constructed on
the shores of the Patapsco river, and particularly of the wharf erected by
Craig and the plaintiff, Barron; the right and profit of wharfage, and use
of the water at the wharf, for the objects of navigation, was a vested
interest and incorporeal hereditament, inviolable even by the state except
on just compensation for the privation; but the act of assembly and the
ordinance of the City are relied on as enforcing the claim to the
undisturbed enjoyment of the right.
This right was interfered with, and the benefit of this property taken away
from the plaintiff by the corporation avowedly, as the defence showed, for
public use, for an object of public interest -- the benefit more immediately
of the community of Baltimore, the individuals, part of the population of
Maryland, known by the corporate title of the Mayor and City Council of
Baltimore. The "inhabitants" of Baltimore are thus incorporated by the Acts
of 1796, ch. 68. As a corporation, they are made liable to be sued, and
authorized to sue, to acquire and hold and dispose of property and, within
the scope of the powers conferred by the charter, are allowed to pass
ordinance and legislative acts, which it is declared by the charter shall
have the same effect as acts of assembly, and be operative, provided they be
not repugnant to the laws of the state, or the constitution of the state, or
of the United States. The plaintiff will contend accordingly:
1. That the Mayor and City Council of Baltimore, though viewed even as a
municipal corporation, is liable for tort and actual misfeasance, and that
it is a tort, and would be so even in the state, acting in her immediate
sovereignty to deprive a citizen of his property, though for public uses,
without indemnification; that, regarding the corporation as acting with the
delegated power of the state, the act complained of is not the less an
actionable tort.

State, the corporation appealing to the legislative acts of Maryland for the
discretional power which it has exercised.
3. That this exercise of authority was repugnant to the constitution of the

United States, contravening the fifth article of the amendments to the
constitution, which declares that "private property shall not be taken for
public use, without just compensation," the plaintiff contending, that this
article declares principles which regulate the legislation of the states for
the protection of the people in each and all the states, regarded as
citizens of the United States or as inhabitants subject to the laws of the
Union.
4. That under the evidence, prayers, and pleadings in the case, the
constitutionality of this authority exercised under the state must have been
drawn in question, and that this court has appellate jurisdiction of the
point, from the judgment of the Court of Appeals of Maryland, the highest
court of that state, that point being the essential ground of the
plaintiff's pretention in opposition to the power and discussion of the
corporation.
5. That this court, in such appellate cognisance, is not confined to the

establishment of an abstract point of construction, but is empowered to pass
upon the right or title of either party, and may therefore determine all
points incidental or preliminary to the question of title and necessary in
the course to that inquiry; that consequently, the question is for this
court's determination whether the declaration avers actionable matter, or
whether the complaint is only of a public nuisance, and on that head, the
plaintiff will contend, that special damage is fully shown here, within the
principle of the cases where an individual injury resulting from a public
nuisance is deemed actionable, the wrong being merely public only so long as
the law suffered in the particular case is no more than all members of the
community suffer.
Upon these views, the plaintiff contends that the judgment of the court of
appeals ought to be reversed. [p*247]


Opinions
Mr. Chief Justice MARSHALL delivered the opinion of the court.

The judgment brought up by this writ of error having been rendered by the court of a State, this tribunal
can exercise no jurisdiction over it unless it be shown to come within the provisions of the 25th section
of the Judiciary Act. The plaintiff in error contends that it comes within that clause in the Fifth
Amendment to the Constitution which inhibits the taking of private property for public use without just
compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so
construed as to restrain the legislative power of a state, as well as that of the United States. If this
proposition be untrue, the court can take no jurisdiction of the cause.
The question thus presented is, we think, of great importance, but not of much difficulty. The
Constitution was ordained and established by the people of the United States for themselves, for their
own government, and not for the government of the individual States. Each State established a
constitution for itself, and in that constitution provided such limitations and restrictions on the powers of
its particular government as its judgment dictated. The people of the United States framed such a
government for the United States as they supposed best adapted to their situation and best calculated to
promote their interests. The powers they conferred on this government were to be exercised by itself, and
the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable
to the government created by the instrument. They are limitations of power granted in the instrument
itself, not of distinct governments framed by different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood as restraining the power of the
General Government, not as applicable to the States. In their several Constitutions, they have imposed
such restrictions on their respective [p*248] governments, as their own wisdom suggested, such as they
deemed most proper for themselves. It is a subject on which they judge exclusively, and with which
others interfere no further than they are supposed to have a common interest.
The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the
several States against the undue exercise of power by their respective State governments, as well as
against that which might be attempted by their General Government. It support of this argument he relies
on the inhibitions contained in the tenth section of the first article. We think that section affords a strong,
if not a conclusive, argument in support of the opinion already indicated by the court. The preceding
section contains restrictions which are obviously intended for the exclusive purpose of restraining the
exercise of power by the departments of the General Government. Some of them use language applicable
only to Congress, others are expressed in general terms. The third clause, for example, declares, that "no
bill of attainder or ex post facto law shall be passed." No language can be more general, yet the
demonstration is complete that it applies solely to the Government of the United States. In addition to the
general arguments furnished by the instrument itself, some of which have been already suggested, the
succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the
very prohibition. It declares, that "no State shall pass any bill of attainder or ex post facto law." This
provision, then, of the ninth section, however comprehensive its language, contains no restriction on
State legislation.

The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be
imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to
operate on the State legislatures. These restrictions are brought together in the same section, and are by
express words applied to the States. "No State shall enter into any treaty," &c. Perceiving, that in a
constitution framed by the people of the United States, for the government of all, no limitation of the
action of government on [p*249] the people would apply to the State government, unless expressed in
terms, the restrictions contained in the tenth section are in direct words so applied to the States.
It is worthy of remark, too, that these inhibitions generally restrain State legislation on subjects intrusted
to the General Government, or in which the people of all the States feel an interest. A State is forbidden
to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they
interfere with the treaty-making power, which is conferred entirely on the General Government; if with
each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of
the Constitution. To grant letters of marque and reprisal, would lead directly to war, the power of
declaring which is expressly given to Congress. To coin money is also the exercise of a power conferred
on Congress. It would be tedious to recapitulate the several limitations on the powers of the States which
are contained in this section. They will be found generally to restrain State legislation on subjects
intrusted to the government of the Union, in which the citizens of all the States are interested. In these
alone were the whole people concerned. The question of their application to States is not left to
construction. It is averred in positive words.
If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked
line of discrimination between the limitations it imposes on the powers of the General Government and
on those of the State; if, in every inhibition intended to act on State power, words are employed which
directly express that intent; some strong reason must be assigned for departing from this safe and
judicious course in framing the amendments before that departure can be assumed. We search in vain for
that reason.
Had the people of the several States, or any of them, required changes in their Constitutions, had they
required additional safeguards to liberty from the apprehended encroachments of their particular
governments, the remedy was in their own hands, and could have been applied by themselves. A [p*250]
convention could have been assembled by the discontented State, and the required improvements could
have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from
two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to
any human being as a mode of doing that which might be effected by the State itself. Had the framers of
these amendments intended them to be limitations on the powers of the State governments, they would
have imitated the framers of the original Constitution, and have expressed that intention. Had Congress
engaged in the extraordinary occupation of improving the Constitutions of the several States by affording
the people additional protection from the exercise of power by their own governments in matters which
concerned themselves alone, they would have declared this purpose in plain and intelligible language.
But it is universally understood, it is a part of the history of the day, that the great revolution which
established the Constitution of the United States was not effected without immense opposition. Serious
fears were extensively entertained that those powers which the patriot statesmen who then watched over
the interests of our country deemed essential to union, and to the attainment of those invaluable objects
for which union was sought, might be exercised in a manner dangerous to liberty. In almost every
convention by which the Constitution was adopted, amendments to guard against the abuse of power

were recommended. These amendments demanded security against the apprehended encroachments of
the General Government -- not against those of the local governments. In compliance with a sentiment
thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the
required majority in Congress and adopted by the States. These amendments contain no expression
indicating an intention to apply them to the State governments. This court cannot so apply them.
We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private
property shall not be taken for public use without just compensation is intended solely as a limitation on
the exercise of power by the [p*251] Government of the United States, and is not applicable to the
legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts
of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the
court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of
the cause, and it is dismissed.
This cause came on to be heard on the transcript of the record from the Court of Appeals for the Western
Shore of the State of Maryland, and was argued by counsel. On consideration whereof, it is the opinion
of this Court that there is no repugnancy between the several acts of the General Assembly of Maryland
given in evidence by the defendants at the trial of this cause in the court of that State and the Constitution
of the United States; whereupon it is ordered and adjudged by this court that this writ of error be, and the
same is hereby, dismissed for the want of jurisdiction.
Text Version | Commentary by Jon Roland

Opinions
Mr. Chief Justice MARSHALL delivered the opinion of the court.
The judgment brought up by this writ of error having been rendered by the
court of a State, this tribunal can exercise no jurisdiction over it unless
it be shown to come within the provisions of the 25th section of the
Judiciary Act. The plaintiff in error contends that it comes within that
clause in the Fifth Amendment to the Constitution which inhibits the taking
of private property for public use without just compensation. He insists
that this amendment, being in favor of the liberty of the citizen, ought to
be so construed as to restrain the legislative power of a state, as well as
that of the United States. If this proposition be untrue, the court can take
no jurisdiction of the cause.
The question thus presented is, we think, of great importance, but not of
much difficulty. The Constitution was ordained and established by the people
of the United States for themselves, for their own government, and not for
the government of the individual States. Each State established a
constitution for itself, and in that constitution provided such limitations
and restrictions on the powers of its particular government as its judgment
dictated. The people of the United States framed such a government for the
United States as they supposed best adapted to their situation and best
calculated to promote their interests. The powers they conferred on this
government were to be exercised by itself, and the limitations on power, if
expressed in general terms, are naturally, and we think necessarily,
applicable to the government created by the instrument. They are limitations
of power granted in the instrument itself, not of distinct governments
framed by different persons and for different purposes.
If these propositions be correct, the fifth amendment must be understood as

restraining the power of the General Government, not as applicable to the
States. In their several Constitutions, they have imposed such restrictions
on their respective [p*248] governments, as their own wisdom suggested, such
as they deemed most proper for themselves. It is a subject on which they
judge exclusively, and with which others interfere no further than they are
supposed to have a common interest.
The counsel for the plaintiff in error insists that the Constitution was
intended to secure the people of the several States against the undue
exercise of power by their respective State governments, as well as against
that which might be attempted by their General Government. It support of
this argument he relies on the inhibitions contained in the tenth section of
the first article. We think that section affords a strong, if not a
conclusive, argument in support of the opinion already indicated by the
court. The preceding section contains restrictions which are obviously
intended for the exclusive purpose of restraining the exercise of power by
the departments of the General Government. Some of them use language
applicable only to Congress, others are expressed in general terms. The
third clause, for example, declares, that "no bill of attainder or ex post
facto law shall be passed." No language can be more general, yet the
demonstration is complete that it applies solely to the Government of the
United States. In addition to the general arguments furnished by the
instrument itself, some of which have been already suggested, the succeeding
section, the avowed purpose of which is to restrain State legislation,
contains in terms the very prohibition. It declares, that "no State shall
pass any bill of attainder or ex post facto law." This provision, then, of
the ninth section, however comprehensive its language, contains no
restriction on State legislation.

The ninth section having enumerated, in the nature of a bill of rights, the
limitations intended to be imposed on the powers of the General Government,
the tenth proceeds to enumerate those which were to operate on the State
legislatures. These restrictions are brought together in the same section,
and are by express words applied to the States. "No State shall enter into
any treaty," &c. Perceiving, that in a constitution framed by the people of
the United States, for the government of all, no limitation of the action of
government on [p*249] the people would apply to the State government, unless
expressed in terms, the restrictions contained in the tenth section are in
direct words so applied to the States.
It is worthy of remark, too, that these inhibitions generally restrain State

legislation on subjects intrusted to the General Government, or in which the
people of all the States feel an interest. A State is forbidden to enter
into any treaty, alliance or confederation. If these compacts are with
foreign nations, they interfere with the treaty-making power, which is
conferred entirely on the General Government; if with each other, for
political purposes, they can scarcely fail to interfere with the general
purpose and intent of the Constitution. To grant letters of marque and
reprisal, would lead directly to war, the power of declaring which is
expressly given to Congress. To coin money is also the exercise of a power
conferred on Congress. It would be tedious to recapitulate the several
limitations on the powers of the States which are contained in this section.
They will be found generally to restrain State legislation on subjects
intrusted to the government of the Union, in which the citizens of all the
States are interested. In these alone were the whole people concerned. The
question of their application to States is not left to construction. It is
averred in positive words.
If the original Constitution, in the ninth and tenth sections of the first
article, draws this plain and marked line of discrimination between the
limitations it imposes on the powers of the General Government and on those
of the State; if, in every inhibition intended to act on State power, words
are employed which directly express that intent; some strong reason must be
assigned for departing from this safe and judicious course in framing the
amendments before that departure can be assumed. We search in vain for that
reason.
Had the people of the several States, or any of them, required changes in
their Constitutions, had they required additional safeguards to liberty from
the apprehended encroachments of their particular governments, the remedy
was in their own hands, and could have been applied by themselves. A [p*250]
convention could have been assembled by the discontented State, and the
required improvements could have been made by itself. The unwieldy and
cumbrous machinery of procuring a recommendation from two-thirds of Congress
and the assent of three-fourths of their sister States could never have
occurred to any human being as a mode of doing that which might be effected
by the State itself. Had the framers of these amendments intended them to be
limitations on the powers of the State governments, they would have imitated
the framers of the original Constitution, and have expressed that intention.
Had Congress engaged in the extraordinary occupation of improving the
Constitutions of the several States by affording the people additional
protection from the exercise of power by their own governments in matters
which concerned themselves alone, they would have declared this purpose in
plain and intelligible language.
But it is universally understood, it is a part of the history of the day,

that the great revolution which established the Constitution of the United
States was not effected without immense opposition. Serious fears were
extensively entertained that those powers which the patriot statesmen who

then watched over the interests of our country deemed essential to union,
and to the attainment of those invaluable objects for which union was
sought, might be exercised in a manner dangerous to liberty. In almost every
convention by which the Constitution was adopted, amendments to guard
against the abuse of power were recommended. These amendments demanded
security against the apprehended encroachments of the General Government --
not against those of the local governments. In compliance with a sentiment
thus generally expressed, to quiet fears thus extensively entertained,
amendments were proposed by the required majority in Congress and adopted by
the States. These amendments contain no expression indicating an intention
to apply them to the State governments. This court cannot so apply them.
We are of opinion that the provision in the Fifth Amendment to the

Constitution declaring that private property shall not be taken for public
use without just compensation is intended solely as a limitation on the
exercise of power by the [p*251] Government of the United States, and is not
applicable to the legislation of the States. We are therefore of opinion
that there is no repugnancy between the several acts of the general assembly
of Maryland, given in evidence by the defendants at the trial of this cause,
in the court of that State, and the Constitution of the United States. This
court, therefore, has no jurisdiction of the cause, and it is dismissed.
This cause came on to be heard on the transcript of the record from the
Court of Appeals for the Western Shore of the State of Maryland, and was
argued by counsel. On consideration whereof, it is the opinion of this Court
that there is no repugnancy between the several acts of the General Assembly
of Maryland given in evidence by the defendants at the trial of this cause
in the court of that State and the Constitution of the United States;
whereupon it is ordered and adjudged by this court that this writ of error
be, and the same is hereby, dismissed for the want of jurisdiction.


This is the case that is taken as precedent for the doctrine that the provisions of the Bill of Rights are only
restrictions on the powers of the national government, and not on the states. Although this doctrine is
considered settled law within the judicial establishment, it is challenged by many constitutional scholars.
There are several arguments for this doctrine. The first is that the provisions of the Bill of Rights are
intrinsically only restrictions on the national government, and not on the states, if not in the words then in
the debates that took place during the drafting and ratification of them. This line of argument cites the
language of the First Amendment that "Congress shall make no law..." and the fact that Madison had
proposed more general language that would have applied to the states and that the First Congress, which
drafted and proposed the Bill of Rights, based on a first draft provided by Madison, rejected Madison's
language in favor of the language which restricts only "Congress". The opponents of this argument point
out that the remaining provisions of the Bill of Rights contain no such language, but are written with no
qualification on them to restrict the restriction to either Congress or the states, and that by the rules of
construction inherited from the English common law tradition, would therefore apply to all levels of
government. Critics also point out that since each of the provisions of the Bill of Rights were proposed as
separate amendments, to be debated and ratified separately, and indeed, two of the proposed articles were
not ratified at the time, and one of them, the second in the proposed twelve, was not ratified until after
the passage of over 200 years, as the 27th Amendment in 1992. Therefore, more restrictive language in
what became the First Amendment could have no bearing on the coverage of the restrictions contained in
the remaining amendments.
If we examine the debate in the First Congress more closely, however, it seems clear that the restriction
to "Congress" in the article that was to become the First Amendment (when proposed, it was the third)
was only intended as a prudential tactic to avoid opposition to its ratification from the many states that
then had "establishments of religion", mainly in the form of taxes that were more or less fairly distributed
to at least churches of most protestant denominations in the state. Within a few years after adoption of
the Bill of Rights on December 17, 1791, every state that had "established" religion had either adopted
their own constitutional amendments disestablishing religion, or simply discontinued the practice. But
the language of the First Amendment remained.
This raises a debate concerning the nature of the Bill of Rights. Are they positive law, restrictions on the
powers of government, either just federal, or on both federal and state, which would not exist if they
were repealed; or are they recognitions of fundamental rights that pre-exist government at all levels. The
semantic difference is critical, because of the language of Art. III, Sec. 2, that "The judicial Power shall
extend to all cases, in Law and Equity, arising under this Constitution, ..." If the provisions of the Bill of
Rights are only positive law, then their repeal would remove them from "arising under this Constitution"
and therefrom the jurisdiction of the federal courts, and the restriction of the First to "Congress" would
deprive the federal courts of jurisdiction over violations by Congress and not by the states. If they are
fundamental and pre-existing, then they would fall within the Equity jurisdiction of the federal courts,
and the federal courts would have at least appellate jurisdiction over state cases in which the issue is a
violation of a right of an person by a state.
The theory of government under which the Constitution was developed is the theory of natural law. This

theory supports the doctrine that certain rights are fundamental and pre-exist government, either natural
rights arising from the primal "state of nature", or civil rights arising from the "social contract", but
before the society thus created established a government for itself. That is not to say that the rights
recognized in the Bill of Rights are all natural rights, but they are instrumental rights to natural rights,
which arise out of the social contract and the common law tradition of government leading up to the
Constitution, nonconflicting parts of which were incorporated into it, which we classify as "civil". But
one of the tenets of this theory is that all natural and civil rights are necessarily also constitutional rights,
whether explicitly recognized or not. Of course, constitutional rights can also include rights, such as the
right of citizenship, that only make sense in the context of a constitutional order, and that we therefore
say arise from a constitution proper, and not from nature or the social contract that precede it.
The main implication of this doctrine is that the federal courts have either original or appellate
jurisdiction over cases involving violations of constitutional rights by an official or agent of government
at any level, regardless of whether the rights are explicitly protected.
In the debates that led to the adoption of the Bill of Rights, Madison and other proponents asserted that
the rights mentioned in the Bill of Rights did indeed represent rights more fundamental than the
government being established by the Constitution, and that the language of the Bill of Rights did not add
anything to the Constitution that was not implicit in the lack of powers delegated in that Constitution to
restrict these rights. These comments are important, if only because they provide guidance on how the
delegations of powers were to be interpreted.
The argument made by Justice Marshall in his dictum in Barron is that the Constitution established only
the federal government, and therefore any recognition of rights it might provide were only against that
government. This argument implicitly denies that the rights are fundamental and pre-existing, and offers
as evidence that most of these rights were not recognized by the states that participated in the formation
of the union. The reply that may be made to this argument is that the failure of previous state
governments to recognize these rights is not evidence that the rights are not fundamental. The fact that
they had not yet been fully recognized does not mean that they didn't pre-exist or were not fundamental,
any more than that the law of gravity did not exist before Newton discovered it. Moreover, it is not
strictly true that the federal Constitution established only the national government. It also implicitly
re-established the existing state governments on a new foundation, and although they might continue
operating under their previous state constitutional documents, in fact those were no longer the same
constitutions, and not just amended by the conventions that ratified the federal Constitution.
For the sake of complete accuracy, it should be mentioned that the Bill of Rights does contain one
element of positive law: the twenty-dollar rule of the Seventh Amendment. However, at the time "dollar"
was a coin, the Spanish taler, containing 416 grains of silver of standard purity, so 20 such coins would
represent about $92 in federal reserve notes at the prevailing prices of silver during March, 1999.
The best argument in support for Marshall's ruling in this case is that, while the state courts are bound to
enforce the provisions of the Bill of Rights, the federal courts, including the Supreme Court, lack
appellate jurisdiction, because it would be a case between a citizen and his state, and that is not one of the
cases enumerated in Art. III Sec. 2 as within the judicial power, that is, the jurisdiction, of the federal
courts, which specifically enumerates cases between a state and a citizen of another state (later repealed
by the 11th Amendment) and citizens of different states, but not between a citizen and his own state, or
two citizens of the same state. The validity of this argument depends on the provisions of the Bill of

Rights not providing a basis for cases "arising under this Constitution" even though they are between a
citizen and his state. By this argument, since the provisions of the Bill of Rights are only rights against
the actions of government, they would not provide a basis for federal jurisdiction of cases between
citizens of the same state.
In short, state courts are bound to enforce the provisions of the Bill of Rights, but if they fail to do so, the
federal courts, lacking jurisdiction, can provide no remedy.
The problem with precedents is that they tend to become misconstrued themselves. What has happened
since Barron is that the opinion that the federal courts lack jurisdiction to decide cases if the state courts
fail to do their duty to enforce the provisions of the Constitution and the Bill of Rights has been
transformed into the doctrine that the provisions of the Bill of Rights are intrinsically only restrictions on
the national government, and that therefore state courts are not obliged to comply with them, and states
may violate their provisions.
But what about the other restrictions on the states contained in the Constitution, specifically Art. I Sec.
10 and Art. IV.? If these provisions are beyond the jurisdiction of the federal courts, then why did the
federal courts accept jurisdiction of cases involving them, or cases which decided that delegated powers
like the power to regulate commerce among the states was an exclusive delegation to Congress and
denied to the states? Or violations of the prohibitions against ex post facto laws or bills of attainder? By
the plain language of all of the articles of the Bill of Rights except the First, their restrictions are general,
not limited to Congress or the states. Grammatically, there is no difference between those articles and the
other provisions in the Constitution which restrict the states and over which the federal courts accepted
jurisdiction.
One can make the case that federal jurisdiction over a case of civil rights should not be accepted until
after the citizen has exhausted all civil remedies his state provides, which would usually mean that he has
appealed to his state's supreme court and either lost or had the case denied certiorari. But there is a lack
of basis for denying that it can accept jurisdiction thereafter on the basis that the provisions of the Bill of
Rights do not establish a basis for cases "arising under this Constitution", unless jurisdiction is similarly
denied for the restrictions on the states in Art. I Sec. 10 and Art. IV.
The decision in Barron cannot be fully understood without considering the political pressures on the
Marshall court, because it made political decisions. In 1833 there was increasing dissent over usurpations
of power by the federal government, leading to arguments like those of John C. Calhoun advocating the
doctrines of concurrent majority, interposition, nullification and state secession, to correct what he
perceived as a defect in the design of the Constitution that permits a persistent majority to dominate all
three branches of government and legislate against the interests of a minority to the point where they
would consider their rights violated. Ironically, the acceptance of jurisdiction by the federal courts in
cases of civil rights were perceived as further usurpation, particularly because they would have laid the
basis for the judicial emancipation of slaves. Therefore, we can see Barron as a decision like that of Dred
Scott, intended to avoid a rupture among the states. At the time the rights recognized in the Bill of Rights
were being violated by state courts in the slave states, which is what laid the basis for the 14th
Amendment following the Civil War. We can see Barron as an attempt to evade a confrontation.
The decision in Barron can also be viewed in the light of the 14th Amendment, which added an
additional set of restrictions on the states: "No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws." Although the 14th also added language delegating the power to Congress
"to enforce, by appropriate legislation, the provisions of this article", it did not, grammatically, explicitly
add to the jurisdiction of the federal courts, yet it has been interpreted to have done just that, even though
the original Constitution provided in Art. I Sec. 8 Cl. 18 "To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution
in the Government of the United States", which certainly applied to the provisions of the Bill of Rights
after they were adopted and became part of the Constitution. What is interesting about this, however, has
been that the Supreme Court has not extended the protection of all the provisions of the Bill of Rights to
the states, but has followed a doctrine of "selective incorporation", enforcing all or parts of the First,
Fourth, Fifth, Sixth and Eighth Amendments, but not the Second, Third, Seventh, Ninth, or Tenth
Amendments, or part of the Fifth. The inconsistency of this selection is grammatically indefensible, and
is a continuing source of constitutional difficulty.
There is a open question, however, concerning whether the 14th Amendment was properly ratified. If it
were to be found not to have been ratified, but the decision in Barron was overturned to extend federal
appellate jurisdiction to cases in which individuals claimed the protection of the Bill of Rights against a
state government, where would that leave us, particularly regarding the First Amendment, the language
of which clearly applies only to the national Congress? The answer is that Congress would lose its power
to legislate to protect civil rights against infringement by a state, but federal court jurisdiction would
cover all the same cases, and the protections of the First Amendment can be found in the Ninth and Tenth
Amendments, which if applied to the states would eliminate a great deal that is not authorized by their
constitutions. Having more than one way to overturn unconstitutional state action could be a good thing.
Barron was wrongly decided, and needs to be overturned. Federal courts should not accept jurisdiction of
state civil rights cases unless or until all recourse within the state courts has been exhausted, but it should
accept jurisdiction over appropriate cases involving any of the rights recognized in the Bill of Rights
after that has occurred, and extend all of those protections to cases between a citizen and his state.
Especially important are the protections of the Second Amendment, the right to a grand jury of the Fifth,
and the right not to have state officials or their agents exercise undelegated powers.
Text Version

This is the case that is taken as precedent for the doctrine that the
provisions of the Bill of Rights are only restrictions on the powers of the
national government, and not on the states. Although this doctrine is
considered settled law within the judicial establishment, it is challenged
by many constitutional scholars.
There are several arguments for this doctrine. The first is that the
provisions of the Bill of Rights are intrinsically only restrictions on the
national government, and not on the states, if not in the words then in the
debates that took place during the drafting and ratification of them. This
line of argument cites the language of the First Amendment that "Congress
shall make no law..." and the fact that Madison had proposed more general
language that would have applied to the states and that the First Congress,
which drafted and proposed the Bill of Rights, based on a first draft
provided by Madison, rejected Madison's language in favor of the language
which restricts only "Congress". The opponents of this argument point out
that the remaining provisions of the Bill of Rights contain no such
language, but are written with no qualification on them to restrict the
restriction to either Congress or the states, and that by the rules of
construction inherited from the English common law tradition, would
therefore apply to all levels of government. Critics also point out that
since each of the provisions of the Bill of Rights were proposed as separate
amendments, to be debated and ratified separately, and indeed, two of the
proposed articles were not ratified at the time, and one of them, the second
in the proposed twelve, was not ratified until after the passage of over 200
years, as the 27th Amendment in 1992. Therefore, more restrictive language
in what became the First Amendment could have no bearing on the coverage of
the restrictions contained in the remaining amendments.
If we examine the debate in the First Congress more closely, however, it

seems clear that the restriction to "Congress" in the article that was
to become the First Amendment (when proposed, it was the third) was only
intended as a prudential tactic to avoid opposition to its ratification
from the many states that then had "establishments of religion", mainly
in the form of taxes that were more or less fairly distributed to at
least churches of most protestant denominations in the state. Within a
few years after adoption of the Bill of Rights on December 17, 1791,
every state that had "established" religion had either adopted their own
constitutional amendments disestablishing religion, or simply
discontinued the practice. But the language of the First Amendment
remained.
This raises a debate concerning the nature of the Bill of Rights. Are they
positive law, restrictions on the powers of government, either just federal,
or on both federal and state, which would not exist if they were repealed;
or are they recognitions of fundamental rights that pre-exist government at
all levels. The semantic difference is critical, because of the language of
Art. III, Sec. 2, that "The judicial Power shall extend to all cases, in Law
and Equity, arising under this Constitution, ..." If the provisions of the
Bill of Rights are only positive law, then their repeal would remove them
from "arising under this Constitution" and therefrom the jurisdiction of the
federal courts, and the restriction of the First to "Congress" would deprive
the federal courts of jurisdiction over violations by Congress and not by
the states. If they are fundamental and pre-existing, then they would fall
within the Equity jurisdiction of the federal courts, and the federal courts
would have at least appellate jurisdiction over state cases in which the
issue is a violation of a right of an person by a state.

The theory of government under which the Constitution was developed is the
theory of natural law. This theory supports the doctrine that certain rights
are fundamental and pre-exist government, either natural rights arising from
the primal "state of nature", or civil rights arising from the "social
contract", but before the society thus created established a government for
itself. That is not to say that the rights recognized in the Bill of Rights
are all natural rights, but they are instrumental rights to natural rights,
which arise out of the social contract and the common law tradition of
government leading up to the Constitution, nonconflicting parts of which
were incorporated into it, which we classify as "civil". But one of the
tenets of this theory is that all natural and civil rights are necessarily
also constitutional rights, whether explicitly recognized or not. Of course,
constitutional rights can also include rights, such as the right of
citizenship, that only make sense in the context of a constitutional order,
and that we therefore say arise from a constitution proper, and not from
nature or the social contract that precede it.
The main implication of this doctrine is that the federal courts have either
original or appellate jurisdiction over cases involving violations of
constitutional rights by an official or agent of government at any level,
regardless of whether the rights are explicitly protected.
In the debates that led to the adoption of the Bill of Rights, Madison and
other proponents asserted that the rights mentioned in the Bill of Rights
did indeed represent rights more fundamental than the government being
established by the Constitution, and that the language of the Bill of Rights
did not add anything to the Constitution that was not implicit in the lack
of powers delegated in that Constitution to restrict these rights. These
comments are important, if only because they provide guidance on how the
delegations of powers were to be interpreted.
The argument made by Justice Marshall in his dictum in Barron is that the
Constitution established only the federal government, and therefore any
recognition of rights it might provide were only against that government.
This argument implicitly denies that the rights are fundamental and
pre-existing, and offers as evidence that most of these rights were not
recognized by the states that participated in the formation of the union.
The reply that may be made to this argument is that the failure of previous
state governments to recognize these rights is not evidence that the rights
are not fundamental. The fact that they had not yet been fully recognized
does not mean that they didn't pre-exist or were not fundamental, any more
than that the law of gravity did not exist before Newton discovered it.
Moreover, it is not strictly true that the federal Constitution established
only the national government. It also implicitly re-established the existing
state governments on a new foundation, and although they might continue
operating under their previous state constitutional documents, in fact those
were no longer the same constitutions, and not just amended by the
conventions that ratified the federal Constitution.
For the sake of complete accuracy, it should be mentioned that the Bill of
Rights does contain one element of positive law: the twenty-dollar rule of
the Seventh Amendment. However, at the time "dollar" was a coin, the Spanish
taler, containing 416 grains of silver of standard purity, so 20 such coins
would represent about $92 in federal reserve notes at the prevailing prices
of silver during March, 1999.
The best argument in support for Marshall's ruling in this case is that,
while the state courts are bound to enforce the provisions of the Bill of
Rights, the federal courts, including the Supreme Court, lack appellate
jurisdiction, because it would be a case between a citizen and his state,

and that is not one of the cases enumerated in Art. III Sec. 2 as within the
judicial power, that is, the jurisdiction, of the federal courts, which
specifically enumerates cases between a state and a citizen of another state
(later repealed by the 11th Amendment) and citizens of different states, but
not between a citizen and his own state, or two citizens of the same state.
The validity of this argument depends on the provisions of the Bill of
Rights not providing a basis for cases "arising under this Constitution"
even though they are between a citizen and his state. By this argument,
since the provisions of the Bill of Rights are only rights against the
actions of government, they would not provide a basis for federal
jurisdiction of cases between citizens of the same state.
In short, state courts are bound to enforce the provisions of the Bill of
Rights, but if they fail to do so, the federal courts, lacking jurisdiction,
can provide no remedy.
The problem with precedents is that they tend to become misconstrued

themselves. What has happened since Barron is that the opinion that the
federal courts lack jurisdiction to decide cases if the state courts fail to
do their duty to enforce the provisions of the Constitution and the Bill of
Rights has been transformed into the doctrine that the provisions of the
Bill of Rights are intrinsically only restrictions on the national
government, and that therefore state courts are not obliged to comply with
them, and states may violate their provisions.
But what about the other restrictions on the states contained in the
Constitution, specifically Art. I Sec. 10 and Art. IV.? If these provisions
are beyond the jurisdiction of the federal courts, then why did the federal
courts accept jurisdiction of cases involving them, or cases which decided
that delegated powers like the power to regulate commerce among the states
was an exclusive delegation to Congress and denied to the states? Or
violations of the prohibitions against ex post facto laws or bills of
attainder? By the plain language of all of the articles of the Bill of
Rights except the First, their restrictions are general, not limited to
Congress or the states. Grammatically, there is no difference between those
articles and the other provisions in the Constitution which restrict the
states and over which the federal courts accepted jurisdiction.
One can make the case that federal jurisdiction over a case of civil
rights should not be accepted until after the citizen has exhausted all
civil remedies his state provides, which would usually mean that he has
appealed to his state's supreme court and either lost or had the case
denied certiorari. But there is a lack of basis for denying that it can
accept jurisdiction thereafter on the basis that the provisions of the
Bill of Rights do not establish a basis for cases "arising under this
Constitution", unless jurisdiction is similarly denied for the
restrictions on the states in Art. I Sec. 10 and Art. IV.
The decision in Barron cannot be fully understood without considering the

political pressures on the Marshall court, because it made political
decisions. In 1833 there was increasing dissent over usurpations of power by
the federal government, leading to arguments like those of John C. Calhoun
advocating the doctrines of concurrent majority, interposition,
nullification and state secession, to correct what he perceived as a defect
in the design of the Constitution that permits a persistent majority to
dominate all three branches of government and legislate against the
interests of a minority to the point where they would consider their rights
violated. Ironically, the acceptance of jurisdiction by the federal courts
in cases of civil rights were perceived as further usurpation, particularly
because they would have laid the basis for the judicial emancipation of
slaves. Therefore, we can see Barron as a decision like that of Dred Scott,

intended to avoid a rupture among the states. At the time the rights
recognized in the Bill of Rights were being violated by state courts in the
slave states, which is what laid the basis for the 14th Amendment following
the Civil War. We can see Barron as an attempt to evade a confrontation.
The decision in Barron can also be viewed in the light of the 14th
Amendment, which added an additional set of restrictions on the states: "No
State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of the laws."
Although the 14th also added language delegating the power to Congress "to
enforce, by appropriate legislation, the provisions of this article", it did
not, grammatically, explicitly add to the jurisdiction of the federal
courts, yet it has been interpreted to have done just that, even though the
original Constitution provided in Art. I Sec. 8 Cl. 18 "To make all Laws
which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States", which certainly applied to the provisions
of the Bill of Rights after they were adopted and became part of the
Constitution. What is interesting about this, however, has been that the
Supreme Court has not extended the protection of all the provisions of the
Bill of Rights to the states, but has followed a doctrine of "selective
incorporation", enforcing all or parts of the First, Fourth, Fifth, Sixth
and Eighth Amendments, but not the Second, Third, Seventh, Ninth, or Tenth
Amendments, or part of the Fifth. The inconsistency of this selection is
grammatically indefensible, and is a continuing source of constitutional
difficulty.
There is a open question, however, concerning whether the 14th Amendment was
properly ratified. If it were to be found not to have been ratified, but the
decision in Barron was overturned to extend federal appellate jurisdiction
to cases in which individuals claimed the protection of the Bill of Rights
against a state government, where would that leave us, particularly
regarding the First Amendment, the language of which clearly applies only to
the national Congress? The answer is that Congress would lose its power to
legislate to protect civil rights against infringement by a state, but
federal court jurisdiction would cover all the same cases, and the
protections of the First Amendment can be found in the Ninth and Tenth
Amendments, which if applied to the states would eliminate a great deal that
is not authorized by their constitutions. Having more than one way to
overturn unconstitutional state action could be a good thing.
Barron was wrongly decided, and needs to be overturned. Federal courts

should not accept jurisdiction of state civil rights cases unless or until
all recourse within the state courts has been exhausted, but it should
accept jurisdiction over appropriate cases involving any of the rights
recognized in the Bill of Rights after that has occurred, and extend all of
those protections to cases between a citizen and his state. Especially
important are the protections of the Second Amendment, the right to a grand
jury of the Fifth, and the right not to have state officials or their agents
exercise undelegated powers.

Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868)
U.S. Supreme Court

EX PARTE MCCARDLE, 74 U.S. 506 (Wall.) (1868)
December Term, 1868
[74 U.S. 506, 507] APPEAL from the Circuit Court for the Southern District of Mississippi.
The case was this:

The Constitution of the United States ordains as follows:
'1. The judicial power of the United States shall be vested in one Supreme Court, and in
such inferior courts as the Congress may from time to time ordain and establish.'
'2. The judicial power shall extend to all cases in law or equity arising under this
Constitution, the laws of the United States,' &c.;
And in these last cases the Constitution ordains that,
'The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such
exceptions, and under such regulations, as the Congress shall make.'
With these constitutional provisions in existence, Congress, on the 5th February, 1867, by 'An act to
amend an act to establish the judicial courts of the United States, approved September 24, 1789,'
provided that the several courts of the United States, and the several justices and judges of such courts,
within their respective jurisdiction, in addition to the authority already conferred by law, should have
power to grant writs of habeas corpus in all cases where any person may be restrained of his or her
liberty in violation of the Constitution, or of any treaty or law of the United States. And that, from the
final decision of any judge, justice, or court inferior to the Circuit Court, appeal might be taken to the
Circuit Court of the United States for the district in which the cause was heard, and from the judgment of
the said Circuit Court to the Supreme Court of the United States.
This statute being in force, one McCardle, alleging unlawful restraint by military force, preferred a
petition in the court below, for the writ of habeas corpus. [74 U.S. 506, 508] The writ was issued, and a
return was made by the military commander, admitting the restraint, but denying that it was unlawful.
It appeared that the petitioner was not in the military service of the United States, but was held in custody
by military authority for trial before a military commission, upon charges founded upon the publication
of articles alleged to be incendiary and libellous, in a newspaper of which he was editor. The custody was
alleged to be under the authority of certain acts of Congress.
Upon the hearing, the petitioner was remanded to the military custody; but, upon his prayer, an appeal
was allowed him to this court, and upon filing the usual appealbond, for costs, he was admitted to bail
upon recognizance, with sureties, conditioned for his future appearance in the Circuit Court, to abide by
and perform the final judgment of this court. The appeal was taken under the above-mentioned act of
February 5, 1867.
A motion to dismiss this appeal was made at the last term, and, after argument, was denied.[1]

Subsequently, on the 2d, 3d, 4th, and 9th March, the case was argued very thoroughly and ably upon the
merits, and was taken under advisement. While it was thus held, and before conference in regard to the
decision proper to be made, an act was passed by Congress,[2] returned with objections by the President,
and, on the 27th March, repassed by the constitutional majority, the second section of which was as
follows:
'And be it further enacted, That so much of the act approved February 5, 1867, entitled 'An
act to amend an act to establish the judicial courts of the United States, approved September
24, 1789,' as authorized an appeal from the judgment of the Circuit Court to the Supreme
Court of the United States, or the exercise of any such jurisdiction by said Supreme Court,
on appeals which have been, or may hereafter be taken, be, and the same is hereby repealed.'
[74 U.S. 506, 509] The attention of the court was directed to this statute at the last term, but
counsel having expressed a desire to be heard in argument upon its effect, and the Chief
Justice being detained from his place here, by his duties in the Court of Impeachment, the
cause was continued under advisement. Argument was now heard upon the effect of the
repealing act.
Mr. Sharkey, for the appellant:
The prisoner alleged an illegal imprisonment. The imprisonment was justified under certain acts of
Congress. The question then presents a case arising under 'the laws of the United States;' and by the very
words of the Constitution the judicial power of the United States extends to it. By words of the
Constitution, equally plain, that judicial power is vested in one Supreme Court. This court, then, has its
jurisdiction directly from the Constitution, nor from Congress. The jurisdiction being vested by the
Constitution alone, Congress cannot abridge or take it away. The argument which would look to
Congressional legislation as a necessity to enable this court to exercise 'the judicial power' (any and
every judicial power) 'of the United States,' renders a power, expressly given by the Constitution, liable
to be made of no effect by the inaction of Congress. Suppose that Congress never made any exceptions
or any regulations in the matter. What, under a supposition that Congress must define when, and where,
and how, the Supreme Court shall exercise it, becomes of this 'judicial power of the United States,' so
expressly, by the Constitution, given to this court? It would cease to exist. But this court is coexistent and
co-ordinate with Congress, and must be able to exercise the whole judicial power of the United States,
though Congress passed no act on the subject. The Judiciary Act of 1789 has been frequently changed.
Suppose it were repealed. Would the court lose, wholly or at all, the power to pass on every case to
which the judicial power of the United States extended? This act of March 27th, 1868, does take away
the whole appellate power of [74 U.S. 506, 510] this court in cases of habeas corpus. Can such results be
produced? We submit that they cannot, and this court, then, we further submit, may still go on and
pronounce judgment on the merits, as it would have done, had not the act of 27th March been passed.
But however these general positions may be, the case may be rested on more special grounds. This case
had been argued in this court, fully. Passing then from the domain of the bar, it was delivered into the
sacred hands of the judges; and was in the custody of the court. For aught that was known by Congress, it
was passed upon the decided by them. Then comes, on the 27th of March, this act of Congress. Its
language is general, but, as was universally known, its purpose was specific. If Congress had specifically
enacted 'that the Supreme Court of the United States shall never publicly give judgment in the case of
McCardle, already argued, and on which we anticipate that it will soon deliver judgment, contrary to the
views of the majority in Congress, of what it ought to decide,' its purpose to interfere specifically with

and prevent the judgment in this very case would not have been more real or, as a fact, more universally
known.
Now, can Congress thus interfere with cases on which this high tribunal has passed, or is passing,
judgment? Is not legislation like this an exercise by the Congress of judicial power? Lanier v. Gallatas[3]
is much in point. There a motion was made to dismiss an appeal, because by law the return day was the
4th Monday in February, while in the case before the court the transcript had been filed before that time.
On the 15th of March, and while the case was under advisement, the legislature passed an act making the
20th of March a return day for the case; and a motion was now made to reinstate the case and hear it. The
court say:
'The case had been submitted to us before the passage of that act, and was beyond the
legislative control. Our respect for the [74 U.S. 506, 511] General Assembly and Executive
forbids the inference that they intended to instruct this court what to do or not to do whilst
passing on the legal rights of parties in a special case already under advisement. The utmost
that we can suppose is,' &c.;
In De Chastellux v. Fairchild,[4] the legislature of Pennsylvania directed that a new trial should be
granted in a case already decided. Gibson, C. J., in behalf of the court, resented the interference strongly.
He said:
'It has become the duty of the court to temporize no longer. The power to order new trials is
judicial. But the power of the legislature is not judicial.'
In The State v. Fleming,[5] where the legislature of Tennessee directed two persons under indictment to
be discharged, the Supreme Court of the State, declaring that 'the legislature has no power to interfere
with the administration of justice in the courts,' treated the direction as void. In Lewis v. Webb,[6] the
Supreme Court of Maine declare that the legislature cannot dispense with any general law in favor of a
particular case.
Messrs L. Trumbull and M. H. Carpenter, contra:
1. The Constitution gives to this court appellate jurisdiction in any case like the present one was, only
with such exceptions and under such regulations as Congress makes.
2. It is clear, then, that this court had no jurisdiction of this proceeding – an appeal from the Circuit Court
– except under the act of February 5th, 1867; and so this court held on the motion to dismiss made by us
at the last term.[7]
3. The act conferring the jurisdiction having been repealed, the jurisdiction ceased; and the court had
thereafter no authority to pronounce any opinion or render any judgment in this cause. No court can do
any act in any case, without jurisdiction of the subject-matter. It can make no difference at what point, in
the progress of a cause, the [74 U.S. 506, 512] jurisdiction ceases. After it has ceased, no judicial act can be
performed. In Insurance Company v. Ritchie,[8] the Chief Justice, delivering the opinion of the court,
says:
'It is clear, that when the jurisdiction of a cause depends upon the statute, the repeal of the
statute takes away the jurisdiction.'

And in that case the repealing statute, which was passed during the pendency of the cause, was held to
deprive the court of all further jurisdiction. The causes which were pending in this court against States,
were all dismissed by the amendment of the Constitution denying the jurisdiction; and no further
proceedings were had in those causes.[9] In Norris v. Crocker,[10] this court affirmed and acted upon the
same principle; and the exhaustive argument of the present Chief Justice, then at the bar, reported in that
case, and the numerous authorities there cited, render any further argument or citation of cases
unnecessary.[11]
4. The assumption that the act of March, 1868, was aimed specially at this case, is gratuitous and
unwarrantable. Certainly the language of the act embraces all cases in all time; and its effect is just as
broad as its language.
The question of merits cannot now, therefore, be passed upon. The case must fall.
The CHIEFJUSTICE delivered the opinion of the court.
The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the
jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any
discussion of other questions.
It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court
is not derived from acts of Congress. It is, strictly speaking, conferred [74 U.S. 506, 513] by the
Constitution. But it is conferred 'with such exceptions and under such regulations as Congress shall
make.'
It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court
might not have exercised general appellate jurisdiction under rules prescribed by itself. For among the
earliest acts of the first Congress, at its first session, was the act of September 24th, 1789, to establish the
judicial courts of the United States. That act provided for the organization of this court, and prescribed
regulations for the exercise of its jurisdiction.
The source of that jurisdiction, and the limitations of it by the Constitution and by statute, have been on
several occasions subjects of consideration here. In the case of Durousseau v. The United States,[12]
particularly, the whole matter was carefully examined, and the court held, that while 'the appellate
powers of this court are not given by the judicial act, but are given by the Constitution,' they are,
nevertheless, 'limited and regulated by that act, and by such other acts as have been passed on the
subject.' The court said, further, that the judicial act was an exercise of the power given by the
Constitution to Congress 'of making exceptions to the appellate jurisdiction of the Supreme Court.' 'They
have described affirmatively,' said the court, 'its jurisdiction, and this affirmative description has been
understood to imply a negation of the exercise of such appellate power as is not comprehended within it.'
The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not
affirmed having been thus established, it was an almost necessary consequence that acts of Congress,
providing for the exercise of jurisdiction, should come to be spoken of as acts granting jurisdiction, and
not as acts making exceptions to the constitutional grant of it.
The exception to appellate jurisdiction in the case before us, however, is not an inference from the
affirmation of other [74 U.S. 506, 514] appellate jurisdiction. It is made in terms. The provision of the act of
1867, affirming the appellate jurisdiction of this court in cases of habeas corpus is expressly repealed. It

is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power
under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is
given by express words.
What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without
jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and
when it ceases to exist, the only function remaining to the court is that of announcing the fact and
dismissing the cause. And this is not less clear upon authority than upon principle.
Several cases were cited by the counsel for the petitioner in support of the position that jurisdiction of
this case is not affected by the repealing act. But none of them, in our judgment, afford any support to it.
They are all cases of the exercise of judicial power by the legislature, or of legislative interference with
courts in the exercising of continuing jurisdiction.[13]
On the other hand, the general rule, supported by the best elementary writers,[14] is, that 'when an act of
the legislature is repealed, it must be considered, except as to transactions past and closed, as if it never
existed.' And the effect of repealing acts upon suits under acts repealed, has been determined by the
adjudications of this court. The subject was fully considered in Norris v. Crecker,[15] and more recently
in Insurance Company v. Ritchie.[16] In both of these cases it was held that no judgment could be
rendered in a suit after the repeal of the act under which it was brought and prosecuted. [74 U.S. 506, 515]
It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no
longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted
jurisdiction than in exercising firmly that which the Constitution and the laws confer.
Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole
appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868
does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It
does not affect the jurisdiction which was previously exercised.[17]
The appeal of the petitioner in this case must be
DISMISSED FOR WANT OF JURISDICTION.
Footnotes
[1] See Ex parte McCardle, 6 Wallace, 318.
[2] Act of March 27, 1868, 15 Stat. at Large, 44.
[3] 13 Louisiana Annual, 175.
[4] 15 Pennsylvania State, 18.
[5] 7 Humphreys, 152.
[6] 3 Greenleaf, 326.
[7] 6 Wallace, 318.

[8] 5 Wallace, 544.

[9] Hollingsworth v. Virginia, 3 Dallas, 378.
[10] 13 Howard, 429.
[11] Rex v. Justices of London, 3 Burrow, 1456; Yeaton v. United States, 5 Cranch, 281; Schooner
Rachel v. United States, 6 Id. 329; United States v. Preston, 3 Peters, 57; Com. v. Marshall, 11 Pickering,
350.
[12] 6 Cranch, 312; Wiscart v. Dauchy, 3 Dallas, 321.
[13] Lanier v. Gallatas, 13 Louisiana Annual, 175; De Chastellux v. Fairchild, 15 Pennsylvania State, 18;
The State v. Fleming, 7 Humphreys, 152, Lewis v. Webb, 3 Greenleaf, 326.
[14] Dwarris on Statutes, 538.
[15] 13 Howard, 429.
[16] 5 Wallace, 541.
[17] Ex parte McCardle, 6 Wallace, 324.

U.S. Supreme Court
EX PARTE MCCARDLE, 74 U.S. 506 (Wall.) (1868)
December Term, 1868
[74 U.S. 506, 507] APPEAL from the Circuit Court for the Southern
District of Mississippi.
The case was this:
'1. The judicial power of the United States shall be

vested in one Supreme Court, and in such inferior courts
as the Congress may from time to time ordain and
establish.'
'2. The judicial power shall extend to all cases in law or

equity arising under this Constitution, the laws of the
United States,' &c.;
'The Supreme Court shall have appellate jurisdiction,

both as to law and fact, with such exceptions, and under
such regulations, as the Congress shall make.'
With these constitutional provisions in existence, Congress, on the 5th

February, 1867, by 'An act to amend an act to establish the judicial courts
of the United States, approved September 24, 1789,' provided that the
several courts of the United States, and the several justices and judges of
such courts, within their respective jurisdiction, in addition to the
authority already conferred by law, should have power to grant writs of
habeas corpus in all cases where any person may be restrained of his or her
liberty in violation of the Constitution, or of any treaty or law of the
United States. And that, from the final decision of any judge, justice, or
court inferior to the Circuit Court, appeal might be taken to the Circuit
Court of the United States for the district in which the cause was heard,
and from the judgment of the said Circuit Court to the Supreme Court of the
United States.
This statute being in force, one McCardle, alleging unlawful restraint by

military force, preferred a petition in the court below, for the writ of
habeas corpus. [74 U.S. 506, 508] The writ was issued, and a return was made
by the military commander, admitting the restraint, but denying that it was
unlawful.
It appeared that the petitioner was not in the military service of the
United States, but was held in custody by military authority for trial
before a military commission, upon charges founded upon the publication of
articles alleged to be incendiary and libellous, in a newspaper of which he
was editor. The custody was alleged to be under the authority of certain
acts of Congress.
Upon the hearing, the petitioner was remanded to the military custody; but,
upon his prayer, an appeal was allowed him to this court, and upon filing
the usual appealbond, for costs, he was admitted to bail upon recognizance,
with sureties, conditioned for his future appearance in the Circuit Court,
to abide by and perform the final judgment of this court. The appeal was
taken under the above-mentioned act of February 5, 1867.

A motion to dismiss this appeal was made at the last term, and, after
argument, was denied.[1]
Subsequently, on the 2d, 3d, 4th, and 9th March, the case was argued very
thoroughly and ably upon the merits, and was taken under advisement. While
it was thus held, and before conference in regard to the decision proper to
be made, an act was passed by Congress,[2] returned with objections by the
President, and, on the 27th March, repassed by the constitutional majority,
the second section of which was as follows:
'And be it further enacted, That so much of the act

approved February 5, 1867, entitled 'An act to amend
an act to establish the judicial courts of the United
States, approved September 24, 1789,' as authorized an
appeal from the judgment of the Circuit Court to the
Supreme Court of the United States, or the exercise of
any such jurisdiction by said Supreme Court, on appeals
which have been, or may hereafter be taken, be, and the
same is hereby repealed.' [74 U.S. 506, 509] The attention
of the court was directed to this statute at the last term,
but counsel having expressed a desire to be heard in
argument upon its effect, and the Chief Justice being
detained from his place here, by his duties in the Court of
Impeachment, the cause was continued under
advisement. Argument was now heard upon the effect of
the repealing act.
Mr. Sharkey, for the appellant:
The prisoner alleged an illegal imprisonment. The imprisonment was justified

under certain acts of Congress. The question then presents a case arising
under 'the laws of the United States;' and by the very words of the
Constitution the judicial power of the United States extends to it. By words
of the Constitution, equally plain, that judicial power is vested in one
Supreme Court. This court, then, has its jurisdiction directly from the
Constitution, nor from Congress. The jurisdiction being vested by the
Constitution alone, Congress cannot abridge or take it away. The argument
which would look to Congressional legislation as a necessity to enable this
court to exercise 'the judicial power' (any and every judicial power) 'of
the United States,' renders a power, expressly given by the Constitution,
liable to be made of no effect by the inaction of Congress. Suppose that
Congress never made any exceptions or any regulations in the matter. What,
under a supposition that Congress must define when, and where, and how, the
Supreme Court shall exercise it, becomes of this 'judicial power of the
United States,' so expressly, by the Constitution, given to this court? It
would cease to exist. But this court is coexistent and co-ordinate with
Congress, and must be able to exercise the whole judicial power of the
United States, though Congress passed no act on the subject. The Judiciary
Act of 1789 has been frequently changed. Suppose it were repealed. Would the
court lose, wholly or at all, the power to pass on every case to which the
judicial power of the United States extended? This act of March 27th, 1868,
does take away the whole appellate power of [74 U.S. 506, 510] this court in
cases of habeas corpus. Can such results be produced? We submit that they
cannot, and this court, then, we further submit, may still go on and
pronounce judgment on the merits, as it would have done, had not the act of
27th March been passed.
But however these general positions may be, the case may be rested on more
special grounds. This case had been argued in this court, fully. Passing
then from the domain of the bar, it was delivered into the sacred hands of

the judges; and was in the custody of the court. For aught that was known by
Congress, it was passed upon the decided by them. Then comes, on the 27th of
March, this act of Congress. Its language is general, but, as was
universally known, its purpose was specific. If Congress had specifically
enacted 'that the Supreme Court of the United States shall never publicly
give judgment in the case of McCardle, already argued, and on which we
anticipate that it will soon deliver judgment, contrary to the views of the
majority in Congress, of what it ought to decide,' its purpose to interfere
specifically with and prevent the judgment in this very case would not have
been more real or, as a fact, more universally known.
Now, can Congress thus interfere with cases on which this high tribunal has
passed, or is passing, judgment? Is not legislation like this an exercise by
the Congress of judicial power? Lanier v. Gallatas[3] is much in point.
There a motion was made to dismiss an appeal, because by law the return day
was the 4th Monday in February, while in the case before the court the
transcript had been filed before that time. On the 15th of March, and while
the case was under advisement, the legislature passed an act making the 20th
of March a return day for the case; and a motion was now made to reinstate
the case and hear it. The court say:
'The case had been submitted to us before the passage

of that act, and was beyond the legislative control. Our
respect for the [74 U.S. 506, 511] General Assembly and
Executive forbids the inference that they intended to
instruct this court what to do or not to do whilst passing
on the legal rights of parties in a special case already
under advisement. The utmost that we can suppose is,'
&c.;
In De Chastellux v. Fairchild,[4] the legislature of Pennsylvania directed

that a new trial should be granted in a case already decided. Gibson, C. J.,
in behalf of the court, resented the interference strongly. He said:
'It has become the duty of the court to temporize no

longer. The power to order new trials is judicial. But the
power of the legislature is not judicial.'
In The State v. Fleming,[5] where the legislature of Tennessee directed two

persons under indictment to be discharged, the Supreme Court of the State,
declaring that 'the legislature has no power to interfere with the
administration of justice in the courts,' treated the direction as void. In
Lewis v. Webb,[6] the Supreme Court of Maine declare that the legislature
cannot dispense with any general law in favor of a particular case.
Messrs L. Trumbull and M. H. Carpenter, contra:
1. The Constitution gives to this court appellate jurisdiction in any case

like the present one was, only with such exceptions and under such
regulations as Congress makes.
2. It is clear, then, that this court had no jurisdiction of this proceeding

-- an appeal from the Circuit Court -- except under the act of February 5th,
1867; and so this court held on the motion to dismiss made by us at the last
term.[7]
3. The act conferring the jurisdiction having been repealed, the

jurisdiction ceased; and the court had thereafter no authority to pronounce
any opinion or render any judgment in this cause. No court can do any act in
any case, without jurisdiction of the subject-matter. It can make no
difference at what point, in the progress of a cause, the [74 U.S. 506, 512]

jurisdiction ceases. After it has ceased, no judicial act can be performed.

In Insurance Company v. Ritchie,[8] the Chief Justice, delivering the
opinion of the court, says:
'It is clear, that when the jurisdiction of a cause depends

upon the statute, the repeal of the statute takes away the
jurisdiction.'
And in that case the repealing statute, which was passed during the pendency
of the cause, was held to deprive the court of all further jurisdiction. The
causes which were pending in this court against States, were all dismissed
by the amendment of the Constitution denying the jurisdiction; and no
further proceedings were had in those causes.[9] In Norris v. Crocker,[10]
this court affirmed and acted upon the same principle; and the exhaustive
argument of the present Chief Justice, then at the bar, reported in that
case, and the numerous authorities there cited, render any further argument
or citation of cases unnecessary.[11]
4. The assumption that the act of March, 1868, was aimed specially at this
case, is gratuitous and unwarrantable. Certainly the language of the act
embraces all cases in all time; and its effect is just as broad as its
language.
The question of merits cannot now, therefore, be passed upon. The

case must fall.
The CHIEFJUSTICE delivered the opinion of the court.
The first question necessarily is that of jurisdiction; for, if the act of

March, 1868, takes away the jurisdiction defined by the act of February,
1867, it is useless, if not improper, to enter into any discussion of other
questions.
It is quite true, as was argued by the counsel for the petitioner, that the
appellate jurisdiction of this court is not derived from acts of Congress.
It is, strictly speaking, conferred [74 U.S. 506, 513] by the Constitution.
But it is conferred 'with such exceptions and under such regulations as
Congress shall make.'
It is unnecessary to consider whether, if Congress had made no exceptions

and no regulations, this court might not have exercised general appellate
jurisdiction under rules prescribed by itself. For among the earliest acts
of the first Congress, at its first session, was the act of September 24th,
1789, to establish the judicial courts of the United States. That act
provided for the organization of this court, and prescribed regulations for
the exercise of its jurisdiction.
The source of that jurisdiction, and the limitations of it by the

Constitution and by statute, have been on several occasions subjects of
consideration here. In the case of Durousseau v. The United States,[12]
particularly, the whole matter was carefully examined, and the court held,
that while 'the appellate powers of this court are not given by the judicial
act, but are given by the Constitution,' they are, nevertheless, 'limited
and regulated by that act, and by such other acts as have been passed on the
subject.' The court said, further, that the judicial act was an exercise of
the power given by the Constitution to Congress 'of making exceptions to the
appellate jurisdiction of the Supreme Court.' 'They have described
affirmatively,' said the court, 'its jurisdiction, and this affirmative
description has been understood to imply a negation of the exercise of such
appellate power as is not comprehended within it.'

The principle that the affirmation of appellate jurisdiction implies the

negation of all such jurisdiction not affirmed having been thus established,
it was an almost necessary consequence that acts of Congress, providing for
the exercise of jurisdiction, should come to be spoken of as acts granting
jurisdiction, and not as acts making exceptions to the constitutional grant
of it.
The exception to appellate jurisdiction in the case before us, however, is

not an inference from the affirmation of other [74 U.S. 506, 514] appellate
jurisdiction. It is made in terms. The provision of the act of 1867,
affirming the appellate jurisdiction of this court in cases of habeas corpus
is expressly repealed. It is hardly possible to imagine a plainer instance
of positive exception.
We are not at liberty to inquire into the motives of the legislature. We can
only examine into its power under the Constitution; and the power to make
exceptions to the appellate jurisdiction of this court is given by express
words.
What, then, is the effect of the repealing act upon the case before us? We
cannot doubt as to this. Without jurisdiction the court cannot proceed at
all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause. And this is not less clear
upon authority than upon principle.
Several cases were cited by the counsel for the petitioner in support of the
position that jurisdiction of this case is not affected by the repealing
act. But none of them, in our judgment, afford any support to it. They are
all cases of the exercise of judicial power by the legislature, or of
legislative interference with courts in the exercising of continuing
jurisdiction.[13]
On the other hand, the general rule, supported by the best elementary
writers,[14] is, that 'when an act of the legislature is repealed, it must
be considered, except as to transactions past and closed, as if it never
existed.' And the effect of repealing acts upon suits under acts repealed,
has been determined by the adjudications of this court. The subject was
fully considered in Norris v. Crecker,[15] and more recently in Insurance
Company v. Ritchie.[16] In both of these cases it was held that no judgment
could be rendered in a suit after the repeal of the act under which it was
brought and prosecuted. [74 U.S. 506, 515] It is quite clear, therefore,
that this court cannot proceed to pronounce judgment in this case, for it
has no longer jurisdiction of the appeal; and judicial duty is not less
fitly performed by declining ungranted jurisdiction than in exercising
firmly that which the Constitution and the laws confer.
Counsel seem to have supposed, if effect be given to the repealing act in

question, that the whole appellate power of the court, in cases of habeas
corpus, is denied. But this is an error. The act of 1868 does not except
from that jurisdiction any cases but appeals from Circuit Courts under the
act of 1867. It does not affect the jurisdiction which was previously
exercised.[17]
The appeal of the petitioner in this case must be
DISMISSED FOR WANT OF JURISDICTION.
Footnotes
[1] See Ex parte McCardle, 6 Wallace, 318.

[2] Act of March 27, 1868, 15 Stat. at Large, 44.
[3] 13 Louisiana Annual, 175.
[4] 15 Pennsylvania State, 18.
[5] 7 Humphreys, 152.
[6] 3 Greenleaf, 326.
[7] 6 Wallace, 318.
[8] 5 Wallace, 544.
[9] Hollingsworth v. Virginia, 3 Dallas, 378.
[10] 13 Howard, 429.
[11] Rex v. Justices of London, 3 Burrow, 1456; Yeaton v. United States, 5

Cranch, 281; Schooner Rachel v. United States, 6 Id. 329; United States v.
Preston, 3 Peters, 57; Com. v. Marshall, 11 Pickering, 350.
[12] 6 Cranch, 312; Wiscart v. Dauchy, 3 Dallas, 321.
[13] Lanier v. Gallatas, 13 Louisiana Annual, 175; De Chastellux v.

Fairchild, 15 Pennsylvania State, 18; The State v. Fleming, 7 Humphreys,
152, Lewis v. Webb, 3 Greenleaf, 326.
[14] Dwarris on Statutes, 538.
[15] 13 Howard, 429.
[16] 5 Wallace, 541.
[17] Ex parte McCardle, 6 Wallace, 324.

Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868): Commentary

It is uncertain whether the decision in this case was the result of politics or incompetence in the use of the
English language, but it has set a damaging precedent that has not yet been overturned. To quote from the
opinion:
' 1. The judicial power of the United States shall be vested in one Supreme
Court, and in such inferior courts as the Congress may from time to time ordain
and establish.'
' 2. The judicial power shall extend to all cases in law or equity arising under
this Constitution, the laws of the United States,' &c.;
'The Supreme Court shall have appellate jurisdiction, both as to law and fact,
with such exceptions, and under such regulations, as the Congress shall make.'
However, omitted from this last quote was the preceding sentence:
In all cases [list of types of cases] the supreme Court shall have original jurisdiction.
The combination of the two sentences makes it clear that only two kinds of jurisdiction are being
considered: original and appellate. The Constitution makes some types of cases original only, others
appellate, but allows for exceptions to be made from the list of types of cases for which the Supreme
Court has appellate jurisdiction. Since the alternative to appellate is original, the exceptions allowed must
create original jurisdiction.
The opinion is, essentially, that Congress may remove all jurisdiction from the Supreme Court for some
types of cases, but if that were the intended meaning, then it could remove all jurisdiction for all types of
cases, thereby eliminating the judicial branch and defeating the separation of powers. A clear reading of
the language is that no such meaning was intended. The intended meaning is that Congress may assign
original jurisdiction to the Supreme Court for some types of cases over which it would otherwise have
appellate jurisdiction only.
It should also be clear that any court which may decide its own jurisdiction without any higher court to
which an appeal of that decision might be made has jurisdiction over any case it chooses to hear, and that
power cannot be denied it by Congress, because it can always decide to overturn a statute restricting its
jurisdiction.

It is uncertain whether the decision in this case was the result of politics
or incompetence in the use of the English language, but it has set a
damaging precedent that has not yet been overturned. To quote from the
opinion:
' 1. The judicial power of the United States

shall be vested in one Supreme Court, and
in such inferior courts as the Congress may
from time to time ordain and establish.'
' 2. The judicial power shall extend to all

cases in law or equity arising under this
Constitution, the laws of the United States,'
&c.;
'The Supreme Court shall have appellate

jurisdiction, both as to law and fact, with
such exceptions, and under such
regulations, as the Congress shall make.'
However, omitted from this last quote was the preceding sentence:
In all cases [list of types of cases] the supreme Court

shall have original jurisdiction.
The combination of the two sentences makes it clear that only two kinds of
jurisdiction are being considered: original and appellate. The Constitution
makes some types of cases original only, others appellate, but allows for
exceptions to be made from the list of types of cases for which the Supreme
Court has appellate jurisdiction. Since the alternative to appellate is
original, the exceptions allowed must create original jurisdiction.
The opinion is, essentially, that Congress may remove all jurisdiction from
the Supreme Court for some types of cases, but if that were the intended
meaning, then it could remove all jurisdiction for all types of cases,
thereby eliminating the judicial branch and defeating the separation of
powers. A clear reading of the language is that no such meaning was
intended. The intended meaning is that Congress may assign original
jurisdiction to the Supreme Court for some types of cases over which it
would otherwise have appellate jurisdiction only.
It should also be clear that any court which may decide its own jurisdiction
without any higher court to which an appeal of that decision might be made
has jurisdiction over any case it chooses to hear, and that power cannot be
denied it by Congress, because it can always decide to overturn a statute
restricting its jurisdiction.

Hurtado v. California, 110 U.S. 516 (1884): Matthews
U.S. Supreme Court

HURTADO v. PEOPLE OF STATE OF CALIFORNIA, 110 U.S. 516 (1884)
March 3, 1884
[110 U.S. 516, 517] The constitution of the state of California adopted in 1879, in article 1, 8, provides as
follows: 'Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by
information, after examination and commitment by a magistrate, or by indictment, with or without such
examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned
at least once a year in each county.' Various provisions of the Penal Code regulate proceedings before the
examining and committing magistrate in cases of persons arrested and brought before them upon charges
of having committed public offenses. These require, among other things, that the testimony of the
witnesses shall be reduced to writing in the form of depositions; and section 872 declares that if it
appears from the examination that a public offense has been committed, and there is sufficient cause to
believe the defendant guilty thereof, the magistrate must indorse on the depositions an order, signed by
him, to that effect, describing the general nature of the offense committed, and ordering that the
defendant be held to answer thereto. Section 809 of the Penal Code is as follows: 'When a defendant has
been examined and committed, as provided in section 872 of this Code, it shall be the duty of the district
attorney, within thirty days thereafter, to file in the superior court of the county in which the offense is
triable, an information charging the defendant with such offense. The information shall [110 U.S. 516, 518]
be in the name of the people of the state of California, and subscribed by the district attorney, and shall
be in form like an indictment for the same offense.'
In pursuance of the foregoing provision of the constitution, and of the several sections of the Penal Code
of California, the district attorney of Sacramento county, on the twentieth day of February, 1882, made
and filed an information against the plaintiff in error, charging him with the crime of murder in the
killing of one Jose Antonio Stuardo. Upon this information, and without any previous investigation of the
cause by any grand jury, the plaintiff in error was arraigned on the twenty-second day of March, 1882,
and pleaded not guilty. A trial of the issue was thereafter had, and on May 7, 1882, the jury rendered its
verdict, in which it found the plaintiff in error guilty of murder in the first degree. On the fifth day of
June, 1882, the superior court of Sacramento county, in which the plaintiff in error had been tried,
rendered its judgment upon said verdict, that the said Joseph Hurtado, plaintiff in error, be punished by
the infliction of death, and the day of his execution was fixed for the twentieth day of July, 1882. From
this judgment an appeal was taken, and the supreme court of the State of California affirmed the
judgment. On the sixth day of July, 1883, the superior court of said county of Sacramento ordered that
the plaintiff in error be in court on the eleventh day of July, 1883, in order that a day for the execution of
the judgment in said cause should be fixed. In pursuance of said order, plaintiff in error, with his counsel,
appeared at the bar of the court, and thereupon the judge asked him if he had any legal reason to urge
why said judgment should not be executed, and why an order should not then be made fixing the day for
the execution of the same. Thereupon the plaintiff in error, by his counsel, objected to the execution of
said judgment, and to any order which the court might make fixing a day for the execution of the same,
upon the grounds (7) that it appeared upon the face of the judgment that the [110 U.S. 516, 519] plaintiff in
error had never been legally, or otherwise, indicted or presented by any grand jury, and that he was
proceeded against by information made and filed by the district attorney of the county of Sacramento,
after examination and commitment by a magistrate of the said county; (8) that the said proceedings, as

well as the laws and constitution of California, attempting to authorize them, and the alleged verdict of
the jury, and judgment of the said superior court of said county of Sacramento, were in conflict with and
prohibited by the fifth and fourteenth articles of amendment of the constitution of the United States, and
that they were therefore void; (9) that the said plaintiff in error had been held to answer for the said crime
of murder by the district attorney of the said county of Sacramento, upon an information filed by him,
and had been tried and illegally found guilty of the said crime, without any presentment or indictment of
any grand or other jury, and that the judgment rendered upon the alleged verdict of the jury in such case
was and is void, and if executed would deprive the plaintiff in error of his life or liberty without due
process of law. Thereupon the court overruled the said objections, and fixed the thirtieth day of August,
1883, as the time for the execution of the sentence. From this latter judgment the plaintiff in error
appealed to the supreme court of the state. On the eighteenth day of September, 1883, the supreme court
of the state affirmed the said judgment, to review which the present writ of error was allowed and has
been prosecuted.
A. L. Hart, for plaintiff in error.
John T. Carey, for defendant in error.
MATTHEWS, J.
It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they
are repugnant to that clause of the fourteenth article of amendment to the constitution of the United
States, which is in these words: [110 U.S. 516, 520] 'Nor shall any state deprive any person of life, liberty,
or property without due process of law.' The proposition of law we are asked to affirm is that an
indictment or presentment by a grand jury, as known to the common law of England, is essential to that
'due process of law,' when applied to prosecutions for felonies, which is secured and guarantied by this
provision of the constitution of the United States, and which accordingly it is forbidden to the states,
respectively, to dispense with in the administration of criminal law. The question is one of grave and
serious import, affecting both private and public rights and interests of great magnitude, and involves a
consideration of what additional restrictions upon the legislative policy of the states has been imposed by
the fourteenth amendment to the constitution of the United States. The supreme court of California, in the
judgment now under review, followed its own previous decision in Kalloch v. Super. Ct. 56 Cal. 229, in
which the question was deliberately adjudged. Its conclusion was there stated as follows: 'This
proceeding, as [it] is regulated by the constitution and laws of this state, is not opposed to any of the
definitions given of the phrases 'due process of law' and 'the law of the land;' but, on the contrary, it is a
proceeding strictly within such definitions, as much so in every respect as is a proceeding by indictment.
It may be questioned whether the proceeding by indictment secures to the accused any superior rights
and privileges; but certainly a prosecution by information takes from him no immunity or protection to
which he is entitled under the law.' And the opinion cites and relies upon a decision of the supreme court
of Wisconsin in the case of Rowan v. State, 30 Wis. 129. In that case the court, speaking of the
fourteenth amendment, says: 'But its design was not to confine the states to a particular mode of
procedure in judicial proceedings, and prohibit them from [110 U.S. 516, 521] prosecuting for felonies by
information instead of by indictment, if they chose to abolish the grand jury system. And the words 'due
process of law' in the amendment do not mean and have not the effect to limit the powers of state
governments to prosecutions for crime by indictment; but these words do mean law in its regular course
of administration, according to prescribed forms, and in accordance with the general rules for the
protection of individual rights. Administration and remedial proceedings must change, from time to time,

with the advancement of legal science and the progress of society; and, if the people of the state find it
wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in
our state constitution and nothing in the fourteenth amendment to the constitution of the United States
which prevents them from doing so.'
On the other hand, it is maintained on behalf of the plaintiff in error that the phrase 'due process of law' is
equivalent to 'law of the land,' as found in the twenty-ninth chapter of Magna Charta; that by immemorial
usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the
general principles of public liberty and private right, which lie at the foundation of all free government,
but the very institutions which, venerable by time and custom, have been tried by experience and found
fit and necessary for the preservation of those principles, and which, having been the birthright and
inheritance of every English subject, crossed the Atlantic with the colonists and were transplanted and
established in the fundamental laws of the state; that, having been originally introduced into the
constitution of the United States as a limitation upon the powers of the government, brought into being
by that instrument, it has now been added as an additional security to the individual against oppression
by the states themselves; that one of these institutions is that of the grand jury, an indictment or
presentment by which against the accused in cases of alleged felonies is an essential part of due process
of law, in order that he may not be harassed and destroyed by prosecutions founded only upon private
malice or popular fury. This view is certainly supported by the authority of the [110 U.S. 516, 522] great
name of Chief Justice SHAW and of the court in which he presided, which, in Jones v. Robbins, 8 Gray,
329, decided that the twelfth article of the bill of rights of Massachusetts, a transcript of Magna Charta in
this respect, made an indictment or presentment of a grand jury essential to the validity of a conviction in
cases of prosecutions for felonies. In delivering the opinion of the court in that case, MERRICK, J., alone
dissenting, the chief justice said: 'The right of individual citizens to be secure from an open and public
accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause
is established by the presentment and indictment of a grand jury, in case of high offenses, is justly
regarded as one of thesecurities to the innocent against hasty, malicious, and oppressive public
prosecutions, and as one of the ancient immunities and privileges of English liberty. ... It having been
stated,' he continued, 'by Lord COKE, that by the 'law of the land' was intended a due course of
proceeding according to the established rules and practice of the courts of common law, it may, perhaps,
be suggested that this might include other modes of proceeding, sanctioned by the common law, the most
familiar of which are, by informations of various kinds, by the officers of the crown, in the name of the
king. But, in reply to this, it may be said that Lord COKE himself explains his own meaning by saying by
'the law of the land.' as expressed in Magna Charta, was intended due process of law; that is, by
indictment or presentment of good and lawful men. And further, it is stated. On the authority of
Blackstone, that informations of every kind are confined by the constitutional law to misdemeanors only.
4 Bl. Comm. 310.' Referring again to the passage from Lord COKE, he says, page 343: 'This may not be
conclusive, but, being a construction adopted by a writer of high authority before the emigration of our
ancestors, it has a tendency to show how it was then understood.'
This passage from COKE seems to be the chief foundation of the opinion for which it is cited; but a
critical examination and [110 U.S. 516, 523] comparison of the text and context will show that it has been
misunderstood; that it was not intended to assert that an indictment or presentment of a grand jury was
essential to the idea of due process of law in the prosecution and punishment of crimes, but was only
mentioned as an example and illustration of due process of law as it actually existed in cases in which it
was customarily used. In beginning his commentary on this chapter of Magna Charta, (2 Inst. 46,) COKE

says: 'This chapter containeth nine several branches: (1) That no man may be taken or imprisoned but per
legem terroe, – that is, by the common law, statute law, of custom of England; for the words per legem
terroe, being towards the end of this chapter, doe referre to all the precedent matters in this chapter, etc.
(2) No man shall be disseized, etc., unless it be by the lawful judgment, that is. verdict, of his equals,
(that is, of men of his own condition,) or by the law of the land, (that is, to speak it once for all,) by the
due course and process of law.' He then proceeds to state that (3) no man shall be outlawed, unless
according to the law of the land ; (4) no man shall be exiled, unless according to the law of the land; (5)
no man shall be in any sort destroyed, 'unless it be by the verdict of his equals, or according to the law of
the land;' (6) 'no man shall be condemned at the king's suite, either before the king in his bench, where
the pleas are coram rege, (and so are the words nec super eum ibimus to be understood,) nor before any
other commissioner or judge whatsoever, and so are the words nec super eum mittemus to be understood,
but by the judgment of his peers, that is, equals, or according to the law of the land.'
Recurring to the first clause of the chapter, he continues: '(1) No man shall be taken (that is) restrained of
liberty by petition or suggestion to the king, or to his council, unless it be by indictment or presentment
of good and lawful men, where such deeds be done. This branch and divers other parts of this act have
been notably explained by divers acts of parliament, etc., quoted in the margent.' The reference is to
various acts during the reign of Edward [110 U.S. 516, 524] III. And reaching again the words 'nisi per
legem terroe,' he continues: 'But by the law of the land. For the true sense and exposition of these words
see the statute of 37 E. 3, cap. 8, where the words, 'by the law of the land' are rendered, without due
proces of law, for there it is said, though it be contained in the great charter, that no man be taken,
imprisoned, or put out of his freehold without proces of the law; that is by indictment of good and lawfull
men, where such deeds be done in due manner, or by writ originall of the common law. Without being
brought in to answere swere but by due proces of the common law. No man be put to answer without
presentment before justices, or thing of record, or by due proces, or by writ originall, according to the old
law of the land. Wherein it is to be observed that this chapter is but declaratory of the old law of
England.'
It is quite apparent from these extracts that the interpretation usually put upon Lord COKE's statement is
too large, because if an indictment or presentment by a grand jury is essential to due process of law in all
cases of imprisonment for crime, it applies not only to felonies, but to misdemeanors and petty offenses,
and the conclusion would be inevitable that informations as a substitute for indictments would be illegal
in all cases. It was indeed so argued by Sir FRANCIS WINNINGTON in Prynn's Case, 5 Mod. 457, from
this very language of Magna Charta, that all suits of the king must be by presentment or indictment, and
he cited Lord COKE as authority to that effect. He attempted to show that informations had their origin in
the act of 11 Hen. VII. c. 3, enacted in 1494, known as the infamous Empson and Dudley act, which was
repealed by that of 1 Hen. VIII. c. 6, in 1509. But the argument was overruled, Lord HOLT saying that to
hold otherwise 'would be a reflection on the whole bar.' Sir BARTHOLOMEW SHOWER, who was
prevented from arguing in support of the information, prints his intended argument in his report of the
case under the name of The King v. Berchet, 1 Show. 106, in which, with great thoroughness, he arrays
all the learning of the time on the subject. He undertakes to 'evince that this method of prosecution is
noways [110 U.S. 516, 525] contrariant to any fundamental rule of law, but agreeable to it.' He answers the
objection that it is inconvenient and vexatious to the subject by saying, (page 117:) 'Here is no
inconvenience to the people. Here is a trial per pais, fair notice, liberty of pleading dilatories as well as
bars. Here is subpoena and attachment, as much time for defense, charge, etc., for the prosecutor makes
up the record, etc.; then, in case of malicious prosecution, the person who prosecutes is known by the

note to the coroner, according to the practice of the court.' He answers the argument drawn from Magna
Charta, and says 'that this method of prosecution no way contradicts that law, for we say this is per legem
terroe et per communem legem terroe; for otherwise there never had been so universal a practice of it in
all ages.' And referring to COKE's comment, that 'no man shall be taken,' i. e., restrained of liberty, by
petition or suggestion to the king or his council unless it be by indictment or presentment, he says, (page
122:) 'By petition or suggestion can never be meant of the king's bench, for he himself had preferred
several here; that is meant only of the king alone, or in council, or in the star chamber. In the king's bench
the information is not a suggestion to the king but to the court upon record;' and he quotes 3 Inst. 136,
where Coke modifies the statement by saying, 'The king cannot put any to answer, but his court must be
apprized of the crime by indictment, presentment, or other matter of record,' which, Shower says,
includes an information. So it has been recently held that upon a coroner's inquisition taken concerning
the death of a man, and a verdict of guilty of murder or manslaughter is returned, the offender may be
prosecuted and tried without the intervention of a grand jury. Reg. v. Ingham, 5 Best & S. 257. And it
was said by BULLER, J., in* [110 U.S. 516, 526] Rex v. Jolliffe, 4 Term R. 285-293, that if to an action for
slander in charging the plaintiff with felony a justification is pleaded which is found by the jury, that of
itself amounts to an indictment, as if it had been found by the grand jury, and is sufficient to put the party
thus accused on his trial.
The language of Lord COKE applies only to forfeitures of life and liberty at the suit of the king, and
hence appeals of murder, which were prosecutions by private persons, were never regarded as contrary to
Magna Charta. On the contrary, the appeal of death was by Lord HOLT 'esteemed a noble remedy, and a
badge of the rights and liberties of an Englishman.' Rex v. Toler, 1 Ld. Raym. 557; 12 Mod. 375; Holt,
483. We are told that in the early part of the last century, in England, persons who had been acquitted on
indictments for murder were often tried, convicted, and executed on appeals. Kendall, Trial by Battel, (3d
Ed.) 44-47. An appeal of murder was brought in England as lately as 1817, but defeated by the
appellant's declining to accept the wager of battel. Ashford v. Thornton, 1 Barn Ald. 405. The English
statutes concerning appeals of murder were in force in the provinces of Pennsylvania and Maryland.
Report of Judges, 6 Bin. 599-604; Kitty, Md. St. 141, 143, 158. It is said that no such appeal was ever
brought in Pennsylvania; but in Maryland, in 1765, a negro was convicted and executed upon such an
appeal. Soaper v. Tom, 1 Har. & McH. 227. See note to Paxton's Case, Quincy, (Mass.) 53, by Mr.
Justice GRAY.
This view of the meaning of Lord COKE is the one taken by MERRICK, J., in his dissenting opinion in
Jones Robbins, supra, who states his conclusions in these words: 'It is the forensic trial, under a broad
and general law, operating equally upon every member of our community, which the words 'by the law
of the land,' in Magna Charta, and in every subsequent declaration of rights which has borrowed its
phraseology, make essential to the safety of the citizen, securing thereby both his liberty and his
property, by preventing the unlawful arrest of his person, or any unlawful interference with his estate.'
See, also, state v. Starling, 15 Rich. (S. C.) Law, 120. [110 U.S. 516, 527] Mr. Reeve, in 2 Hist. Eng. Law,
43, translates the phrase, nisi per legale judicium parium suorum vel per legem terroe, 'but by the
judgment of his peers, or by some other legal process or proceeding adapted by law to the nature of the
case.' Chancellor KENT, (2 Comm. 13,) adopts this mode of construing the phrase. Quoting the language
of Magna Charta, and referring to Lord COKE's comment upon it, he says: 'The better and larger
definition of due process of law is that it means law in its regular course of administration through courts
of justice.' This accords with what is said in Westervelt v. Gregg, 12 N. Y. 202, by DENIO, J., p. 212:
'The provision was designed to protect the citizen against all mere acts of power, whether flowing from

the legislative or executive branches of the government.' The principle and true meaning of the phrase
have never been more tersely or accurately stated than by Mr. Justice JOHNSON in Bank of Columbia v.
Okely, 4 Wheat. 235-244: 'As to the words from Magna Charta, incorporated into the constitution of
Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind
has at last settled down to this: that they were intended to secure the individual from the arbitrary
exercise of the powers of government, unrestrained by the established principles of private right and
distributive justice.' And the conclusion rightly deduced is as stated by Mr. Cooley, (Const. Lim. 356:)
'The principles, then, upon which the process is based, are to determine whether it is 'due process' or not,
and not any considerations of mere form. Administrative and remedial process may [110 U.S. 516, 528] be
changed from time to time, but only with due regard to the landmarks established for the protection of
the citizen.'
It is urged upon us, however, in argument, that the claim made in behalf of the plaintiff in error is
supported by the decision of this court in Murray's Lessee v. Hoboken Land & Imp. Co. 18 How. 272.
There, Mr. Justice CURTIS, delivering the opinion of the court, after showing (page 276) that due process
of law must mean something more then the actual existing law of the land, for otherwise it would be no
restraint upon legislative power, proceeds as follows: 'To what principle, then, are we to resort to
ascertain whether this process, enacted by congress, is due process? To this the answer must be twofold.
We must examine the constitution itself to see whether this process be in conflict with any of its
provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing
in the common and statute law of England before the emigration of our ancestors, and which are shown
not to have been unsuited to their civil and political condition by having been acted on by them after the
settlement of this country.' This, it is argued, furnishes an indispensable test of what constitutes 'due
process of law;' that any proceeding otherwise authorized by law, which is not thus sanctioned by usage,
or which supersedes and displaces one that is, cannot be regarded as due process of law. But this
inference is unwarranted. The real syllabus of the passage quoted is that a process of law, which is not
otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage
both in England and in this country; but it by no means follows, that nothing else can be due process of
law. The point in the case cited arose in reference to a summary proceeding, questioned on that account
as not due process of law. The answer was, however exceptional it may be, as tested by definitions and
principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law
of the land, and, therefore, is due process of law. [110 U.S. 516, 529] But to hold that such a characteristic
is essential to due process of law, would be to deny every quality of the law but its age, and to render it
incapable of progress or improvement. It would be to stamp upon our jurisprudence the
unchangeableness attributed to the laws of the Medes and Persians.
This would be all the more singular and surprising, in this quick and active age, when we consider that,
owing to the progressive development of legal ideas and institutions in England, the words of Magna
Charta stood for very different things at the time of the separation of the American colonies from what
they represented originally. For at first the words nisi per legale judicium parium had no reference to a
jury; they applied only to the pares regni, who were the constitutional judges in the court of exchequer
and coram rege. Bac. Abr. 'Juries,' (7th Ed. Lond.) note; 2 Reeves, Hist. Eng. Law, 41. And as to the
grand jury itself, we learn of its constitution and functions from the assize of Clarendon, (A. D. 1164,)
and that of Northampton, (A. D. 1176;) Stubbs, Chart. 143-150. By the latter of these, which was a
republication of the former, it was provided that 'if any one is accused before the justices of our lord the
king of murder or theft or robbery, or of harboring persons committing those crimes, or of forgery or

arson, by the oath of 12 knights of the hundred, or, if there are no knights, by the oath of 12 free and
lawful men, and by the oath of four men from each township of the hundred, let him go to the ordeal of
water, and, if he fails, let him lose one foot. And at Northampton it was added, for greater strictness of
justice, (pro rigore justitioe,) that he shall lose his right hand at the same time with his foot, and adjure
the realm and exile himself from the realm within 40 days. And, if he is acquitted by the ordeal, let him
find pledges and remain in the kingdom, unless he is accused of murder or other base felony by the body
of the country and the lawful knights of the country; but, if he is so accused as aforesaid, although he is
acquitted by the ordeal of water, nevertheless he must leave the kingdom in 40 days, and take his chattels
with him, subject to the rights of his lords, and he must adjure the kingdom at the mercy of our lord the
king.' [110 U.S. 516, 530] 'The system thus established,' says Mr. Justice STEPHENS, (1 Hist. Crim. Law
Eng. 252,) 'is simple. The body of the country are the accusers. Their accusation is practically equivalent
to a conviction, subject to the chance of a favorable termination of the ordeal by water. If the ordeal fails,
the accused person loses his foot and his hand. If it succeeds, he is, nevertheless, to be banished.
Accusation, therefore, was equivalent to banishment, at least.' When we add to this that the primitive
grand jury heard no witnesses in support of the truth of the charges to be preferred, but presented upon
their own knowledge, or indicted upon common fame and general suspicion, we shall be ready to
acknowledge that it is better not to go too far back into antiquity for the best securities for our 'ancient
liberties.' It is more consonant to the true philosophy of our historical legal institutions to say that the
spirit of personal liberty and individual right, which they embodied, was preserved and developed by a
progressive growth and wise adaptation to new circumstances and situations of the forms and processes
found fit to give, from time to time, new expression and greater effect to modern ideas of
self-government.
This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the
common law. Sir JAMES MACKINTOSH ascribes this principle of development to Magna Charta itself. To
use his own language: 'It was a peculiar advantage that the consequences of its principles were, if we
may so speak, only discovered slowly and gradually. It gave out on each occasion only so much of the
spirit of liberty and reformation as the circumstances of succeeding generations required, and as their
character would safely bear; for almost five centuries it was appealed to as the decisive authority on
behalf of the people, though commonly so far only as the necessities of each case demanded.' 1 Hist.
Eng. 221.
The constitution of the United States was ordained, it is true, by descendants of Englishmen, who
inherited the traditions of the English law and history; but it was made for an [110 U.S. 516, 531] undefined
and expanding future, and for a people gathered, and to be gathered, from many nations and of many
tongues; and while we take just pride in the principles and institutions of the common law, we are not to
forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice
are also not unknown. Due process of law, in spite of the absolutism of continental governments, is not
alien to that Code which survived the Roman empire as the foundation of modern civilization in Europe,
and which has given us that fundamental maxim of distributive justice, suum cuique tribuere. There is
nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to
exclude the best ideas of all systems and of every age; and as it was the characteristic principle of the
common law to draw its inspiration from every fountain of justice, we are not to assume that the sources
of its supply have been exhausted. On the contrary, we should expect that the new and various
experiences of our own situation and system will mould and shape it into new and not useful forms.
The concessions of Magna Charta were wrung from the king as guaranties against the oppressions and

usurpations of his prerogative. It did not enter into the minds of the barons to provide security against
their own body or in favor of the commons by limiting the power of parliament; so that bills of attainder,
ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which
occur so frequently in English history, were never regarded as inconsistent with the law of the land; for
notwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the
omnipotence of parliament over the common law was absolute, even against common right and reason.
The actual and practical security for English liberty against legislative tyranny was the power of a free
public opinion represented by the commons. In this country written constitutions were deemed essential
to protect the rights and liberties of the people against the encroachments of power delegated to their
governments, and the provisions of Magna Charta were incorporated into bills of [110 U.S. 516, 532] rights,
They were limitations upon all the powers of government, legislative as well as executive and judicial. It
necessarily happened, therefore, that as these broad and general maxims of liberty and justice hald in our
system a different place and performed a different function from their position and office in English
constitutional history and law, they would receive and justify a corresponding and more comprehensive
interpretation. Applied in England only as guards against executive usurpation and tyranny, here they
have become bulwarks also against arbitrary legislation; but in that application, as it would be
incongruous to measure and restrict them by the ancient customary English law, they must be held to
guaranty, not particular forms of procedure, but the very substance of individual rights to life, liberty, and
property. Restraints that could be fastened upon executive authority with precision and detail, might
prove obstructive and injurious when imposed on the just and necessary discretion of legislative power;
and while, in every instance, laws that violated express and specific injunctions and prohibitions might
without embarrassment be judicially declared to be void, yet any general principle or maxim founded on
the essential nature of law, as a just and reasonable expression of the public will, and of government as
instituted by popular consent and for the general good, can only be applied to cases coming clearly
within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and
modes of attainment. Such regulations, to adopt a sentence of Burke's 'may alter the mode and
application, but have no power over the substance of original justice.' Tract on Popery Laws, 6 Burke's
Works, (Ed. Little & Brown,) 323.
Such is the often repeated doctrine of this court. In Munn v. Illinois, 94 U.S. 113-134, the chief justice,
delivering the opinion of the court, said: 'A person has no property, no vested interest, in any rule of the
common law. That is only one of the forms of municipal law, and is no more sacred than any other.
Rights of property which have been created by the common law cannot be taken [110 U.S. 516, 533] away
without due process; but the law itself, as a rule of conduct, may be changed at the will or even at the
whim of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes
is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and
circumstances.' And in Walker v. Sauvinet, 92 U.S. 90 , the court said: 'A trial by jury in suits at common
law pending in state courts is not, therefore, a privilege or immunity of national citizenship which the
states are forbidden by the fourteenth amendment to abridge. A state cannot deprive a person of his
property without due process of law; but this does not necessarily imply that all trials in the state courts
affecting the property of persons must be by jury. This requirement of the constitution is met if the trial is
had according to the settled course of judicial proceedings. Due process of law is process according to
the law of the land. This process in the states is regulated by the law of the state.' In Kennard v. Louisiana
ex rel. 92 U.S. 480 , the question was whether a mode of trying the title to an office, in which was no
provision for a jury, was due process of law. Its validity was affirmed. The chief justice, after reciting the
various steps in the proceeding, said: 'From this it appears that ample provision has been made for the

trial of the contestation before a court of competent jurisdiction; for bringing the party against whom the
proceeding is had before the court and notifying him of the case he is required to meet; for giving him an
opportunity to be heard in his defense; for the deliberation and judgment of the court; for an appeal from
this judgment to the highest court of the state, and for hearing and judgment there. A mere statement of
the facts carries with it a complete answer to all the constitutional objections urged against the validity of
the act.' And Mr. Justice MILLER, in Davidson v. New Orleans, 96 U.S. 97-105, after showing the
difficulty, if not the impossibility, of framing a definition of this constitutional phrase which [110 U.S. 516,
534] should be 'at once perspicuous, comprehensive, and satisfactory,' and thence deducing the wisdom
'in the ascertaining of the intent and application of such an important phrase in the federal constitution,
by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall
require,' says, however, that 'it is not possible to hold that a party has, without due process of law, been
deprived of his property, when, as regards the issues affecting it, he has by the laws of the state fair trial
in a court of justice, according to the modes of proceeding applicable to such a case.' See, also, Missouri
v. Lewis, 101 U.S. 22-31; Ex parte Wall, 107 U.S. 288-290; [2 SUP. CT. REP. 569.]
We are to construe this phrase in the fourteenth amendment by the usus loquendi of the constitution
itself. The same words are contained in the fifth amendment. That article makes specific and express
provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more
aggravated crimes under the laws of the United States. It declares that 'no person shall be held to answer
for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except
in cases arising in the land or naval forces, or in the militia when in actual service in time of war or
public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or
limb; nor shall he be compelled in any criminal case to be a witness against himself.' It then immediately
adds: 'nor be deprived of life, liberty, or property without due process of law.' According to a recognized
canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we
are forbidden to assume, without clear reason to the contrary, that any part of this most important
amendment is superfluous. The natural and obvious inference is that, in the sense of the constitution, 'due
process of law' was not meant or intended to include, ex vi termini, the institution and procedure of a
grand jury in any case. The conclusion is equally [110 U.S. 516, 535] irresistible, that when the same phrase
was employed in the fourteenth amendment to restrain the action of the states, it was used in the same
sense and with no greater extent; and that if in the adoption of that amendment it had been part of its
purpose to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the
fifth amendment, express declarations to that effect. Due process of law in the latter refers to that law of
the land which derives its authority from the legislative powers conferred upon congress by the
constitution of the United States, exercised within the limits therein prescribed, and interpreted according
to the principles of the common law. In the fourteenth amendment, by parity of reason, it refers to that
law of the land in each state which derives its authority from the inherent and reserved powers of the
state, exerted within the limits of those fundamental principles of liberty and justice which lie at the base
of all our civil and political institutions, and the greatest security for which resides in the right of the
people to make their own laws, and alter them at their pleasure. 'The fourteenth amendment,' as was said
by Mr. Justice BRADLEY in Missouri v. Lewis, 101 U.S. 22-31, 'does not profess to secure to all persons
in the United States the benefit of the same laws and the same remedies. Great diversities in these
respects may exist in two states separated only by an imaginary line. On one side of this line there may
be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of
judicial proceeding.'

But it is not to be supposed that these legislative powers are absolute and despotic, and that the
amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint.
It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act
of power. It must be not a special rule for a particular person or a particular case, but, in the language of
Mr. Webster, in his familiar definition, 'the general law, a law which hears before it condemns, which
proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall [110 U.S. 516, 536]
hold his life, liberty, property, and immunities under the protection of the general rules which govern
society,' and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts
of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another,
legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power
under the forms of legislation. Abritrary power, enforcing its edicts to the injury of the persons and
property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an
impersonal multitude. And the limitations imposed by our constitutional law upon the action of the
governments, both state and national, are essential to the preservation of public and private rights,
notwithstanding the representative character of our political institutions. The enforcement of these
limitations by judicial process is the device of self-governing communities to protect the rights of
individuals and minorities, as well against the power of numbers, as against the violence of public agents
transcending the limits of lawful authority, even when acting in the name and wielding the force of the
government.
The supreme court of Mississippi, in a well-considered case, (Brown v. Levee Com'rs, 50 Miss. 468,)
speaking of the meaning of the phrase 'due process of law,' says: 'The principle does not demand that the
laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily
continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a
derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is
condemned to the loss of life, liberty, or property, then the deprivation has not been by 'due process of
law."
'It must be conceded,' said this court, speaking by Mr. Justice MILLER, in Loan Ass'n v.
Topeka, 20 Wall. 655-662, 'that there are such rights in every free government beyond the
control of the state. A government [110 U.S. 516, 537] which recognized no such rights, –
which held the lives, the liberty, and the property of its citizens subject at all times to the
absolute disposition and unlimited control of even the most democratic depository of power,
– is after all but a despotism. It is true, it is a despotism of the many, – of the majority, if
you choose to call it so, – but it is nevertheless a despotism. It may be doubted, if a man is to
hold all that he is accustomed to call his own, all in which he has placed his happiness, and
the security of which is essential to that happiness, under the unlimited dominion of others,
whether it is not wiser that this power should be exercised by one man than by many.'
It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom,
or newly devised in the discretion of the legislative power in furtherance of the general public good,
which regards and preserves these principles of liberty and justice, must be held to be due process of law.
The constitution of Connecticut, adopted in 1818 and in force when the fourteenth amendment took
effect, requires an indictment or presentment of a grand jury only in cases where the punishment of the
crime charged is death or imprisonment for life, and yet it also declares that no person shall 'be deprived
of life, liberty or property but by due course of law.' It falls short, therefore, of that measure of protection

which it is claimed is guarantied by Magna Charta to the right of personal liberty; notwithstanding which
it is no doubt justly said in Swift's Digest, 17, that 'this sacred and inestimable right, without which all
others are of little value, is enjoyed by the people of this state is as full extent as in any country on the
globe, and in as high a degree as is consistent with the nature of civil government. No individual or body
of men has a discretionary or arbitrary power to commit any person to prison; no man can be restrained
of his liberty, be prevented from removing himself from place to place as he chooses, be compelled to go
to a place contrary to his inclination, or be in any way imprisoned or confined, unless by virtue of the
expressed laws of the land.' [110 U.S. 516, 538] Tried by these principles, we are unable to say that the
substitution for a presentment or indictment by a grand jury of the proceeding by information after
examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the
right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the
prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law,
which might include every case of an offense of less grade than a felony, except misprision of treason;
and in every circumstance of its administration, as authorized by the statute of California, it carefully
considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and
can result in no final judgment, except as the consequence of a regular judicial trial, conducted precisely
as in cases of indictments. In reference to this mode of proceeding at the common law, and which he says
'is as ancient as the common law itself,' Blackstone adds, (4 Comm. 305:) 'And as to those offenses in
which informations were allowed as well as indictments, so long as they were confined to this high and
respectable jurisdiction, and were carried on in a legal and regular course in his majesty's court of king's
bench, the subject had no reason to complain. The same notice was given, the same process was issued,
the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same
judges, as if the prosecution had originally been by indictment.'
For these reasons, finding no error therein, the judgment of the supreme court of California is affirmed.

U.S. Supreme Court
HURTADO v. PEOPLE OF STATE OF CALIFORNIA,

110 U.S. 516 (1884)
March 3, 1884
[110 U.S. 516, 517] The constitution of the state of California adopted in
1879, in article 1, 8, provides as follows: 'Offenses heretofore required to
be prosecuted by indictment, shall be prosecuted by information, after
examination and commitment by a magistrate, or by indictment, with or
without such examination and commitment, as may be prescribed by law. A
grand jury shall be drawn and summoned at least once a year in each county.'
Various provisions of the Penal Code regulate proceedings before the
examining and committing magistrate in cases of persons arrested and brought
before them upon charges of having committed public offenses. These require,
among other things, that the testimony of the witnesses shall be reduced to
writing in the form of depositions; and section 872 declares that if it
appears from the examination that a public offense has been committed, and
there is sufficient cause to believe the defendant guilty thereof, the
magistrate must indorse on the depositions an order, signed by him, to that
effect, describing the general nature of the offense committed, and ordering
that the defendant be held to answer thereto. Section 809 of the Penal Code
is as follows: 'When a defendant has been examined and committed, as
provided in section 872 of this Code, it shall be the duty of the district
attorney, within thirty days thereafter, to file in the superior court of
the county in which the offense is triable, an information charging the
defendant with such offense. The information shall [110 U.S. 516, 518] be in
the name of the people of the state of California, and subscribed by the
district attorney, and shall be in form like an indictment for the same
offense.'
In pursuance of the foregoing provision of the constitution, and of the

several sections of the Penal Code of California, the district attorney of
Sacramento county, on the twentieth day of February, 1882, made and filed an
information against the plaintiff in error, charging him with the crime of
murder in the killing of one Jose Antonio Stuardo. Upon this information,
and without any previous investigation of the cause by any grand jury, the
plaintiff in error was arraigned on the twenty-second day of March, 1882,
and pleaded not guilty. A trial of the issue was thereafter had, and on May
7, 1882, the jury rendered its verdict, in which it found the plaintiff in
error guilty of murder in the first degree. On the fifth day of June, 1882,
the superior court of Sacramento county, in which the plaintiff in error had
been tried, rendered its judgment upon said verdict, that the said Joseph
Hurtado, plaintiff in error, be punished by the infliction of death, and the
day of his execution was fixed for the twentieth day of July, 1882. From
this judgment an appeal was taken, and the supreme court of the State of
California affirmed the judgment. On the sixth day of July, 1883, the
superior court of said county of Sacramento ordered that the plaintiff in
error be in court on the eleventh day of July, 1883, in order that a day for
the execution of the judgment in said cause should be fixed. In pursuance of
said order, plaintiff in error, with his counsel, appeared at the bar of the
court, and thereupon the judge asked him if he had any legal reason to urge
why said judgment should not be executed, and why an order should not then
be made fixing the day for the execution of the same. Thereupon the
plaintiff in error, by his counsel, objected to the execution of said
judgment, and to any order which the court might make fixing a day for the
execution of the same, upon the grounds (7) that it appeared upon the face
of the judgment that the [110 U.S. 516, 519] plaintiff in error had never
been legally, or otherwise, indicted or presented by any grand jury, and
that he was proceeded against by information made and filed by the district

attorney of the county of Sacramento, after examination and commitment by a

magistrate of the said county; (8) that the said proceedings, as well as the
laws and constitution of California, attempting to authorize them, and the
alleged verdict of the jury, and judgment of the said superior court of said
county of Sacramento, were in conflict with and prohibited by the fifth and
fourteenth articles of amendment of the constitution of the United States,
and that they were therefore void; (9) that the said plaintiff in error had
been held to answer for the said crime of murder by the district attorney of
the said county of Sacramento, upon an information filed by him, and had
been tried and illegally found guilty of the said crime, without any
presentment or indictment of any grand or other jury, and that the judgment
rendered upon the alleged verdict of the jury in such case was and is void,
and if executed would deprive the plaintiff in error of his life or liberty
without due process of law. Thereupon the court overruled the said
objections, and fixed the thirtieth day of August, 1883, as the time for the
execution of the sentence. From this latter judgment the plaintiff in error
appealed to the supreme court of the state. On the eighteenth day of
September, 1883, the supreme court of the state affirmed the said judgment,
to review which the present writ of error was allowed and has been
prosecuted.
A. L. Hart, for plaintiff in error.
John T. Carey, for defendant in error.
MATTHEWS, J.
It is claimed on behalf of the prisoner that the conviction and sentence are
void, on the ground that they are repugnant to that clause of the fourteenth
article of amendment to the constitution of the United States, which is in
these words: [110 U.S. 516, 520] 'Nor shall any state deprive any person of
life, liberty, or property without due process of law.' The proposition of
law we are asked to affirm is that an indictment or presentment by a grand
jury, as known to the common law of England, is essential to that 'due
process of law,' when applied to prosecutions for felonies, which is secured
and guarantied by this provision of the constitution of the United States,
and which accordingly it is forbidden to the states, respectively, to
dispense with in the administration of criminal law. The question is one of
grave and serious import, affecting both private and public rights and
interests of great magnitude, and involves a consideration of what
additional restrictions upon the legislative policy of the states has been
imposed by the fourteenth amendment to the constitution of the United
States. The supreme court of California, in the judgment now under review,
followed its own previous decision in Kalloch v. Super. Ct. 56 Cal. 229, in
which the question was deliberately adjudged. Its conclusion was there
stated as follows: 'This proceeding, as [it] is regulated by the
constitution and laws of this state, is not opposed to any of the
definitions given of the phrases 'due process of law' and 'the law of the
land;' but, on the contrary, it is a proceeding strictly within such
definitions, as much so in every respect as is a proceeding by indictment.
It may be questioned whether the proceeding by indictment secures to the
accused any superior rights and privileges; but certainly a prosecution by
information takes from him no immunity or protection to which he is entitled
under the law.' And the opinion cites and relies upon a decision of the
supreme court of Wisconsin in the case of Rowan v. State, 30 Wis. 129. In
that case the court, speaking of the fourteenth amendment, says: 'But its
design was not to confine the states to a particular mode of procedure in
judicial proceedings, and prohibit them from [110 U.S. 516, 521] prosecuting
for felonies by information instead of by indictment, if they chose to
abolish the grand jury system. And the words 'due process of law' in the
amendment do not mean and have not the effect to limit the powers of state

governments to prosecutions for crime by indictment; but these words do mean

law in its regular course of administration, according to prescribed forms,
and in accordance with the general rules for the protection of individual
rights. Administration and remedial proceedings must change, from time to
time, with the advancement of legal science and the progress of society;
and, if the people of the state find it wise and expedient to abolish the
grand jury and prosecute all crimes by information, there is nothing in our
state constitution and nothing in the fourteenth amendment to the
constitution of the United States which prevents them from doing so.'
On the other hand, it is maintained on behalf of the plaintiff in error that

the phrase 'due process of law' is equivalent to 'law of the land,' as found
in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has
acquired a fixed, definite, and technical meaning; that it refers to and
includes, not only the general principles of public liberty and private
right, which lie at the foundation of all free government, but the very
institutions which, venerable by time and custom, have been tried by
experience and found fit and necessary for the preservation of those
principles, and which, having been the birthright and inheritance of every
English subject, crossed the Atlantic with the colonists and were
transplanted and established in the fundamental laws of the state; that,
having been originally introduced into the constitution of the United States
as a limitation upon the powers of the government, brought into being by
that instrument, it has now been added as an additional security to the
individual against oppression by the states themselves; that one of these
institutions is that of the grand jury, an indictment or presentment by
which against the accused in cases of alleged felonies is an essential part
of due process of law, in order that he may not be harassed and destroyed by
prosecutions founded only upon private malice or popular fury. This view is
certainly supported by the authority of the [110 U.S. 516, 522] great name
of Chief Justice SHAW and of the court in which he presided, which, in Jones
v. Robbins, 8 Gray, 329, decided that the twelfth article of the bill of
rights of Massachusetts, a transcript of Magna Charta in this respect, made
an indictment or presentment of a grand jury essential to the validity of a
conviction in cases of prosecutions for felonies. In delivering the opinion
of the court in that case, MERRICK, J., alone dissenting, the chief justice
said: 'The right of individual citizens to be secure from an open and public
accusation of crime, and from the trouble, expense, and anxiety of a public
trial before a probable cause is established by the presentment and
indictment of a grand jury, in case of high offenses, is justly regarded as
one of thesecurities to the innocent against hasty, malicious, and
oppressive public prosecutions, and as one of the ancient immunities and
privileges of English liberty. ... It having been stated,' he continued, 'by
Lord COKE, that by the 'law of the land' was intended a due course of
proceeding according to the established rules and practice of the courts of
common law, it may, perhaps, be suggested that this might include other
modes of proceeding, sanctioned by the common law, the most familiar of
which are, by informations of various kinds, by the officers of the crown,
in the name of the king. But, in reply to this, it may be said that Lord
COKE himself explains his own meaning by saying by 'the law of the land.' as
expressed in Magna Charta, was intended due process of law; that is, by
indictment or presentment of good and lawful men. And further, it is stated.
On the authority of Blackstone, that informations of every kind are confined
by the constitutional law to misdemeanors only. 4 Bl. Comm. 310.' Referring
again to the passage from Lord COKE, he says, page 343: 'This may not be
conclusive, but, being a construction adopted by a writer of high authority
before the emigration of our ancestors, it has a tendency to show how it was
then understood.'
This passage from COKE seems to be the chief foundation of the opinion for
which it is cited; but a critical examination and [110 U.S. 516, 523]

comparison of the text and context will show that it has been misunderstood;
that it was not intended to assert that an indictment or presentment of a
grand jury was essential to the idea of due process of law in the
prosecution and punishment of crimes, but was only mentioned as an example
and illustration of due process of law as it actually existed in cases in
which it was customarily used. In beginning his commentary on this chapter
of Magna Charta, (2 Inst. 46,) COKE says: 'This chapter containeth nine
several branches: (1) That no man may be taken or imprisoned but per legem
terroe, -- that is, by the common law, statute law, of custom of England;
for the words per legem terroe, being towards the end of this chapter, doe
referre to all the precedent matters in this chapter, etc. (2) No man shall
be disseized, etc., unless it be by the lawful judgment, that is. verdict,
of his equals, (that is, of men of his own condition,) or by the law of the
land, (that is, to speak it once for all,) by the due course and process of
law.' He then proceeds to state that (3) no man shall be outlawed, unless
according to the law of the land ; (4) no man shall be exiled, unless
according to the law of the land; (5) no man shall be in any sort destroyed,
'unless it be by the verdict of his equals, or according to the law of the
land;' (6) 'no man shall be condemned at the king's suite, either before the
king in his bench, where the pleas are coram rege, (and so are the words nec
super eum ibimus to be understood,) nor before any other commissioner or
judge whatsoever, and so are the words nec super eum mittemus to be
understood, but by the judgment of his peers, that is, equals, or according
to the law of the land.'
Recurring to the first clause of the chapter, he continues: '(1) No man

shall be taken (that is) restrained of liberty by petition or suggestion to
the king, or to his council, unless it be by indictment or presentment of
good and lawful men, where such deeds be done. This branch and divers other
parts of this act have been notably explained by divers acts of parliament,
etc., quoted in the margent.' The reference is to various acts during the
reign of Edward [110 U.S. 516, 524] III. And reaching again the words 'nisi
per legem terroe,' he continues: 'But by the law of the land. For the true
sense and exposition of these words see the statute of 37 E. 3, cap. 8,
where the words, 'by the law of the land' are rendered, without due proces
of law, for there it is said, though it be contained in the great charter,
that no man be taken, imprisoned, or put out of his freehold without proces
of the law; that is by indictment of good and lawfull men, where such deeds
be done in due manner, or by writ originall of the common law. Without being
brought in to answere swere but by due proces of the common law. No man be
put to answer without presentment before justices, or thing of record, or by
due proces, or by writ originall, according to the old law of the land.
Wherein it is to be observed that this chapter is but declaratory of the old
law of England.'
It is quite apparent from these extracts that the interpretation usually put
upon Lord COKE's statement is too large, because if an indictment or
presentment by a grand jury is essential to due process of law in all cases
of imprisonment for crime, it applies not only to felonies, but to
misdemeanors and petty offenses, and the conclusion would be inevitable that
informations as a substitute for indictments would be illegal in all cases.
It was indeed so argued by Sir FRANCIS WINNINGTON in Prynn's Case, 5 Mod.
457, from this very language of Magna Charta, that all suits of the king
must be by presentment or indictment, and he cited Lord COKE as authority to
that effect. He attempted to show that informations had their origin in the
act of 11 Hen. VII. c. 3, enacted in 1494, known as the infamous Empson and
Dudley act, which was repealed by that of 1 Hen. VIII. c. 6, in 1509. But
the argument was overruled, Lord HOLT saying that to hold otherwise 'would
be a reflection on the whole bar.' Sir BARTHOLOMEW SHOWER, who was prevented
from arguing in support of the information, prints his intended argument in
his report of the case under the name of The King v. Berchet, 1 Show. 106,

in which, with great thoroughness, he arrays all the learning of the time on
the subject. He undertakes to 'evince that this method of prosecution is
noways [110 U.S. 516, 525] contrariant to any fundamental rule of law, but
agreeable to it.' He answers the objection that it is inconvenient and
vexatious to the subject by saying, (page 117:) 'Here is no inconvenience to
the people. Here is a trial per pais, fair notice, liberty of pleading
dilatories as well as bars. Here is subpoena and attachment, as much time
for defense, charge, etc., for the prosecutor makes up the record, etc.;
then, in case of malicious prosecution, the person who prosecutes is known
by the note to the coroner, according to the practice of the court.' He
answers the argument drawn from Magna Charta, and says 'that this method of
prosecution no way contradicts that law, for we say this is per legem terroe
et per communem legem terroe; for otherwise there never had been so
universal a practice of it in all ages.' And referring to COKE's comment,
that 'no man shall be taken,' i. e., restrained of liberty, by petition or
suggestion to the king or his council unless it be by indictment or
presentment, he says, (page 122:) 'By petition or suggestion can never be
meant of the king's bench, for he himself had preferred several here; that
is meant only of the king alone, or in council, or in the star chamber. In
the king's bench the information is not a suggestion to the king but to the
court upon record;' and he quotes 3 Inst. 136, where Coke modifies the
statement by saying, 'The king cannot put any to answer, but his court must
be apprized of the crime by indictment, presentment, or other matter of
record,' which, Shower says, includes an information. So it has been
recently held that upon a coroner's inquisition taken concerning the death
of a man, and a verdict of guilty of murder or manslaughter is returned, the
offender may be prosecuted and tried without the intervention of a grand
jury. Reg. v. Ingham, 5 Best & S. 257. And it was said by BULLER, J., in*
[110 U.S. 516, 526] Rex v. Jolliffe, 4 Term R. 285-293, that if to an action
for slander in charging the plaintiff with felony a justification is pleaded
which is found by the jury, that of itself amounts to an indictment, as if
it had been found by the grand jury, and is sufficient to put the party thus
accused on his trial.
The language of Lord COKE applies only to forfeitures of life and liberty at
the suit of the king, and hence appeals of murder, which were prosecutions
by private persons, were never regarded as contrary to Magna Charta. On the
contrary, the appeal of death was by Lord HOLT 'esteemed a noble remedy, and
a badge of the rights and liberties of an Englishman.' Rex v. Toler, 1 Ld.
Raym. 557; 12 Mod. 375; Holt, 483. We are told that in the early part of the
last century, in England, persons who had been acquitted on indictments for
murder were often tried, convicted, and executed on appeals. Kendall, Trial
by Battel, (3d Ed.) 44-47. An appeal of murder was brought in England as
lately as 1817, but defeated by the appellant's declining to accept the
wager of battel. Ashford v. Thornton, 1 Barn Ald. 405. The English statutes
concerning appeals of murder were in force in the provinces of Pennsylvania
and Maryland. Report of Judges, 6 Bin. 599-604; Kitty, Md. St. 141, 143,
158. It is said that no such appeal was ever brought in Pennsylvania; but in
Maryland, in 1765, a negro was convicted and executed upon such an appeal.
Soaper v. Tom, 1 Har. & McH. 227. See note to Paxton's Case, Quincy, (Mass.)
53, by Mr. Justice GRAY.
This view of the meaning of Lord COKE is the one taken by MERRICK, J., in
his dissenting opinion in Jones Robbins, supra, who states his conclusions
in these words: 'It is the forensic trial, under a broad and general law,
operating equally upon every member of our community, which the words 'by
the law of the land,' in Magna Charta, and in every subsequent declaration
of rights which has borrowed its phraseology, make essential to the safety
of the citizen, securing thereby both his liberty and his property, by
preventing the unlawful arrest of his person, or any unlawful interference
with his estate.' See, also, state v. Starling, 15 Rich. (S. C.) Law, 120.

[110 U.S. 516, 527] Mr. Reeve, in 2 Hist. Eng. Law, 43, translates the
phrase, nisi per legale judicium parium suorum vel per legem terroe, 'but by
the judgment of his peers, or by some other legal process or proceeding
adapted by law to the nature of the case.' Chancellor KENT, (2 Comm. 13,)
adopts this mode of construing the phrase. Quoting the language of Magna
Charta, and referring to Lord COKE's comment upon it, he says: 'The better
and larger definition of due process of law is that it means law in its
regular course of administration through courts of justice.' This accords
with what is said in Westervelt v. Gregg, 12 N. Y. 202, by DENIO, J., p.
212: 'The provision was designed to protect the citizen against all mere
acts of power, whether flowing from the legislative or executive branches of
the government.' The principle and true meaning of the phrase have never
been more tersely or accurately stated than by Mr. Justice JOHNSON in Bank
of Columbia v. Okely, 4 Wheat. 235-244: 'As to the words from Magna Charta,
incorporated into the constitution of Maryland, after volumes spoken and
written with a view to their exposition, the good sense of mankind has at
last settled down to this: that they were intended to secure the individual
from the arbitrary exercise of the powers of government, unrestrained by the
established principles of private right and distributive justice.' And the
conclusion rightly deduced is as stated by Mr. Cooley, (Const. Lim. 356:)
'The principles, then, upon which the process is based, are to determine
whether it is 'due process' or not, and not any considerations of mere form.
Administrative and remedial process may [110 U.S. 516, 528] be changed from
time to time, but only with due regard to the landmarks established for the
protection of the citizen.'
It is urged upon us, however, in argument, that the claim made in behalf of
the plaintiff in error is supported by the decision of this court in
Murray's Lessee v. Hoboken Land & Imp. Co. 18 How. 272. There, Mr. Justice
CURTIS, delivering the opinion of the court, after showing (page 276) that
due process of law must mean something more then the actual existing law of
the land, for otherwise it would be no restraint upon legislative power,
proceeds as follows: 'To what principle, then, are we to resort to ascertain
whether this process, enacted by congress, is due process? To this the
answer must be twofold. We must examine the constitution itself to see
whether this process be in conflict with any of its provisions. If not found
to be so, we must look to those settled usages and modes of proceeding
existing in the common and statute law of England before the emigration of
our ancestors, and which are shown not to have been unsuited to their civil
and political condition by having been acted on by them after the settlement
of this country.' This, it is argued, furnishes an indispensable test of
what constitutes 'due process of law;' that any proceeding otherwise
authorized by law, which is not thus sanctioned by usage, or which
supersedes and displaces one that is, cannot be regarded as due process of
law. But this inference is unwarranted. The real syllabus of the passage
quoted is that a process of law, which is not otherwise forbidden, must be
taken to be due process of law, if it can show the sanction of settled usage
both in England and in this country; but it by no means follows, that
nothing else can be due process of law. The point in the case cited arose in
reference to a summary proceeding, questioned on that account as not due
process of law. The answer was, however exceptional it may be, as tested by
definitions and principles of ordinary procedure, nevertheless, this, in
substance, has been immemorially the actual law of the land, and,
therefore, is due process of law. [110 U.S. 516, 529] But to hold that such a
characteristic is essential to due process of law, would be to deny every
quality of the law but its age, and to render it incapable of progress or
improvement. It would be to stamp upon our jurisprudence the
unchangeableness attributed to the laws of the Medes and Persians.
This would be all the more singular and surprising, in this quick and active
age, when we consider that, owing to the progressive development of legal

ideas and institutions in England, the words of Magna Charta stood for very
different things at the time of the separation of the American colonies from
what they represented originally. For at first the words nisi per legale
judicium parium had no reference to a jury; they applied only to the pares
regni, who were the constitutional judges in the court of exchequer and
coram rege. Bac. Abr. 'Juries,' (7th Ed. Lond.) note; 2 Reeves, Hist. Eng.
Law, 41. And as to the grand jury itself, we learn of its constitution and
functions from the assize of Clarendon, (A. D. 1164,) and that of
Northampton, (A. D. 1176;) Stubbs, Chart. 143-150. By the latter of these,
which was a republication of the former, it was provided that 'if any one is
accused before the justices of our lord the king of murder or theft or
robbery, or of harboring persons committing those crimes, or of forgery or
arson, by the oath of 12 knights of the hundred, or, if there are no
knights, by the oath of 12 free and lawful men, and by the oath of four men
from each township of the hundred, let him go to the ordeal of water, and,
if he fails, let him lose one foot. And at Northampton it was added, for
greater strictness of justice, (pro rigore justitioe,) that he shall lose
his right hand at the same time with his foot, and adjure the realm and
exile himself from the realm within 40 days. And, if he is acquitted by the
ordeal, let him find pledges and remain in the kingdom, unless he is accused
of murder or other base felony by the body of the country and the lawful
knights of the country; but, if he is so accused as aforesaid, although he
is acquitted by the ordeal of water, nevertheless he must leave the kingdom
in 40 days, and take his chattels with him, subject to the rights of his
lords, and he must adjure the kingdom at the mercy of our lord the king.'
[110 U.S. 516, 530] 'The system thus established,' says Mr. Justice
STEPHENS, (1 Hist. Crim. Law Eng. 252,) 'is simple. The body of the country
are the accusers. Their accusation is practically equivalent to a
conviction, subject to the chance of a favorable termination of the ordeal
by water. If the ordeal fails, the accused person loses his foot and his
hand. If it succeeds, he is, nevertheless, to be banished. Accusation,
therefore, was equivalent to banishment, at least.' When we add to this that
the primitive grand jury heard no witnesses in support of the truth of the
charges to be preferred, but presented upon their own knowledge, or indicted
upon common fame and general suspicion, we shall be ready to acknowledge
that it is better not to go too far back into antiquity for the best
securities for our 'ancient liberties.' It is more consonant to the true
philosophy of our historical legal institutions to say that the spirit of
personal liberty and individual right, which they embodied, was preserved
and developed by a progressive growth and wise adaptation to new
circumstances and situations of the forms and processes found fit to give,
from time to time, new expression and greater effect to modern ideas of
self-government.
This flexibility and capacity for growth and adaptation is the peculiar
boast and excellence of the common law. Sir JAMES MACKINTOSH ascribes this
principle of development to Magna Charta itself. To use his own language:
'It was a peculiar advantage that the consequences of its principles were,
if we may so speak, only discovered slowly and gradually. It gave out on
each occasion only so much of the spirit of liberty and reformation as the
circumstances of succeeding generations required, and as their character
would safely bear; for almost five centuries it was appealed to as the
decisive authority on behalf of the people, though commonly so far only as
the necessities of each case demanded.' 1 Hist. Eng. 221.
The constitution of the United States was ordained, it is true, by

descendants of Englishmen, who inherited the traditions of the English law
and history; but it was made for an [110 U.S. 516, 531] undefined and
expanding future, and for a people gathered, and to be gathered, from many
nations and of many tongues; and while we take just pride in the principles
and institutions of the common law, we are not to forget that in lands where

other systems of jurisprudence prevail, the ideas and processes of civil

justice are also not unknown. Due process of law, in spite of the absolutism
of continental governments, is not alien to that Code which survived the
Roman empire as the foundation of modern civilization in Europe, and which
has given us that fundamental maxim of distributive justice, suum cuique
tribuere. There is nothing in Magna Charta, rightly construed as a broad
charter of public right and law, which ought to exclude the best ideas of
all systems and of every age; and as it was the characteristic principle of
the common law to draw its inspiration from every fountain of justice, we
are not to assume that the sources of its supply have been exhausted. On the
contrary, we should expect that the new and various experiences of our own
situation and system will mould and shape it into new and not useful forms.
The concessions of Magna Charta were wrung from the king as guaranties
against the oppressions and usurpations of his prerogative. It did not enter
into the minds of the barons to provide security against their own body or
in favor of the commons by limiting the power of parliament; so that bills
of attainder, ex post facto laws, laws declaring forfeitures of estates, and
other arbitrary acts of legislation which occur so frequently in English
history, were never regarded as inconsistent with the law of the land; for
notwithstanding what was attributed to Lord COKE in Bonham's Case, 8
Reporter, 115, 118a, the omnipotence of parliament over the common law was
absolute, even against common right and reason. The actual and practical
security for English liberty against legislative tyranny was the power of a
free public opinion represented by the commons. In this country written
constitutions were deemed essential to protect the rights and liberties of
the people against the encroachments of power delegated to their
governments, and the provisions of Magna Charta were incorporated into bills
of [110 U.S. 516, 532] rights, They were limitations upon all the powers of
government, legislative as well as executive and judicial. It necessarily
happened, therefore, that as these broad and general maxims of liberty and
justice hald in our system a different place and performed a different
function from their position and office in English constitutional history
and law, they would receive and justify a corresponding and more
comprehensive interpretation. Applied in England only as guards against
executive usurpation and tyranny, here they have become bulwarks also
against arbitrary legislation; but in that application, as it would be
incongruous to measure and restrict them by the ancient customary English
law, they must be held to guaranty, not particular forms of procedure, but
the very substance of individual rights to life, liberty, and property.
Restraints that could be fastened upon executive authority with precision
and detail, might prove obstructive and injurious when imposed on the just
and necessary discretion of legislative power; and while, in every instance,
laws that violated express and specific injunctions and prohibitions might
without embarrassment be judicially declared to be void, yet any general
principle or maxim founded on the essential nature of law, as a just and
reasonable expression of the public will, and of government as instituted by
popular consent and for the general good, can only be applied to cases
coming clearly within the scope of its spirit and purpose, and not to
legislative provisions merely establishing forms and modes of attainment.
Such regulations, to adopt a sentence of Burke's 'may alter the mode and
application, but have no power over the substance of original justice.'
Tract on Popery Laws, 6 Burke's Works, (Ed. Little & Brown,) 323.
Such is the often repeated doctrine of this court. In Munn v. Illinois, 94

U.S. 113-134, the chief justice, delivering the opinion of the court, said:
'A person has no property, no vested interest, in any rule of the common
law. That is only one of the forms of municipal law, and is no more sacred
than any other. Rights of property which have been created by the common law
cannot be taken [110 U.S. 516, 533] away without due process; but the law
itself, as a rule of conduct, may be changed at the will or even at the whim

of the legislature, unless prevented by constitutional limitations. Indeed,

the great office of statutes is to remedy defects in the common law as they
are developed, and to adapt it to the changes of time and circumstances.'
And in Walker v. Sauvinet, 92 U.S. 90 , the court said: 'A trial by jury in
suits at common law pending in state courts is not, therefore, a privilege
or immunity of national citizenship which the states are forbidden by the
fourteenth amendment to abridge. A state cannot deprive a person of his
property without due process of law; but this does not necessarily imply
that all trials in the state courts affecting the property of persons must
be by jury. This requirement of the constitution is met if the trial is had
according to the settled course of judicial proceedings. Due process of law
is process according to the law of the land. This process in the states is
regulated by the law of the state.' In Kennard v. Louisiana ex rel. 92 U.S.
480 , the question was whether a mode of trying the title to an office, in
which was no provision for a jury, was due process of law. Its validity was
affirmed. The chief justice, after reciting the various steps in the
proceeding, said: 'From this it appears that ample provision has been made
for the trial of the contestation before a court of competent jurisdiction;
for bringing the party against whom the proceeding is had before the court
and notifying him of the case he is required to meet; for giving him an
opportunity to be heard in his defense; for the deliberation and judgment of
the court; for an appeal from this judgment to the highest court of the
state, and for hearing and judgment there. A mere statement of the facts
carries with it a complete answer to all the constitutional objections urged
against the validity of the act.' And Mr. Justice MILLER, in Davidson v. New
Orleans, 96 U.S. 97-105, after showing the difficulty, if not the
impossibility, of framing a definition of this constitutional phrase which
[110 U.S. 516, 534] should be 'at once perspicuous, comprehensive, and
satisfactory,' and thence deducing the wisdom 'in the ascertaining of the
intent and application of such an important phrase in the federal
constitution, by the gradual process of judicial inclusion and exclusion, as
the cases presented for decision shall require,' says, however, that 'it is
not possible to hold that a party has, without due process of law, been
deprived of his property, when, as regards the issues affecting it, he has
by the laws of the state fair trial in a court of justice, according to the
modes of proceeding applicable to such a case.' See, also, Missouri v.
Lewis, 101 U.S. 22-31; Ex parte Wall, 107 U.S. 288-290; [2 SUP. CT. REP.
569.]
We are to construe this phrase in the fourteenth amendment by the usus

loquendi of the constitution itself. The same words are contained in the
fifth amendment. That article makes specific and express provision for
perpetuating the institution of the grand jury, so far as relates to
prosecutions for the more aggravated crimes under the laws of the United
States. It declares that 'no person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in the militia
when in actual service in time of war or public danger; nor shall any person
be subject for the same offense to be twice put in jeopardy of life or limb;
nor shall he be compelled in any criminal case to be a witness against
himself.' It then immediately adds: 'nor be deprived of life, liberty, or
property without due process of law.' According to a recognized canon of
interpretation, especially applicable to formal and solemn instruments of
constitutional law, we are forbidden to assume, without clear reason to the
contrary, that any part of this most important amendment is superfluous. The
natural and obvious inference is that, in the sense of the constitution,
'due process of law' was not meant or intended to include, ex vi termini,
the institution and procedure of a grand jury in any case. The conclusion is
equally [110 U.S. 516, 535] irresistible, that when the same phrase was
employed in the fourteenth amendment to restrain the action of the states,
it was used in the same sense and with no greater extent; and that if in the

adoption of that amendment it had been part of its purpose to perpetuate the
institution of the grand jury in all the states, it would have embodied, as
did the fifth amendment, express declarations to that effect. Due process of
law in the latter refers to that law of the land which derives its authority
from the legislative powers conferred upon congress by the constitution of
the United States, exercised within the limits therein prescribed, and
interpreted according to the principles of the common law. In the fourteenth
amendment, by parity of reason, it refers to that law of the land in each
state which derives its authority from the inherent and reserved powers of
the state, exerted within the limits of those fundamental principles of
liberty and justice which lie at the base of all our civil and political
institutions, and the greatest security for which resides in the right of
the people to make their own laws, and alter them at their pleasure. 'The
fourteenth amendment,' as was said by Mr. Justice BRADLEY in Missouri v.
Lewis, 101 U.S. 22-31, 'does not profess to secure to all persons in the
United States the benefit of the same laws and the same remedies. Great
diversities in these respects may exist in two states separated only by an
imaginary line. On one side of this line there may be a right of trial by
jury, and on the other side no such right. Each state prescribes its own
modes of judicial proceeding.'
But it is not to be supposed that these legislative powers are absolute and
despotic, and that the amendment prescribing due process of law is too vague
and indefinite to operate as a practical restraint. It is not every act,
legislative in form, that is law. Law is something more than mere will
exerted as an act of power. It must be not a special rule for a particular
person or a particular case, but, in the language of Mr. Webster, in his
familiar definition, 'the general law, a law which hears before it condemns,
which proceeds upon inquiry, and renders judgment only after trial,' so
'that every citizen shall [110 U.S. 516, 536] hold his life, liberty,
property, and immunities under the protection of the general rules which
govern society,' and thus excluding, as not due process of law, acts of
attainder, bills of pains and penalties, acts of confiscation, acts
reversing judgments, and acts directly transferring one man's estate to
another, legislative judgments and decrees, and other similar special,
partial, and arbitrary exertions of power under the forms of legislation.
Abritrary power, enforcing its edicts to the injury of the persons and
property of its subjects, is not law, whether manifested as the decree of a
personal monarch or of an impersonal multitude. And the limitations imposed
by our constitutional law upon the action of the governments, both state and
national, are essential to the preservation of public and private rights,
notwithstanding the representative character of our political institutions.
The enforcement of these limitations by judicial process is the device of
self-governing communities to protect the rights of individuals and
minorities, as well against the power of numbers, as against the violence of
public agents transcending the limits of lawful authority, even when acting
in the name and wielding the force of the government.
The supreme court of Mississippi, in a well-considered case, (Brown v. Levee

Com'rs, 50 Miss. 468,) speaking of the meaning of the phrase 'due process of
law,' says: 'The principle does not demand that the laws existing at any
point of time shall be irrepealable, or that any forms of remedies shall
necessarily continue. It refers to certain fundamental rights which that
system of jurisprudence, of which ours is a derivative, has always
recognized. If any of these are disregarded in the proceedings by which a
person is condemned to the loss of life, liberty, or property, then the
deprivation has not been by 'due process of law."
'It must be conceded,' said this court, speaking by Mr.

Justice MILLER, in Loan Ass'n v. Topeka, 20 Wall.
655-662, 'that there are such rights in every free

government beyond the control of the state. A government

[110 U.S. 516, 537] which recognized no such rights, -- which
held the lives, the liberty, and the property of its citizens
subject at all times to the absolute disposition and unlimited
control of even the most democratic depository of power,
-- is after all but a despotism. It is true, it is a despotism of
the many, -- of the majority, if you choose to call it so, -- but
it is nevertheless a despotism. It may be doubted, if a man
is to hold all that he is accustomed to call his own, all in
which he has placed his happiness, and the security of
which is essential to that happiness, under the unlimited
dominion of others, whether it is not wiser that this power
should be exercised by one man than by many.'
It follows that any legal proceeding enforced by public authority, whether

sanctioned by age and custom, or newly devised in the discretion of the
legislative power in furtherance of the general public good, which regards
and preserves these principles of liberty and justice, must be held to be
due process of law.
The constitution of Connecticut, adopted in 1818 and in force when the

fourteenth amendment took effect, requires an indictment or presentment of a
grand jury only in cases where the punishment of the crime charged is death
or imprisonment for life, and yet it also declares that no person shall 'be
deprived of life, liberty or property but by due course of law.' It falls
short, therefore, of that measure of protection which it is claimed is
guarantied by Magna Charta to the right of personal liberty; notwithstanding
which it is no doubt justly said in Swift's Digest, 17, that 'this sacred
and inestimable right, without which all others are of little value, is
enjoyed by the people of this state is as full extent as in any country on
the globe, and in as high a degree as is consistent with the nature of civil
government. No individual or body of men has a discretionary or arbitrary
power to commit any person to prison; no man can be restrained of his
liberty, be prevented from removing himself from place to place as he
chooses, be compelled to go to a place contrary to his inclination, or be in
any way imprisoned or confined, unless by virtue of the expressed laws of
the land.' [110 U.S. 516, 538] Tried by these principles, we are unable to
say that the substitution for a presentment or indictment by a grand jury of
the proceeding by information after examination and commitment by a
magistrate, certifying to the probable guilt of the defendant, with the
right on his part to the aid of counsel, and to the cross-examination of the
witnesses produced for the prosecution, is not due process of law. It is, as
we have seen, an ancient proceeding at common law, which might include every
case of an offense of less grade than a felony, except misprision of
treason; and in every circumstance of its administration, as authorized by
the statute of California, it carefully considers and guards the substantial
interest of the prisoner. It is merely a preliminary proceeding, and can
result in no final judgment, except as the consequence of a regular judicial
trial, conducted precisely as in cases of indictments. In reference to this
mode of proceeding at the common law, and which he says 'is as ancient as
the common law itself,' Blackstone adds, (4 Comm. 305:) 'And as to those
offenses in which informations were allowed as well as indictments, so long
as they were confined to this high and respectable jurisdiction, and were
carried on in a legal and regular course in his majesty's court of king's
bench, the subject had no reason to complain. The same notice was given, the
same process was issued, the same pleas were allowed, the same trial by jury
was had, the same judgment was given by the same judges, as if the
prosecution had originally been by indictment.'
For these reasons, finding no error therein, the judgment of the supreme
court of California is affirmed.

Hurtado v. California, 110 U.S. 516 (1884): Harlan
Hurtado v. California, 110 U.S. 516 (1884)

HARLAN, J., dissenting.
The plaintiff in error, Joseph Hurtado, now under sentence of death pronounced in one of the courts of
California, brings this writ of error upon the ground that the proceedings against him are in violation of
the constitution of the United States. The crime charged, and of which he was found guilty, is murder.
The prosecution against him is not based upon any presentment or indictment of a grand jury, but upon
an information filed [110 U.S. 516, 539] by the district attorney of the county in which the crime was
alleged to have been committed. His contention is that an information for a capital offense is forbidden
by that clause of the fourteenth amendment of the constitution of the United States which declares that no
state shall 'deprive any person of life, liberty, or property without due process of law.' As I cannot agree
that the state may, consistently, with due process of law require a person to answer for a capital offense,
except upon the presentment or indictment of a grand jury, and as human life is involved in the judgment
rendered here, I do not feel at liberty to withhold a statement of the reasons for my dissent from the
opinion of the court.
The phrase 'due process of law' is not new in the constitutional history of this country or of England. It
antedates the establishment of our institutions. Those who had been driven from the mother country by
oppression and persecution brought with them, as their inheritance, which no government could
rightfully impair or destroy, certain guaranties of the rights of life, liberty, and property which had long
been deemed fundamental in Anglo-Saxon institutions. In the congress of the colonies, held in New York
in 1765, it was declared that the colonists were entitled to all the essential rights, liberties, privileges, and
immunities confirmed by Magna Charta to the subjects of Great Britain. Hutch. Hist. Mas. Bay,
Appendix F. 'It was under the consciousness,' says STORY, 'of the full possession of the rights, liberties,
and immunities of British subjects that the colonists, in almost all the early legislation of their respective
assemblies, insisted upon a declaratory act, acknowledging and confirming them.' 1 Story, Const. 165. In
his speech in the house of lords, on the doctrine of taxation without representation, Lord CHATHAM
maintained that the inhabitants of the colonies were entitled to all the rights and the peculiar privileges of
Englishmen; that they were equally bound by the laws, and equally entitled to participate in the
constitution of England. On the fourteenth of October, 1774, the delegates from the several colonies and
plantations, in congress assembled, made a formal declaration of the rights to which their people were
entitled, by the immutable laws [110 U.S. 516, 540] of nature, the principles of the English constitution, and
the several charters or compacts under which the colonial governments were organized. Among other
things, they declared that their ancestors who first settled the colonies were, at the time of their
immigration, 'entitled to all the rights, liberties, and immunities of free and natural-born subjects within
the realm of England;' that 'by such immigration they by no means forfeited, surrendered, or lost any of
those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of
all such of them as their local and and other circumstances entitled them to exercise and enjoy;' and that
'the respective colonies are entitled to the common law of England, and more especially to the great and
inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.' 1
Jour. Cong. 27-29.
These declarations were susequently emphasized in the most imposing manner, when the doctrines of the
common law respecting the protection of the people in their lives, liberties, and property were
incorporated into the earlier constitutions of the original states. Massachusetts in its constitution of 1780,
and New Hampshire in 1784, declared in the same language that 'no subject shall be arrested,
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imprisoned, despoiled or deprived of his property, immunities, or privileges, put out of the protection of
the law, exiled or deprived of his life, liberty, or estate but by the judgment of his peers or the law of the
land;' Maryland and North Carolina in 1776, and South Carolina in 1778, that 'no freeman of this state be
taken or imprisoned, or disseized of his freehold, liberties, or privileges, outlawed, exiled, or in any
manner destroyed or deprived of his life, liberty, or property but by the judgment of his peers or the law
of the land;' Virginia, in 1776, that 'no man be deprived of his liberty except by the law of the land or the
judgment of his peers;' and Delaware, in 1792, that no person 'shall be deprived of life, liberty, or
property, unless by the judgment of his peers or the law of the land.' In the ordinance of 1789 for the
government of the Northwestern territory, it was made one of the articles of compact between the
original states and the people and states to be formed out of [110 U.S. 516, 541] that territory – 'to remain
forever unalterable unless by common consent' – that 'no man shall be deprived of his life, liberty, or
property but by the judgment of his peers or the law of the land.' These fundamental doctrines were
subsequently incorporated into the constitution of the United States. The people were not content with
the provision in section 2 of article 3 that 'the trial of all crimes, except in cases of impeachment, shall be
by jury.' They desired a fuller and broader enunciation of the fundamental principles of freedom, and
therefore demanded that the guaranties of the rights of life, liberty, and property, which experience had
proved to be assential to the safety and security of the people, should be placed beyond all danger of
impairment or destruction by the general government through legislation by congress. They perceived no
reason why, in respect of those rights, the same limitations should not be imposed upon the general
government that had been imposed upon the states by their own constitutions. Hence the prompt adoption
of the original amendments, by the fifth of which it is, among other things, provided that 'no person shall
be deprived of life, liberty, or property without due process of law.' This language is similar to that of the
clause of the fourteeth amendment now under examination. That similarity was not accidental, but
evinces a purpose to impose upon the states the same restrictions, in respect of proceedings involving
life, liberty, and property, which had been imposed upon the general government.
'Due process of law,' within the meaning of the national constitution, does not import one thing with
reference to the powers of the states and another with reference to the powers of the general government.
If particular proceedings, conducted under the authority of the general government, and involving life,
are prohibited because not constituting that due process of law required by the fifth amendment of the
constitution of the United States, similar proceedings, conducted under the authority of a state, must be
deemed illegal, as not being due process of law within the meaning of the fourteenth amendment. The
words 'due process of law,' in the latter amendment, must receive the same interpretation they had at the
common law from which they were derived, and which was given to them at the formation of the general
government. What was that interpretation? [110 U.S. 516, 542] In seeking that meaning we are, fortunately,
not left without authoritative directions as to the source, and the only source, from which the necessary
information is to be obtained.
In Murray's Lessee v. Hoboken, etc., Co. 18 How. 276, 277, it was said: 'The constitution contains no
description of those processes which it was intended to allow or forbid. It does not even declare what
principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the
legislative power to enact any process which might be devised. The article is a restraint on the legislative
as well as on the executive and judicial powers of the government, and cannot be so construed as to leave
congress free to make any process 'due process of law' by its mere will. To what principles are we to
resort to ascertain whether this process enacted by congress is due process? To this the answer must be
twofold. We must examine the constitution itself to see whether this process be in conflict with any of its

provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing
in the common and statute law of England before the emigration of our ancestors, and which are shown
not to have been unsuited to their civil and political condition by having been acted on by them after the
settlement of this country.'
Magna Charta – upon which rested the rights, liberties, and immunities of our ancestors – was called,
said Coke, 'the charter of the liberties of the kingdom, upon great reason, because, liberos facit, it makes
the people free.' Hallam characterizes the signing of it as the most important event in English history, and
declares that the instrument is still the keystone of English liberty. 'To have produced it,' said
Mackintosh, 'to have preserved it, to have matured it, constitute the immortal claim of England upon the
esteem of mankind.' By that instrument the king, representing the sovereignty of the nation, declared that
'no freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or
be outlawed, or exiled, or any otherwise destroyed; nor will we [not] pass upon him, nor condemn him,
but by lawful judgment of his peers, or by the law of the land.' [110 U.S. 516, 543] 'The words 'due process
of law' were undoubtedly intended,' said this court, in Murray's Lessee v. Hoboken, etc., Co. 'to convey
the same meaning as the words 'by the law of the land' in Magna Charta.' That the one is the equivalent
of the other was recognized in Davidson v. New Orleans, 96 U.S. 97 . See also 2 Kent, 13; 2 Story,
Const. 1789; Cooley, Const. Lim. 353; Pom. Const. Law, 245; Greene v. Briggs, 1 Curt. 311. Whether
the phrase in our American constitutions, national or state, be 'law of the land' or 'due process of law,' it
means in every case the same thing. Cooley, Const. Lim. 352.
Declining to follow counsel in their search for precedents in England, in support or in refutation of the
proposition that the common law permitted informations in certain classes of public offenses, and
conceding that in some cases (such as Prynn's Case, 5 Mod. 459, which was an information for a riot,
tried before Chief Justice HOLT) the requirement of due process of law was met by that mode of
procedure, let us inquire – and no other inquiry is at all pertinent – whether, according to the settled
usages and modes of proceeding to which, this court has said, reference must be had, an information for a
capital offense was, prior to the adoption of our constitution, regarded as due process of law.
Erskine, in his speech delivered in 1784 in defense of the dean of St. Asaph, said, in the presence of the
judges of the king's bench: 'If a man were to commit a capital offense in the face of all the judges of
England, their united authority could not put him upon his trial; they could file no complaint against him,
even upon the records of the supreme criminal court, but could only commit him for safe custody, which
is equally competent to every common justice of the peace. The grand jury alone could arraign him, and
in their discretion might likewise finally discharge him, by throwing out the bill, with the names of all
your lordships as witnesses on the back of it. If it be said that this exclusive power of the grand jury does
not extend to lesser misdemeanors, which may be prosecuted by information, I answer, that for that
reason it becomes doubly necessary to preserve the power of the other jury which [110 U.S. 516, 544] is
left.' That this defender of popular rights against official oppression was not in error when saying that no
person could be arraigned for a capital crime except upon the presentment or indictment of a grand jury
is shown upon almost every page of the common law.
Blackstone says: 'But to find a bill there must be at least twelve of the jury agree; for, so tender is the law
of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital
offense, unless by a unanimous voice of twenty-four of his equals and neighbors; that is, by twelve at
least of the grand jury, in the first place, assenting to the accusation, and afterwards by the whole petit
jury of twelve more finding him guilty upon his trial.' 4 Bl. Comm. 306. The same author, after referring

to prosecutions by information, describing their different kinds, and stating that the mode of prosecution
by information (or suggestion) filed on record by the king's attorney general, or by his coroner or master
of the crown office in the court of king's bench, was as ancient as the common law itself, proceeds: 'But
these informations (of every kind) are confined by the constitutional law to mere misdemeanors only; for,
wherever any capital offense is charged, the same law requires that the accusation be warranted by the
oath of twelve men before the party shall be put to answer it.' Id. 309, 310. Again, in his discussion of the
trial by jury, Blackstone, after saying that the English law has 'wisely placed this strong and twofold
barrier, of a punishment and a trial by jury, between the liberties of the people and the prerogative of the
crown,' says: 'The founders of the English law have, with excellent forecast, contrived that no man shall
be called to answer the king for any capital crime, unless upon the peremptory accusation of twelve or
more of his fellow-subjects, the grand jury; and that the truth of any accusation, whether preferred in the
shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage
of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion. So that the
liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only
from all [110 U.S. 516, 545] open attacks, (which none will be so hardy as to make,) but also from all secret
machinations which may sap and undermine it, by introducing new and arbitrary methods of trial, by
justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient
these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet
let it be again remembered that delays and little inconveniences in the forms of justice are the price that
all free nations must pay for their liberty in more substantial matters; that these inroads upon the sacred
bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun
in trifles, the precedent may gradually increase and spread to the utter disuse of jurors in questions of the
most momentous concern.' Id. 349, 350.
Hawkins in his Pleas of the Crown, (book 2, c. 26,) after saying that it is every-day practice to proceed
by information in certain cases, says: 'But I do not find it anywhere holden that such an information will
lie for any capital crime, or for misprision of treason.'
In Wooddeson's Lectures on the Laws of England, (Lect. 38,) it is said that 'informations cannot be
brought in capital cases, nor for misprision of treason.'
Bacon, in his Abridgement, lays it down: 'But though, as my Lord HALE observes, in all criminal causes
the most regular and safe way, and most consonant to the statute of Magna Charta, etc., is by presentment
or indictment of twelve sworn men, yet he admits that, for crimes inferior to capital ones, the proceedings
may be by information.' Tit. 'Information' A.
See, also, 2 Hal. Hist. P. C. c. 201; Jacobs, Law Dict. tit. 'Information;' 4 Broom, Com. Laws Eng. 396.
I omit further citations of authorities, which are numerous, to prove that, according to the settled usages
and modes of proceeding existing under the common and statute law of England at the settlement of this
country, information in capital cases was not consistent with the 'law of the land' or with due process of
law.' Such was the understanding of the patriotic men who established free institutions upon this [110 U.S.
516, 546] continent. Almost the identical words of Magna Charta were incorporated into most of the state
constitutions before the adoption of our national constitution. When they declared, in substance, that no
person shall be deprived of life, liberty, or property except by the judgment of his peers or the law of the
land, they intended to assert his right to the same guaranties that were given in the mother country by the
great charter and the laws passed in furtherance of its fundamental principles.

My brethren concede that there are principles of liberty and justice lying at the foundation of our civil
and political institutions which no state can violate consistently with that due process of law required by
the fourteenth amendment in proceedings involving life, liberty, or property. Some of these principles are
enumerated in the opinion of the court. But for reasons which do not impress my mind as satisfactory,
they exclude from that enumeration the exemption from prosecution, by information, for a public offense
involving life. By what authority is that exclusion made? Is it justified by the settled usages and modes of
proceeding existing under the common and statute law of England at the emigration of our ancestors, or
at the foundation of our government? Does not the fact that the people of the original states required an
amendment of the national constitution, securing exemption from prosecution for a capital offense,
except upon the indictment or presentment of a grand jury, prove that, in their judgment, such an
exemption was essential to protection against accusation and unfounded prosecution, and therefore was a
fundamental principle in liberty and justice? By the side of that exemption, in the same amendment, is
the declaration that no person shall be put twice in jeopardy for the same offense, nor compelled to
criminate himself, nor shall private property be taken for public use without just compensation. Are not
these principles fundamental in every free government established to maintain liberty and justice? If it be
supposed that immunity from prosecution for a capital offense, except upon the presentment or
indictment of a grand jury, was regarded at the common law any less secured by the law of the land, or
[110 U.S. 516, 547] any less valuable, or any less essential to due process of law, than the personal rights
and immunities just enumerated, I take leave to say that no such distinction is authorized by any
adjudged case, determined in England or in this country prior to the adoption of our constitution, or by
any elementary writer upon the principles established by Magna Charta and the statutes subsequently
enacted in explanation or enlargement of its provisions.
But it is said that the framers of the constitution did not suppose that due process of law necessarily
required for a capital offense the institution and procedure of a grand jury, else they would not in the
same amendment prohibiting the deprivation of life, liberty, or property without due process of law, have
made specific and express provision for a grand jury where the crime is capital or otherwise infamous;
therefore, it is argued, the requirment by the fourteenth amendment of due process of law in all
proceedings involving life, liberty, and property, without specific reference to grand juries in any case
whatever, was not intended as a restriction upon the power which it is claimed the states previously had,
so far as the express restrictions of the national constitution are concerned, to dispense altogether with
grand juries. This line of argument, it seems to me, would lead to results which are inconsistent with the
vital principles of republican government. If the presence in the fifth amendment of a specific provision
for grand juries in capital cases, alongside the provision for due process of law in proceedings involving
life, liberty, or property, is held to prove that 'due process of law' did not, in the judgment of the framers
of the constitution, necessarily require a grand jury in capital cases, inexorable logic would require it to
be likewise held that the right not to be put twice in jeopardy of life and limb, for the same offense, nor
compelled in a criminal case to testify against one's self, – rights and immunities also specifically
recognized in the fifth amendment, – were not protected by that due process of law required by the
settled usages and proceedings existing under the common and statute law of England at the settlement of
this country. More than that, other amendments of the [110 U.S. 516, 548] constitution proposed at the same
time expressly recognize the right of persons to just compensation for private property taken for public
use; their right, when accused of crime, to be informed of the nature and cause of the accusation against
them, and to a speedy and public trial, by an impartial jury of the state and district wherein the crime was
committed; to be confronted with the witnesses against them; and to have compulsory process for
obtaining witnesses in their favor. Will it be claimed that none of these rights were secured by the 'law of

the land' or 'due process of law,' as declared and established at the foundation of our government? Are
they to be excluded from the enumeration of the fundamental principles of liberty and justice, and,
therefore, not embraced by 'due process of law?' If the argument of my brethren be sound, those rights –
although universally recognized at the establishment of our institutions as secured by that due process of
law which for centuries had been the foundation of Anglo-Saxon liberty – were not deemed by our
fathers essential to the due process of law prescribed by our constitution; because, – such seems to be the
argument, – had they been regarded as involved in due process of law they would not have been
specifically and expressly provided for, but left to the protection given by the general clause forbidding
the deprivation of life, liberty, or property without due process of law. Further, the reasoning of the
opinion indubitably leads to the conclusion that but for the specific provisions made in the constitution
for the security of the personal rights enumerated, the general inhibition against deprivation of life,
liberty, and property without due process of law would not have prevented congress from enacting a
statute in derogation of each of them. Still further, it results from the doctrines of the opinion – if I do not
misapprehend its scope – that the clause of the fourteenth amendment forbidding the deprivation of life
or liberty without due process of law would not be violated by a state regulation dispensing with petit
juries in criminal cases, and permitting a person charged with a crime involving life to be tried before a
single judge, or even a justice of the peace, upon a rule to show cause why he should not be be hanged.
I do no [110 U.S. 516, 549] injustice to my brethren by this illustration of the principles of the opinion. It is
difficult, in my judgment, to overestimate the value of the petit jury system in this country. A sagacious
statesman and jurist has well said that it was 'the best guardian of both public and private liberty which
has been hitherto devised by the ingenuity of man,' and that 'liberty can never be insecure in that country
in which the trial of all crimes is by the jury.' Mr. Madison observed that while trial by jury could not be
considered as a natural right, but one resulting from the social compact, yet it was 'as essential to secure
the liberty of the people as any one of the pre-existent rights of nature.' 1 Lloyd, Deb. 430. 'When our
more immediate ancestors,' says STORY, 'removed to America, they brought this privilege with them as
their birthright and inheritance, as a part of that admirable common law which had fenced round and
interposed barriers on every side against the approaches of arbitrary power.' Story, Const. 1779. I submit,
however, with confidence, there is no foundation for the opinion that, under Magna Charta or at common
law, the right to a trial by jury in a capital case was deemed of any greater value to the safety and security
of the people than was the right not to answer, in a capital case, upon information filed by an officer of
the government, without previous inquiry by a grand jury. While the former guards the citizen against
improper conviction, the latter secures him against unfounded accusation. A state law which authorized
the trial of a capital case before a single judge, perhaps a justice of the peace, would – if a petit jury in a
capital case be not required by the fundamental principles of liberty and justice – meet all the
requirements of due process of law, as indicated in the opinion of the court, for such a law would not
prescribe a special rule for particular persons; it would be a general law which heard before it
condemned; which proceeded upon inquiry; and under which judgment would be rendered only after
trial. It would be embraced by the rule laid down by the court when it declares that any legal proceeding
enforced by public authority, whether sanctioned by age and custom or newly devised in the descretion
of the legislative power, in furtherance of the public [110 U.S. 516, 550] good, which regards and preserves
those principles of liberty and justice, must be held to be due process of law.
It seems to me that too much stress is put upon the fact that the framers of the constitution made express
provision for the security of those rights which at common law were protected by the requirement of due
process of law, and, in addition, declared, generally, that no person shall 'be deprived of life, liberty, or

property without due process of law.' The rights, for the security of which these express provisions were
made, were of a character so essential to the safety of the people that it was deemed wise to avoid the
possibility that congress, in regulating the processes of law, would impair or destroy them. Hence, their
specific enumeration in the earlier amendments of the constitution, in connection with the general
requirement of due process of law, the latter itself being broad enough to cover every right of life, liberty,
or property secured by the settled usages and modes of proceedings existing under the common and
statute law of England at the time our government was founded. Pom. Mun. Law, 373, 366.
The views which I have attempted to maintain are supported by the supreme judicial court of
Massachusetts in Jones v. Robbins, 8 Gray, 329. Among the questions there presented was whether a
statute giving a single magistrate authority to try an offense punishable by imprisonment in the state
prison, without the presentment by a grand jury, violated that provision of the state constitution which
declared that 'no man shall be arrested, imprisoned, exiled, or deprived of his life, liberty, or estate but by
the judgment of his peers or the law of the land.' It was held that it did. 'This clause, in its whole
structure,' said Chief Justice SHAW, speaking for the court, 'is so manifestly conformable to the words of
Magna Charta that we are not to consider it as a newly-invented phrase, first used by the makers of our
constitution, but we are to look at it as the adoption of one of the great securities of private right handed
to us as among the liberties and privileges which our ancestors enjoyed at the time of [110 U.S. 516, 551]
their emigration, and claimed to hold and retain as their birthright. These terms, in this connection,
cannot, we think, be used in their most bald and literal sense to mean the law of the land at the time of
their trial; because the laws may be shaped and altered by the legislature from time to time; and such a
provision, intended to prohibit the making of any law impairing the ancient rights and liberties of the
subject, would, under such a construction, be wholly nugatory and void. The legislature might simply
change the law by statute, and thus remove the landmark and the barrier intended to be set up by this
provision in the bill of rights. It must, therefore, have intended the ancient, established law and course of
legal proceedings, by an adherence to which our ancestors in England, before the settlement of this
country, and the emigrants themselves and their descendants, had found safety for their personal rights.'
After recognizing the 'law of the land' in Magna Charta and in the constitution of Massachusetts as
having the same meaning as 'due process of law,' and after stating that the people of the original states
deemed it essential for the better security of their rights of life, liberty, and property that their
constitutions should set forth and declare the fundamental principles of free government, Chief Justice
SHAW proceeds: 'Most of the state constitutions did contain these declarations, more or less detailed and
explicit; but the general purpose was to assert and maintain the great rights of English subjects, as they
had been maintained by the ancient laws, and the actual enjoyment of civil rights under them. 'The sense
of America was,' says Chancellor KENT, 'more fully ascertained, and more explicitly and solemnly
promulgated, in the memorable declaration of rights of the first continental bill of rights, in October,
1774, and which was a representation of all the states except Georgia. That declaration contained the
assertion of several great and fundamental principles of American liberty, and it constituted the basis of
those subsequent bills of rights which, under various modifications, pervaded all our constitutional
charters.' 2 Kent, 5, 6. The right of individual citizens to be secure from an open [110 U.S. 516, 552] and
public accusation of crime, and from the trouble, expense, and anxiety of a public trial, before a probable
cause is established by the presentment and indictment of a grand jury, in case of high offenses, is justly
regarded as one of the securities to the innocent against hasty, malicious, and oppressive public
prosecutions, and as one of the ancient immunities and privileges of English liberty.'
Chancellor KENT, referring to the rights of personal security, as guarded by constitutional provisions,

which were transcribed into the constitutions of this country from Magna Charta and other fundamental
acts of the English parliament, says: 'And where express constitutional provisions on the subject appear
to be wanting, the same principles are probably asserted by declaratory legislative acts; and they must be
regarded as fundamental doctrines in every state, for the colonies were parties to the national declaration
of right in 1774, in which the trial by jury, and the other rights and liberties of English subjects, were
peremptorily claimed as their undoubted inheritance and birthright. It may be received as a proposition,
universally understood and acknowledged throughout this country, that no person can be taken or
imprisoned, or disseized of his freehold or estate, or exiled, or condemned, or deprived of life, liberty, or
property unless by the law of the land or the judgment of his peers. The words 'by the law of the land,' as
used originally in Magna Charta, in reference to this subject, are understood to mean due process of law,
that is, by indictment or presentment of good and lawful men; and this, says Lord COKE, is the true sense
and exposition of these words.' And KENT immediately adds: 'The better and larger definition of 'due
process of law' is that it means law in its regular course of administration through courts of justice.'
Because of this general definition of due process of law that distinguished jurist is claimed as authority
for the present decision. When Lord COKE said that indictment or presentment was due process of law,
he had reference, of course, to the class of cases in which, by the law of the land, that kind of procedure
was required. In no commentary upon Magna Charta is it more distinctly stated than in Coke's that [110
U.S. 516, 553] informations were consistent with the law of the land in certain cases, and no one has more
emphatically declared that, in capital cases, informations are not allowed by that law, and was not due
process of law. He referred to indictments and presentments to illustrate what was due process of law in
prosecutions against persons accused of the higher grades of crime, and not for the purpose of giving a
full definition of the phrase 'due process of law' as applicable to both civil and criminal cases. The
definition by Kent of 'due process of law' was therefore better and larger, because it embraced cases civil
and criminal, in rem and in personam, and included proceedings affecting every right, whether of life,
liberty, or property, guarantied by the law of the land. He was very far from saying that every
proceeding, involving new methods of trial, was due procees of law because declared by the legislature
to be such, or because it may be regular in the sense that it is established by a general statute.
It is said by the court that the constitution of the United States was made for an undefined and expanding
future, and that its requirement of due process of law, in proceedings involving life, liberty, and property,
must be so interpreted as not to deny to the law the capacity of progress and improvement; that the
greatest security for the fundamental principles of justice resides in the right of the people to make their
own laws and alter them at pleasure. It is difficult, however, to perceive anything in the system of
prosecuting human beings for their lives, by information, which suggests that the state which adopts it
has entered upon an era of progess and improvement in the law of criminal procedure. Even the statute of
Henry VII. c. 3, allowing informations, and under which, it is said, Empson and Dudley, and an arbitrary
star chamber, fashioned the proceedings of the law into a thousand tyrannical forms, expressly declared
that it should not extend 'to treason, murder, or felony, or to any other offense wherefor any person
should lose life or member.' So great, however, were the outrages perpetrated by those men that this
statute was repealed by 1 Henry VIII. c. 6. Under the local statutes in question, even the district attorney
of the county is deprived of any discretion in the premises; for [110 U.S. 516, 554] if in the judgment of the
magistrate before whom the accused is brought – and, generally, he is only a justice of the peace – a
public offense has been committed, it becomes the duty of the district attorney to proceed against him, by
information, for the offense indicated by the committing magistrate. Thus, in California nothing stands
between the citizen and prosecution for his life except the judgment of a justice of the peace. Had such a

system prevailed in England, in respect of all grades of public offenses, the patriotic men who laid the
foundation of our government would not have been so persistent in claiming, as the inheritance of the
colonists, the institutions and guaranties which had been established by her fundamental laws for the
protection of the rights of life, liberty, and property. The royal governor of New York would not have
had occasion to write in 1697 to the home government that the members of the provincial legislature
were 'big with the privileges of Englishmen and Magna Charta.' 3 Bancroft, 56. Nor would the colonial
congress of 1774, speaking for the people of 12 colonies, have permitted, as it did, the journal of their
proceedings to be published with a medallion on the title page 'representing Magna Charta as the pedestal
on which was raised the column and cap of liberty, supported by twelve hands, and containing the words
' Hanc Tuemur, Hac Nitimur." Hurd, Hab. Corp. 108. Anglo-Saxon liberty would, perhaps, have
perished long before the adoption of our constitution had it been in the power of government to put the
subject on trial for his life whenever a justice of the peace, holding his office at the will of the crown,
should certify that he had committed a capital crime. That such officers are, in some of the states, elected
by the people, does not add to the protection of the citizen; for one of the peculiar benefits of the
grand-jury system, as it exists in this country, is that it is composed, as a general rule, of private persons
who do not hold office at the will of the government, or at the will of voters. In most, if not all of the
states, civil officers are disqualified to sit on grand juries. In the secrecy of the investigations by grand
juries, the weak and helpless – proscribed, perhaps, because of their race, or pursued by an unreasoning
[110 U.S. 516, 555] public clamor – have found, and will continue to find, security against official
oppression, the cruelty of mobs, the machinations of falsehood, and the malevolence of private persons
who would use the machinery of the law to bring ruin upon their personal enemies. 'The grand juries
perform,' says STORY, 'most important public functions, and are a great security to the citizens against
vindictive prosecutions, either by the government or by political partisans, or by private enemies.' Story,
Const. 1785.
To the evidence already adduced of the necessity and value of that system, I may add the testimony of
Mr. Justice WILSON, formerly of this court, and one of the foremost of the great men who have served
the cause of constitutional government. He said that 'among all the plans and establishments which have
been devised for securing the wise and uniform execution of the criminal laws, the institution of grand
juries holds the most distinguished place. This institution is, at least in the present times, the peculiar
boast of the common law. The era of its commencement, and the particulars attending its gradual
progress and improvement, are concealed behind the thick veil of a very remote antiquity. But one thing
concerning it is certain: In the annals of the world there is not found another institution so well adapted
for avoiding all the inconveniences and abuses which would otherwise arise from malice, from rigor,
from negligence, or from partiality in the prosecution of crimes.' 3 Wilson's Works, 363, 364.
Mr. Justice FIELD, referring to the ancient origin of the grand jury system in England, said that it was, 'at
the time of the settlement of this country, an informing and accusing tribunal, without whose previous
action no person charged with a felony could, except in certain special cases, be put upon his trial. And in
the struggles which at times arose in England between the powers of the king and the rights of the
subject, it often stood as a barrier against persecution in his name, until, at length, it came to be regarded
as an institution by which the subject was rendered secure against oppression from unfounded
prosecutions of the crown. In this country, from the popular character of our institutions, there has seldon
been any contest [110 U.S. 516, 556] between the government and the citizen, which required the existence
of the grand jury as a protection against oppressive action of the government. Yet the institution was
adopted in this country, and is continued from considerations similar to those which give to it its chief

value in England, and is designed as a means, not only of bringing to trial persons accused of public
offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation,
whether it comes from government or be prompted by partisan passion or private enmity.' 2 Sawy. 668,
669. He quoted with approval the observations of a distinguished judge to the effect that 'into every
quarter of the globe in which the Anglo-Saxon race have formed settlements they have carried with them
this time-honored institution, ever regarded it with the deepest veneration, and connecting its perpetuity
with that of civil liberty.' 'In their independent action,' said the same jurist, 'the persecuted found the most
fearless protectors, and in the records of their doings are to be discovered the noblest stands against the
oppressions of power, the virulence of malice, and the intemperance of prejudice.'
We have already seen that for centuries before the adoption of our present constitution, due process of
law, according to the maxims of Magna Charta and the common law, – the interpreters of constitutional
grants of power, – which even the British parliament with all its authority could not rightfully disregard,
(Cooley, Const. Lim. 175,) absolutely forbade that any person should be required to answer for his life
except upon indictment or presentment of a grand jury. And we have seen that the people of the original
states deemed it of vital importance to incorporate that principle into our own constitution, not only by
requiring due process of law in all proceedings involving life, liberty, or property, but by specific and
express provision giving immunity from prosecution, in capital cases, except by that mode of procedure.
To these considerations may be added others of very great significance. When the fourteenth amendment
was adopted all the states of the Union – some in terms, all substantially – declared, in their constitution,
that no person shall be deprived [110 U.S. 516, 557] of life, liberty, or property otherwise than 'by the
judgment of his peers or the law of the land,' or 'without due process of law.' When that amendment was
adopted the constitution of each state, with few exceptions, contained, and still contains, a bill of rights,
enumerating the rights of life, liberty, and property, which cannot be impaired or destroyed by the
legislative department. In some of them, as in those of Pennsylvania, Kentucky, Ohio, Alabama, Illinois,
Arkansas, Florida, Mississippi, Missouri, and North Carolina, the rights so enumerated were declared to
be embraced by 'the general, great, and essential principles of liberty and free government;' in others, as
in those of Connecticut, in 1818, and Kansas, in 1857, to be embraced by 'the great and esssential
principles of free government.' Now, it is a fact of momentous interest in this discussion, that, when the
fourteenth amendment was submitted and adopted, the bill of rights and the constitutions of 27 states
expressly forbade criminal prosecutions, by information, for capital cases;[1] while in the remaining 10
states such prosecutions were impliedly forbidden by a general clause declaring that no person should be
deprived of life otherwise than by 'the judgment of his peers or the law of the land,' or 'without due
process of law.'[2] It may be safely affirmed that, when that amendment was adopted, a criminal
prosecution, by information, for a crime involving life, was not permitted in any one of the states
composing the Union. So that the court, in this case, while conceding that the requirement [110 U.S. 516,
558] of due process of law protects the fundamental principles of liberty and justice, adjudges, in effect,
that an immunity or right, recognized at the common law to be essential to personal security, jealously
guarded by our national constitution against violation by any tribunal or body exercising authority under
the general government, and expressly or impliedly recognized, when the fourteenth amendment was
adopted, in the bill of rights or constitution of every state in the Union, is yet not a fundamental principle
in governments established, as those of the states of the Union are, to secure to the citizen liberty and
justice, and therefore is not involved in due process of law as required by that amendment in proceedings
conducted under the sanction of a state. My sense of duty constrains me to dissent from this
interpretation of the supreme law of the land.

Footnotes
[1] Ala. 1867, art. 1, 10; Ark. 1868, art. 1, 9; Cal. 1849, art. 1 , 8; Conn. 1818, art. 1, 9; Del. 1831, art. 1,
8; Fla. 1868, art. 1 , 9; Ill. 1848, art. 13, 10; Iowa, 1857, art. 1, 11; Ky. 1850, art. 13, 13; Me. 1820, art. 1,
7; Mass. 1780, pt. 1, art. 12, as contained in Jones v. Robbins, 8 Gray, 329; Minn. 1857, art. 1, 7; Miss.
1868, art. 1, 31; Mo. 1865, art. 1, 24; Neb. 1866-67, art. 1, 8; Nev. 1864, art. 1, 8; N. J. 1844, art. 1, 9; N.
Y. 1846, art. 1, 6; N. C. 1868, art. 1, 12; Ohio, art. 1, 10; Penn. 1838, art. 9, 10; R. I. 1842, art. 1 , 7; S. C.
1868, art. 1, 19; Tenn. 1834, art. 1, 14; Tex. 1868, art. 1, 8; W. Va. 1861-63, art. 2, 1; Wis. 1848, art. 1,
8.
[2] Ga. 1868, art. 1, 3; Ind. art. 1, 12; Kan. 1859, bill of rights, 18; La. 1868, Telle. 1, art. 10; Md. 1867,
declaration of rights, art. 23; Mich. 1850, art. 6, 32; N. H. 1792, pt. 1, art. 15; Or. 1857, art. 1, 10; Vt.
1793, c. 2, art. 10.

http://www.constitution.org/ussc/110-516b.txt
HARLAN, J., dissenting.
The plaintiff in error, Joseph Hurtado, now under sentence of death

pronounced in one of the courts of California, brings this writ of error
upon the ground that the proceedings against him are in violation of the
constitution of the United States. The crime charged, and of which he was
found guilty, is murder. The prosecution against him is not based upon any
presentment or indictment of a grand jury, but upon an information filed
[110 U.S. 516, 539] by the district attorney of the county in which the
crime was alleged to have been committed. His contention is that an
information for a capital offense is forbidden by that clause of the
fourteenth amendment of the constitution of the United States which
declares that no state shall 'deprive any person of life, liberty, or
property without due process of law.' As I cannot agree that the state may,
consistently, with due process of law require a person to answer for a
capital offense, except upon the presentment or indictment of a grand jury,
and as human life is involved in the judgment rendered here, I do not feel
at liberty to withhold a statement of the reasons for my dissent from the
opinion of the court.
The phrase 'due process of law' is not new in the constitutional history of
this country or of England. It antedates the establishment of our
institutions. Those who had been driven from the mother country by
oppression and persecution brought with them, as their inheritance, which
no government could rightfully impair or destroy, certain guaranties of the
rights of life, liberty, and property which had long been deemed
fundamental in Anglo-Saxon institutions. In the congress of the colonies,
held in New York in 1765, it was declared that the colonists were entitled
to all the essential rights, liberties, privileges, and immunities
confirmed by Magna Charta to the subjects of Great Britain. Hutch. Hist.
Mas. Bay, Appendix F. 'It was under the consciousness,' says STORY, 'of the
full possession of the rights, liberties, and immunities of British
subjects that the colonists, in almost all the early legislation of their
respective assemblies, insisted upon a declaratory act, acknowledging and
confirming them.' 1 Story, Const. 165. In his speech in the house of lords,
on the doctrine of taxation without representation, Lord CHATHAM maintained
that the inhabitants of the colonies were entitled to all the rights and
the peculiar privileges of Englishmen; that they were equally bound by the
laws, and equally entitled to participate in the constitution of England.
On the fourteenth of October, 1774, the delegates from the several colonies
and plantations, in congress assembled, made a formal declaration of the
rights to which their people were entitled, by the immutable laws [110 U.S.
516, 540] of nature, the principles of the English constitution, and the
several charters or compacts under which the colonial governments were
organized. Among other things, they declared that their ancestors who first
settled the colonies were, at the time of their immigration, 'entitled to
all the rights, liberties, and immunities of free and natural-born subjects
within the realm of England;' that 'by such immigration they by no means
forfeited, surrendered, or lost any of those rights, but that they were,
and their descendants now are, entitled to the exercise and enjoyment of
all such of them as their local and and other circumstances entitled them
to exercise and enjoy;' and that 'the respective colonies are entitled to
the common law of England, and more especially to the great and inestimable
privilege of being tried by their peers of the vicinage, according to the
course of that law.' 1 Jour. Cong. 27-29.
These declarations were susequently emphasized in the most imposing manner,

when the doctrines of the common law respecting the protection of the
people in their lives, liberties, and property were incorporated into the
http://www.constitution.org/ussc/110-516b.txt (1 of 11) [1/9/2001 7:56:23 PM]

earlier constitutions of the original states. Massachusetts in its

constitution of 1780, and New Hampshire in 1784, declared in the same
language that 'no subject shall be arrested, imprisoned, despoiled or
deprived of his property, immunities, or privileges, put out of the
protection of the law, exiled or deprived of his life, liberty, or estate
but by the judgment of his peers or the law of the land;' Maryland and
North Carolina in 1776, and South Carolina in 1778, that 'no freeman of
this state be taken or imprisoned, or disseized of his freehold, liberties,
or privileges, outlawed, exiled, or in any manner destroyed or deprived of
his life, liberty, or property but by the judgment of his peers or the law
of the land;' Virginia, in 1776, that 'no man be deprived of his liberty
except by the law of the land or the judgment of his peers;' and Delaware,
in 1792, that no person 'shall be deprived of life, liberty, or property,
unless by the judgment of his peers or the law of the land.' In the
ordinance of 1789 for the government of the Northwestern territory, it was
made one of the articles of compact between the original states and the
people and states to be formed out of [110 U.S. 516, 541] that territory --
'to remain forever unalterable unless by common consent' -- that 'no man
shall be deprived of his life, liberty, or property but by the judgment of
his peers or the law of the land.' These fundamental doctrines were
subsequently incorporated into the constitution of the United States. The
people were not content with the provision in section 2 of article 3 that
'the trial of all crimes, except in cases of impeachment, shall be by
jury.' They desired a fuller and broader enunciation of the fundamental
principles of freedom, and therefore demanded that the guaranties of the
rights of life, liberty, and property, which experience had proved to be
assential to the safety and security of the people, should be placed beyond
all danger of impairment or destruction by the general government through
legislation by congress. They perceived no reason why, in respect of those
rights, the same limitations should not be imposed upon the general
government that had been imposed upon the states by their own
constitutions. Hence the prompt adoption of the original amendments, by the
fifth of which it is, among other things, provided that 'no person shall be
deprived of life, liberty, or property without due process of law.' This
language is similar to that of the clause of the fourteeth amendment now
under examination. That similarity was not accidental, but evinces a
purpose to impose upon the states the same restrictions, in respect of
proceedings involving life, liberty, and property, which had been imposed
upon the general government.
'Due process of law,' within the meaning of the national constitution, does
not import one thing with reference to the powers of the states and another
with reference to the powers of the general government. If particular
proceedings, conducted under the authority of the general government, and
involving life, are prohibited because not constituting that due process of
law required by the fifth amendment of the constitution of the United
States, similar proceedings, conducted under the authority of a state, must
be deemed illegal, as not being due process of law within the meaning of
the fourteenth amendment. The words 'due process of law,' in the latter
amendment, must receive the same interpretation they had at the common law
from which they were derived, and which was given to them at the formation
of the general government. What was that interpretation? [110 U.S. 516,
542] In seeking that meaning we are, fortunately, not left without
authoritative directions as to the source, and the only source, from which
the necessary information is to be obtained.
In Murray's Lessee v. Hoboken, etc., Co. 18 How. 276, 277, it was said:
'The constitution contains no description of those processes which it was
intended to allow or forbid. It does not even declare what principles are
to be applied to ascertain whether it be due process. It is manifest that
it was not left to the legislative power to enact any process which might

be devised. The article is a restraint on the legislative as well as on the

executive and judicial powers of the government, and cannot be so construed
as to leave congress free to make any process 'due process of law' by its
mere will. To what principles are we to resort to ascertain whether this
process enacted by congress is due process? To this the answer must be
twofold. We must examine the constitution itself to see whether this
process be in conflict with any of its provisions. If not found to be so,
we must look to those settled usages and modes of proceeding existing in
the common and statute law of England before the emigration of our
ancestors, and which are shown not to have been unsuited to their civil and
political condition by having been acted on by them after the settlement of
this country.'
Magna Charta -- upon which rested the rights, liberties, and immunities of
our ancestors -- was called, said Coke, 'the charter of the liberties of
the kingdom, upon great reason, because, liberos facit, it makes the people
free.' Hallam characterizes the signing of it as the most important event
in English history, and declares that the instrument is still the keystone
of English liberty. 'To have produced it,' said Mackintosh, 'to have
preserved it, to have matured it, constitute the immortal claim of England
upon the esteem of mankind.' By that instrument the king, representing the
sovereignty of the nation, declared that 'no freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs,
or be outlawed, or exiled, or any otherwise destroyed; nor will we [not]
pass upon him, nor condemn him, but by lawful judgment of his peers, or by
the law of the land.' [110 U.S. 516, 543] 'The words 'due process of law'
were undoubtedly intended,' said this court, in Murray's Lessee v. Hoboken,
etc., Co. 'to convey the same meaning as the words 'by the law of the land'
in Magna Charta.' That the one is the equivalent of the other was
recognized in Davidson v. New Orleans, 96 U.S. 97 . See also 2 Kent, 13; 2
Story, Const. 1789; Cooley, Const. Lim. 353; Pom. Const. Law, 245; Greene
v. Briggs, 1 Curt. 311. Whether the phrase in our American constitutions,
national or state, be 'law of the land' or 'due process of law,' it means
in every case the same thing. Cooley, Const. Lim. 352.
Declining to follow counsel in their search for precedents in England, in

support or in refutation of the proposition that the common law permitted
informations in certain classes of public offenses, and conceding that in
some cases (such as Prynn's Case, 5 Mod. 459, which was an information for
a riot, tried before Chief Justice HOLT) the requirement of due process of
law was met by that mode of procedure, let us inquire -- and no other
inquiry is at all pertinent -- whether, according to the settled usages and
modes of proceeding to which, this court has said, reference must be had,
an information for a capital offense was, prior to the adoption of our
constitution, regarded as due process of law.
Erskine, in his speech delivered in 1784 in defense of the dean of St.

Asaph, said, in the presence of the judges of the king's bench: 'If a man
were to commit a capital offense in the face of all the judges of England,
their united authority could not put him upon his trial; they could file no
complaint against him, even upon the records of the supreme criminal court,
but could only commit him for safe custody, which is equally competent to
every common justice of the peace. The grand jury alone could arraign him,
and in their discretion might likewise finally discharge him, by throwing
out the bill, with the names of all your lordships as witnesses on the back
of it. If it be said that this exclusive power of the grand jury does not
extend to lesser misdemeanors, which may be prosecuted by information, I
answer, that for that reason it becomes doubly necessary to preserve the
power of the other jury which [110 U.S. 516, 544] is left.' That this
defender of popular rights against official oppression was not in error
when saying that no person could be arraigned for a capital crime except

upon the presentment or indictment of a grand jury is shown upon almost

every page of the common law.
Blackstone says: 'But to find a bill there must be at least twelve of the
jury agree; for, so tender is the law of England of the lives of the
subjects, that no man can be convicted at the suit of the king of any
capital offense, unless by a unanimous voice of twenty-four of his equals
and neighbors; that is, by twelve at least of the grand jury, in the first
place, assenting to the accusation, and afterwards by the whole petit jury
of twelve more finding him guilty upon his trial.' 4 Bl. Comm. 306. The
same author, after referring to prosecutions by information, describing
their different kinds, and stating that the mode of prosecution by
information (or suggestion) filed on record by the king's attorney general,
or by his coroner or master of the crown office in the court of king's
bench, was as ancient as the common law itself, proceeds: 'But these
informations (of every kind) are confined by the constitutional law to mere
misdemeanors only; for, wherever any capital offense is charged, the same
law requires that the accusation be warranted by the oath of twelve men
before the party shall be put to answer it.' Id. 309, 310. Again, in his
discussion of the trial by jury, Blackstone, after saying that the English
law has 'wisely placed this strong and twofold barrier, of a punishment and
a trial by jury, between the liberties of the people and the prerogative of
the crown,' says: 'The founders of the English law have, with excellent
forecast, contrived that no man shall be called to answer the king for any
capital crime, unless upon the peremptory accusation of twelve or more of
his fellow-subjects, the grand jury; and that the truth of any accusation,
whether preferred in the shape of indictment, information, or appeal,
should afterwards be confirmed by the unanimous suffrage of twelve of his
equals and neighbors, indifferently chosen and superior to all suspicion.
So that the liberties of England cannot but subsist so long as this
palladium remains sacred and inviolate, not only from all [110 U.S. 516,
545] open attacks, (which none will be so hardy as to make,) but also from
all secret machinations which may sap and undermine it, by introducing new
and arbitrary methods of trial, by justices of the peace, commissioners of
the revenue, and courts of conscience. And however convenient these may
appear at first, (as doubtless all arbitrary powers, well executed, are the
most convenient,) yet let it be again remembered that delays and little
inconveniences in the forms of justice are the price that all free nations
must pay for their liberty in more substantial matters; that these inroads
upon the sacred bulwark of the nation are fundamentally opposite to the
spirit of our constitution; and that, though begun in trifles, the
precedent may gradually increase and spread to the utter disuse of jurors
in questions of the most momentous concern.' Id. 349, 350.
Hawkins in his Pleas of the Crown, (book 2, c. 26,) after saying that it is
every-day practice to proceed by information in certain cases, says: 'But I
do not find it anywhere holden that such an information will lie for any
capital crime, or for misprision of treason.'
In Wooddeson's Lectures on the Laws of England, (Lect. 38,) it is said that

'informations cannot be brought in capital cases, nor for misprision of
treason.'
Bacon, in his Abridgement, lays it down: 'But though, as my Lord HALE

observes, in all criminal causes the most regular and safe way, and most
consonant to the statute of Magna Charta, etc., is by presentment or
indictment of twelve sworn men, yet he admits that, for crimes inferior to
capital ones, the proceedings may be by information.' Tit. 'Information' A.
See, also, 2 Hal. Hist. P. C. c. 201; Jacobs, Law Dict. tit. 'Information;'
4 Broom, Com. Laws Eng. 396.

I omit further citations of authorities, which are numerous, to prove that,

according to the settled usages and modes of proceeding existing under the
common and statute law of England at the settlement of this country,
information in capital cases was not consistent with the 'law of the land'
or with due process of law.' Such was the understanding of the patriotic
men who established free institutions upon this [110 U.S. 516, 546]
continent. Almost the identical words of Magna Charta were incorporated
into most of the state constitutions before the adoption of our national
constitution. When they declared, in substance, that no person shall be
deprived of life, liberty, or property except by the judgment of his peers
or the law of the land, they intended to assert his right to the same
guaranties that were given in the mother country by the great charter and
the laws passed in furtherance of its fundamental principles.
My brethren concede that there are principles of liberty and justice lying
at the foundation of our civil and political institutions which no state
can violate consistently with that due process of law required by the
fourteenth amendment in proceedings involving life, liberty, or property.
Some of these principles are enumerated in the opinion of the court. But
for reasons which do not impress my mind as satisfactory, they exclude from
that enumeration the exemption from prosecution, by information, for a
public offense involving life. By what authority is that exclusion made? Is
it justified by the settled usages and modes of proceeding existing under
the common and statute law of England at the emigration of our ancestors,
or at the foundation of our government? Does not the fact that the people
of the original states required an amendment of the national constitution,
securing exemption from prosecution for a capital offense, except upon the
indictment or presentment of a grand jury, prove that, in their judgment,
such an exemption was essential to protection against accusation and
unfounded prosecution, and therefore was a fundamental principle in liberty
and justice? By the side of that exemption, in the same amendment, is the
declaration that no person shall be put twice in jeopardy for the same
offense, nor compelled to criminate himself, nor shall private property be
taken for public use without just compensation. Are not these principles
fundamental in every free government established to maintain liberty and
justice? If it be supposed that immunity from prosecution for a capital
offense, except upon the presentment or indictment of a grand jury, was
regarded at the common law any less secured by the law of the land, or [110
U.S. 516, 547] any less valuable, or any less essential to due process of
law, than the personal rights and immunities just enumerated, I take leave
to say that no such distinction is authorized by any adjudged case,
determined in England or in this country prior to the adoption of our
constitution, or by any elementary writer upon the principles established
by Magna Charta and the statutes subsequently enacted in explanation or
enlargement of its provisions.
But it is said that the framers of the constitution did not suppose that
due process of law necessarily required for a capital offense the
institution and procedure of a grand jury, else they would not in the same
amendment prohibiting the deprivation of life, liberty, or property without
due process of law, have made specific and express provision for a grand
jury where the crime is capital or otherwise infamous; therefore, it is
argued, the requirment by the fourteenth amendment of due process of law in
all proceedings involving life, liberty, and property, without specific
reference to grand juries in any case whatever, was not intended as a
restriction upon the power which it is claimed the states previously had,
so far as the express restrictions of the national constitution are
concerned, to dispense altogether with grand juries. This line of argument,
it seems to me, would lead to results which are inconsistent with the vital
principles of republican government. If the presence in the fifth amendment

of a specific provision for grand juries in capital cases, alongside the

provision for due process of law in proceedings involving life, liberty, or
property, is held to prove that 'due process of law' did not, in the
judgment of the framers of the constitution, necessarily require a grand
jury in capital cases, inexorable logic would require it to be likewise
held that the right not to be put twice in jeopardy of life and limb, for
the same offense, nor compelled in a criminal case to testify against one's
self, -- rights and immunities also specifically recognized in the fifth
amendment, -- were not protected by that due process of law required by the
settled usages and proceedings existing under the common and statute law of
England at the settlement of this country. More than that, other amendments
of the [110 U.S. 516, 548] constitution proposed at the same time expressly
recognize the right of persons to just compensation for private property
taken for public use; their right, when accused of crime, to be informed of
the nature and cause of the accusation against them, and to a speedy and
public trial, by an impartial jury of the state and district wherein the
crime was committed; to be confronted with the witnesses against them; and
to have compulsory process for obtaining witnesses in their favor. Will it
be claimed that none of these rights were secured by the 'law of the land'
or 'due process of law,' as declared and established at the foundation of
our government? Are they to be excluded from the enumeration of the
fundamental principles of liberty and justice, and, therefore, not embraced
by 'due process of law?' If the argument of my brethren be sound, those
rights -- although universally recognized at the establishment of our
institutions as secured by that due process of law which for centuries had
been the foundation of Anglo-Saxon liberty -- were not deemed by our
fathers essential to the due process of law prescribed by our constitution;
because, -- such seems to be the argument, -- had they been regarded as
involved in due process of law they would not have been specifically and
expressly provided for, but left to the protection given by the general
clause forbidding the deprivation of life, liberty, or property without due
process of law. Further, the reasoning of the opinion indubitably leads to
the conclusion that but for the specific provisions made in the
constitution for the security of the personal rights enumerated, the
general inhibition against deprivation of life, liberty, and property
without due process of law would not have prevented congress from enacting
a statute in derogation of each of them. Still further, it results from the
doctrines of the opinion -- if I do not misapprehend its scope -- that the
clause of the fourteenth amendment forbidding the deprivation of life or
liberty without due process of law would not be violated by a state
regulation dispensing with petit juries in criminal cases, and permitting a
person charged with a crime involving life to be tried before a single
judge, or even a justice of the peace, upon a rule to show cause why he
should not be be hanged.
I do no [110 U.S. 516, 549] injustice to my brethren by this illustration

of the principles of the opinion. It is difficult, in my judgment, to
overestimate the value of the petit jury system in this country. A
sagacious statesman and jurist has well said that it was 'the best guardian
of both public and private liberty which has been hitherto devised by the
ingenuity of man,' and that 'liberty can never be insecure in that country
in which the trial of all crimes is by the jury.' Mr. Madison observed that
while trial by jury could not be considered as a natural right, but one
resulting from the social compact, yet it was 'as essential to secure the
liberty of the people as any one of the pre-existent rights of nature.' 1
Lloyd, Deb. 430. 'When our more immediate ancestors,' says STORY, 'removed
to America, they brought this privilege with them as their birthright and
inheritance, as a part of that admirable common law which had fenced round
and interposed barriers on every side against the approaches of arbitrary
power.' Story, Const. 1779. I submit, however, with confidence, there is no
foundation for the opinion that, under Magna Charta or at common law, the

right to a trial by jury in a capital case was deemed of any greater value
to the safety and security of the people than was the right not to answer,
in a capital case, upon information filed by an officer of the government,
without previous inquiry by a grand jury. While the former guards the
citizen against improper conviction, the latter secures him against
unfounded accusation. A state law which authorized the trial of a capital
case before a single judge, perhaps a justice of the peace, would -- if a
petit jury in a capital case be not required by the fundamental principles
of liberty and justice -- meet all the requirements of due process of law,
as indicated in the opinion of the court, for such a law would not
prescribe a special rule for particular persons; it would be a general law
which heard before it condemned; which proceeded upon inquiry; and under
which judgment would be rendered only after trial. It would be embraced by
the rule laid down by the court when it declares that any legal proceeding
enforced by public authority, whether sanctioned by age and custom or newly
devised in the descretion of the legislative power, in furtherance of the
public [110 U.S. 516, 550] good, which regards and preserves those
principles of liberty and justice, must be held to be due process of law.
It seems to me that too much stress is put upon the fact that the framers
of the constitution made express provision for the security of those rights
which at common law were protected by the requirement of due process of
law, and, in addition, declared, generally, that no person shall 'be
deprived of life, liberty, or property without due process of law.' The
rights, for the security of which these express provisions were made, were
of a character so essential to the safety of the people that it was deemed
wise to avoid the possibility that congress, in regulating the processes of
law, would impair or destroy them. Hence, their specific enumeration in the
earlier amendments of the constitution, in connection with the general
requirement of due process of law, the latter itself being broad enough to
cover every right of life, liberty, or property secured by the settled
usages and modes of proceedings existing under the common and statute law
of England at the time our government was founded. Pom. Mun. Law, 373, 366.
The views which I have attempted to maintain are supported by the supreme
judicial court of Massachusetts in Jones v. Robbins, 8 Gray, 329. Among the
questions there presented was whether a statute giving a single magistrate
authority to try an offense punishable by imprisonment in the state prison,
without the presentment by a grand jury, violated that provision of the
state constitution which declared that 'no man shall be arrested,
imprisoned, exiled, or deprived of his life, liberty, or estate but by the
judgment of his peers or the law of the land.' It was held that it did.
'This clause, in its whole structure,' said Chief Justice SHAW, speaking
for the court, 'is so manifestly conformable to the words of Magna Charta
that we are not to consider it as a newly-invented phrase, first used by
the makers of our constitution, but we are to look at it as the adoption of
one of the great securities of private right handed to us as among the
liberties and privileges which our ancestors enjoyed at the time of [110
U.S. 516, 551] their emigration, and claimed to hold and retain as their
birthright. These terms, in this connection, cannot, we think, be used in
their most bald and literal sense to mean the law of the land at the time
of their trial; because the laws may be shaped and altered by the
legislature from time to time; and such a provision, intended to prohibit
the making of any law impairing the ancient rights and liberties of the
subject, would, under such a construction, be wholly nugatory and void. The
legislature might simply change the law by statute, and thus remove the
landmark and the barrier intended to be set up by this provision in the
bill of rights. It must, therefore, have intended the ancient, established
law and course of legal proceedings, by an adherence to which our ancestors
in England, before the settlement of this country, and the emigrants
themselves and their descendants, had found safety for their personal

rights.' After recognizing the 'law of the land' in Magna Charta and in the
constitution of Massachusetts as having the same meaning as 'due process of
law,' and after stating that the people of the original states deemed it
essential for the better security of their rights of life, liberty, and
property that their constitutions should set forth and declare the
fundamental principles of free government, Chief Justice SHAW proceeds:
'Most of the state constitutions did contain these declarations, more or
less detailed and explicit; but the general purpose was to assert and
maintain the great rights of English subjects, as they had been maintained
by the ancient laws, and the actual enjoyment of civil rights under them.
'The sense of America was,' says Chancellor KENT, 'more fully ascertained,
and more explicitly and solemnly promulgated, in the memorable declaration
of rights of the first continental bill of rights, in October, 1774, and
which was a representation of all the states except Georgia. That
declaration contained the assertion of several great and fundamental
principles of American liberty, and it constituted the basis of those
subsequent bills of rights which, under various modifications, pervaded all
our constitutional charters.' 2 Kent, 5, 6. The right of individual
citizens to be secure from an open [110 U.S. 516, 552] and public
accusation of crime, and from the trouble, expense, and anxiety of a public
trial, before a probable cause is established by the presentment and
indictment of a grand jury, in case of high offenses, is justly regarded as
one of the securities to the innocent against hasty, malicious, and
oppressive public prosecutions, and as one of the ancient immunities and
privileges of English liberty.'
Chancellor KENT, referring to the rights of personal security, as guarded

by constitutional provisions, which were transcribed into the constitutions
of this country from Magna Charta and other fundamental acts of the English
parliament, says: 'And where express constitutional provisions on the
subject appear to be wanting, the same principles are probably asserted by
declaratory legislative acts; and they must be regarded as fundamental
doctrines in every state, for the colonies were parties to the national
declaration of right in 1774, in which the trial by jury, and the other
rights and liberties of English subjects, were peremptorily claimed as
their undoubted inheritance and birthright. It may be received as a
proposition, universally understood and acknowledged throughout this
country, that no person can be taken or imprisoned, or disseized of his
freehold or estate, or exiled, or condemned, or deprived of life, liberty,
or property unless by the law of the land or the judgment of his peers. The
words 'by the law of the land,' as used originally in Magna Charta, in
reference to this subject, are understood to mean due process of law, that
is, by indictment or presentment of good and lawful men; and this, says
Lord COKE, is the true sense and exposition of these words.' And KENT
immediately adds: 'The better and larger definition of 'due process of law'
is that it means law in its regular course of administration through courts
of justice.'
Because of this general definition of due process of law that distinguished

jurist is claimed as authority for the present decision. When Lord COKE
said that indictment or presentment was due process of law, he had
reference, of course, to the class of cases in which, by the law of the
land, that kind of procedure was required. In no commentary upon Magna
Charta is it more distinctly stated than in Coke's that [110 U.S. 516, 553]
informations were consistent with the law of the land in certain cases, and
no one has more emphatically declared that, in capital cases, informations
are not allowed by that law, and was not due process of law. He referred to
indictments and presentments to illustrate what was due process of law in
prosecutions against persons accused of the higher grades of crime, and not
for the purpose of giving a full definition of the phrase 'due process of
law' as applicable to both civil and criminal cases. The definition by Kent

of 'due process of law' was therefore better and larger, because it

embraced cases civil and criminal, in rem and in personam, and included
proceedings affecting every right, whether of life, liberty, or property,
guarantied by the law of the land. He was very far from saying that every
proceeding, involving new methods of trial, was due procees of law because
declared by the legislature to be such, or because it may be regular in the
sense that it is established by a general statute.
It is said by the court that the constitution of the United States was made
for an undefined and expanding future, and that its requirement of due
process of law, in proceedings involving life, liberty, and property, must
be so interpreted as not to deny to the law the capacity of progress and
improvement; that the greatest security for the fundamental principles of
justice resides in the right of the people to make their own laws and alter
them at pleasure. It is difficult, however, to perceive anything in the
system of prosecuting human beings for their lives, by information, which
suggests that the state which adopts it has entered upon an era of progess
and improvement in the law of criminal procedure. Even the statute of Henry
VII. c. 3, allowing informations, and under which, it is said, Empson and
Dudley, and an arbitrary star chamber, fashioned the proceedings of the law
into a thousand tyrannical forms, expressly declared that it should not
extend 'to treason, murder, or felony, or to any other offense wherefor any
person should lose life or member.' So great, however, were the outrages
perpetrated by those men that this statute was repealed by 1 Henry VIII. c.
6. Under the local statutes in question, even the district attorney of the
county is deprived of any discretion in the premises; for [110 U.S. 516,
554] if in the judgment of the magistrate before whom the accused is
brought -- and, generally, he is only a justice of the peace -- a public
offense has been committed, it becomes the duty of the district attorney to
proceed against him, by information, for the offense indicated by the
committing magistrate. Thus, in California nothing stands between the
citizen and prosecution for his life except the judgment of a justice of
the peace. Had such a system prevailed in England, in respect of all grades
of public offenses, the patriotic men who laid the foundation of our
government would not have been so persistent in claiming, as the
inheritance of the colonists, the institutions and guaranties which had
been established by her fundamental laws for the protection of the rights
of life, liberty, and property. The royal governor of New York would not
have had occasion to write in 1697 to the home government that the members
of the provincial legislature were 'big with the privileges of Englishmen
and Magna Charta.' 3 Bancroft, 56. Nor would the colonial congress of 1774,
speaking for the people of 12 colonies, have permitted, as it did, the
journal of their proceedings to be published with a medallion on the title
page 'representing Magna Charta as the pedestal on which was raised the
column and cap of liberty, supported by twelve hands, and containing the
words ' Hanc Tuemur, Hac Nitimur." Hurd, Hab. Corp. 108. Anglo-Saxon
liberty would, perhaps, have perished long before the adoption of our
constitution had it been in the power of government to put the subject on
trial for his life whenever a justice of the peace, holding his office at
the will of the crown, should certify that he had committed a capital
crime. That such officers are, in some of the states, elected by the
people, does not add to the protection of the citizen; for one of the
peculiar benefits of the grand-jury system, as it exists in this country,
is that it is composed, as a general rule, of private persons who do not
hold office at the will of the government, or at the will of voters. In
most, if not all of the states, civil officers are disqualified to sit on
grand juries. In the secrecy of the investigations by grand juries, the
weak and helpless -- proscribed, perhaps, because of their race, or pursued
by an unreasoning [110 U.S. 516, 555] public clamor -- have found, and will
continue to find, security against official oppression, the cruelty of
mobs, the machinations of falsehood, and the malevolence of private persons

who would use the machinery of the law to bring ruin upon their personal
enemies. 'The grand juries perform,' says STORY, 'most important public
functions, and are a great security to the citizens against vindictive
prosecutions, either by the government or by political partisans, or by
private enemies.' Story, Const. 1785.
To the evidence already adduced of the necessity and value of that system,
I may add the testimony of Mr. Justice WILSON, formerly of this court, and
one of the foremost of the great men who have served the cause of
constitutional government. He said that 'among all the plans and
establishments which have been devised for securing the wise and uniform
execution of the criminal laws, the institution of grand juries holds the
most distinguished place. This institution is, at least in the present
times, the peculiar boast of the common law. The era of its commencement,
and the particulars attending its gradual progress and improvement, are
concealed behind the thick veil of a very remote antiquity. But one thing
concerning it is certain: In the annals of the world there is not found
another institution so well adapted for avoiding all the inconveniences and
abuses which would otherwise arise from malice, from rigor, from
negligence, or from partiality in the prosecution of crimes.' 3 Wilson's
Works, 363, 364.
Mr. Justice FIELD, referring to the ancient origin of the grand jury system
in England, said that it was, 'at the time of the settlement of this
country, an informing and accusing tribunal, without whose previous action
no person charged with a felony could, except in certain special cases, be
put upon his trial. And in the struggles which at times arose in England
between the powers of the king and the rights of the subject, it often
stood as a barrier against persecution in his name, until, at length, it
came to be regarded as an institution by which the subject was rendered
secure against oppression from unfounded prosecutions of the crown. In this
country, from the popular character of our institutions, there has seldon
been any contest [110 U.S. 516, 556] between the government and the
citizen, which required the existence of the grand jury as a protection
against oppressive action of the government. Yet the institution was
adopted in this country, and is continued from considerations similar to
those which give to it its chief value in England, and is designed as a
means, not only of bringing to trial persons accused of public offenses
upon just grounds, but also as a means of protecting the citizen against
unfounded accusation, whether it comes from government or be prompted by
partisan passion or private enmity.' 2 Sawy. 668, 669. He quoted with
approval the observations of a distinguished judge to the effect that 'into
every quarter of the globe in which the Anglo-Saxon race have formed
settlements they have carried with them this time-honored institution, ever
regarded it with the deepest veneration, and connecting its perpetuity with
that of civil liberty.' 'In their independent action,' said the same
jurist, 'the persecuted found the most fearless protectors, and in the
records of their doings are to be discovered the noblest stands against the
oppressions of power, the virulence of malice, and the intemperance of
prejudice.'
We have already seen that for centuries before the adoption of our present
constitution, due process of law, according to the maxims of Magna Charta
and the common law, -- the interpreters of constitutional grants of power,
-- which even the British parliament with all its authority could not
rightfully disregard, (Cooley, Const. Lim. 175,) absolutely forbade that
any person should be required to answer for his life except upon indictment
or presentment of a grand jury. And we have seen that the people of the
original states deemed it of vital importance to incorporate that principle
into our own constitution, not only by requiring due process of law in all
proceedings involving life, liberty, or property, but by specific and

express provision giving immunity from prosecution, in capital cases,

except by that mode of procedure.
To these considerations may be added others of very great significance.

When the fourteenth amendment was adopted all the states of the Union --
some in terms, all substantially -- declared, in their constitution, that
no person shall be deprived [110 U.S. 516, 557] of life, liberty, or
property otherwise than 'by the judgment of his peers or the law of the
land,' or 'without due process of law.' When that amendment was adopted the
constitution of each state, with few exceptions, contained, and still
contains, a bill of rights, enumerating the rights of life, liberty, and
property, which cannot be impaired or destroyed by the legislative
department. In some of them, as in those of Pennsylvania, Kentucky, Ohio,
Alabama, Illinois, Arkansas, Florida, Mississippi, Missouri, and North
Carolina, the rights so enumerated were declared to be embraced by 'the
general, great, and essential principles of liberty and free government;'
in others, as in those of Connecticut, in 1818, and Kansas, in 1857, to be
embraced by 'the great and esssential principles of free government.' Now,
it is a fact of momentous interest in this discussion, that, when the
fourteenth amendment was submitted and adopted, the bill of rights and the
constitutions of 27 states expressly forbade criminal prosecutions, by
information, for capital cases;[1] while in the remaining 10 states such
prosecutions were impliedly forbidden by a general clause declaring that no
person should be deprived of life otherwise than by 'the judgment of his
peers or the law of the land,' or 'without due process of law.'[2] It may
be safely affirmed that, when that amendment was adopted, a criminal
prosecution, by information, for a crime involving life, was not permitted
in any one of the states composing the Union. So that the court, in this
case, while conceding that the requirement [110 U.S. 516, 558] of due
process of law protects the fundamental principles of liberty and justice,
adjudges, in effect, that an immunity or right, recognized at the common
law to be essential to personal security, jealously guarded by our national
constitution against violation by any tribunal or body exercising authority
under the general government, and expressly or impliedly recognized, when
the fourteenth amendment was adopted, in the bill of rights or constitution
of every state in the Union, is yet not a fundamental principle in
governments established, as those of the states of the Union are, to secure
to the citizen liberty and justice, and therefore is not involved in due
process of law as required by that amendment in proceedings conducted under
the sanction of a state. My sense of duty constrains me to dissent from
this interpretation of the supreme law of the land.
Footnotes
[1] Ala. 1867, art. 1, 10; Ark. 1868, art. 1, 9; Cal. 1849, art. 1 , 8;
Conn. 1818, art. 1, 9; Del. 1831, art. 1, 8; Fla. 1868, art. 1 , 9; Ill.
1848, art. 13, 10; Iowa, 1857, art. 1, 11; Ky. 1850, art. 13, 13; Me. 1820,
art. 1, 7; Mass. 1780, pt. 1, art. 12, as contained in Jones v. Robbins, 8
Gray, 329; Minn. 1857, art. 1, 7; Miss. 1868, art. 1, 31; Mo. 1865, art. 1,
24; Neb. 1866-67, art. 1, 8; Nev. 1864, art. 1, 8; N. J. 1844, art. 1, 9;
N. Y. 1846, art. 1, 6; N. C. 1868, art. 1, 12; Ohio, art. 1, 10; Penn.
1838, art. 9, 10; R. I. 1842, art. 1 , 7; S. C. 1868, art. 1, 19; Tenn.
1834, art. 1, 14; Tex. 1868, art. 1, 8; W. Va. 1861-63, art. 2, 1; Wis.
1848, art. 1, 8.
[2] Ga. 1868, art. 1, 3; Ind. art. 1, 12; Kan. 1859, bill of rights, 18;
La. 1868, Telle. 1, art. 10; Md. 1867, declaration of rights, art. 23;
Mich. 1850, art. 6, 32; N. H. 1792, pt. 1, art. 15; Or. 1857, art. 1, 10;
Vt. 1793, c. 2, art. 10.

Hurtado v. California, 110 U.S. 516 (1884): Roland

This is one of the more damaging decisions of the Supreme Court, setting a terrible precedent. The issues
were set forth well by Justice Harlan, whose dissenting opinion is correct. Unfortunately, the majority did
not agree with him.
What all of them seem to have missed, including the litigants, is that the issue not just whether grand jury
indictment is part of "due process", guaranteed by the Fifth and Fourteenth Amendments. The Fourteenth
also provides:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United
States;
This language was made the opening statements in the Fourteenth for a reason. They were not without
force and effect. They were intended by the framers of the Fourteenth to extend the jurisdiction and
protection of federal courts to all rights recognized by the Constitution and Bill of Rights against actions
by state government.
First, "any law" includes the state constitution, which is its supreme law, subject to the U.S. Constitution.
Second, "immunities" includes all those rights recognized and protected by the Constitution and Bill of
Rights, including those of the Ninth and Tenth Amendments. The framers of the Fourteenth used
"immunities" because the rights recognized and protected by the Constitution and Bill of Rights are
rights against action by government, which are "immunities", as distinct from nonvested rights of
business.
If there is any doubt as to what the framers of the Fouteenth meant by their words, here are some more of
their words, taken from debates in Congress and the press during the drafting and ratification debates on
the amendment. See "Intent of the Fourteenth Amendment was to Protect All Rights", by Jon Roland.
From the legislative history of the Fourteenth it should be clear that all of the rights recognized by the
U.S. Constitution are not only rights against state action, but that the Fourteenth Amendment authorizes
Congress to legislate protection of such rights against state action, and grants jurisdiction of the federal
judiciary over cases between citizens and their states involving them. Among those rights are the right to
keep and bear arms and the right to a grand jury indictment. While the Supreme Court might reasonably
have confirmed this in any given case by only declaring such rights as are minimally needed to render a
decision, it is important that they not fail to do so for all the rights that are issues before the court, and the
precedent of the Hurtado case needs to be reversed.

This is one of the more damaging decisions of the Supreme Court, setting a
terrible precedent. The issues were set forth well by Justice Harlan, whose
dissenting opinion is correct. Unfortunately, the majority did not agree
with him.
What all of them seem to have missed, including the litigants, is that the
issue not just whether grand jury indictment is part of "due process",
guaranteed by the Fifth and Fourteenth Amendments. The Fourteenth also
provides:
All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States;
This language was made the opening statements in the Fourteenth for a
reason. They were not without force and effect. They were intended by the
framers of the Fourteenth to extend the jurisdiction and protection of
federal courts to all rights recognized by the Constitution and Bill of
Rights against actions by state government.
First, "any law" includes the state constitution, which is its supreme law,
subject to the U.S. Constitution.
Second, "immunities" includes all those rights recognized and protected by

the Constitution and Bill of Rights, including those of the Ninth and Tenth
Amendments. The framers of the Fourteenth used "immunities" because the
rights recognized and protected by the Constitution and Bill of Rights are
rights against action by government, which are "immunities", as distinct
from nonvested rights of business.
If there is any doubt as to what the framers of the Fouteenth meant by their
words, here are some more of their words, taken from debates in Congress and
the press during the drafting and ratification debates on the amendment. See
"Intent of the Fourteenth Amendment was to Protect All Rights", by Jon
Roland.
From the legislative history of the Fourteenth it should be clear that all
of the rights recognized by the U.S. Constitution are not only rights
against state action, but that the Fourteenth Amendment authorizes Congress
to legislate protection of such rights against state action, and grants
jurisdiction of the federal judiciary over cases between citizens and their
states involving them. Among those rights are the right to keep and bear
arms and the right to a grand jury indictment. While the Supreme Court might
reasonably have confirmed this in any given case by only declaring such
rights as are minimally needed to render a decision, it is important that
they not fail to do so for all the rights that are issues before the court,
and the precedent of the Hurtado case needs to be reversed.

Sparf & Hansen v. U S, 156 U.S. 51 (1895): Syllabus
Sparf & Hansen v. U S, 156 U.S. 51 (1895)

January 21, 1895
No. 613
U.S. Supreme Court October 1894: Melville W. Fuller (chief) Stephen J. Field
John M. Harlan
Horace Gray
David J. Brewer
Henry Billings Brown
George Shiras, Jr.
Howell E. Jackson
Edward D. White
Syllabus
1. The mere fact that one is confined under charge of a capital offense does not make his confession
involuntary.
2. A general objection made on the joint trial of two persons for murder, by counsel representing
both, to the confession of one, made after the homicide, and not in the presence of the other, as
incompetent, is sufficient to entitle the latter to have it excluded as to him. Mr. Justice Brewer and
Mr. Justice Brown, dissenting.
3. In criminal cases, the determination of the law is for the court, and not for the jury. Mr. Justice
Gray and Mr. Justice Shiras dissenting.
4. Where the evidence in a criminal trial tends to show the commission of the crime charged. It is
proper to instruct that there can be no conviction of an offense included in or less than the one
charged. Mr. Justice Gray and Mr. Justice Shiras dissenting.
In Error to the Circuit Court of the United States for the Northern District of California.
F. J. Kierce, for plaintiffs in error. Asst. Atty. Gen. Conrad, for the United States.
Mr. Justice Harlan delivered the opinion of the court.
http://www.constitution.org/ussc/156-051_.htm [1/9/2001 7:56:35 PM]

January 21, 1895
No. 613
U.S. Supreme Court October 1894: Melville W. Fuller (chief)

Stephen J. Field
John M. Harlan
Horace Gray
David J. Brewer
Henry Billings Brown
George Shiras, Jr.
Howell E. Jackson
Edward D. White
Syllabus
1.The mere fact that one is confined under charge of a capital

offense does not make his confession involuntary.
2.A general objection made on the joint trial of two persons for
murder, by counsel representing both, to the confession of one,
made after the homicide, and not in the presence of the other, as
incompetent, is sufficient to entitle the latter to have it excluded
as to him. Mr. Justice Brewer and Mr. Justice Brown,
dissenting.
3.In criminal cases, the determination of the law is for the court,
and not for the jury. Mr. Justice Gray and Mr. Justice Shiras
dissenting.
4.Where the evidence in a criminal trial tends to show the
commission of the crime charged. It is proper to instruct that
there can be no conviction of an offense included in or less than
the one charged. Mr. Justice Gray and Mr. Justice Shiras
dissenting.
In Error to the Circuit Court of the United States for the Northern
District of California.
F. J. Kierce, for plaintiffs in error. Asst. Atty. Gen. Conrad, for the
United States.
Mr. Justice Harlan delivered the opinion of the court.
http://www.constitution.org/ussc/156-051_.txt [1/9/2001 7:56:40 PM]


January 21, 1895.
F. J. Kierce, for plaintiffs in error.
Asst. Atty. Gen. Conrad, for the United States.
Mr. Justice HARLAN delivered the opinion of the court.

The plaintiffs in error and Thomas St. Clair were indicted jointly for the murder of Maurice Fitzgerald
upon the high seas, on board of an American vessel, the bark Hesper, as set forth in the indictment
mentioned in St. Clair v. U. S., 154 U.S. 134, 14 Sup. Ct. 1002. On motion of the accused, it was ordered
that they be tried separately. St. Clair was tried, found guilty of murder, and sentenced to suffer the
punishment of death. Subsequently the order for separate trials was set aside, and the present defendants
were tried together, and both were convicted of murder. A motion for a new trial having been overruled,
a like sentence was imposed upon them.
The general facts of this case do not differ from those proved in St. Clair's Case, and some of the
questions arising upon the present assignments of error were determined in that case. Only such
questions will be here examined as were not properly persented or did not arise in the other case, and are
of sufficient importance to require notice at our hands.
In the night of January 13, 1893, Fitzgerald, the second mate of the Hesper, was found to be missing, and
it was believed that he had been killed, and his body thrown overboard. Suspicion being directed to St.
Clair, Sparf, and Hansen, part of the crew of the Hesper, as participants in the killing, they were put in
irons, by order of Capt. Sodergren, master of the vessel, and were so kept during the voyage from the
locality of the supposed murder to Tahiti, an island in the South Pacific, belonging to the French
government. They were taken ashore by the United States consul at that island, and subsequently were
sent, with others, to San Francisco, on the vessel Tropic Bird.
At the trial, Capt. Sodergren, a witness for the government, was asked whether or not after the 13th day
of January, and before reaching Tahiti, which was more than 1, 000 miles from the locality of the alleged
murder, he had any conversation with the defendant Hansen about the killing of Fitzgeraid. This question
having been answered by the witness in the affirmative, he was fully examined as to the circumstances
under which the conversation was held. He said, among other things, that no one was present but Hansen
and himself. Being asked to repeat the conversation referred to, the accused, by the counsel who had
been appointed by the court to represent them, objected to the question as 'irrelevant, immaterial, and
incompetent, and upon the ground that any statement made by Hansen was not and could not be
voluntary.' The objection was overruled, and the defendants duly excepted. The witness then stated what
Hansen had said to him. That evidence tended strongly to show that Fitzgerald was murdered pursuant to
a plan formed between St. Clair, Sparf, and Hansen; that all three actively participated in the murder; and
that the crime was committed under the most revolting circumstances.
Thomas Green and Edward Larsen, two of the crew of the Hesper, were also witnesses for the
government. They were permitted to state what Hansen said to them during the voyage from Tahiti to
San Francisco. This evidence was also objected to as irrelevant, immaterial, and incompetent, and upon
the further ground that the statement the accused was represented to have made was not voluntary. But

the objection was overruled, and an exception taken.

Upon the conclusion of the evidence, the defendants requested certain instructions, which the court
refused to give, and they excepted to its action in that particular, as well as to certain parts of the charge
to the jury. 1. The declarations of Hansen, as detailed by Sodergren, Green, and Larsen, were clearly
admissible in evidence against him. There was no ground on which their exclusion could have been
sustained. In reference to this proof, the court charged the jury that if they believed from the evidence
that Green and Larsen, or either of them, were accomplices in the commission of the acts charged in the
indictment, they should act upon their testimony with great caution, subjecting it to a careful
examination, in the light of all the other evidence, and ought not to convict upon their testimony alone,
unless satisfied beyond reasonable doubt of its truth; that if Larsen and Green, or either of them, or any
other person, were induced to testify by promises of immunity from punishment, or by hope held out
from any one that it would go easier with them in case they disclosed their confederates, or in case they
implicated some one else in the crime, this must be taken into consideration in determining the weight to
be given to their testimony, and should be closely scrutinized; that the confessions of a prisoner out of
court and in custody, made to persons having no authority to examine him, should be acted upon and
received with great care and caution; that words are often misreported through ignorance, inattention, or
malice, are extremely liable to misconstruction, are rarely sufficient to warrant conviction, as well on
account of the great danger of mistake upon the part of the witness as of the fact that the mind of the
prisoner himself may be oppressed by his situation or influenced by motives of hope or fear to make an
untrue confession; that, in considering the weight to be given to the alleged confessions of the
defendants, the jury were to consider their condition at the time they were made, the fact that they had
been charged with crime, and were in custody; and that the jury were to determine whether those
confessions were voluntary, or whether any inducements were held out to them by any one. The
defendants did not offer themselves as witnesses, and the court took care to say that a person charged
with crime is under no obligation to testify in his own behalf, and that his neglect to testify did not create
any presumption whatever against him. So far as the record discloses, these confessions were entirely
free and voluntary, uninfluenced by any hope of reward or fear of punishment. In Hopt v. People, 110
U.S. 574, 584, 4 S. Sup. Ct. 202, it was said: 'While some of the adjudged cases indicate distrust of
confessions which are not judicial, it is certain, as observed by Baron Parke, in Reg. v. Baldry, 2
Denison, Cr. Cas. 430, 445, that the rule against their admissibility has been sometimes carried too far,
and in its application justice and common sense have too frequently been sacrificed at the shrine of
mercy. A confession, if freely and voluntarily made, is evidence of the most satisfactory character. Such
a confession, said Eyre, C. B. (King v. Warickshall, 1 Leach, 263),'is deserving of the highest credit,
because it is presumed to flow from the strongest sense of guilt, and therefore it is admitted as proof of
the crime to which it refers.' Elementary writers of authority concur in saying that while, from the nature
of such evidence, it must be subjected to careful scrutiny, and received with great caution, a deliberate
voluntary confession of guilt is among the most effectual proofs in the law, and constitutes the strongest
evidence against the party making it that can be given of the facts stated in such confession.'
Counsel for the accused insist that there cannot be a voluntary statement, a free, open confession, while a
defendant is confined and in irons, under an accusation of having committed a capital offense. We have
not been referred to any authority in support of that position. It is true that the fact of a prisoner being in
custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon
the inquiry whether the confession was voluntarily made, or was extorted by threats or violence, or made
under the influence of fear. But confinement or imprisonment is not in itself sufficient to justify the

exclusion of a confession, if it appears to have been voluntary and was not obtained by putting the
prisoner in fear or by promises. Whart. Cr. Ev. (9th Ed.) 661, 663, and authorities cited. The import of
Sodergren's evidence was that, when Hansen manifested a desire to speak to him on the subject of the
killing, the latter said he did not wish to hear it, but 'to keep it until the right time came, and then tell the
truth.' But this was not offering to the prisoner an inducement to make a confession. Littledale, J., well
observed in Rex v. Court, 7 Car. & P. 487, that telling a man to be sure to tell the truth is not advising
him to confess anything of which he is really not guilty. See, also Queen v. Reeves, L. R. 1 Cr. Cas. 362.
Nothing said to Hansen prior to the confession was at all calculated to put him in fear, or to excite any
hope of his escaping punishment by telling what he knew or witnessed or did in reference to the killing.
The deciarations of Hansen after the killing, as detailed by Green and Larsen, were also admissible in
evidence against Sparf, because they appear to have been made in his presence, and under such
circumstances as would warrant the inference that he would naturally have contradicted them if he did
not assent to their truth.
But the confession and declarations of Hansen to Sodergren after the killing of Fitzgerald were
incompetent as evidence against Sparf. St. Clair, Hansen, and Sparf were charged jointly with the murder
of Fitzgerald. What Hansen said after the deed had been fully consummated, and not on the occasion of
the killing, and in the presence only of the witness, was clearly incompetent against his codefendant,
Sparf, however strongly it tended to connect the latter with the commission of the crime. If the evidence
made a case of conspiracy to kill and murder, the rule is settled that 'after the conspiracy has come to an
end, and whether by success or by failure, the admissions of one conspirator by way of narrative of past
facts are not admissible in evidence against the others.' Logan v. U. S., 144 U.S. 263, 309, 12 S. Sup. Ct.
617; Brown v. U. S., 150 U. S., 93, 98, 14 Sup. Ct. 37; Wright, Cr. Consp. (Carson's Ed.) 212, 213, 217;
1 Greenl. Ev. 233. The same rule is applicable where the evidence does not show that the killing was
pursuant to a conspiracy, but yet was by the joint act of the defendants.
The objection to the question in answer to which the declarations of Hansen to Sodergren were given was
sufficiently specific. The general rule undoubtedly is that an objection should be so framed as to indicate
the precise point upon which the court is asked to rule. It has therefore been often held that an objection
to evidence as irrelevant, immaterial, and incompetent, nothing more being stated, is too general to be
considered on error, if in any possible circumstances it could be deemed or could be made relevant,
material, or competent. But this principle will not sustain the ruling by which the declarations of Hansen,
made long after the commission of the alleged murder, and not in the presence of Sparf, were admitted as
evidence against the latter. In no state of case were those declarations competent against Sparf. Their
inadmissibility as to him was apparent. It appeared upon the very face of the question itself.
In People v. Beach, 87 N. Y. 508, 513, which was an indictment for petit larceny, the prosecution offered
in evidence the statements of a third party, not in the presence of the accused, which related to the vital
point upon which the conviction turned. There was a general objection to the evidence. The court said:
'We think, however, the general objection made in this case was sufficient. It appeared, when the
objection was made, that the conversation proposed to be shown was between the prosecutor and
Hardacre, when the defendant was not present. There was no possible view of the case, as it then or
afterwards stood, in which such a conversation was admissible. When the witness was asked to state the
conversation, and counsel objected, both the court and the prosecuting officer must have understood that
it was an objection to the competency of the proposed evidence. If the objection had been made in terms,
on the ground that the evidence was incompetent, the sufficiency of the objection could not have been

questioned, and the objection, as made, necessarily implied this. Neither the court nor prosecuting
attorney could have been misled as to the point of the objection. It was patent on considering the
objection in connection with the proof offered. If any doubt could be entertained as to the technical
sufficiency of the objection, we should be disinclined, in a criminal case, to deprive a defendant of the
benefit of an exception by the strict application of a rule more especially applicable to civil cases, when
we can see that its application would produce injustice.' And in Turner v. City of Newburgh, 109 N. Y.
301, 308, 16 N. E. 344, it was said: 'This court has held that when the objection to evidence is general,
and it is overruled, and the evidence is received, the ruling will not be held erroneous, unless there be
some grounds which could not have been obviated had they been specified, or unless the evidence in its
essential nature be incompetent.' Tozer v. Railroad Co., 105 N. Y. 659, 11 N. E. 846; Alcorn v. Railroad
Co., 108 Mo. 81, 18 S. W. 188; Curr v. Hundley (Colo. App.) 31 Pac. 939, 940; Lowenstein v.
McCadden, 92 Tenn. 614, 22 S. W. 426; Ward v. Wilms, 16 Colo. 86, 27 Pac. 247.
We are of opinion that as the declarations of Hansen to Sodergren were not, in any view of the case,
competent evidence against Sparf, the court, upon objection being made by counsel representing both
defendants, should have excluded them as evidence against him, and admitted them against Hansen. The
fact that the objection was made in the name of both defendants did not justify the court in overruling it
as to both, when the evidence was obviously incompetent, and could not have been made competent
against Sparf, and was obviously competent against Hansen. It was not necessary that counsel should
have made the objection on behalf of one defendant, and then formally repeated it, in the same words, for
the other defendant. If Sparf had been tried alone, a general objection in his behalf, on the ground of
incompetency, would have been sufficiently definite. Surely, such an objection coming from Sparf when
tried with another ought not to be deemed ineffectual because of the circumstance that his counsel, who,
by order of the court, represented also his codefendant, incautiously spoke in the name of both
defendants. Each was entitled to make his own defense, and the jury could have found one of them
guilty, and acquitted the other. Insurance Co. v. Hillmon, 145 U.S. 285, 293, 12 S. Sup. Ct. 909. See,
also, Com. v. Robinson, 1 Gray, 555, 560.
For the error of the court in not sustaining the objection referred to so far as it related to Sparf, the
judgment must be reversed as to him. If he were the only defendant, we might withhold any expression
of opinion upon other questions raised by the assignments of error. But as some of those questions are
important, and may arise upon another trial of Sparf, and especially as they must be now determined with
reference to Hansen, we proceed to their examination.
2. One of the specifications of error relates to the refusal of the court to give certain instructions asked by
the defendants, and to parts of the charge to the jury.
The defendants asked the court to instruct the jury as follows:
● 'In all criminal causes the defendant may be found guilty of any offense the commission of which
is necessarily included in that with which he is charged in the indictment, or the defendant may be
found guilty of an attempt to commit the offense so charged, provided that such attempt be itself a
separate offense.' 'Under an indictment charging murder, the defendant may be convicted of
murder, of manslaughter, or an attempt to commit either murder or manslaughter.' 'Under the
indictment in this case, the defendants may be convicted of murder, or manslaughter, or of an
attempt to commit murder or manslaughter; and if, after a full and careful consideration of all the
evidence before you, you believe, beyond a reasonable doubt, that the defendants are guilty either
of manslaughter, or of an assault with intent to commit murder or manslaughter, you should so

find your verdict.' These instructions were refused, and the defendants excepted.
In its charge to the jury, the court, among other things, said: 'What, then, is murder? There are only two
kinds of felonious homicide known to the laws of the United States. One is murder, and the other is
manslaughter. There are no degrees of murder.' 'There is no definition of 'murder' by any United States
statute. We resort to the common law for that. By the common law, murder is the unlawful killing of a
human being in the peace of the state, with malice aforethought, either express or implied. Malice, then,
is an element in the offense, and discriminates it from the other crime of felonious homicide which I have
mentioned, to wit, manslaughter; that is, malice, express or implied, discriminates murder from the
offense of manslaughter.' 'Express malice exists when one, by deliberate premeditation and design,
formed in advance, to kill or to do bodily harm, the premeditation and design being implied from
external circumstances capable of proof, such as lying in wait, antecedent threats, and concerted schemes
against a victim. Implied malice is an inference of the law from any deliberate and cruel act committed
by one person against another. The two kinds of malice, therefore, to repeat, indicate but one state of
mind, established in different ways, — the one by circumstances showing premeditation of the homicide,
the other by an inference of the law from the act committed; that is, malice is inferred when one kills
another without provocation, or when the provocation is not great. Manslaughter is the unlawful killing
of a human being without malice, either expressed or implied. I do not consider it necessary, gentlemen,
to explain it further, for if a felonious homicide has been committed, of which you are to be the judges
from the proof, there is nothing in this case to reduce it below the grade of murder. In other words, it may
be in the power of the jury, under the indictment by which these defendants are accused and tried, of
finding them guilty of a less crime than murder, to wit, manslaughter, or an attempt to commit murder;
yet, as I have said in this case, if a felonious homicide has been committed at all, of which I repeat you
are the judges, there is nothing to reduce it below the grade of murder.'
The court further said to the jury:
● 'You are the exclusive judges of the credibility of the witnesses, and, in judging of their credibility,
you have a right to take into consideration their prejudices, motives, or feelings of revenge, if any
such have been proven or shown by the evidence in the case. If you believe from the evidence that
any witness or witnesses have knowingly and willfully testified falsely as to any material fact or
point, you are at liberty to disregard entirely the testimony of such witness or witnesses.'
'Gentlemen, I have given you these instructions as carefully as I could, avoiding all references to
the testimony; but I do not wish to be misunderstood, and out of abundant caution I say further to
you, in giving you these instructions, I may be accident have assumed facts to be proven. If so, you
must disregard the assumption. It is not my purpose, nor is it my function, to assume any fact to be
proven, nor to suggest to you that any fact has been proven. You are the exclusive judges of the
fact. No matter what assumption may appear during the course of the trial in any ruling of mine, or
what may appear in any one of these instructions, you are to take this case and consider it, and
remember you are the tribunal to which the law has referred the case, and whose judgment the law
wants on the case.'
After the jury had been in consultation for a time, they returned into court for further instructions. The
colloquy between the court and the jurors is set forth at large in the margin.1 The requests for instruction
made by the defendants were based upon section 1035 of the Revised Statutes of the United States,
providing that 'in all criminal causes the defendant may be found guilty of any offence the commission of
which is necessarily included in that with which he is charged in indictment, or may be found guilty of an

attempt to commit the offence so charged: provided, that such attempt be itself a separate offence.'
The refusal to grant the defendants' requests for instructions, taken in connection with so much of the
charge as referred to the crime of manslaughter, and the observations of the court when the jury, through
their foreman, applied for further instructions, present the question whether the court transcended its
authority when saying, as in effect it did, that, in view of the evidence, the only verdict the jury could
under the law properly render would be either one of guilty of the offense charged, or one of not guilty of
the offense charged; that if a felonious homicide had been committed by either of the defendants, of
which the jury were the judges from the proof, there was nothing in this case to reduce it below the grade
of murder; and that,'as one of the tribunals of the country, a jury is expected to be governed by law, and
the law it should receive from the court.'
The court below assumed, and correctly, that section 1035 of the Revised Statutes did not authorize a
jury in a criminal case to find the defendant guilty of a less offense than the one charged, unless the
evidence justified them in so doing. Congress did not intend to invest juries in criminal cases with power
arbitrarily to disregard the evidence and the principles of law applicable to the case on trial. The only
object of that section was to enable the jury, in case the defendant was not shown to be guilty of the
particular crime charged, and if they evidence permitted them to do so, to find him guilty of a lesser
offense necessarily included in the one charged, or of the offense of attempting to commit the one
charged. Upon a careful scrutiny of the evidence, we cannot find any ground whatever upon which the
jury could properly have reached the conclusion that the defendant Hanson was only guilty of an offense
included in the one charged, or of a mere attempt to commit the offense charged. A verdict of guilty of an
offense less than the one charged would have been in flagrant disregard of all the proof, and in violation
by the jury of their obligation to render a true verdict. There was an entire absence of evidence upon
which to rest a verdict of guilty of manslaughter or of simple assault. A verdict of that kind would have
been the exercise by the jury of the power to commute the punishment for an offense actually committed,
and thus impose a punishment different from that prescribed by law.
The general question as to the duty of the jury to receive the law from the court is not concluded by any
direct decision of this court. But it has been often considered by other courts and by judges of high
authority; and, where its determination has not been controlled by specific constitutional or statutory
provisions expressly empowering the jury to determine both law and facts, the principle by which courts
and juries are to be guided in the exercise of their respective functions has become firmly established. If
this be true, this court should not announce a different rule, unless impelled to do so by reasons so cogent
and controlling that they cannot properly be overlooked or disregarded. Some of the members of this
court, after much consideration, and upon an extended review of the authorities, are of opinion that the
conclusion reached by this court is erroneous, both upon principle and authority. For this reason, and
because the question is of great importance in the administration of justice, and also involves human life,
we deem it appropriate to state with more fullness than under other circumstances would be necessary the
grounds upon which our judgment will rest, looking first to cases determined in the courts of the United
States.
In State v. Brailsford, 3 Dall. 1, 4, a case in f the court, to decide. But it must be amicable issue, Chief
Justice Jay is reported to have said: 'It may not be amiss here, gentlemen, to remind you of the good old
rule that on questions of fact it is the province of the jury, on questions of law it is the province of the
court, to decide. But it must be observed that, by the same law which recognizes this reasonable
distribution of jurisdiction, you have, nevertheless, a right to take upon yourselves to judge of both, and

to determine the law as well as the fact in controversy. On this, and on every other, occasion, however,
we have no doubt you will pay that respect which is due to the opinion of the court; for, as on the one
hand, it is presumed that juries are best judges of facts, it is, on the other hand, presumable that the courts
are the best judges of the law. But still both objects are lawfully within your power of decision.' Of the
correctness of this report, Mr. Justice Curtis in U. S. v. Morris, 1 Curt. 23, 58, Fed. Cas. No. 15, 815,
expressed much doubt, for the reason that the chief justice is reported as saying that, in civil cases, —
and that was a civil case, — the jury had the right to decide the law, and because, also, the different parts
of the charge conflict with each other; the chief justice, according to the report, saying at the outset that it
is the province of the jury to decide questions of fact, and of the court to decide questions of law, and in
the succeeding sentence informing the jury that they had the right to take upon themselves the
determination of both law and fact. If the chief justice said that it was the province of the court to decide
questions of law, and the province of the jury to decide questions of fact, he could not have said that the
jury had the right, in a civil case, to judge of and determine both law and fact. 'The whole case,' Mr.
Justice Curtis said,'was an anomaly. It purports to be a trial by jury in the supreme court of the United
States of certain issues out of chancery; and the chief justice begins by telling the jury that the facts are
all agreed, and the only question is a matter of law, and upon that the whole court were agreed. If it be
correctly reported, I can only say it is not in accordance with the views of any other court, so far as I
know, in this country or in England, and is certainly not in accordance with the course of the supreme
court for many years.'
Certain observations of Chief Justice Marshall in the course of the trial of Burr have sometimes been
referred to in support of the contention that the jury in a criminal case are under no legal obligation to
accept the law as laid down by the court. But nothing said by him at that trial was inconsistent with the
views expressed by eminent jurists in cases to be presently cited. In the course of an opinion relating
merely to the order of evidence, the chief justice said: 'Levying of war is a fact which must be decided by
the jury. The court may give general instructions on this as on every other question brought before them,
but the jury must decide upon it as compounded of fact and law.' 1 Burr's Trial, 470. This language is
supposed to justify the contention that the jury in a criminal case are entitled, of right, to determine
questions of pure law adversely to the direction of the court. But that no such thought was in the mind of
the chief justice is manifest from his written charge to the jury at a subsequent stage of the trial, — the
accuracy of the report of which has never been disputed, — in which he discussed, in the light of the
authorities, the question as to what constituted treason.
In the course of that charge he indicated quite distinctly his view of the respective functions of court and
jury. 'It has been thought proper,' he said, 'to discuss this question at large, and to review the opinion of
the supreme court [Ex parte Bollman, 4 Cranch, 75], although this court would be more disposed to leave
the question of fact whether an overt act of levying war were committed on Blennerhassett's island to the
jury under this explanation of the law, and to instruct them that, unless the assemblage on
Blennerhassett's island was an assemblage in force, — was a military assemblage in a condiction to make
war, — it was not levying war, and that they could not construe it into an act of war, than to arrest the
further testimony which might be offered to connect the prisoner with that assemblage, or to prove the
intention of those who assembled together at that place. This point, however, is not to be understood as
decided. It will, perhaps, constitute an essential inquiry in another case.' This language is wholly
inconsistent with the theory that the chief justice recognized the right of the jury to disregard the court's
view of the law upon any question arising in the case before them. It was consistent only with the theory
that the court could speak authoritatively as to the law, while the function of the jury was to respond as to

the facts. Again: 'It is the further opinion of the court that there is no testimony whatever which tends to
prove that the accused was actually or constructively present when that assemblage did take place;
indeed, the contrary is most apparent.' 'The opinion of this court on the order of testimony has frequently
been adverted to as deciding this question against the motion. If a contradiction between the two opinions
exist, the court cannot perceive it. It was said that levying war is an act compounded of law and fact, of
which the jury, aided by the court, must judge. To that declaration the court still adheres.' He concluded
his memorable charge in these words: 'The jury have now heard the opinion of the court on the law of the
case. They will apply that law to the facts, and will find a verdict of guilty or not guilty as their own
consciences may direct.' Again, according to the only recognized report of that trial ever published, the
chief justice, in response to certain inquiries of counsel made after the jury returned their verdict, said:
'Without doubt the court intended to deliver merely a legal opinion as to what acts amounted in law to an
overt act of levying war, and not whether such an overt act has or has not been proved. It merely stated
the law, to which the jury would apply the facts proved. It is their province to say whether according to
this statement and the evidence an overt act has been proved or not.' 2 Burr's Trial, 401, 422, 439, 444,
448. The language of the chief justice plainly imports that, while the jury must of necessity often pass
upon a question 'compounded of fact and law,' their duty, when considering the evidence, was to apply
the law, as given by the court, to the facts proved; and, thus applying the law, return a verdict of guilty or
not guilty as their consciences might direct. If he had believed that the jury were entitled, of right,
whatever might be the views of the court, to determine for themselves the law of the case, it is impossible
that he could have said that 'they will apply that law [the law as he declared it to be] to the facts.' On the
contrary, he observed that the province of the jury was to determine whether the accused was guilty or
not guilty, according to his statement of the law as applied to the evidence. Of course, this court has no
means of determining what were the views of Chief Justice Marshall, except by referring to such
authorized publications as show what he said while discharging judicial functions. In none of his
opinions delivered at the circuit court and published can there be found anything at all in conflict with his
declarations at the trial of Burr. And it may be observed that the circumstances attending that trial were
such as to induce him to weigh every word embodied in his elaborate written charge to the jury. That he
understood the gravity of the occasion, so far as it related to the conduct of the trial, is manifest from his
referring in the following language to certain considerations that had been advanced in argument: 'That
this court dare not usurp power is most true. That this court dare not shrink from its duty is not less true.
No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the
peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach,
would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to
him but a dereliction of duty or the opprobrium of those who are denominated the 'world,' he merits the
contempt as well as the indignation of his country who can hesitate which to embrace. That gentlemen, in
a case the most interesting, in the zeal with which they advocate particular opinions, and under the
conviction in some measure produeed by that zeal, should on each side press their arguments too far,
should be impatient at any deliberation in the court, and should suspect of fear the operation of motives
to which alone they can ascribe that deliberation, is perhaps a frailty incident to human nature; but, if any
conduct on the part of the court could warrant a sentiment that it would deviate to the one side or the
other from the line prescribed by duty and by law, that conduct would be viewed by the judges
themselves with an eye of extreme severity, and would long be recollected with deep and serious regret.'
In Henfield's Case, Fed. Cas. No. 6, 360, Mr. Justice Wilson, with whom sat Mr. Justice Iredell, stated
that the jury, in a general verdict, must decide both law and fact, but that 'this did not authorize them to
decide it as they pleased,' and that,'the questions of law coming into joint consideration with the facts, it

is the duty of the court to explain the law to the jury, and give it to them in direction.' Whart. St. Tr. 84,
87, 88. This statement of the principle is sometimes referred to in support of the proposition that the jury
is not under a legal duty to accept the law as declared by the court in a criminal case. We think it tends to
show that it is the province and duty of the jury to apply to the facts of the case the law as given to them
by the court 'in direction.'
There is nothing in conflict with this in the Lectures on Law delivered by Mr. Justice Wilson. In one of
those lectures, referring to the duties of jurors in criminal cases, he said: 'On questions of law, his [ the
juror's] deficiencies will be supplied by the professional directions of the judges, whose duty and whose
business it is professionally to direct him; for, as we have seen, verdicts, in criminal cases generally
determine the question of law as well as the question of fact. Questions of fact it is his exclusive province
to determine. With the consideration of evidence unconnected with the question which he is to try, his
attention will not be distracted; for everything of that nature, we presume, will be excluded by the court.
The collected powers of his mind, therefore, will be fixed, steadily and without interruption, upon the
issue he is sworn to try. This issue is an issue of fact.' 2 Wilson, Works, 386. Other observations found in
these lectures, if considered alone, are not so explicit upon the question of the respective functions of
court and jury; but, taken in connection with all that he said, it is reasonably clear that when Mr. Justice
Wilson spoke of the determination by a jury, in a criminal case, of both law and fact, he meant, only that
a general verdict of guilty or not guilty, of necessity, decided every question before them which involved
a joint consideration of law and fact, not that the jury could ignore the directions of the court, and take
the law into their own hands.
The observations of Mr. Justice Samuel Chase in the Case of Fries, Fed. Cas. No. 5, 126, tried for
treason, 1800, are supposed to sustain the broad proposition that the jury may, of right, disregard the law
as expounded by the court. He undoubtedly did say that while it was the duty of the court, in all criminal
cases, to state the law arising on the facts, the jury were to decide 'both the law and facts, on their
consideration of the whole case.' Chase, Trial, Append. 45. But on the trial, in the same year, in the
circuit court of the United States for the Virginia district, of James Thompson Callender for seditious
libel, he was appalled at the suggestion by learned counsel that the jury were entitled, of right, to
determine the constitutional validity of the act of congress under which the accused was indicted. Mr.
Wirt, counsel for the defendant, said: 'Since, then, the jury have a right to consider the law, and since the
constitution is law, the conclusion is certainly syllogistic that the jury have a right to consider the
constitution.' But Mr. Justice Chase declined to accept this view. He said: 'The statute on which the
traverser is indicted enacts 'that the jury who shall try the cause shall have a right to determine the law
and the fact, under the direction of the court, as in other cases.' By this provision I understand that a right
is given to the jury to determine what the law is in the case before them, and not to decide whether a
statute of the United States produced to them is a law or not, or whether it is void, under an opinion that
it is unconstitutional; that is, contrary to the constitution of the United States. I admit that the jury are to
compare the statute with the facts proved, and then to decide whether the acts done are prohibited by the
law, and whether they amount to the offense described in the indictment. This power the jury necessarily
possesses, in order to enable them to decide on the guilt or innocence of the person accused. It is one
thing to decide what the law is on the facts proved, and another and a very different thing to determine
that the statute produced is no law. To decide what the law is on the facts is an admission that the law
exists. If there be no law in the case, there can be no comparison between it and the facts; and it is
unnecessary to establish facts before it is ascertained that there is a law to punish the commission of
them.' 'It was never pretended,' he bontinued,'as I ever heard, before this time, that a petit jury in England

(from whence our common law is derived), or in any part of the United States, ever exercised such
power. If a petit jury can rightfully exercise this power over one statute of congress, they must have an
equal right and power over any other statute, and indeed over all the statutes; for no line can be drawn, no
restriction imposed, on the exercise of such power; it must rest in discretion only. If this power be once
admitted, petit jurors will be superior to the national legislature, and its laws will be subject to their
control. The power to abrogate or to make laws nugatory is equal to the authority of making them. The
evident consequences of this right in juries will be that a law of congress will be in operation in one state,
and not in another. A law to impose taxes will be obeyed in one state, and not in another, unless force be
employed to compel submission. The doing of certain acts will be held crim inal, and punished in one
state, and similar acts may be held innocent, and even approved and applauded, in another. The effects of
the exercise of this power by petit jurors may be readily conceived. It appears to me that the right now
claimed has a direct tendency to dissolve the union of the United States, on which, under divine
Providence, our political safety, happiness, and prosperity depend.' He concluded his opinion in these
words: 'I consider it of the greatest consequence to the administration of justice that the powers of the
court and the powers of the petit jury should be kept distinct and separate. I have uniformly delivered the
opinion 'that the petit jury have a right to decide the law as well as the fact in criminal cases'; but it never
entered into my mind that they, therefore, had a right to determine the constitutionality of any statute of
the United States.' Whart. St. Tr. 713, 714, 718.
What Mr. Justice Chase said is quite sufficient to show the mischievous consequences that would flow
from the doctrine that the jury may, of right, disregard the directions of the court, and determine the law
for themselves; for if, as is contended, the jury in criminal cases are not bound to take the law from the
court, it is impossible to deny their absolute right in a case depending entirely upon an act of congress, or
a statute of a state, to determine, upon their own responsibility, whether that act or statute is or is not law;
that is, whether it is or is not in violation of the constitution.
Mr. Justice Thompson, who became a member of this court in 1823, concurred in the opinion delivered
by Kent, J., in People v. Croswell(1804) 3 Johns. Cas. 337, 362, where the court was equally divided,
Chief Justice Lewis and Judge Brockholst Livingston, afterwards a justice of this court, holding that to
questions of law the court, to questions of fact the jury, must respond. But in his opinion in Pierce v.
State, 13 N. H. 356, 564, Chief Justice Parker, referring to Judge Kent's opinion in People v. Croswell,
said: 'Mr. Justice Thompson, who concurred in that opinion, must have understood that concurrence to be
merely in the opints necessary to the decision of that cause, or have subsequently changed his views; for
I have his authority for saying that he has repeatedly ruled that the jury are not judges or the law in
criminal cases.' And in the dissenting opinion of Judge Bennett in State v. Croteau, 23 Vt. 14, 63 (where
it was held that the jury, in criminal cases, could rightfully decide questions of both law and fact, but
which case has been overruled, 65 Vt. 1, 34, 25 Atl. 964), it was said: 'Judge Thompson, whose judicial
learning and experience, while on the bench of the supreme court of New York, and on the bench of the
United States, were very extensive, thus wrote to a friend some short time before his death: 'I have
repeatedly ruled on the trial of criminal cases that it was the right as well as the duty of the court to
decide questions of law; and any other rule, it appears to me, would be at war with our whole judicial
system, and introduce the utmost confusion in criminal trials. It is true, the jury may disregard the
instructions of the court, and in some cases there may be no remedy. But it is still the right of the court to
instruct the jury on the law, and the duty of the jury to obey the instructions." See, also, Whart, Cr. Pl.
810, note 3.
The remarks of Mr. Justice Baldwin in U. S. v. Wilson and Porter, Baldw. 78, 100, 108, Fed. Cas. No.

16, 730, have sometimes been referred to as in conflict with the rule that it is the duty of the jury to
accept the law as expounded by the court. It is quite true that, in the charge in Wilson's Case, Mr. Justice
Baldwin said that, if the jury were prepared to say that the law was different from what the court had
announced, they were in the exercise of their constitutional right to do so. But in his charge in Porter's
Case he explained what was said in Wilson's Case. After remarking that, if a jury find a prisoner guilty
against the court's opinion of the law of the case, a new trial would be granted, as no court would
pronounce a judgment on a prisoner against what it believes to be the law, he said: 'This, then, you will
understand to be what is meant by your power to determine upon the law; but you will still bear in mind
that it is a very old, sound, and valuable maxim that the court answers to questions of law, and the jury to
facts. Every day's experience evinces the wisdom of this fule.' Subsequently, in U. S. v. Shive, Baldw.
510, 513, Fed. Cas. No. 16, 278, which was an indictment for passing a counterfeit note of the Bank of
the United States, and when the question arose as to the right of the jury to pass upon the constitutionality
of the act of congress on which the prosecution was founded, Mr. Justice Baldwin said in his charge: 'If
juries once exercise this power, we are without a constitution or laws; one jury has the same power as
another; you cannot bind those who may take your places; what you declare constitutional to-day another
jury may declare unconstitutional to-morrow.'
The question before us received full consideration by Mr. Justice Story in U. S. v. Battiste, 2, Sumn. 240,
243, 244, Fed. Cas. No. 14, 545. That was an indictment for a capital offence, and the question was
directly presented whether in criminal cases, especially in capital cases, the jury were the judges of the
law as well as of the facts. He said: 'My opinion is that the jury are no more judges of the law in a capital
or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general
issue. In each of these cases, their verdict, when general, is necessarilty compounded of law and of fact,
and includes both. In each they must necessarily determine the law as well as the fact. In each they have
the physical power to disregard rthe law, as laid down to them by the court. But I deny that, in any case,
civil or criminal, they have the moral right to decide the law according to their own notions or pleasure.
On the contrary, I hold it the most sacred constitutional right of every party accused of a crime that the
jury should respond as to the facts, and the court as to the law. It is the duty of the court to instruct the
jury as to the law, and it is the duty of the jury to follow the law as it is laid down by the court. This is the
right of every citizen, and it is his only protection. If the jury were at liberty to settle the law for
themselves, the effect would be, not only that the law itself would be most uncertain, from the different
views which different juries might take of it, but in case of error there would be no remedy or redress by
the injured party; for the court would not have any right to review the law as it had been settled by the
jury.' 'Every person accused as a criminal has a right to be tried according to the law of the land, — the
fixed law of the land, and not by the law as a jury may understand it, or choose, from wantonness or
ignorance of accidental mistake, to interpret it. If I thoutht that the jury were the proper judges of the law
in criminal cases, I should hold it may duty to abstain from the responsibility of stating the law to them
upon any such trial. But believing, as I do, that every citizen has a right to be tried by the law, and
according to the law; that it is his privilege and truest shield against oppression and wrong, — I feel it my
duty to state my views fully and openly on the present occasion.'
In U. S. v. Morris, 1 Curt. 23, 51, 52, 58, Fed. Cas. No. 15, 815, the question, in all of its aspects, was
examined by Mr. Justice Curtis with his accustomed care. In that case the contention was that every jury,
impaneled in a court of the United States, was the rightful judge of the existence, construction, and effect
of every law that was material in a criminal case, and could, of right, and if it did its duty must, decide
finally on the constitutional validity of any act of congress which the trial brought in question. Touching

the rightful powers and duties of the court and the jury under the constitution in criminal cases, Mr.
Justice Curtis, among other things, said: 'The sixth article, after declaring that the constitution, laws,
treaties of the United States shall be the supreme law of the land, proceeds, 'And the judges, in every
state, shall be bound thereby.' But was it not intended that the constitution, laws, and treaties of the
United States should be the supreme law in criminal as well as in civil case? If a state law should make it
penal for an officer of the United States to do what an act of congress commands him to do, was not the
latter to be supreme over the former? And if so, and in such cases juries finally and rightfully determine
the law, and the constitution so means when it speaks of a trial by jury, why was this command laid on
the judges alone, who are thus mere advisers of the jury, and may be bound to give sound advice, but
have no real power in the matter? It was evidently the intention of the constitution that all persons
engaged in making, expounding, and executing the laws, not only under the authority of the United
States, but of the several states, should be bound by oath or affirmation to support the constitution of the
United States. But no such oath or affirmation is required of jurors, to whom it is alleged the constitution
confides the power of expounding that instrument, and not only construing, but holding invalid, any law
which may come in question on a criminal trial.' 'In my opinion,' the learned justice proceeded,'it is the
duty of the court to decide every question of law which arises in a criminal trial. If the question touches
any matter affecting the course of the trial, such as the competency of a witness, the admissibility of
evidence, and the like, the jury receive no direction concerning it. It affects the materials out of which
they are to form their verdict, but they have no more concern with it than they would have had if the
question had arisen in some other trial. If the question of law enters into the issue, and forms part of it,
the jury are to be told that the law is, and they are bound to consider that they are told truly; that law they
apply to the facts, as they find them, and thus, passing both on the law and the fact, they, from both,
frame their general verdict of guilty or not guilty. Such is my view of the respective duties of the
different parts of this tribunal in the trial of criminal case, and I have not found a single decision of any
court in England, prior to the formation of the constitution, which conflicts with it.'
It was also contended that the clause in the act of congress, known as the Sedition Law of 1798 (1 Stat. c.
74, 3), declaring that 'the jury who shall try the cause shall have a right to determine the law and the fact,
under the direction of the court, as in other cases,' in the trial of criminal cases, and I have decide the law
contraery to the direction of the court. But in response to this view Mr. Justice Curtis said: 'I draw from
this the opposite inference; for where was the necessity of this provision, if, by force of the constitution,
juries, as such, have both the power and the right to determine all questions in criminal cases; and why
are they to be directed by the court?' See, also, Montgomery v. State, 11 Ohio, 427.
But Mr. Justice Curtis considered the question from another point of view, and gave reasons which
appear to us entirely conclusive against the proposition that it is for the jury, in every criminal case, to
say authoritatively what is the law by which they are to be governed in finding their verdict. He said:
'There is, however, another act of congress which bears directly on this question. The act of the 29th of
April, 1802, in section 6, after enacting that, in case of a division of opinion between the judges of the
circuit court on any question, such question may be certified to the supreme court, proceeds: 'And shall
by the said court be finally decided; and the decision of the supreme court and their order in the premises
shall be remitted to the circuit court, and be there entered of record and have effect according to the
nature of such judgment and order.' The residue of this section proves that criminal as well as civil cases
are embraced in it, and under it many questions arising in criminal cases have been certified to and
decided by the supreme court, and persons have been executed by reason of such decisions. Now, can it
be, after a question arising in a criminal trial has been certified to the supreme court, and there, in the

language of this act, finally decided, and their order remitted here and entered of record, that when the
trial comes on the jury may rightfully revise and reverse this final decision? Suppose, in the course of
this trial, the judges had divided in opinion upon the question of the constitutionality of the act of 1850,
and that, after a final decision thereon by the supreme court and the receipt of its mandate here, the trial
should come on before a jury, does the constitution of the United Ststes, which established that supreme
court, intend that a jury may, as matter of right, revise and reverse that decision? And, if not, what
becomes of this supposed right? Are the decisions of the supreme court binding on juries, and not the
decisions of inferior courts? This will hardly be pretended; and if it were, how is it to be determined
whether the supreme court has or has not, in some former case, in effect settled a particular question of
law? In my judgment, this act of congress is in accordance with the constitution, and designed to effect
one of its important and even necessary objects, — a uniform exposition and interpretation of the law of
the United States, — by providing means for a final decision of any question of law, — final as respects
every tribunal and every part of any tribunal in the country; and, if so, it is not only wholly inconsistent
with the alleged power of juries, to the extent of all questions so decided, but it tends strongly to prove
that no such right as is claimed does or can exist.'
Again: 'Considering the intense interest excited, the talent and learning employed, and consequently the
careful researches made, in England, near the close of the last century, when the law of libel was under
discussion in the courts and in parliament, it cannot be doubted that, if any decision, having the least
weight, could have been produced in support of the general proposition that juries are judges of the law
in criminal cases, it would then have been brought forward. I am not aware that any such was produced.
And the decision of the king's bench in Rex v. Dean of St. Asaph, 3 Term R. 428, note, and the answers
of the twelve judges to the questions propounded by the house of lords, assume, as a necessary postulate,
what Lord Mansfield so clearly declares in terms, that, by the law of England, juries cannot rightfully
decide a question of law. Passing over what was said by ardent partisans and eloquent counsel, it will be
found that the great contest concerning what is known as 'Mr. Fox's Libel Bill' was carried on upon quite
a different ground by its leading friends, — a ground which, while it admits that the jury are not to decide
the law, denies that the libelous intent is matter of law, and asserts that it is so mixed with the fact that,
under the general issue, it is for the jury to find it as a fact. 34 Ann. Reg. 170; 29 Parl. Deb. Such I
understand to be the effect of that famous declaratory law. 32 Geo. III. c. 60.... I conclude, then, that,
when the constitution of the United States was founded, it was a settled rule of the common law that, in
criminal as well as in civil cases, the court decided the law, and the jury the facts; and it cannot be
doubted that this must have an important effect in determining what is meant by the constitution when it
adopts a trial by jury.'
That eminent jurist, whose retirement from judicial station has never cased to be a matter of deep regret
to the bench and bar of this country, closed his great opinion with an expression of a firm conviction that,
under the constitution of the United States, juries in criminal cases have not the right to decide any
question of law, and that, in rendering a general verdict, their duty and their oath require them to apply to
the facts, as the find them, the law given to them by the court. And in so declaring he substantially
repeated what Chief Justice Marshall had said in Burr's Case.
In U. S. v. Greathouse, 4 Sawy. 457, 464, Fed. Cas. No. 15, 254, which was an indictment for trason, Mr.
Justice Field said: 'There prevails a very general, but an erroneous, opinion that in all criminal cases the
jury are the judges as well of the law as of the fact; that is, that they have the right to disregard the law as
laid down by the court, and to follow their own notions on the subject. Such is not the right of the jury.'
'It is their duty to take the law from the court, and apply it to the facts of the case. It is the province of the

court, and of the court alone, to determine all questions of law arising in the progress of a trial; and it is
the province of the jury to pass upon the evidence, and determine all contested questions of fact. The
responsibility of deciding correctly as to the law rests solely with the court, and the responsibility of
finding correctly the facts rests solely with the jury.'
These principles were applied by Judge Shipman in U. S. v. Riley, 5 Blatchf. 204, Fed. Cas. No. 16.164,
and by Judge Cranch, upon an extended review of the authorities, in Stettinius v. U. S., 5 Cranch, C. C.
573, Fed. Cas. No. 13, 387. They were also applied by Judge Jackson, in the district of West Virginia, in
U. S. v. Keller, 19 Fed. 633, in which case it was said that although an acquittal in a criminal case was
final, even if the jury arbitrarily disregarded the instructions of the court on the law of the case, a jury, in
order to discharge its whole duty, must take the law from the court and apply it to the facts of the case.
Turning, now, to cases in the state courts, we find that in Com. v. Porter, 10 Metc. 263, 276, the supreme
judicial court of Massachusetts, speaking by Chief Justice Shaw, delivering the unanimous judgment of
the court composed of himself and Justices Wilde, Dewey, and Hubbard, held that it was a well-settled
principle, lying at the foundation of jury trials, admitted and recognized over since jury trial had been
adopted as an established and settled mode of proceeding in courts of justice, that it was the proper
province and duty of judges to consider and decide all questions of law, and the proper province and duty
of the jury to decide all questions of fact. In the same case, the court, observing that the safety,
efficiency, and purity of jury trial depend upon the steady maintenanceand practical application of this
principle, and adverting to the fact that a jury, in rendering a general verdict, must necessarily pass upon
the whole issue, compounded of the law and of the fact, and thus incidentally pass on questions of law,
said: 'It is the duty of the court to instruct the jury on all questions of law which appear to arise in the
cause, and also upon all questions, pertinent to the issue, upon which either party may request the
direction of the court upon matters of law. And it is the duty of the jury to receive the law from the court,
and to conform their judgment and decision to such instructions, as far as they understand them, in
applying the law to the facts to be found by them; and it is not within the legitimate province of the jury
to revise, reconsider, or decide contrary to such opinion or direction of the court in matter of law.' Page
286.
Perhaps the fullest examination of the question upon principle, as well as upon authority, to be found in
the decisions of any state court, was made in Com. v. Anthes, 5 Gray, 185, 193, 206, 208, 218, where
Chief Justice Shaw, speaking for a majority of the court, said that the true theory and fundamental
principle of the common law, both in its civil and criminal departments, was that the judges should
adjudicate finally upon the whole question of law, and the jury upon the whole question of fact.
Considering, in the light of the authorities, the grounds upon which a verdict of guilty or not guilty, in a
criminal case, was held, at common law, to be conclusive, he observed that though the jury had the
power they had not the right to decide, that is, to adjudicate, on both law and evidence. He said: 'The
result of these several rules and principles is that, in practice, the verdict of a jury, both upon the law and
the fact, is conclusive; because, from the nature of the proceeding, there is no judicial power by which
the conclusion of law thus brought upon the record by that verdict can be reversed, set aside, or inquired
into. A general verdict, either of conviction or acquittal, does embody had declare the result of both the
law and the fact, and there is no mode of separating them on the record so as to ascertain whether the jury
passed their judgment on the law, or only on the evidence. The law authorized them to adjudicate
definitively on the evidence; the law presumes that they acted upon correct rules of law given then by the
judge. The verdict, therefore, stands conclusive and unquestionable, in point both of law and fact. In a

certain limited sense, therefore, it may be said that the jury have a power and legal right to pass upon
both the law and the fact. And this is sufficient to account for many and most of the dicta in which the
proposition is stated. But it would be more accurate to state that it is the right of the jury to return a
general verdict; this draws after it, as a necessary consequence, that they incidentally pass upon the law.
But here, again, is the question, what is intended by 'passing upon the law'? I think it is by embracing it
in their verdict, and thus bringing it upon the record, with their finding of the facts. But does it follow
that they may rightfully and by authority of the common law, by which all are conscientiously bound to
goven their conduct, proceed upon the same grounds and principles in the one case as the other? What
the jury have a right to do, and what are the grounds and principles upon which they are in duty and
conscience bound to act and govern themselves in the exercise of that right, are two very distinct
questions. The latter is the one we have do deal with. Suppose they have a right to find a general verdict,
and by that verdict to conclude the prosecutor in the matter of law, still it is an open and very different
question whether, in making up that verdict and thereby embracing the law, they have the same right to
exercise their own reason and judgment, against the statement of the law by the judge, to adjudicate on
the law, as unquestionably they have on the fact. The affirmative of this proposition is maintained by the
defendant in this case, and by others in many of the cases before us. If I am right in the assumption that
the judge is to adjudge the law, and the jury the fact, only, it furnishes the answer to this question to what
extent the jury adjudicate the law; and it is that they receive authoritative directions from the court, and
act in conformity with them, though by their verdict they thus embrace the law with the fact, which they
may rightfully adjudicate.'
Alluding to the history of this question in England, and particularly, as did Mr. Justice Curtis, to the
controversy in Rex v. Dean of St. Asaph, 3 Term R. 428, note, and which resulted in the passage by
parliament, after the separation of this country from Great Britain, of the libel act (St. 32 Geo. III.), and
observing that both parties to that controversy assumed the force and existence of the rule as the ancient
rule of the common law, the court said: 'The court and high prerogative party say judges answer to the
law, and jurors to the fact; the question of guilty or not, in the peculiar form of a criminal prosecution for
libel, after the jury have found the fact of publication and truth of the innuendoes, is a question of law,
and therefore must be declared exclusively by the court. The popular party, assuming the same major
proposition, say the question of guilty or not is question of fact, and can be found only by the jury. It
appears to me, therefore, as I stated on the outset, that considering the course of the controversy, the
earnestness and ability with which every point was contested, and the thorough examination of the
ancient authorities, this concurrence of views on the point in question affords strong proof that, up to the
period of our separation from England, the fundamental definition of trials by jury depended on the
universal maxim, without an exception,'Ad quaestionem facti respondent juratores, ad quaestionem juris
respondent judices."
The Anthes Case, it may be observed, arose under a statute enacted in 1855, after the decision in the
Porter Case. But the court held that that statute did not confer upon juries, in criminal trials, the power of
determining questions of law against the instruction of the court. And the chief justice said — Justices
Metcalf and Merrick concurring — that, if the statute could be so interpreted as to prescribe that the jury,
consistently with their duty, may decide the law upon their judgment contrary to the decision and
instruction of the court before whom the trial was had, such enactment would be beyond the scope of
legitimate legislative power, repugnant to the constitution, and, of course, inoperative and void. See, also,
Com. v. Rock, 10 Gray, 4, where the doctrine announced in Com. v. Anthes were reaffirmed, no one of
the members of the court expressing a dissent.

This question was also fully considered in Montee v. Com., 3 J. J. March. 132, 149, 151, in which case
Chief Justice Robertson said: 'The circuit judge would be a cipher, and a criminal trial before him a farce,
if he had no right to decide all questions of law whihc might arise in the progress of the case. The jury
are the exclusive judges of the facts. In this particular they cannot be controlled, and ought not to be
instructed, by the court. They are also, ex necessitate, the ultimate judges, in one respect, of the law. If
they acquit, the judge cannot grant a new trial, how much soever they have misconceived or disregarded
the law.' 'If the court had no right to decide on the law, error, confusion, uncertainty, and licentiousness
would characterize the criminal trials; and the safety of the accused might be as much endangered as the
stability of public justice would certainly be.' In Pierce v. State, 13 N. H. 536, 554, it was held to be
inconsistent with the spirit of the constitution that questions of law, and, still less, questions of
constitutional law, should be decided by the verdict of the jury, contrary to the instructions of the court.
In Duffy v. People, 26 N. Y. 588, 591, Judge Selden, speaking for the court of appeals of New York,
said: 'The unquestionable power of juries to find general verdicts, involving both law and fact, furnishes
the foundation for the opinion that they are judges of the law as well as of the fact, and gives some
plausibility to that opinion. They are not, however, compelled to decide legal questions; having the right
to find special verdicts, giving the facts, and leaving the legal conclusions which result from such facts to
the court. When they find general verdicts, I think it is their duty to be governed by the instructions of the
court as to all legal questions involved in such verdicts. They have the power to do otherwise, but the
exercise of such power cannot be regarded as rightful, although the law has provided no means, in
criminal cases, of reviewing their decisions, whether of law of fact, or of ascertaining the grounds upon
which their verdicts are based.' See, also, People v. Finnegan, 1 Parker, Cr. R. 147, 152; Safford v.
People, Id. 474, 480.
So, in Hamilton v. People, 29 Mich. 173, 192, Mr. Justice Campbell, as the organ of the court, said: 'We
understand the uniform practice and the decided weight of opinion to require that the judge give his
views of the law to the jury as authority, and not as a matter to be submitted to their review.' And in
People v. Anderson, 44 Cal. 65, 70: 'In this state it is so well settled as no longer to be open to debate that
it is the duty of a jury, in a criminal case, to take the law from the court.' The principle was accurately
stated by Chief Justice Ames, speaking for the supreme court of Rhode Island, when he said: 'The line
between the duties of a court and jury in the trial of causes at law, both civil and criminal, is perfectly
well defined; and the rigid observance of it is of the last importance to the administration of systematic
justice. Whilst, on the one hand, the jury are the sole, ultimate judges of the facts, they are, on the other,
to receive the law applicable to the case before them solely from the publicly given instructions of the
court. In this way, court and jury are made responsible, each in its appropriate department, for the part
taken by each in the trial and decision of causes; and in this way alone can errors of fact and errors of law
be traced, for the purpose of correction, to their proper sources. If the jury can receive the law of a case
on trial in any other mode than from the instructions of the court, given in the presence of parties and
counsel, how are their errors of law, with any certainty, to be detected, and how, with any certainty,
therefore, to be corrected? It is a statute right of parties here — following, too, the ancient course of the
common law — to have the law given by the court, in their presence, to the jury, to guide their decision,
in order that every error in matter of law may be known and corrected.' State v. Smith, 6 R. I. 33, 34.
In Pennsylvania, in the case of Com. v. Sherry (reported in the appendix to Wharton's treatise on
Homicide), Judge Rogers, a jurist of high reputation, thus charged the jury in a capital case: 'You are, it is
true, judges in a criminal case, in one sense, of both law and fact; for your verdict, as in civil cases, must
pass on law and fact together. If you acquit, you interpose a final bar to a second prosecution, no matter

how entirely your verdict may have been in opposition to the views expressed by the court.... It is
important for you to keep this distinction in mind, remembering that, while you have the physical power,
by an acquittal, to discharge a defendant from further prosecution, you have no moral power to do so,
against the law laid down by the court.... For your part, your duty is to receive the law, for the purposes
of this trial, from the court. If an error injurious to the prisoner occurs, it will be rectified by the revision
of the court in banc. But an error resulting from either a conviction or acquittal, against the law, can
never be rectified. In the first case, an unnecessary stigma is affixed to the character of a man who was
not guilty of the offense with which he is charged. In the second case, a serious injury is effected by the
arbitrary and irremediable discharge of a guilty man. You will see from these considerations the great
importance of the preservation, in criminal as well as in civil cases, of the maxim that the law belongs to
the court, and the facts to the jury.' About the same time, Judge Sergeant charged a jury: 'The point, if
you believe the evidence on both sides, is one of law, on which it is your duty to receive the instructions
of the court. If you believe the evidence in the whole case, you must find the defendant guilty.' Com. v.
Van Sickle, Brightly (Pa.) 73. To the same effect, substantially, was the language of Chief Justice
Gibson, who, when closing a charge in a capital case, said,'If the evidence on these points fail the
prisoner, the conclusion of his guilt will be irresistible, and it will be your duty to draw it.' Com. v.
Harman, 4 Pa. St. 269. In a more recent case (Kane v. Com., 89 Pa. St. 522), Sharswood, C. J., said that
the power of the jury to judge of the law in a criminal case was one of the most valuable securities
guarantied by the bill of rights of Pennsylvania. But in a later case, Nicholson v. Com., 96 Pa. St. 505, it
was said: 'The court had an undoubted right to instruct the jury as to the law, and to warn them as they
did against finding contrary to it. This is very different from telling them that they must find the
defendant guilty, which is what is meant by a binding instruction in criminal cases.' In Com. v.
McManus, 143 Pa. St. 64, 85, 21 Atl. 1018, and 22 Atl. 761, it was adjudged that the statement by the
court was the best evidence of the law within the reach of the jury, and that the jury should be guided by
what the court said as to the law. And this view the court, speaking by Chief Justice Paxson, said was in
harmony with Kane v. Com.
The question has recently been examined by the supreme court of Vermont, and after an elaborate review
of the authorities, English and American, that court, by a unanimous judgment, — overruling State v.
Croteau, 23 Vt. 14, and all the previous cases which had followed that case, — said: 'We are thus led to
the conclusion that the doctrine that jurors are the judges of the law in criminal cases is untenable; that it
is contrary to the fundamental maxims of the common law from which it is claimed to take its origin;
contrary to the uniform practice and decisions of the courts of Great Britain, where our jury system had
its beginning, and where it matured; contrary to the great weight of authority in this country; contrary to
the spirit and meaning of the constitution of the United States; repugnant to the constitution of this state;
repugnant to our statute relative to the reservation of questions of law in criminal cases, and passing the
same to the supreme court for final decision.' State v. Burpee, 65 Vt. 1, 34, 25 Atl. 964.
These principles are supported by a very large number of adjudications, as will be seen by an
examination of the cases cited in margin.2
To the same purport are the text writers. 'In theory, therefore,' says Judge Cooley,'the rule of law would
seem to be that it is the duty of the jury to receive and follow the law as delivered to them by the court;
and such is the clear weight of authority.' Const. Lim. 323, 324. Greenleaf, in his treattise on the Law of
Evidence, says: 'In trials by jury, it is the province of the presiding judge to determine all questions on
the admissibility of evidence to the jury, as well as to instruct them in the rules of law by which it is to be
weighed. Whether there be any evidence or not is a question for the judge; whether it is sufficient

evidence is a question for the jury.' 'Where the question is mixed, consisting of law and fact, so
intimately blended as not to be easily susceptible of separate decision, it is submitted to the jury, who are
first instructed by the judge in the principles and rules of law by which they are to be governed in finding
a verdict, and these instructions they are bound to follow.' Volume 1, 49. Starkie, in his treatise on
Evidence, observes, 'Where the jury find a general verdict they are bound to apply the law as delivered
by the court, in criminal as well as civil cases.' Page 816. So, in Phillips on Evidence: 'They [the jury] are
not in general, either in civil or criminal cases, judges of the law. They are bound to find the law as it is
propounded to them by the court. They may, indeed, find a general verdict, including both law and fact;
but if, in such verdict, they find the law contrary to the instructions of the court, they thereby violate their
oath.' 4 Cowen & Hill's Notes (3d Ed.) p. 2. See, also, 1 Tayl. Ev. 21-24; 1 Best, Ev. (Morgan's Ed.) 82.
In 1 Cr. Law Mag. 51, will be found a valuable note to the case of Kane v. Com., prepared by Mr.
Wharton, in which the authorities are fully examined, and in which he says: 'It would be absurd to say
that the determination of the law belongs to the jury, not court, if the court has power to set aside that
which the jury determines. We must hold, to enable us to avoid the inconsistency, that, subject to the
qualification that all acquittals are final, the law in criminal cases is to be determined by the court. In this
way we have our liberties and rights determined, not by an irresponsible, but by a responsible, tribunal;
not by a tribunal ignorant of the law, but by a tribunal trained to and disciplined by the law; not by an
irreversible tribunal, but by a reversible tribunal; not by a tribunal which makes its own law, but by a
tribunal that obeys the law as made. In this way we maintain two fundamental maxims. The first is that,
while to facts answer juries, to the law answers the court. The second, which is still more important, is
'Nullum crimen, nulla poena, sine lege.' Unless there be a violation of law preannounced, and this by a
constant and responsible tribunal, there is no crime, and can be no punishment.' 1 Cr. Law Mag. 56. The
same author, in his treatise on Pleading and Practice, concludes his examination of the question in these
words: 'The conclusion we must therefore accept is that the jury are no more judges of law in criminal
than in civil cases, with the qualification that, owing to the peculiar doctrine of autrefois acquit, a
criminal acquitted cannot be overhauled by the court. In the federal courts such is now the established
rule.' Sections 809, 810.
Forsyth, in his History of Trial by Jury, — a work of merit, — discusses the doctrine advanced by some
that the jury were entitled in all cases, where no special pleas have been put on the record, to give a
general verdict according to their own views of the law, in criminal as well as in civil cases. He says: 'It
is impossible to uphold the doctrine. It is founded on a confusion between the ideas of power and right.'
'Indeed, it is difficult to understand how any one acquainted with the principles and settled practice of the
English law can assert that it sanctions the doctrine which is here combated.' Again: 'The distinction
between the province of the judge and that of the jury is, in the English law, clearly defined, and
observed with jealous accuracy. The jury must in all cases determine the value and effect of evidence
which is submitted to them. They must decide what degree of credit is to be given to a witness, and hold
the balance between conflicting probabilities. The law throws upon them the whole responsibility of
ascertaining facts in dispute, and the judge does not attempt to interfere with the exercise of their
unfettered discretion in this respect. But, on the other hand, the judge has his peculiar duty in the conduct
of a trial. He must determine whether the kind of evidence offered is such as ought or ought not to be
submitted to the jury, and what liabilities it imposes. When any questions of law arise, he alone
determines them, and their consideration is absolutely withdrawn from the jury, who must in such cases
follow the direction of the judge; or if they perversely refuse to do so, their verdict (in civil cases) will be
set aside, and a new trial granted.' Pages 235, 236 (Morgan's Ed.).

Worthington, in his Inquiry into Power of Juries, an English work Published in 1825, and often cited in
the adjudged cases, says: 'Were they [ the jury] permitted to decide the law, the principles of justice
would be subverted; the law would become as variable as the prejudices, the inclinations, and the
passions of men. If they could legally decide upon questions of law, their decision must, of necessity, be
final and conclusive, which would involve an absurdity in all judicial proceedings, and would be
contradictory to the fundamental principles of our jurisprudence.' 'The jury, when called upon to decide
facts which are complicated with law, are therefore constitutionally, and must be, from the nature and
intention of the institution, bound to seek and to obey the direction of the judge with respect to the law. It
becomes their duty to apply to the law thus explained to them the facts (which it is their exclusive
province to find), and thus they deliver a verdict compounded of law and fact, but they do not determine
or decide upon the law in any case.' Pages 193, 194.
Judge Thompson, in his work on Trials (sections 1016, 1017), thus states the principles: 'The judge
decides questions of law; the jury, questions of fact.' So, in Proff. Jury, 375: 'The preponderance of
judicial authority in this country is in favor of the doctrine that the jury should take the law from the
court, and apply it to the evidence under its direction.'
The language of some judges and statesmen in the early history of the country, implying that the jury
were entitled to disregard the law as expounded by the court, is perhaps to be explained by the fact that
'in many of the states the arbitrary temper of the colonial judges, holding office directly from the crown,
had made the independence of the jury, in law as well as in fact, of much popular importance.' Whart. Cr.
Pl. (8th Ed.) 806; Williams v. State, 32 Miss. 389, 396.
Notwithstanding the declarations of eminent jurists and of numerous courts, as disclosed in the
authorities cited, it is sometimes confindently asserted that they all erred when adjudging that the rule at
common law was that the jury, in criminal cases, could not properly disregard the law as given by the
court. We are of opinion that the law in England at the date of our separation from that country was as
declared in the authorities we have cited. The contrary view rests, as we think, in large part, upon
expressions of certain judges and writers, enforcing the principle that when the question is compounded
of law and fact a general verdict, ex necessitate, disposes of the case in hand, both as to law and fact.
That is what Lord Somers meant when he said in his essay on 'The Security of Englishmen's Lives, or the
Trust, Power, and Duty of the Grand Juries of England,' that jurors only 'are the judges from whose
sentence the indicted are to expect life or death,' and that,'by finding guilty or not guilty, they do
complicately resolve both law and fact.' In the speeches of many statesmen and in the utterances of many
jurists will be found the general observation that when law and fact are 'blended' their combined
consideration is for the jury, and a verdict of guilty or not guilty will determine both for the particular
case in hand. But this falls far short of the contention that jury, in applying the law to the facts, may
rightfully refuse to act upon the principles of law announced by the court.
It is to be observed that those who have maintained the broad position that a jury may, of right, disregard
the law as declared by the court, cite the judgment of Chief Justice Vaughan in Bushell's Case, Vaughan,
135. In that case the accused were acquitted by a general verdict, in opposition, as it was charged, to the
directions of the court. And the question presented upon habeas corpus was whether, for so doing, they
were subject to be fined, and committed to prison until the fine was paid. Upon a careful examination of
the elaborate opinion in that case, it will become clear that the fundamental proposition decided was that
in view of the different functions of court and jury, and because a general verdict, of necessity, resolves
'both law and fact complicately, and not the fact by itself,' it could never be proved, where the case went

to the jury upon both law and facts, that the jurors did not proceed upon their view of the evidence. Chief
Justice Vaughan said that the words in the warrant,'that the jury did acquit against the direction of the
court in matter of law, literally taken, and de plano, are insignificant, and not intelligible, for no issue can
be joined of matter in law; no jury can be charged with the trial of matter in law barely; no evidence ever
was or can be given to a jury of what is law or not, nor no such oath can be given to or taken by a jury, to
try matter in law, nor no attaint can lie for such a false oath.' Id. 143. Touching the distinction between
the oath of a witness and that of a juror, he said: 'A witness swears but to what hath fallen under his
senses. But a juryman swears to what he can infer and conclude from the testimony of such witnesses, by
the act and force of his own understanding, to be the fact inquired after, which differs nothing in the
reason, though much in the punishment, from what a judge, out of various cases considered by him infers
to be law in the question before him.' Id. 139, 142.
In referring to the opinion in Bushell's Case, Mr. Justice Curtis well observed that it would be found that
Chief Justice Vaughan 'confines himself to a narrow, though, for the case, a conclusive, line of argument,
— that, the general issue embracing fact as well as law, it can never be proved that the jury believed the
testimony on which the fact depended, and in reference to which the direction was given, and so they
cannot be shown to be builty of any legal misdemeanor in returning a verdict, though apparently against
the direction of the court in matter of law.' And this is the view of the opinion in Bushell's Case,
expressed by Hallam in his Constitutional History of England (chapter 13).
A similar criticism was made by the supreme judicial court of Massachusetts in the Case of Anthes.
Chief Justice Shaw, after stating the principles involved in Bushell's Case, said: 'It may be remarked that
from the improved views of the nature of jury trials, during the two hundred years which have elapsed
since the decision of Chief Justice Vaughan, the juror is now in no more danger of punishment for giving
an erroneous judgment in matter of fact than a judgeis for giving an erroneous judgment in matter of law.
But his statement clearly implies that the judge, within his appropriate sphere, is to act by the force of his
reason and understanding, and, by the aid of his knowledge of the law and all appropriate means, to
adjudge all questions of law, and direct the jury thereon; and in like manner the jury, by the force of their
reason and understanding, acting upon all the competent evidence in the case, to reason, weigh evidence,
draw inferences, and adjudge the question of fact embraced in the issue. Again: 'In these cases the jury,
and not the judge, resolve and find what the fact is. Therefore, always, in discreet and lawful assistance
of the jury, the judge's direction is hypothetical and upon supposition, and not positive, upon coercion,
namely: 'If you find the fact thus [leaving it to them what to find], then you are to find for the plaintiff;
but, if you find the fact thus, then it is for the defendant.' Vaughan, 144." 'It is strange,' Chief Justice
Shaw felt constrained to say,'that the authority of Vaughan, C. J., in this case, should be cited, as it has
been, to prove that a juror, in finding a general verdict, embracing law and fact, being sworn to try the
issue, must find his verdict upon his own conviction and conscience, relying, in support of the
proposition, upon the following words of Vaughan, C. J.: 'A man cannot see by another's eye, nor hear by
another's ear. No more can a man decide and infer the thing to be resolved by another's understanding or
reasoning.' Id. 148.' Had these words been applied to the whole issue embraced in a general verdict, as
would be implied from the manner of referring to them, they would have countenanced the proposition;
but they are used expressly to illustrate the position that the jury cannot be required implicitly to give a
verdict by the dictates and authority of the judge. 'I refer,' Chief Justice Shaw continued,'only to one
other passage, which serves as a key to the whole judgment. He says: 'That decantatum in our books,'Ad
quaestionem facti non respondent judices, ad quaestionem legis non respondent juratores,' literally taken,
is true, for if it be demanded, what is the fact? the judge cannot answer; if be asked, what is the law in the

case? the jury cannot answer it.' Id. 149.' All this tends to show that the leading thought in the opinion of
Chief Justice Vaughan was that while the jury cannot answer as to the law, nor the court as to the fact, a
general verdict, compounded of law and fact, of necessity determines both as to the case on trial.
In Townsend's Case, an office taken by virtue of a writ of mandamus, and decided in the sixteenth
century, the court said: 'For the office of twelve men is no other than to inquire of matters of fact, and not
to adjudge what the law is, for that is the office of the court, and not of the jury; and if they find the
matter of fact at large, and further say that thereupon the law is so, where in truth the law is not so, the
judges shall adjudge according to the matter of fact, and not according to the conclusion of the jury.' 1
Plow. 110, 114. In Willion v. Berkley, Id. 222, 230, also a civil case: 'Matters of fact, being traverse,
shall be tried by twelve men; and, if the plaintiff should take a traverse here, it would be to make twelve
illiterate men try a matter of law, whereof they have no knowledge. It is not their office to try matters of
law, but only to try matters of fact; for at the beginning of our law it was ordained that matters of fact
should be tried by twelve men of the country where the matter arises, and matters of law by twelve
judges of the law, for which purpose there were six judges here, and six in the king's bench, who, upon
matters of law, used to assemble together in a certain place, in order to discuss what the law was therein.
So that, if a traverse should be here taken, it would be to make twelve ignorant men of the country try
that whereof they are not judges, and which does not belong to them to try.' See, also, Grendon v. Bishop
of Lincoln, 2 Plow. 493, 496.
As early as 1727, Raymond, C. J., delivering the unanimous opinion of the twelve judges of the King's
bench in a case of murder, said that the jury are judges only of the fact, and the court of the law. 2
Strange, 766, 773. The force of this language as to the functions of judge and jury is not materially
weakened by the fact that the case was before the judges upon a special verdict, for it was expressly
declared that jurors were judges only of the fact.
Within a few years after Oneby's Case, 2 Strange, 766, was determined, in 1734, the case of King v.
Poole, which was a criminal information in the nature of a quo warranto, came before Lord Hardwicke.
In passing upon a motion for a new trial, that famous judge — than whom there could be no higher
authority as to what was the settled law of England — said: 'The thing that governs greatly in this
determination is that the point of law is not to be determined by juries; juries have a power by law to
determine matters of fact only; and it is of the greatest consequence to the law of England, and to the
subject, that these powers of the judge and the jury are kept distinct; that the judge determines the law,
and the jury the fact; and, if ever they come to be confounded, founded, it will prove the confusion and
destruction of the law of England.' Cas. t. Hardw. 27.
Upon the question here under examination, Mr. Foster, to whose work Chief Justice Marshall frequently
refers in his opinion or charge delivered in Burr's Case, says, in the first edition of his work, which
appeared in 1762, and again in the third edition, which appeared in 1792: 'In every case where the point
turneth upon the question whether the homicide was committed willfully and maliciously, or under
circumstances justifying, excusing, or alleviating the matter of fact, viz. whether the facts alleged by way
of justification, excuse, or alleviation are true, is the proper and only province of the jury. But whether,
upon a supposition of the truth of facts, such homicide be justified, excused, or alleviated, must be
submitted to the judgment of the court; for the construction the law putteth upon facts stated and agreed,
or found by a jury, is in this, as in all other cases, undoubtedly the proper province of the court. In cases
of doubt and real difficulty, it is commonly recommended to the jury to state facts and circumstances in a
special verdict. But where the law is clear the jury, under the direction of the court in point of law,

matters of fact being still left to their determination, may, and, if they are well advised, always will, find
a general verdict conformably to such direction.' Fost. Cr. Law (3d Ed.) 255, 256. See, also, Rex v.
Withers (Lord Kenyon) 3 Term R. 428; Bac. Abr. tit. 'Juries,' M 2; 2 Hawk. P. C. c. 22, 21; 1 Duncomb,
Trials per Pais (Dublin, 1793) pp. 229, 231.
In Wynne's Eunomus, or Dialogues Concerning the Law and Constitution of England, a work of
considerable reputation, the first edition having been published about the time of the adoption of our
constitution, the principle is thus stated: 'All that I have said or have to say upon the subject of juries is
agreeable to the established maxim that 'juries must answer to questions of fact, and judges to questions
of law.' This is the fundamental maxim acknowledged by the constitution.' 'It is undoubtedly true that the
jury are judges — the only judges — of the fact. Is it not equally within the spirit of the maxim that
judges only have the competent cognizance of the law? Can it be contended that the jury have in reality
an adequate knowledge of law? Or that the constitution ever designed they should?' 'Well — 'but the law
and the fact are often complicated' — then it is the province of the judge to distinguish them; to tell the
jury that, supposing such and such facts were done, what the law is in such circumstances. This is an
unbiased direction; this keeps the province of judge and jury distinct; the facts are left altogether to the
jury, and the law does not control the fact, but arises from it.' 'Every verdict is compounded of law and
fact, but the law and fact are always distinct in their nature.' Wynne, Eunomus, Dialogue 3 (5th Ed. 1822)
53, pp. 523, 527, 528.
Mr. Stephens, in his great work on the History of the Criminal Law of England, in discussing the powers
of juries in France, says: 'The right of the counsel for the defense to address the jury on questions of law,
as, for instance, whether killing in a duel is meurtre, is one of the features in which the administration of
justice in France differs essentially from the administration of justice in England. In England the judge's
duty is to direct the jury in all matters of law, and any arguments of counsel upon the subject must be
addressed to him, and not to the jury. This is not only perfectly well established as matter of law, but it is
as a fact acquiesced in by all whom it concerns.' Volume 1, p. 551.
To the same effect is Levi v. Milne, 4 Bing. 196, reported as Levy v. Milne, 12 Moore, 418, and decided
in 1827. That was an action of libel. Mr. Sergeant Wilde, a counsel in the case, contended that in cases of
libel the jury are judges of the law as well as of the fact. But Lord Chief Justice Best said: 'If the jury
were to be made judges of the law as well as of fact, parties would be always liable to suffer from an
arbitrary decision. In the present case the jury have made themselves judges of the law, and have found
against it.' 'My Brother Wilde has stated that in cases of libel the jury are judges of the law as well as of
fact, but I beg to deny that. Juries are not judges of the law, or, at any rate, not in civil actions. The
authority on which the learned sergeant has probably grounded his supposition is 32 Geo. III. c. 60,
which was the famous bill brought in by Mr. Fox, or, more properly, by Lord Erskine. But whoever reads
that act will see that it does not apply to civil actions; it applies only to criminal cases. There is nothing in
it that in any way touches civil actions, and the jury, with respect to them, stand in the same situation as
they ever have done. I mean, however, to protest against juries, even in criminal cases, becoming judges
of the law. The act only says that they may find a general verdict. Has a jury then a right to act against
the opinion of the judge, and to return a verdict on their own construction of the law? I am clearly of
opinion that they have not.' The report by Moore of this opinion is not as full as the report in Bingham,
but the two reports do not differ in any material respect.
But a later decision was that by Lord Abinger, C. B., in 1837, in Reg. v. Parish, 8 Car. & P. 94. That was
an indictment for offering, disposing of, and putting off a forged bill of enchange. In the course of his

argument to the jury, the counsel for the accused read the observations of Mr. Justice Coleridge in a
certain case as sustaining his view of the law. He was interrupted by the judge, who said: 'I cannot allow
you to read cases to the jury. It is the duty of the jury to take the law from the judge. It no doubt often
happens that, in an address to the jury, counsel cite cases, but then it is considered that that part of the
speech of the counsel is addressed to the judge. That cannot be so here, as you very properly in the first
instance referred me to the case, and you have my opinion upon it; you can therefore make no further
legitimate use of the case, and the only effect of reading it would be it discuss propositions of law with
the jury, with which they have nothing to do, and which they ought to take from me.'
The case of Parmiter v. Coupeland, 6 Mees. & W. 104, 106, 108, which was an action for libel, is not
without value, as tending to show that Fox's libel bill, so far from changing the rule, as generally
applicable in criminal cases, only required the same practice to be pursued in prosecutions for libel as in
other criminal cases. In the course of the argument of counsel, Parke, B., said: 'In criminal cases the
judge is to define the crime, and the jury are to find whether the party has committed that offense. Mr.
Fox's act made it the same in cases of libel, the practice having been otherwise before.' Again: 'But it has
been the course for a long time for a judge, in cases of libel, as in other cases of a criminal nature, first to
give a legal definition of the offense, and then to leave it to the jury to say whether the facts necessary to
constitute that offense are proved to their satisfaction; and that whether the libel is the subject of a
criminal prosecution or civil action. A publication, without justification or lawful excuse, which is
calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel.
Whether the particular publication, the subject of inquiry, is of that character, and would be likely to
produce that effect, is a question upon which a jury is to exercise their judgment, and pronounce their
opinion, as a question of fact. The judge, as a matter of advice to them in deciding that question, might
have given his own opinion as to the nature of the publication, but was not bound to do so as a matter of
law. Mr. Fox's libel bill was a declaratory act, and put prosecution for libel on the same footing as other
criminal cases.' Alderson, B., concurring, said that the judge 'ought, having defined what is a libel, to
refer to the jury the consideration of the particular publication, whether falling within that definition or
not.'
It is therefore a mistake to suppose that the English libel act changed in any degree the general
common-law rule in criminal cases, as to the right of the court to decide the law, and the duty of the jury
to apply the law thus given to the facts, subject to the condition, inseparable from the jury system, that
the jury, by a general verdict, of necessity determined in the particular case both law and fact, as
compounded in the issue submitted to them. That act provides that 'the court or judge, before whom such
indictment or information shall be tried, shall, according to their or his discretion, give their or his
opinion and directions to the jury on the matter in issue between the king and the defendant, in like
manner as in other criminal cases.' 'This seems,' Mr. Justice Curtis well said,'to carry the clearest
implication that in this and all other criminal cases the jury may be directed by the judge, and that, while
the object of the statute was to declare that there was other matter of fact besides publication and the
innuendoes to be decided by the jury, it was not intended to interfere with the proper province of the
judge to decide all matters of law.' U. S. v. Morris, 1 Curt. 55, Fed. Cas. No. 15, 815. And this accords
with the views expressed by Lord Abinger in Reeves v. Templar, 2 Jur. 137. He said: 'Before that statute
a practice had arisen of considering that the question, libel or no libel, was always for the court,
independent of the intention and meaning of the party publishing. That statute corrected the error, and
now, if the intention does not appear on the body of the libel, a variety of circumstances are to be left to
the jury from which to infer it; but it was never intended to take from the court the power of deciding

whether certain words are, per se, libelous or not.' The rule that jurors do not respond to questions of law
was illustrated in Bishop of Meath v. Marquis of Winchester, 4 Clark & F. 445, 556, 557, where Lord
Chief Justice Tindal, delivering the unanimous opinion of the judges, said: 'With respect to the second
question lastly above proposed to us, viz. whether, if the fine were received in evidence it ought to be left
to the jury to say whether it barred the action of quare impedit, we all think that the legal effect of such
fine as a bar to the action of quare impedit is a matter of law merely, and not in any way a matter of fact;
and, consequently, the judge who tried the cause should state to the jury whether, in point of law, the fine
had that effect, or what other effect, on the rights of the litigant parties, upon the general and
acknowledged principle 'ad quaestionem juris non respondent juratores."
Briefly stated, the contention of the accused is that, although there may not have been any evidence
whatever to support a verdict of guilty of an offense less than the one charged, — and such was the case
here, — yet, to charge the jury, as matter of law, that the evidence in the case did not authorize any
verdict except one of guilty or one of not guilty of the particular offense charged, was an interference
with their legitimate functions, and therefore with the constitutional right of the accused to be tried by a
jury.
The error in the argument on behalf of the accused is in making the general rule as to the respective
functions of court and jury applicable equally to a case in which there is some substantial evidence to
support the particular right asserted and a case in which there is an entire absence of evidence to establish
such right. In the former class of cases the court may not, without impairing the constitutional right of
trial by jury, do what, in the latter cases, it may often do without at all intrenching upon the constitutional
functions of the jury. The law makes it the duty of the jury to return a verdict according to the evidence
in the particular case before them. But, if there are no facts in evidence bearing upon the issue to be
determined, it is the duty of the court, especially when so requested, to instruct them as to the law arising
out of that state of case. So, if there be some evidence bearing upon a particular issue in a cause, but it is
so meager as not, in law, to justify a verdict in favor of the party producing it, the court is in the line of
duty when it so declares to the jury. Pleasants v. Fant. 22 Wall. 116, 121; Montclair v. Dana, 107 U.S.
162, 2 Sup. Ct. 403; Randall v. Railroad Co., 109 U.S. 478, 482, 3 S. Sup. Ct. 322; Schofield v. Railway
Co., 114 U.S. 615, 619, 5 S. Sup. Ct. 1125; Marshall v. Hubbard, 117 U.S. 415, 419, 6 S. Sup. Ct. 806;
Meehan v. Valentine, 145 U.S. 611, 625, 12 S. Sup. Ct. 972.
The cases just cited were, it is true, of a civil nature; but the rules they announce are, with few
exceptions, applicable to criminal causes, and indicate the true test for determining the respective
functions of court and jury. Who can doubt, for instance, that the court has the right, even in a capital
case, to instruct the jury as matter of law to return a verdict of acquittal on the evidence adduced by the
prosecution? Could it be said, in view of the established principles of criminal law, that such an
instruction intrenched upon the province of the jury to determine from the evidence whether the accused
was guilty or not guilty of the offense charaged, or of some lesser offense included in the one charged?
Under a given state of facts, outlined in an instruction to the jury, certain legal presumptions may arise.
May not the court tell the jury what those presumptions are, and should not the jury assume that they are
told truly? If the court excludes evidence given in the hearing of the jury, and instructs them to disregard
it altogether, is it not their duty to obey that instruction, whatever may be their view of the admissibilty
of such evidence? In Smith v. U. S., 151 U.S. 50, 55, 14 S. Sup. Ct. 234, which was an indictment for the
murder, in the Indian Territory, of one Gentry,'a white man, and not an Indian,' we said: 'That Gentry was
a white man, and not an Indian, was a fact which the government was bound to establish, and, if it failed
to introduce any evidence upon that point, defendant was entitled to an instruction to that effect. Without

expressing any opinion as to the correctness of the legal propositions embodied in this charge, we think
there was no testimony which authorized the court to submit to the jury the question whether Gentry was
a white man and not an Indian. The objection went to the jurisdiction of the court, and, if no other
reasonable inference could have been drawn from the evidence that Gentry was an Indian, defendant,
was entitled, as matter of law, to an acquittal,' — citing Pleasants v. Fant, 22 Wall. 116; Commissioners
v. Clark. 94 U.S. 278; and Marshall v. Hubbard, 117 U.S. 415, 6 Sup. Ct. 806. So, in this case, it was
competent for the court to say to the jury that, on account of the absence of all evidence tending to show
that the defendants were guilty of manslaughter, they could not, consistently with law, return a verdict of
guilty of that crime.
Any other rule than that indicated in the above observations would bring confusion and uncertainty in the
administration of the criminal law. Indeed, if a jury may rightfully disregard the direction of the court in
matter of law, and determine for themselves what the law is in the particular case before them, it is
difficult to perceive any legal ground upon which a verdict of conviction can be set aside by the court as
being against law. If it be the function of the jury to decide the law as well the facts, — if the function of
the court be only advisory as to the law, — why should the court interfere for the protection of the
accused against what it deems an error of the jury in matter of law?
Public and private safety alike would be in peril if the principle be established that juries in criminal
cases may, of right, disregard the law as expounded to them by the court, and become a law unto
themselves. Under such a system, the principal function of the judge would be to preside and keep order
while jurymen, untrained in the law, would determine questions affecting life, liberty, or property
according to such legal principles as, in their judgment, were applicable to the particular case being tried.
If because, generally speaking, it is the function of the jury to determine the guilt or innocence of the
accused according to the evidence, of the truth or weight of which they are to judge, the court should be
held bound to instruct them upon a point in respect to which there was no evidence whatever, or to
forbear stating what the law is upon a given state of facts, the result would be that the enforcement of the
law against criminals, and the protection of citizens against unjust and groundless prosecutions, would
depend entirely upon juries uncontrolled by any settled, fixed, legal principles. And if it be true that a
jury in a criminal case are under no legal obligation to take the law from the court, and may determine
for themselves what the law is, it necessarily results that counsel for the accused may, of right, in the
presence of both court and jury, contend that what the court declares to be the law applicable to the case
in hand is not the law, and, in support of his contention, read to the jury the reports of adjudged cases,
and the views of elementary writers. Undoubtedly, in some jurisdictions, where juries in criminal cases
have the right, in virtue of constitutional or statutory provisions, to decide both law and facts upon their
own judgment as to what the law is and as to what the facts are, it may be the privilege of counsel to read
and discuss adjudged cases before the jury. And in a few jurisdictions, in which it is held that the court
alone responds as to the law, that practice is allowed in deference to long usage. But upon principle,
where the matter is not controlled by express constitutional or statutory provisions, it cannot be regarded
as the right of counsel to dispute before the jury the law as declared by the court. Under the contrary
view — if it be held that the court may not authoritatively decide all questions of law arising in criminal
cases — the result will be that when a new trial in a criminal case is ordered, even by this court, the jury,
upon such trial, may of right return a verdict based upon the assumption that what this court has adjudged
to be law is not law. We cannot give our sanction to any rule that will lead to such a result. We must hold
firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to
take the law from the court, and apply that law to the facts as they find them to be from the evidence.

Upon the court rests the responsibility of declaring the law; upon the jury, the responsibility of applying
the law so declared to the facts as they, upon their conscience, believe them to be. Under any other
system, the courts, although established in order to declare the law, would for every practical purpose be
eliminated from our system of government as instrumentalities devised for the protection equally of
society and of individuals in their essential rights. When that occurs our government will cease to be a
government of laws, and become a government of men. Liberty regulated by law is the underlying
principle of our institutions.
To instruct the jury in a criminal case that the defendant cannot properly be convicted of a crime less
than that charged, or to refuse to instruct them in respect to the lesser offenses that might, under some
circumstances, be included in the one so charged — there being no evidence whatever upon which any
verdict could be properly returned except one of guilty or one of not guilty of the particular offense
charged — is not error; for the instructing or refusing to instruct, under the circumstances named, rests
upon legal principles or presumptions which it is the province of the court to declare for the guidance of
the jury. In the case supposed the court is as clearly in the exercise of its legitimate functions as it is
when ruling that particular evidence offered is not competent, or that evidence once admitted shall be
stricken out and not be considered by the jury, or when it withdraws from the jury all proof of
confessions by the accused upon the ground that such confessions, not having been made freely and
voluntarily, are inadmissible under the law as evidence against the accused.
These views are sustained by a very great weight of authority in this country. In People v. Barry, 90 Cal.
41, 27 Pac. 62 (which was a criminal prosecution for an assault with intent to commit robbery, the
accused having been twice before convicted of petit larceny), it was held not to be error to refuse to
instruct the jury that under the charge they might find him guilty of simple assault, because 'the evidence
tended to show that he was guilty of the crime charged or of no offense at all,' and therefore 'the
instruction asked was not applicable to the facts of the case'; in People v. McNutt, 93 Cal. 658, 29 Pac.
243 (the offense charged being an assault with a deadly weapon and with intent to commit murder), that
an instruction that the jury might convict of a simple assault could have been properly refused,
because,'under the evidence, he was either guilty of an offense more serious than simple assault, or he
was not guilty'; in Clark v. Com., 123 Pa. St. 81, 16 Atl. 795 (a case of murder), that the omission of an
instruction on the law of voluntary manslaughter, and the power of the jury to find it, was not error,
because the murder was deliberate murder, and 'there was no evidence on which it could be reduced to a
milder form of homicide'; in State v. Lane, 64 Mo. 319, 324 (which was an indictment for murder in the
first degree), that,'if the evidence makes out a case of murder in the first degree, and applies to that kind
of killing, and no other, the court would commit no error in confining its instructions to that offense, and
refusing to instruct either as to murder in the second degree or manslaughter in any of its various
degrees,' and when an instruction 'is given for any less grade of offense, and there is no evidence upon
which to base it, ' the judgment should be reversed for error; in McCoy v. State, 27 Tex. App. 415, 11 S.
W. 454 (the charge being murder of the first degree), that the refusal to charge the law of murder in the
second degree was not error, for the reason that, if the defendant was 'criminally responsible at all for the
homicide, the grade of the offense under the facts is not short of murder of the first degree'; in State v.
McKinney, 111 N. C. 683, 16 S. E. 235 (a murder case), that, as there was no testimony on either side
tending to show manslaughter, a charge that there was no element of manslaughter in the case, and that
the defendant was guilty of murder or not guilty of anything at all, as the jury should find the facts, was
strictly in accordance with the testimony and the precedents; in State v. Musick, 101 Mo. 261, 270, 14 S.
W. 212 (where the charge was an assault with malice aforethought, punishable by confinement in the

penitentiary), that an instruction looking to a conviction for a lower grade, included in the offense
charged, was proper where there was evidence justifying it; in State v. Casford, 76 Iowa, 332, 41 N. W.
32, that the defendant, so charged in an indictment that he could be convicted of rape, an assault to
commit rape, or an assault and battery, was not prejudiced by the omission of the court to instruct the
jury that he would be convicted of a simple assault, there being no evidence to authorize a verdict for the
latter offense; in Jones v. State, 52 Ark. 346, 12 S. W. 704 (a murder case), that it was not error to refuse
to charge as to a lower grade of offense, there being 'no evidence of any crime less than murder in the
first degree,' and the defendant being, therefore, guilty of 'murder in the first degree, or innocent'; in
McClernand v. Com. (Ky.) 12 S. W. 148, and in O'Brien v. Com., 89 Ky. 354, 12 S. W. 471 (murder
cases), that an instruction as to manslaughter need not be given, unless there is evidence to justify it; in
State v. Estep, 44 Kan. 575, 24 Pac. 986 (a case of murder of the first degree), that there was no
testimony tending to show that the dependant was guilty of manslaughter in either the first, second, or
fourth degree, instructions as to those degrees should not have been given; and in Robinson v. State, 84
Ga. 674, 11 S. E. 544 (a case of assault with intent to murder), that the refusal to instruct the jury that the
defendant could have been found guilty of an assault, or of assault and battery, was not error,'for there
was nothing in the evidence to justify the court in so instructing the jury.'
We have said that, with few exceptions, the rules which obtain in civil cases in relation to the authority of
the court to instruct the jury upon all matters of law arising upon the issues to be tried, are applicable in
the trial of criminal cases. The most important of those exceptions is that it is not competent for the court,
in a criminal case, to instruct the jury peremptorily to find the accused guilty of the offense charged, or of
any criminal offense less than that charged. The grounds upon which this exception rests were well stated
by Judge McCrary, Mr. Justice Miller concurring, in U. S. v. Taylor, 3 McCrary, 500, 505, 11 Fed. 470.
It was there said: 'In a civil case, the court may set aside the verdict, whether it be for the plaintiff or
defendant, upon the ground that it is contrary to the law as given by the court; but in a criminal case, if
the verdict is one of acquittal, the court has no power to set it aside. It would be a useless form for a court
to submit a civil case, involving only questions of law, to the consideration of a jury, where the verdict,
when found, if not in accordance with the court's view of the law, would be set aside. The same result is
accomplished by an instruction given in advance to find a verdict in accordance with the court's opinion
of the law. But not so in criminal cases. A verdict of acquittal cannot be set aside; and therefore, if the
court can direct a verdict of guilty, it can do indirectly that which it has on power to do directly.'
We are of opinion that the court below did not err in saying to the jury that they could not, consistently
with the law arising from the evidence, find the defendants guilty of manslaughter, or of any offense less
than the one charged; that if the defendants were not guilty of the offense charged, the duty of the jury
was to return a verdict of not guilty. No instruction was given that questioned the right of the jury to
determine whether the witnesses were to be believed or not, nor whether the defendant was guilty or not
guilty of the offense charged. On the contrary, the court was careful to say that the jury were the
exclusive judges of the facts, and that they were to determine — applying to the facts the principles of
law announced by the court — whether the evidence established the guilt or innocence of the defendants
of the charge set out in the indictment.
The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and
that of the jury to apply the law as thus declared to the facts as ascertained by them. In this separation of
the functions of court and jury is found the chief value, as well as safety, of the jury system. Those
functions cannot be confounded or disregarded without endangering the stability of public justice, as well
as the security of private and personal rights.

The main reason ordinarily assigned for a recognition of the right of the jury, in a criminal case, to take
the law into their own hands, and to disregard the directions of the court in matters of law, is that the
safety and liberty of the citizen will be thereby more certainly secured. That view was urged upon Mr.
Justice Curtis. After stating that, if he conceived the reason assigned to be well founded, he would pause
long before denying the existence of the power claimed, he said that a good deal of reflection had
convinced him that the argument was the other way. He wisely observed that: 'As long as the judges of
the United States are obliged to express their opinions publicly, to give their reasons for them when
called upon in the usual mode, and to stand responsible for them, not only to public opinion, but to a
court of impeachment, I can apprehend very little danger of the laws being wrested to purposes of
injustice. But, on the other hand, I do consider that this power and corresponding duty of the court
authoritatively to declare the law is one of the highest safeguards of the citizen. The sole end of courts of
justice is to enforce the laws uniformly and impartially, without respect of persons or times or the
opinions of men. To enforce popular laws is easy. But when an unpopular cause is a just cause; when a
law, unpopular in some locality, is to be enforced, — there then comes the strain upon the administration
of justice; and few unprejudiced men would hesitate as to where that strain would be most firmly borne.'
U. S. v. Morris, 1 Curt. 62, 63, Fed. Cas. No. 15, 815.
The questions above referred to are the only ones that need be considered on this writ of error.
Mr. Justice JACKSON participated in the decision of this case, and concurs in the views herein
expressed.
The judgment of the circuit court is affirmed as to Hansen, but is reversed as to Sparf, with directions for
a new trial as to him.
(Jan. 14, 1895.)
Footnotes
1. Foreman: There is one of us who wishes to be instructed by your honor as to certain points upon the
question of United States marine laws in regard to murder on the high seas.
Court: The instruction which I gave you, gentlemen, in regard to the law upon which the indictment was
based, was section 5339 of the Revised Statutes, which I will read to you again. Juror: Your honor, I
would like to know in regard to the interpretation of the laws of the United States in regard to
manslaughter, as to whether the defendants can be found guilty of manslaughter, or that the defendants
must be found guilty.
Court: I will read the section to you, and see if that touches the proposition. The indictment is based upon
section 5339, which provides, among other things,'that every' person who commits murder upon the high
seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay within the admiralty and
maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, or who, upon
any such waters, maliciously strikes, stabs, wounds, poisons,'or shoots any other person, of which
striking, stabbing, wounding, poisoning, or shooting such other person dies on land or at sea, within or
without the United States, shall suffer death.' Hence that is the penalty for the offense described in the
indictment. I have given you the definition of 'murder.' If you remember it, you will connect it with these
words: 'Every person who commits murder upon the high seas, or in any arm of the sea, or in any river,
haven,' etc. Juror: Are the two words 'aiding' or 'abeting' defined? Court: The words 'aiding' or 'abetting'

are not defined, but I have instructed you as to the legal effect of aiding and abetting, and this you should
accept as law. If I have made an error, there is a higher tribunal to correct it.
Juror: I am the spokesman for two of us. We desire to clearly understand the matter. It is a barrier in our
mind to our determining the matter. The question arising amongst us is to aiding and abetting.
FJ: Furthermore, as I understand, it must be one thing or the other. It must be guilty or not guilty. Court:
Yes; under the instructions I have given you. I will read them to you again, so as to be careful, and that
you may understand. Murder is the unlawful killing of a human being in the peace of the state, with
malice aforethought, either express or implied. I defined to you what malice was, and I assume you can
recall my definition to your minds. Manslaughter is the unlawful killing of a human being without
malice, either express or implied. I do not consider it necessary to explain it further. If a felonious
homicide has been committed by either of the defendants, of which you are to be the judges from the
proof, there is nothing in this case to reduce it below the grade of murder.
Juror: Then, as I understand your honor clearly, there is nothing about manslaughter in this court? Court:
No; I do not wish to be so understood. A verdict must be based on evidence, and in a proper case a
verdict for manslaughter may be rendered.
Juror: A crim committed on the high seas must have been murder, or can it be manslaughter? Court: In a
proper case, it may be murder, or it may be manslaughter; but in this case it cannot be properly
manslaughter. As I have said, if a felonious homicide has been committed, the facts of the case do not
reduce it below murder. Do not understand me to say that manslaughter or murder has ben committed.
That is for you gentlemen to determine, from the testimony and the instructions I have given you.... Mr.
Smith: We take an exception. Juror: We have got to bring a verdict for either manslaughter or murder?
Court: Do not misunderstand me. I have not said so. Juror: I know you have not. Court: I cannot direct
you what conclusion to come to from the facts. I direct you only as to the law. A judgment on the facts is
your province.
Mr. Garter: Any I ask the court to instruct this jury that in cases where persons are being upon a charge
of murder, and the facts proven at their trial show that the defendants are guilty of manslaughter, under
an indictment, they may find him guilty of manslaughter, as a general rule; but, however, if the facts
show that the defendants have been guilty of murder; and that, in this case, there is no evidence tending
to establish the crime or offense of manslaughter —
Mr. Smith: It is the province of the jury. Court: I have already so instructed the jury. I have endeavored
to make mayself understood. Juror: If we bring in a verdict of guilty, that is capital punishment? Court:
Yes. Juror: Then there is no other verdict we can bring in except guilty or not guilty? Court: In a proper
case, a verdict for manslaughter may be rendered, as the district attorney has stated, and even in this case
you have the physical power to do so; but, as one of the tribunals of the country, a jury is expected to be
governed by law, and the law it should receive from the court. Juror: There has been a misunderstanding
amongst us. Now it is clearly interpreted to us, and no doubt we can now agree on certain facts.
2. People v. Wright, 93 Cal. 564, 29 Pac. 240; Brown v. Com., 87 Va. 215, 12 S. E. 472; People v. Barry,
90 Cal. 41, 27 Pac. 62; People v. Madden, 76 Cal. 521, 18 Pac. 402; State v. Jeandell, 5 Har. (Del.) 475;
State v. Wright, 53 Me. 328; Com. v. Van Tuyl, 1 Metc. (Ky.) 1; Montgomery v. State, 11 Ohio, 427;
Adams v. State, 29 Ohio St. 412; Robbins v. State, 8 Ohio St. 131, 167; Williams v. State, 32 Miss. 389,
396; Pleasant v. State, 13 Ark. 360, 372; Robinson v. State, 66 Ga. 517; Brown v. State, 40 Ga. 689, 695;

Hunt v. State (Ga.) 7 S. E. 142; State v. Drawdy, 14 Rich. Law, 87; Nels v. Republic, 2 Tex. 280; Myers
v. State, 33 Tex. 525; State v. Jones, 64 Mo. 391; Hardy v. State, 7 Mo. 607; State v. Elwood, 73 N. C.
189; State v. McLain, 104 N. C. 894, 10 S. E. 518; People v. Neumann, 85 Mich. 98, 48 N. W. 290; State
v. Johnson, 30 La. Ann. pt. 1, p. 904; State v. Ford, 37 La. Ann. 443, 465; Fisher v. Railway Co., 131 Pa.
St. 292, 297, 18 Atl. 1016; Railway Co. v. Hutchinson, 40 Kan. 51, 19 Pac. 312.

January 21, 1895.
F. J. Kierce, for plaintiffs in error.
Mr. Justice HARLAN delivered the opinion of the court.
The plaintiffs in error and Thomas St. Clair were indicted jointly for the
murder of Maurice Fitzgerald upon the high seas, on board of an American
vessel, the bark Hesper, as set forth in the indictment mentioned in St.
Clair v. U. S., 154 U.S. 134, 14 Sup. Ct. 1002. On motion of the accused, it
was ordered that they be tried separately. St. Clair was tried, found guilty
of murder, and sentenced to suffer the punishment of death. Subsequently the
order for separate trials was set aside, and the present defendants were
tried together, and both were convicted of murder. A motion for a new trial
having been overruled, a like sentence was imposed upon them.
The general facts of this case do not differ from those proved in St.
Clair's Case, and some of the questions arising upon the present assignments
of error were determined in that case. Only such questions will be here
examined as were not properly persented or did not arise in the other case,
and are of sufficient importance to require notice at our hands.
In the night of January 13, 1893, Fitzgerald, the second mate of the Hesper,
was found to be missing, and it was believed that he had been killed, and
his body thrown overboard. Suspicion being directed to St. Clair, Sparf, and
Hansen, part of the crew of the Hesper, as participants in the killing, they
were put in irons, by order of Capt. Sodergren, master of the vessel, and
were so kept during the voyage from the locality of the supposed murder to
Tahiti, an island in the South Pacific, belonging to the French government.
They were taken ashore by the United States consul at that island, and
subsequently were sent, with others, to San Francisco, on the vessel Tropic
Bird.
At the trial, Capt. Sodergren, a witness for the government, was asked
whether or not after the 13th day of January, and before reaching Tahiti,
which was more than 1, 000 miles from the locality of the alleged murder, he
had any conversation with the defendant Hansen about the killing of
Fitzgeraid. This question having been answered by the witness in the
affirmative, he was fully examined as to the circumstances under which the
conversation was held. He said, among other things, that no one was present
but Hansen and himself. Being asked to repeat the conversation referred to,
the accused, by the counsel who had been appointed by the court to represent
them, objected to the question as 'irrelevant, immaterial, and incompetent,
and upon the ground that any statement made by Hansen was not and could not
be voluntary.' The objection was overruled, and the defendants duly
excepted. The witness then stated what Hansen had said to him. That evidence
tended strongly to show that Fitzgerald was murdered pursuant to a plan
formed between St. Clair, Sparf, and Hansen; that all three actively
participated in the murder; and that the crime was committed under the most
revolting circumstances.
Thomas Green and Edward Larsen, two of the crew of the Hesper, were also
witnesses for the government. They were permitted to state what Hansen said
to them during the voyage from Tahiti to San Francisco. This evidence was
also objected to as irrelevant, immaterial, and incompetent, and upon the
further ground that the statement the accused was represented to have made
was not voluntary. But the objection was overruled, and an exception taken.

Upon the conclusion of the evidence, the defendants requested certain

instructions, which the court refused to give, and they excepted to its
action in that particular, as well as to certain parts of the charge to the
jury. 1. The declarations of Hansen, as detailed by Sodergren, Green, and
Larsen, were clearly admissible in evidence against him. There was no ground
on which their exclusion could have been sustained. In reference to this
proof, the court charged the jury that if they believed from the evidence
that Green and Larsen, or either of them, were accomplices in the commission
of the acts charged in the indictment, they should act upon their testimony
with great caution, subjecting it to a careful examination, in the light of
all the other evidence, and ought not to convict upon their testimony alone,
unless satisfied beyond reasonable doubt of its truth; that if Larsen and
Green, or either of them, or any other person, were induced to testify by
promises of immunity from punishment, or by hope held out from any one that
it would go easier with them in case they disclosed their confederates, or
in case they implicated some one else in the crime, this must be taken into
consideration in determining the weight to be given to their testimony, and
should be closely scrutinized; that the confessions of a prisoner out of
court and in custody, made to persons having no authority to examine him,
should be acted upon and received with great care and caution; that words
are often misreported through ignorance, inattention, or malice, are
extremely liable to misconstruction, are rarely sufficient to warrant
conviction, as well on account of the great danger of mistake upon the part
of the witness as of the fact that the mind of the prisoner himself may be
oppressed by his situation or influenced by motives of hope or fear to make
an untrue confession; that, in considering the weight to be given to the
alleged confessions of the defendants, the jury were to consider their
condition at the time they were made, the fact that they had been charged
with crime, and were in custody; and that the jury were to determine whether
those confessions were voluntary, or whether any inducements were held out
to them by any one. The defendants did not offer themselves as witnesses,
and the court took care to say that a person charged with crime is under no
obligation to testify in his own behalf, and that his neglect to testify did
not create any presumption whatever against him. So far as the record
discloses, these confessions were entirely free and voluntary, uninfluenced
by any hope of reward or fear of punishment. In Hopt v. People, 110 U.S.
574, 584, 4 S. Sup. Ct. 202, it was said: 'While some of the adjudged cases
indicate distrust of confessions which are not judicial, it is certain, as
observed by Baron Parke, in Reg. v. Baldry, 2 Denison, Cr. Cas. 430, 445,
that the rule against their admissibility has been sometimes carried too
far, and in its application justice and common sense have too frequently
been sacrificed at the shrine of mercy. A confession, if freely and
voluntarily made, is evidence of the most satisfactory character. Such a
confession, said Eyre, C. B. (King v. Warickshall, 1 Leach, 263),'is
deserving of the highest credit, because it is presumed to flow from the
strongest sense of guilt, and therefore it is admitted as proof of the crime
to which it refers.' Elementary writers of authority concur in saying that
while, from the nature of such evidence, it must be subjected to careful
scrutiny, and received with great caution, a deliberate voluntary confession
of guilt is among the most effectual proofs in the law, and constitutes the
strongest evidence against the party making it that can be given of the
facts stated in such confession.'
Counsel for the accused insist that there cannot be a voluntary statement, a
free, open confession, while a defendant is confined and in irons, under an
accusation of having committed a capital offense. We have not been referred
to any authority in support of that position. It is true that the fact of a
prisoner being in custody at the time he makes a confession is a
circumstance not to be overlooked, because it bears upon the inquiry whether
the confession was voluntarily made, or was extorted by threats or violence,

or made under the influence of fear. But confinement or imprisonment is not

in itself sufficient to justify the exclusion of a confession, if it appears
to have been voluntary and was not obtained by putting the prisoner in fear
or by promises. Whart. Cr. Ev. (9th Ed.) 661, 663, and authorities cited.
The import of Sodergren's evidence was that, when Hansen manifested a desire
to speak to him on the subject of the killing, the latter said he did not
wish to hear it, but 'to keep it until the right time came, and then tell
the truth.' But this was not offering to the prisoner an inducement to make
a confession. Littledale, J., well observed in Rex v. Court, 7 Car. & P.
487, that telling a man to be sure to tell the truth is not advising him to
confess anything of which he is really not guilty. See, also Queen v.
Reeves, L. R. 1 Cr. Cas. 362. Nothing said to Hansen prior to the confession
was at all calculated to put him in fear, or to excite any hope of his
escaping punishment by telling what he knew or witnessed or did in reference
to the killing.
The deciarations of Hansen after the killing, as detailed by Green and

Larsen, were also admissible in evidence against Sparf, because they appear
to have been made in his presence, and under such circumstances as would
warrant the inference that he would naturally have contradicted them if he
did not assent to their truth.
But the confession and declarations of Hansen to Sodergren after the killing
of Fitzgerald were incompetent as evidence against Sparf. St. Clair, Hansen,
and Sparf were charged jointly with the murder of Fitzgerald. What Hansen
said after the deed had been fully consummated, and not on the occasion of
the killing, and in the presence only of the witness, was clearly
incompetent against his codefendant, Sparf, however strongly it tended to
connect the latter with the commission of the crime. If the evidence made a
case of conspiracy to kill and murder, the rule is settled that 'after the
conspiracy has come to an end, and whether by success or by failure, the
admissions of one conspirator by way of narrative of past facts are not
admissible in evidence against the others.' Logan v. U. S., 144 U.S. 263,
309, 12 S. Sup. Ct. 617; Brown v. U. S., 150 U. S., 93, 98, 14 Sup. Ct. 37;
Wright, Cr. Consp. (Carson's Ed.) 212, 213, 217; 1 Greenl. Ev. 233. The same
rule is applicable where the evidence does not show that the killing was
pursuant to a conspiracy, but yet was by the joint act of the defendants.
The objection to the question in answer to which the declarations of Hansen

to Sodergren were given was sufficiently specific. The general rule
undoubtedly is that an objection should be so framed as to indicate the
precise point upon which the court is asked to rule. It has therefore been
often held that an objection to evidence as irrelevant, immaterial, and
incompetent, nothing more being stated, is too general to be considered on
error, if in any possible circumstances it could be deemed or could be made
relevant, material, or competent. But this principle will not sustain the
ruling by which the declarations of Hansen, made long after the commission
of the alleged murder, and not in the presence of Sparf, were admitted as
evidence against the latter. In no state of case were those declarations
competent against Sparf. Their inadmissibility as to him was apparent. It
appeared upon the very face of the question itself.
In People v. Beach, 87 N. Y. 508, 513, which was an indictment for petit

larceny, the prosecution offered in evidence the statements of a third
party, not in the presence of the accused, which related to the vital point
upon which the conviction turned. There was a general objection to the
evidence. The court said: 'We think, however, the general objection made in
this case was sufficient. It appeared, when the objection was made, that the
conversation proposed to be shown was between the prosecutor and Hardacre,
when the defendant was not present. There was no possible view of the case,
as it then or afterwards stood, in which such a conversation was admissible.

When the witness was asked to state the conversation, and counsel objected,
both the court and the prosecuting officer must have understood that it was
an objection to the competency of the proposed evidence. If the objection
had been made in terms, on the ground that the evidence was incompetent, the
sufficiency of the objection could not have been questioned, and the
objection, as made, necessarily implied this. Neither the court nor
prosecuting attorney could have been misled as to the point of the
objection. It was patent on considering the objection in connection with the
proof offered. If any doubt could be entertained as to the technical
sufficiency of the objection, we should be disinclined, in a criminal case,
to deprive a defendant of the benefit of an exception by the strict
application of a rule more especially applicable to civil cases, when we can
see that its application would produce injustice.' And in Turner v. City of
Newburgh, 109 N. Y. 301, 308, 16 N. E. 344, it was said: 'This court has
held that when the objection to evidence is general, and it is overruled,
and the evidence is received, the ruling will not be held erroneous, unless
there be some grounds which could not have been obviated had they been
specified, or unless the evidence in its essential nature be incompetent.'
Tozer v. Railroad Co., 105 N. Y. 659, 11 N. E. 846; Alcorn v. Railroad Co.,
108 Mo. 81, 18 S. W. 188; Curr v. Hundley (Colo. App.) 31 Pac. 939, 940;
Lowenstein v. McCadden, 92 Tenn. 614, 22 S. W. 426; Ward v. Wilms, 16 Colo.
86, 27 Pac. 247.
We are of opinion that as the declarations of Hansen to Sodergren were not,

in any view of the case, competent evidence against Sparf, the court, upon
objection being made by counsel representing both defendants, should have
excluded them as evidence against him, and admitted them against Hansen. The
fact that the objection was made in the name of both defendants did not
justify the court in overruling it as to both, when the evidence was
obviously incompetent, and could not have been made competent against Sparf,
and was obviously competent against Hansen. It was not necessary that
counsel should have made the objection on behalf of one defendant, and then
formally repeated it, in the same words, for the other defendant. If Sparf
had been tried alone, a general objection in his behalf, on the ground of
incompetency, would have been sufficiently definite. Surely, such an
objection coming from Sparf when tried with another ought not to be deemed
ineffectual because of the circumstance that his counsel, who, by order of
the court, represented also his codefendant, incautiously spoke in the name
of both defendants. Each was entitled to make his own defense, and the jury
could have found one of them guilty, and acquitted the other. Insurance Co.
v. Hillmon, 145 U.S. 285, 293, 12 S. Sup. Ct. 909. See, also, Com. v.
Robinson, 1 Gray, 555, 560.
For the error of the court in not sustaining the objection referred to so
far as it related to Sparf, the judgment must be reversed as to him. If he
were the only defendant, we might withhold any expression of opinion upon
other questions raised by the assignments of error. But as some of those
questions are important, and may arise upon another trial of Sparf, and
especially as they must be now determined with reference to Hansen, we
proceed to their examination.
2. One of the specifications of error relates to the refusal of the court to

give certain instructions asked by the defendants, and to parts of the
charge to the jury.
The defendants asked the court to instruct the jury as follows:
'In all criminal causes the defendant may be found guilty of any
offense the commission of which is necessarily included in that
with which he is charged in the indictment, or the defendant may
be found guilty of an attempt to commit the offense so charged,

provided that such attempt be itself a separate offense.' 'Under

an indictment charging murder, the defendant may be convicted
of murder, of manslaughter, or an attempt to commit either
murder or manslaughter.' 'Under the indictment in this case, the
defendants may be convicted of murder, or manslaughter, or of
an attempt to commit murder or manslaughter; and if, after a full
and careful consideration of all the evidence before you, you
believe, beyond a reasonable doubt, that the defendants are
guilty either of manslaughter, or of an assault with intent to
commit murder or manslaughter, you should so find your
verdict.' These instructions were refused, and the defendants
excepted.
In its charge to the jury, the court, among other things, said: 'What, then,
is murder? There are only two kinds of felonious homicide known to the laws
of the United States. One is murder, and the other is manslaughter. There
are no degrees of murder.' 'There is no definition of 'murder' by any United
States statute. We resort to the common law for that. By the common law,
murder is the unlawful killing of a human being in the peace of the state,
with malice aforethought, either express or implied. Malice, then, is an
element in the offense, and discriminates it from the other crime of
felonious homicide which I have mentioned, to wit, manslaughter; that is,
malice, express or implied, discriminates murder from the offense of
manslaughter.' 'Express malice exists when one, by deliberate premeditation
and design, formed in advance, to kill or to do bodily harm, the
premeditation and design being implied from external circumstances capable
of proof, such as lying in wait, antecedent threats, and concerted schemes
against a victim. Implied malice is an inference of the law from any
deliberate and cruel act committed by one person against another. The two
kinds of malice, therefore, to repeat, indicate but one state of mind,
established in different ways, -- the one by circumstances showing
premeditation of the homicide, the other by an inference of the law from the
act committed; that is, malice is inferred when one kills another without
provocation, or when the provocation is not great. Manslaughter is the
unlawful killing of a human being without malice, either expressed or
implied. I do not consider it necessary, gentlemen, to explain it further,
for if a felonious homicide has been committed, of which you are to be the
judges from the proof, there is nothing in this case to reduce it below the
grade of murder. In other words, it may be in the power of the jury, under
the indictment by which these defendants are accused and tried, of finding
them guilty of a less crime than murder, to wit, manslaughter, or an attempt
to commit murder; yet, as I have said in this case, if a felonious homicide
has been committed at all, of which I repeat you are the judges, there is
nothing to reduce it below the grade of murder.'
The court further said to the jury:
'You are the exclusive judges of the credibility of the witnesses,

and, in judging of their credibility, you have a right to take into
consideration their prejudices, motives, or feelings of revenge, if
any such have been proven or shown by the evidence in the
case. If you believe from the evidence that any witness or
witnesses have knowingly and willfully testified falsely as to any
material fact or point, you are at liberty to disregard entirely the
testimony of such witness or witnesses.' 'Gentlemen, I have given
you these instructions as carefully as I could, avoiding all
references to the testimony; but I do not wish to be
misunderstood, and out of abundant caution I say further to you,
in giving you these instructions, I may be accident have assumed
facts to be proven. If so, you must disregard the assumption. It
is not my purpose, nor is it my function, to assume any fact to be

proven, nor to suggest to you that any fact has been proven.
You are the exclusive judges of the fact. No matter what
assumption may appear during the course of the trial in any ruling
of mine, or what may appear in any one of these instructions,
you are to take this case and consider it, and remember you are
the tribunal to which the law has referred the case, and whose
judgment the law wants on the case.'
After the jury had been in consultation for a time, they returned into court
for further instructions. The colloquy between the court and the jurors is
set forth at large in the margin.1 The requests for instruction made by the
defendants were based upon section 1035 of the Revised Statutes of the
United States, providing that 'in all criminal causes the defendant may be
found guilty of any offence the commission of which is necessarily included
in that with which he is charged in indictment, or may be found guilty of an
attempt to commit the offence so charged: provided, that such attempt be
itself a separate offence.'
The refusal to grant the defendants' requests for instructions, taken in

connection with so much of the charge as referred to the crime of
manslaughter, and the observations of the court when the jury, through their
foreman, applied for further instructions, present the question whether the
court transcended its authority when saying, as in effect it did, that, in
view of the evidence, the only verdict the jury could under the law properly
render would be either one of guilty of the offense charged, or one of not
guilty of the offense charged; that if a felonious homicide had been
committed by either of the defendants, of which the jury were the judges
from the proof, there was nothing in this case to reduce it below the grade
of murder; and that,'as one of the tribunals of the country, a jury is
expected to be governed by law, and the law it should receive from the
court.'
The court below assumed, and correctly, that section 1035 of the Revised
Statutes did not authorize a jury in a criminal case to find the defendant
guilty of a less offense than the one charged, unless the evidence justified
them in so doing. Congress did not intend to invest juries in criminal cases
with power arbitrarily to disregard the evidence and the principles of law
applicable to the case on trial. The only object of that section was to
enable the jury, in case the defendant was not shown to be guilty of the
particular crime charged, and if they evidence permitted them to do so, to
find him guilty of a lesser offense necessarily included in the one charged,
or of the offense of attempting to commit the one charged. Upon a careful
scrutiny of the evidence, we cannot find any ground whatever upon which the
jury could properly have reached the conclusion that the defendant Hanson
was only guilty of an offense included in the one charged, or of a mere
attempt to commit the offense charged. A verdict of guilty of an offense
less than the one charged would have been in flagrant disregard of all the
proof, and in violation by the jury of their obligation to render a true
verdict. There was an entire absence of evidence upon which to rest a
verdict of guilty of manslaughter or of simple assault. A verdict of that
kind would have been the exercise by the jury of the power to commute the
punishment for an offense actually committed, and thus impose a punishment
different from that prescribed by law.
The general question as to the duty of the jury to receive the law from the
court is not concluded by any direct decision of this court. But it has been
often considered by other courts and by judges of high authority; and, where
its determination has not been controlled by specific constitutional or
statutory provisions expressly empowering the jury to determine both law and
facts, the principle by which courts and juries are to be guided in the
exercise of their respective functions has become firmly established. If

this be true, this court should not announce a different rule, unless
impelled to do so by reasons so cogent and controlling that they cannot
properly be overlooked or disregarded. Some of the members of this court,
after much consideration, and upon an extended review of the authorities,
are of opinion that the conclusion reached by this court is erroneous, both
upon principle and authority. For this reason, and because the question is
of great importance in the administration of justice, and also involves
human life, we deem it appropriate to state with more fullness than under
other circumstances would be necessary the grounds upon which our judgment
will rest, looking first to cases determined in the courts of the United
States.
In State v. Brailsford, 3 Dall. 1, 4, a case in f the court, to decide. But

it must be amicable issue, Chief Justice Jay is reported to have said: 'It
may not be amiss here, gentlemen, to remind you of the good old rule that on
questions of fact it is the province of the jury, on questions of law it is
the province of the court, to decide. But it must be observed that, by the
same law which recognizes this reasonable distribution of jurisdiction, you
have, nevertheless, a right to take upon yourselves to judge of both, and to
determine the law as well as the fact in controversy. On this, and on every
other, occasion, however, we have no doubt you will pay that respect which
is due to the opinion of the court; for, as on the one hand, it is presumed
that juries are best judges of facts, it is, on the other hand, presumable
that the courts are the best judges of the law. But still both objects are
lawfully within your power of decision.' Of the correctness of this report,
Mr. Justice Curtis in U. S. v. Morris, 1 Curt. 23, 58, Fed. Cas. No. 15,
815, expressed much doubt, for the reason that the chief justice is reported
as saying that, in civil cases, -- and that was a civil case, -- the jury
had the right to decide the law, and because, also, the different parts of
the charge conflict with each other; the chief justice, according to the
report, saying at the outset that it is the province of the jury to decide
questions of fact, and of the court to decide questions of law, and in the
succeeding sentence informing the jury that they had the right to take upon
themselves the determination of both law and fact. If the chief justice said
that it was the province of the court to decide questions of law, and the
province of the jury to decide questions of fact, he could not have said
that the jury had the right, in a civil case, to judge of and determine both
law and fact. 'The whole case,' Mr. Justice Curtis said,'was an anomaly.
It purports to be a trial by jury in the supreme court of the United States
of certain issues out of chancery; and the chief justice begins by telling
the jury that the facts are all agreed, and the only question is a matter of
law, and upon that the whole court were agreed. If it be correctly reported,
I can only say it is not in accordance with the views of any other court, so
far as I know, in this country or in England, and is certainly not in
accordance with the course of the supreme court for many years.'
Certain observations of Chief Justice Marshall in the course of the trial of

Burr have sometimes been referred to in support of the contention that the
jury in a criminal case are under no legal obligation to accept the law as
laid down by the court. But nothing said by him at that trial was
inconsistent with the views expressed by eminent jurists in cases to be
presently cited. In the course of an opinion relating merely to the order of
evidence, the chief justice said: 'Levying of war is a fact which must be
decided by the jury. The court may give general instructions on this as on
every other question brought before them, but the jury must decide upon it
as compounded of fact and law.' 1 Burr's Trial, 470. This language is
supposed to justify the contention that the jury in a criminal case are
entitled, of right, to determine questions of pure law adversely to the
direction of the court. But that no such thought was in the mind of the
chief justice is manifest from his written charge to the jury at a
subsequent stage of the trial, -- the accuracy of the report of which has

never been disputed, -- in which he discussed, in the light of the

authorities, the question as to what constituted treason.
In the course of that charge he indicated quite distinctly his view of the
respective functions of court and jury. 'It has been thought proper,' he
said,'to discuss this question at large, and to review the opinion of the
supreme court [Ex parte Bollman, 4 Cranch, 75], although this court would be
more disposed to leave the question of fact whether an overt act of levying
war were committed on Blennerhassett's island to the jury under this
explanation of the law, and to instruct them that, unless the assemblage on
Blennerhassett's island was an assemblage in force, -- was a military
assemblage in a condiction to make war, -- it was not levying war, and that
they could not construe it into an act of war, than to arrest the further
testimony which might be offered to connect the prisoner with that
assemblage, or to prove the intention of those who assembled together at
that place. This point, however, is not to be understood as decided. It
will, perhaps, constitute an essential inquiry in another case.' This
language is wholly inconsistent with the theory that the chief justice
recognized the right of the jury to disregard the court's view of the law
upon any question arising in the case before them. It was consistent only
with the theory that the court could speak authoritatively as to the law,
while the function of the jury was to respond as to the facts. Again: 'It is
the further opinion of the court that there is no testimony whatever which
tends to prove that the accused was actually or constructively present when
that assemblage did take place; indeed, the contrary is most apparent.' 'The
opinion of this court on the order of testimony has frequently been adverted
to as deciding this question against the motion. If a contradiction between
the two opinions exist, the court cannot perceive it. It was said that
levying war is an act compounded of law and fact, of which the jury, aided
by the court, must judge. To that declaration the court still adheres.' He
concluded his memorable charge in these words: 'The jury have now heard the
opinion of the court on the law of the case. They will apply that law to the
facts, and will find a verdict of guilty or not guilty as their own
consciences may direct.' Again, according to the only recognized report of
that trial ever published, the chief justice, in response to certain
inquiries of counsel made after the jury returned their verdict, said:
'Without doubt the court intended to deliver merely a legal opinion as to
what acts amounted in law to an overt act of levying war, and not whether
such an overt act has or has not been proved. It merely stated the law, to
which the jury would apply the facts proved. It is their province to say
whether according to this statement and the evidence an overt act has been
proved or not.' 2 Burr's Trial, 401, 422, 439, 444, 448. The language of the
chief justice plainly imports that, while the jury must of necessity often
pass upon a question 'compounded of fact and law,' their duty, when
considering the evidence, was to apply the law, as given by the court, to
the facts proved; and, thus applying the law, return a verdict of guilty or
not guilty as their consciences might direct. If he had believed that the
jury were entitled, of right, whatever might be the views of the court, to
determine for themselves the law of the case, it is impossible that he could
have said that 'they will apply that law [the law as he declared it to be]
to the facts.' On the contrary, he observed that the province of the jury
was to determine whether the accused was guilty or not guilty, according to
his statement of the law as applied to the evidence. Of course, this court
has no means of determining what were the views of Chief Justice Marshall,
except by referring to such authorized publications as show what he said
while discharging judicial functions. In none of his opinions delivered at
the circuit court and published can there be found anything at all in
conflict with his declarations at the trial of Burr. And it may be observed
that the circumstances attending that trial were such as to induce him to
weigh every word embodied in his elaborate written charge to the jury. That
he understood the gravity of the occasion, so far as it related to the

conduct of the trial, is manifest from his referring in the following

language to certain considerations that had been advanced in argument: 'That
this court dare not usurp power is most true. That this court dare not
shrink from its duty is not less true. No man is desirous of placing himself
in a disagreeable situation. No man is desirous of becoming the peculiar
subject of calumny. No man, might he let the bitter cup pass from him
without self-reproach, would drain it to the bottom. But if he have no
choice in the case, if there be no alternative presented to him but a
dereliction of duty or the opprobrium of those who are denominated the
'world,' he merits the contempt as well as the indignation of his country
who can hesitate which to embrace. That gentlemen, in a case the most
interesting, in the zeal with which they advocate particular opinions, and
under the conviction in some measure produeed by that zeal, should on each
side press their arguments too far, should be impatient at any deliberation
in the court, and should suspect of fear the operation of motives to which
alone they can ascribe that deliberation, is perhaps a frailty incident to
human nature; but, if any conduct on the part of the court could warrant a
sentiment that it would deviate to the one side or the other from the line
prescribed by duty and by law, that conduct would be viewed by the judges
themselves with an eye of extreme severity, and would long be recollected
with deep and serious regret.'
In Henfield's Case, Fed. Cas. No. 6, 360, Mr. Justice Wilson, with whom sat
Mr. Justice Iredell, stated that the jury, in a general verdict, must decide
both law and fact, but that 'this did not authorize them to decide it as
they pleased,' and that,'the questions of law coming into joint
consideration with the facts, it is the duty of the court to explain the law
to the jury, and give it to them in direction.' Whart. St. Tr. 84, 87, 88.
This statement of the principle is sometimes referred to in support of the
proposition that the jury is not under a legal duty to accept the law as
declared by the court in a criminal case. We think it tends to show that it
is the province and duty of the jury to apply to the facts of the case the
law as given to them by the court 'in direction.'
There is nothing in conflict with this in the Lectures on Law delivered by

Mr. Justice Wilson. In one of those lectures, referring to the duties of
jurors in criminal cases, he said: 'On questions of law, his [ the juror's]
deficiencies will be supplied by the professional directions of the judges,
whose duty and whose business it is professionally to direct him; for, as we
have seen, verdicts, in criminal cases generally determine the question of
law as well as the question of fact. Questions of fact it is his exclusive
province to determine. With the consideration of evidence unconnected with
the question which he is to try, his attention will not be distracted; for
everything of that nature, we presume, will be excluded by the court. The
collected powers of his mind, therefore, will be fixed, steadily and without
interruption, upon the issue he is sworn to try. This issue is an issue of
fact.' 2 Wilson, Works, 386. Other observations found in these lectures, if
considered alone, are not so explicit upon the question of the respective
functions of court and jury; but, taken in connection with all that he said,
it is reasonably clear that when Mr. Justice Wilson spoke of the
determination by a jury, in a criminal case, of both law and fact, he meant,
only that a general verdict of guilty or not guilty, of necessity, decided
every question before them which involved a joint consideration of law and
fact, not that the jury could ignore the directions of the court, and take
the law into their own hands.
The observations of Mr. Justice Samuel Chase in the Case of Fries, Fed. Cas.
No. 5, 126, tried for treason, 1800, are supposed to sustain the broad
proposition that the jury may, of right, disregard the law as expounded by
the court. He undoubtedly did say that while it was the duty of the court,
in all criminal cases, to state the law arising on the facts, the jury were

to decide 'both the law and facts, on their consideration of the whole
case.' Chase, Trial, Append. 45. But on the trial, in the same year, in the
circuit court of the United States for the Virginia district, of James
Thompson Callender for seditious libel, he was appalled at the suggestion by
learned counsel that the jury were entitled, of right, to determine the
constitutional validity of the act of congress under which the accused was
indicted. Mr. Wirt, counsel for the defendant, said: 'Since, then, the jury
have a right to consider the law, and since the constitution is law, the
conclusion is certainly syllogistic that the jury have a right to consider
the constitution.' But Mr. Justice Chase declined to accept this view. He
said: 'The statute on which the traverser is indicted enacts 'that the jury
who shall try the cause shall have a right to determine the law and the
fact, under the direction of the court, as in other cases.' By this
provision I understand that a right is given to the jury to determine what
the law is in the case before them, and not to decide whether a statute of
the United States produced to them is a law or not, or whether it is void,
under an opinion that it is unconstitutional; that is, contrary to the
constitution of the United States. I admit that the jury are to compare the
statute with the facts proved, and then to decide whether the acts done are
prohibited by the law, and whether they amount to the offense described in
the indictment. This power the jury necessarily possesses, in order to
enable them to decide on the guilt or innocence of the person accused. It is
one thing to decide what the law is on the facts proved, and another and a
very different thing to determine that the statute produced is no law. To
decide what the law is on the facts is an admission that the law exists. If
there be no law in the case, there can be no comparison between it and the
facts; and it is unnecessary to establish facts before it is ascertained
that there is a law to punish the commission of them.' 'It was never
pretended,' he bontinued,'as I ever heard, before this time, that a petit
jury in England (from whence our common law is derived), or in any part of
the United States, ever exercised such power. If a petit jury can rightfully
exercise this power over one statute of congress, they must have an equal
right and power over any other statute, and indeed over all the statutes;
for no line can be drawn, no restriction imposed, on the exercise of such
power; it must rest in discretion only. If this power be once admitted,
petit jurors will be superior to the national legislature, and its laws will
be subject to their control. The power to abrogate or to make laws nugatory
is equal to the authority of making them. The evident consequences of this
right in juries will be that a law of congress will be in operation in one
state, and not in another. A law to impose taxes will be obeyed in one
state, and not in another, unless force be employed to compel submission.
The doing of certain acts will be held crim inal, and punished in one state,
and similar acts may be held innocent, and even approved and applauded, in
another. The effects of the exercise of this power by petit jurors may be
readily conceived. It appears to me that the right now claimed has a direct
tendency to dissolve the union of the United States, on which, under divine
Providence, our political safety, happiness, and prosperity depend.' He
concluded his opinion in these words: 'I consider it of the greatest
consequence to the administration of justice that the powers of the court
and the powers of the petit jury should be kept distinct and separate. I
have uniformly delivered the opinion 'that the petit jury have a right to
decide the law as well as the fact in criminal cases'; but it never entered
into my mind that they, therefore, had a right to determine the
constitutionality of any statute of the United States.' Whart. St. Tr. 713,
714, 718.
What Mr. Justice Chase said is quite sufficient to show the mischievous
consequences that would flow from the doctrine that the jury may, of right,
disregard the directions of the court, and determine the law for themselves;
for if, as is contended, the jury in criminal cases are not bound to take
the law from the court, it is impossible to deny their absolute right in a

case depending entirely upon an act of congress, or a statute of a state, to

determine, upon their own responsibility, whether that act or statute is or
is not law; that is, whether it is or is not in violation of the
constitution.
Mr. Justice Thompson, who became a member of this court in 1823, concurred
in the opinion delivered by Kent, J., in People v. Croswell(1804) 3 Johns.
Cas. 337, 362, where the court was equally divided, Chief Justice Lewis and
Judge Brockholst Livingston, afterwards a justice of this court, holding
that to questions of law the court, to questions of fact the jury, must
respond. But in his opinion in Pierce v. State, 13 N. H. 356, 564, Chief
Justice Parker, referring to Judge Kent's opinion in People v. Croswell,
said: 'Mr. Justice Thompson, who concurred in that opinion, must have
understood that concurrence to be merely in the opints necessary to the
decision of that cause, or have subsequently changed his views; for I have
his authority for saying that he has repeatedly ruled that the jury are not
judges or the law in criminal cases.' And in the dissenting opinion of Judge
Bennett in State v. Croteau, 23 Vt. 14, 63 (where it was held that the jury,
in criminal cases, could rightfully decide questions of both law and fact,
but which case has been overruled, 65 Vt. 1, 34, 25 Atl. 964), it was said:
'Judge Thompson, whose judicial learning and experience, while on the bench
of the supreme court of New York, and on the bench of the United States,
were very extensive, thus wrote to a friend some short time before his
death: 'I have repeatedly ruled on the trial of criminal cases that it was
the right as well as the duty of the court to decide questions of law; and
any other rule, it appears to me, would be at war with our whole judicial
system, and introduce the utmost confusion in criminal trials. It is true,
the jury may disregard the instructions of the court, and in some cases
there may be no remedy. But it is still the right of the court to instruct
the jury on the law, and the duty of the jury to obey the instructions."
See, also, Whart, Cr. Pl. 810, note 3.
The remarks of Mr. Justice Baldwin in U. S. v. Wilson and Porter, Baldw. 78,
100, 108, Fed. Cas. No. 16, 730, have sometimes been referred to as in
conflict with the rule that it is the duty of the jury to accept the law as
expounded by the court. It is quite true that, in the charge in Wilson's
Case, Mr. Justice Baldwin said that, if the jury were prepared to say that
the law was different from what the court had announced, they were in the
exercise of their constitutional right to do so. But in his charge in
Porter's Case he explained what was said in Wilson's Case. After remarking
that, if a jury find a prisoner guilty against the court's opinion of the
law of the case, a new trial would be granted, as no court would pronounce a
judgment on a prisoner against what it believes to be the law, he said:
'This, then, you will understand to be what is meant by your power to
determine upon the law; but you will still bear in mind that it is a very
old, sound, and valuable maxim that the court answers to questions of law,
and the jury to facts. Every day's experience evinces the wisdom of this
fule.' Subsequently, in U. S. v. Shive, Baldw. 510, 513, Fed. Cas. No. 16,
278, which was an indictment for passing a counterfeit note of the Bank of
the United States, and when the question arose as to the right of the jury
to pass upon the constitutionality of the act of congress on which the
prosecution was founded, Mr. Justice Baldwin said in his charge: 'If juries
once exercise this power, we are without a constitution or laws; one jury
has the same power as another; you cannot bind those who may take your
places; what you declare constitutional to-day another jury may declare
unconstitutional to-morrow.'
The question before us received full consideration by Mr. Justice Story in

U. S. v. Battiste, 2, Sumn. 240, 243, 244, Fed. Cas. No. 14, 545. That was
an indictment for a capital offence, and the question was directly presented
whether in criminal cases, especially in capital cases, the jury were the

judges of the law as well as of the facts. He said: 'My opinion is that the
jury are no more judges of the law in a capital or other criminal case, upon
the plea of not guilty, than they are in every civil case tried upon the
general issue. In each of these cases, their verdict, when general, is
necessarilty compounded of law and of fact, and includes both. In each they
must necessarily determine the law as well as the fact. In each they have
the physical power to disregard rthe law, as laid down to them by the court.
But I deny that, in any case, civil or criminal, they have the moral right
to decide the law according to their own notions or pleasure. On the
contrary, I hold it the most sacred constitutional right of every party
accused of a crime that the jury should respond as to the facts, and the
court as to the law. It is the duty of the court to instruct the jury as to
the law, and it is the duty of the jury to follow the law as it is laid down
by the court. This is the right of every citizen, and it is his only
protection. If the jury were at liberty to settle the law for themselves,
the effect would be, not only that the law itself would be most uncertain,
from the different views which different juries might take of it, but in
case of error there would be no remedy or redress by the injured party; for
the court would not have any right to review the law as it had been settled
by the jury.' 'Every person accused as a criminal has a right to be tried
according to the law of the land, -- the fixed law of the land, and not by
the law as a jury may understand it, or choose, from wantonness or ignorance
of accidental mistake, to interpret it. If I thoutht that the jury were the
proper judges of the law in criminal cases, I should hold it may duty to
abstain from the responsibility of stating the law to them upon any such
trial. But believing, as I do, that every citizen has a right to be tried by
the law, and according to the law; that it is his privilege and truest
shield against oppression and wrong, -- I feel it my duty to state my views
fully and openly on the present occasion.'
In U. S. v. Morris, 1 Curt. 23, 51, 52, 58, Fed. Cas. No. 15, 815, the
question, in all of its aspects, was examined by Mr. Justice Curtis with his
accustomed care. In that case the contention was that every jury, impaneled
in a court of the United States, was the rightful judge of the existence,
construction, and effect of every law that was material in a criminal case,
and could, of right, and if it did its duty must, decide finally on the
constitutional validity of any act of congress which the trial brought in
question. Touching the rightful powers and duties of the court and the jury
under the constitution in criminal cases, Mr. Justice Curtis, among other
things, said: 'The sixth article, after declaring that the constitution,
laws, treaties of the United States shall be the supreme law of the land,
proceeds,'And the judges, in every state, shall be bound thereby.' But was
it not intended that the constitution, laws, and treaties of the United
States should be the supreme law in criminal as well as in civil case? If a
state law should make it penal for an officer of the United States to do
what an act of congress commands him to do, was not the latter to be supreme
over the former? And if so, and in such cases juries finally and rightfully
determine the law, and the constitution so means when it speaks of a trial
by jury, why was this command laid on the judges alone, who are thus mere
advisers of the jury, and may be bound to give sound advice, but have no
real power in the matter? It was evidently the intention of the constitution
that all persons engaged in making, expounding, and executing the laws, not
only under the authority of the United States, but of the several states,
should be bound by oath or affirmation to support the constitution of the
United States. But no such oath or affirmation is required of jurors, to
whom it is alleged the constitution confides the power of expounding that
instrument, and not only construing, but holding invalid, any law which may
come in question on a criminal trial.' 'In my opinion,' the learned justice
proceeded,'it is the duty of the court to decide every question of law
which arises in a criminal trial. If the question touches any matter
affecting the course of the trial, such as the competency of a witness, the

admissibility of evidence, and the like, the jury receive no direction

concerning it. It affects the materials out of which they are to form their
verdict, but they have no more concern with it than they would have had if
the question had arisen in some other trial. If the question of law enters
into the issue, and forms part of it, the jury are to be told that the law
is, and they are bound to consider that they are told truly; that law they
apply to the facts, as they find them, and thus, passing both on the law and
the fact, they, from both, frame their general verdict of guilty or not
guilty. Such is my view of the respective duties of the different parts of
this tribunal in the trial of criminal case, and I have not found a single
decision of any court in England, prior to the formation of the
constitution, which conflicts with it.'
It was also contended that the clause in the act of congress, known as the
Sedition Law of 1798 (1 Stat. c. 74, 3), declaring that 'the jury who shall
try the cause shall have a right to determine the law and the fact, under
the direction of the court, as in other cases,' in the trial of criminal
cases, and I have decide the law contraery to the direction of the court.
But in response to this view Mr. Justice Curtis said: 'I draw from this the
opposite inference; for where was the necessity of this provision, if, by
force of the constitution, juries, as such, have both the power and the
right to determine all questions in criminal cases; and why are they to be
directed by the court?' See, also, Montgomery v. State, 11 Ohio, 427.
But Mr. Justice Curtis considered the question from another point of view,
and gave reasons which appear to us entirely conclusive against the
proposition that it is for the jury, in every criminal case, to say
authoritatively what is the law by which they are to be governed in finding
their verdict. He said: 'There is, however, another act of congress which
bears directly on this question. The act of the 29th of April, 1802, in
section 6, after enacting that, in case of a division of opinion between the
judges of the circuit court on any question, such question may be certified
to the supreme court, proceeds: 'And shall by the said court be finally
decided; and the decision of the supreme court and their order in the
premises shall be remitted to the circuit court, and be there entered of
record and have effect according to the nature of such judgment and order.'
The residue of this section proves that criminal as well as civil cases are
embraced in it, and under it many questions arising in criminal cases have
been certified to and decided by the supreme court, and persons have been
executed by reason of such decisions. Now, can it be, after a question
arising in a criminal trial has been certified to the supreme court, and
there, in the language of this act, finally decided, and their order
remitted here and entered of record, that when the trial comes on the jury
may rightfully revise and reverse this final decision? Suppose, in the
course of this trial, the judges had divided in opinion upon the question of
the constitutionality of the act of 1850, and that, after a final decision
thereon by the supreme court and the receipt of its mandate here, the trial
should come on before a jury, does the constitution of the United Ststes,
which established that supreme court, intend that a jury may, as matter of
right, revise and reverse that decision? And, if not, what becomes of this
supposed right? Are the decisions of the supreme court binding on juries,
and not the decisions of inferior courts? This will hardly be pretended; and
if it were, how is it to be determined whether the supreme court has or has
not, in some former case, in effect settled a particular question of law? In
my judgment, this act of congress is in accordance with the constitution,
and designed to effect one of its important and even necessary objects, -- a
uniform exposition and interpretation of the law of the United States, -- by
providing means for a final decision of any question of law, -- final as
respects every tribunal and every part of any tribunal in the country; and,
if so, it is not only wholly inconsistent with the alleged power of juries,
to the extent of all questions so decided, but it tends strongly to prove

that no such right as is claimed does or can exist.'
Again: 'Considering the intense interest excited, the talent and learning
employed, and consequently the careful researches made, in England, near the
close of the last century, when the law of libel was under discussion in the
courts and in parliament, it cannot be doubted that, if any decision, having
the least weight, could have been produced in support of the general
proposition that juries are judges of the law in criminal cases, it would
then have been brought forward. I am not aware that any such was produced.
And the decision of the king's bench in Rex v. Dean of St. Asaph, 3 Term R.
428, note, and the answers of the twelve judges to the questions propounded
by the house of lords, assume, as a necessary postulate, what Lord Mansfield
so clearly declares in terms, that, by the law of England, juries cannot
rightfully decide a question of law. Passing over what was said by ardent
partisans and eloquent counsel, it will be found that the great contest
concerning what is known as 'Mr. Fox's Libel Bill' was carried on upon quite
a different ground by its leading friends, -- a ground which, while it
admits that the jury are not to decide the law, denies that the libelous
intent is matter of law, and asserts that it is so mixed with the fact that,
under the general issue, it is for the jury to find it as a fact. 34 Ann.
Reg. 170; 29 Parl. Deb. Such I understand to be the effect of that famous
declaratory law. 32 Geo. III. c. 60.... I conclude, then, that, when the
constitution of the United States was founded, it was a settled rule of the
common law that, in criminal as well as in civil cases, the court decided
the law, and the jury the facts; and it cannot be doubted that this must
have an important effect in determining what is meant by the constitution
when it adopts a trial by jury.'
That eminent jurist, whose retirement from judicial station has never cased
to be a matter of deep regret to the bench and bar of this country, closed
his great opinion with an expression of a firm conviction that, under the
constitution of the United States, juries in criminal cases have not the
right to decide any question of law, and that, in rendering a general
verdict, their duty and their oath require them to apply to the facts, as
the find them, the law given to them by the court. And in so declaring he
substantially repeated what Chief Justice Marshall had said in Burr's Case.
In U. S. v. Greathouse, 4 Sawy. 457, 464, Fed. Cas. No. 15, 254, which was
an indictment for trason, Mr. Justice Field said: 'There prevails a very
general, but an erroneous, opinion that in all criminal cases the jury are
the judges as well of the law as of the fact; that is, that they have the
right to disregard the law as laid down by the court, and to follow their
own notions on the subject. Such is not the right of the jury.' 'It is their
duty to take the law from the court, and apply it to the facts of the case.
It is the province of the court, and of the court alone, to determine all
questions of law arising in the progress of a trial; and it is the province
of the jury to pass upon the evidence, and determine all contested questions
of fact. The responsibility of deciding correctly as to the law rests solely
with the court, and the responsibility of finding correctly the facts rests
solely with the jury.'
These principles were applied by Judge Shipman in U. S. v. Riley, 5 Blatchf.

204, Fed. Cas. No. 16.164, and by Judge Cranch, upon an extended review of
the authorities, in Stettinius v. U. S., 5 Cranch, C. C. 573, Fed. Cas. No.
13, 387. They were also applied by Judge Jackson, in the district of West
Virginia, in U. S. v. Keller, 19 Fed. 633, in which case it was said that
although an acquittal in a criminal case was final, even if the jury
arbitrarily disregarded the instructions of the court on the law of the
case, a jury, in order to discharge its whole duty, must take the law from
the court and apply it to the facts of the case.

Turning, now, to cases in the state courts, we find that in Com. v. Porter,
10 Metc. 263, 276, the supreme judicial court of Massachusetts, speaking by
Chief Justice Shaw, delivering the unanimous judgment of the court composed
of himself and Justices Wilde, Dewey, and Hubbard, held that it was a
well-settled principle, lying at the foundation of jury trials, admitted and
recognized over since jury trial had been adopted as an established and
settled mode of proceeding in courts of justice, that it was the proper
province and duty of judges to consider and decide all questions of law, and
the proper province and duty of the jury to decide all questions of fact. In
the same case, the court, observing that the safety, efficiency, and purity
of jury trial depend upon the steady maintenanceand practical application of
this principle, and adverting to the fact that a jury, in rendering a
general verdict, must necessarily pass upon the whole issue, compounded of
the law and of the fact, and thus incidentally pass on questions of law,
said: 'It is the duty of the court to instruct the jury on all questions of
law which appear to arise in the cause, and also upon all questions,
pertinent to the issue, upon which either party may request the direction of
the court upon matters of law. And it is the duty of the jury to receive the
law from the court, and to conform their judgment and decision to such
instructions, as far as they understand them, in applying the law to the
facts to be found by them; and it is not within the legitimate province of
the jury to revise, reconsider, or decide contrary to such opinion or
direction of the court in matter of law.' Page 286.
Perhaps the fullest examination of the question upon principle, as well as

upon authority, to be found in the decisions of any state court, was made in
Com. v. Anthes, 5 Gray, 185, 193, 206, 208, 218, where Chief Justice Shaw,
speaking for a majority of the court, said that the true theory and
fundamental principle of the common law, both in its civil and criminal
departments, was that the judges should adjudicate finally upon the whole
question of law, and the jury upon the whole question of fact.
Considering, in the light of the authorities, the grounds upon which a

verdict of guilty or not guilty, in a criminal case, was held, at common
law, to be conclusive, he observed that though the jury had the power they
had not the right to decide, that is, to adjudicate, on both law and
evidence. He said: 'The result of these several rules and principles is
that, in practice, the verdict of a jury, both upon the law and the fact, is
conclusive; because, from the nature of the proceeding, there is no judicial
power by which the conclusion of law thus brought upon the record by that
verdict can be reversed, set aside, or inquired into. A general verdict,
either of conviction or acquittal, does embody had declare the result of
both the law and the fact, and there is no mode of separating them on the
record so as to ascertain whether the jury passed their judgment on the law,
or only on the evidence. The law authorized them to adjudicate definitively
on the evidence; the law presumes that they acted upon correct rules of law
given then by the judge. The verdict, therefore, stands conclusive and
unquestionable, in point both of law and fact. In a certain limited sense,
therefore, it may be said that the jury have a power and legal right to pass
upon both the law and the fact. And this is sufficient to account for many
and most of the dicta in which the proposition is stated. But it would be
more accurate to state that it is the right of the jury to return a general
verdict; this draws after it, as a necessary consequence, that they
incidentally pass upon the law. But here, again, is the question, what is
intended by 'passing upon the law'? I think it is by embracing it in their
verdict, and thus bringing it upon the record, with their finding of the
facts. But does it follow that they may rightfully and by authority of the
common law, by which all are conscientiously bound to goven their conduct,
proceed upon the same grounds and principles in the one case as the other?
What the jury have a right to do, and what are the grounds and principles
upon which they are in duty and conscience bound to act and govern

themselves in the exercise of that right, are two very distinct questions.
The latter is the one we have do deal with. Suppose they have a right to
find a general verdict, and by that verdict to conclude the prosecutor in
the matter of law, still it is an open and very different question whether,
in making up that verdict and thereby embracing the law, they have the same
right to exercise their own reason and judgment, against the statement of
the law by the judge, to adjudicate on the law, as unquestionably they have
on the fact. The affirmative of this proposition is maintained by the
defendant in this case, and by others in many of the cases before us. If I
am right in the assumption that the judge is to adjudge the law, and the
jury the fact, only, it furnishes the answer to this question to what extent
the jury adjudicate the law; and it is that they receive authoritative
directions from the court, and act in conformity with them, though by their
verdict they thus embrace the law with the fact, which they may rightfully
adjudicate.'
Alluding to the history of this question in England, and particularly, as

did Mr. Justice Curtis, to the controversy in Rex v. Dean of St. Asaph, 3
Term R. 428, note, and which resulted in the passage by parliament, after
the separation of this country from Great Britain, of the libel act (St. 32
Geo. III.), and observing that both parties to that controversy assumed the
force and existence of the rule as the ancient rule of the common law, the
court said: 'The court and high prerogative party say judges answer to the
law, and jurors to the fact; the question of guilty or not, in the peculiar
form of a criminal prosecution for libel, after the jury have found the fact
of publication and truth of the innuendoes, is a question of law, and
therefore must be declared exclusively by the court. The popular party,
assuming the same major proposition, say the question of guilty or not is
question of fact, and can be found only by the jury. It appears to me,
therefore, as I stated on the outset, that considering the course of the
controversy, the earnestness and ability with which every point was
contested, and the thorough examination of the ancient authorities, this
concurrence of views on the point in question affords strong proof that, up
to the period of our separation from England, the fundamental definition of
trials by jury depended on the universal maxim, without an exception,'Ad
quaestionem facti respondent juratores, ad quaestionem juris respondent
judices."
The Anthes Case, it may be observed, arose under a statute enacted in 1855,
after the decision in the Porter Case. But the court held that that statute
did not confer upon juries, in criminal trials, the power of determining
questions of law against the instruction of the court. And the chief justice
said -- Justices Metcalf and Merrick concurring -- that, if the statute
could be so interpreted as to prescribe that the jury, consistently with
their duty, may decide the law upon their judgment contrary to the decision
and instruction of the court before whom the trial was had, such enactment
would be beyond the scope of legitimate legislative power, repugnant to the
constitution, and, of course, inoperative and void. See, also, Com. v. Rock,
10 Gray, 4, where the doctrine announced in Com. v. Anthes were reaffirmed,
no one of the members of the court expressing a dissent.
This question was also fully considered in Montee v. Com., 3 J. J. March.

132, 149, 151, in which case Chief Justice Robertson said: 'The circuit
judge would be a cipher, and a criminal trial before him a farce, if he had
no right to decide all questions of law whihc might arise in the progress of
the case. The jury are the exclusive judges of the facts. In this particular
they cannot be controlled, and ought not to be instructed, by the court.
They are also, ex necessitate, the ultimate judges, in one respect, of the
law. If they acquit, the judge cannot grant a new trial, how much soever
they have misconceived or disregarded the law.' 'If the court had no right
to decide on the law, error, confusion, uncertainty, and licentiousness

would characterize the criminal trials; and the safety of the accused might
be as much endangered as the stability of public justice would certainly
be.' In Pierce v. State, 13 N. H. 536, 554, it was held to be inconsistent
with the spirit of the constitution that questions of law, and, still less,
questions of constitutional law, should be decided by the verdict of the
jury, contrary to the instructions of the court.
In Duffy v. People, 26 N. Y. 588, 591, Judge Selden, speaking for the court
of appeals of New York, said: 'The unquestionable power of juries to find
general verdicts, involving both law and fact, furnishes the foundation for
the opinion that they are judges of the law as well as of the fact, and
gives some plausibility to that opinion. They are not, however, compelled to
decide legal questions; having the right to find special verdicts, giving
the facts, and leaving the legal conclusions which result from such facts to
the court. When they find general verdicts, I think it is their duty to be
governed by the instructions of the court as to all legal questions involved
in such verdicts. They have the power to do otherwise, but the exercise of
such power cannot be regarded as rightful, although the law has provided no
means, in criminal cases, of reviewing their decisions, whether of law of
fact, or of ascertaining the grounds upon which their verdicts are based.'
See, also, People v. Finnegan, 1 Parker, Cr. R. 147, 152; Safford v. People,
Id. 474, 480.
So, in Hamilton v. People, 29 Mich. 173, 192, Mr. Justice Campbell, as the
organ of the court, said: 'We understand the uniform practice and the
decided weight of opinion to require that the judge give his views of the
law to the jury as authority, and not as a matter to be submitted to their
review.' And in People v. Anderson, 44 Cal. 65, 70: 'In this state it is so
well settled as no longer to be open to debate that it is the duty of a
jury, in a criminal case, to take the law from the court.' The principle was
accurately stated by Chief Justice Ames, speaking for the supreme court of
Rhode Island, when he said: 'The line between the duties of a court and jury
in the trial of causes at law, both civil and criminal, is perfectly well
defined; and the rigid observance of it is of the last importance to the
administration of systematic justice. Whilst, on the one hand, the jury are
the sole, ultimate judges of the facts, they are, on the other, to receive
the law applicable to the case before them solely from the publicly given
instructions of the court. In this way, court and jury are made responsible,
each in its appropriate department, for the part taken by each in the trial
and decision of causes; and in this way alone can errors of fact and errors
of law be traced, for the purpose of correction, to their proper sources. If
the jury can receive the law of a case on trial in any other mode than from
the instructions of the court, given in the presence of parties and counsel,
how are their errors of law, with any certainty, to be detected, and how,
with any certainty, therefore, to be corrected? It is a statute right of
parties here -- following, too, the ancient course of the common law -- to
have the law given by the court, in their presence, to the jury, to guide
their decision, in order that every error in matter of law may be known and
corrected.' State v. Smith, 6 R. I. 33, 34.
In Pennsylvania, in the case of Com. v. Sherry (reported in the appendix to

Wharton's treatise on Homicide), Judge Rogers, a jurist of high reputation,
thus charged the jury in a capital case: 'You are, it is true, judges in a
criminal case, in one sense, of both law and fact; for your verdict, as in
civil cases, must pass on law and fact together. If you acquit, you
interpose a final bar to a second prosecution, no matter how entirely your
verdict may have been in opposition to the views expressed by the court....
It is important for you to keep this distinction in mind, remembering that,
while you have the physical power, by an acquittal, to discharge a defendant
from further prosecution, you have no moral power to do so, against the law
laid down by the court.... For your part, your duty is to receive the law,

for the purposes of this trial, from the court. If an error injurious to the
prisoner occurs, it will be rectified by the revision of the court in banc.
But an error resulting from either a conviction or acquittal, against the
law, can never be rectified. In the first case, an unnecessary stigma is
affixed to the character of a man who was not guilty of the offense with
which he is charged. In the second case, a serious injury is effected by the
arbitrary and irremediable discharge of a guilty man. You will see from
these considerations the great importance of the preservation, in criminal
as well as in civil cases, of the maxim that the law belongs to the court,
and the facts to the jury.' About the same time, Judge Sergeant charged a
jury: 'The point, if you believe the evidence on both sides, is one of law,
on which it is your duty to receive the instructions of the court. If you
believe the evidence in the whole case, you must find the defendant guilty.'
Com. v. Van Sickle, Brightly (Pa.) 73. To the same effect, substantially,
was the language of Chief Justice Gibson, who, when closing a charge in a
capital case, said,'If the evidence on these points fail the prisoner, the
conclusion of his guilt will be irresistible, and it will be your duty to
draw it.' Com. v. Harman, 4 Pa. St. 269. In a more recent case (Kane v.
Com., 89 Pa. St. 522), Sharswood, C. J., said that the power of the jury to
judge of the law in a criminal case was one of the most valuable securities
guarantied by the bill of rights of Pennsylvania. But in a later case,
Nicholson v. Com., 96 Pa. St. 505, it was said: 'The court had an undoubted
right to instruct the jury as to the law, and to warn them as they did
against finding contrary to it. This is very different from telling them
that they must find the defendant guilty, which is what is meant by a
binding instruction in criminal cases.' In Com. v. McManus, 143 Pa. St. 64,
85, 21 Atl. 1018, and 22 Atl. 761, it was adjudged that the statement by the
court was the best evidence of the law within the reach of the jury, and
that the jury should be guided by what the court said as to the law. And
this view the court, speaking by Chief Justice Paxson, said was in harmony
with Kane v. Com.
The question has recently been examined by the supreme court of Vermont, and
after an elaborate review of the authorities, English and American, that
court, by a unanimous judgment, -- overruling State v. Croteau, 23 Vt. 14,
and all the previous cases which had followed that case, -- said: 'We are
thus led to the conclusion that the doctrine that jurors are the judges of
the law in criminal cases is untenable; that it is contrary to the
fundamental maxims of the common law from which it is claimed to take its
origin; contrary to the uniform practice and decisions of the courts of
Great Britain, where our jury system had its beginning, and where it
matured; contrary to the great weight of authority in this country; contrary
to the spirit and meaning of the constitution of the United States;
repugnant to the constitution of this state; repugnant to our statute
relative to the reservation of questions of law in criminal cases, and
passing the same to the supreme court for final decision.' State v. Burpee,
65 Vt. 1, 34, 25 Atl. 964.
These principles are supported by a very large number of adjudications, as

will be seen by an examination of the cases cited in margin.2
To the same purport are the text writers. 'In theory, therefore,' says
Judge Cooley,'the rule of law would seem to be that it is the duty of the
jury to receive and follow the law as delivered to them by the court; and
such is the clear weight of authority.' Const. Lim. 323, 324. Greenleaf, in
his treattise on the Law of Evidence, says: 'In trials by jury, it is the
province of the presiding judge to determine all questions on the
admissibility of evidence to the jury, as well as to instruct them in the
rules of law by which it is to be weighed. Whether there be any evidence or
not is a question for the judge; whether it is sufficient evidence is a
question for the jury.' 'Where the question is mixed, consisting of law and

fact, so intimately blended as not to be easily susceptible of separate

decision, it is submitted to the jury, who are first instructed by the judge
in the principles and rules of law by which they are to be governed in
finding a verdict, and these instructions they are bound to follow.' Volume
1, 49. Starkie, in his treatise on Evidence, observes,'Where the jury find
a general verdict they are bound to apply the law as delivered by the court,
in criminal as well as civil cases.' Page 816. So, in Phillips on Evidence:
'They [the jury] are not in general, either in civil or criminal cases,
judges of the law. They are bound to find the law as it is propounded to
them by the court. They may, indeed, find a general verdict, including both
law and fact; but if, in such verdict, they find the law contrary to the
instructions of the court, they thereby violate their oath.' 4 Cowen &
Hill's Notes (3d Ed.) p. 2. See, also, 1 Tayl. Ev. 21-24; 1 Best, Ev.
(Morgan's Ed.) 82.
In 1 Cr. Law Mag. 51, will be found a valuable note to the case of Kane v.
Com., prepared by Mr. Wharton, in which the authorities are fully examined,
and in which he says: 'It would be absurd to say that the determination of
the law belongs to the jury, not court, if the court has power to set aside
that which the jury determines. We must hold, to enable us to avoid the
inconsistency, that, subject to the qualification that all acquittals are
final, the law in criminal cases is to be determined by the court. In this
way we have our liberties and rights determined, not by an irresponsible,
but by a responsible, tribunal; not by a tribunal ignorant of the law, but
by a tribunal trained to and disciplined by the law; not by an irreversible
tribunal, but by a reversible tribunal; not by a tribunal which makes its
own law, but by a tribunal that obeys the law as made. In this way we
maintain two fundamental maxims. The first is that, while to facts answer
juries, to the law answers the court. The second, which is still more
important, is 'Nullum crimen, nulla poena, sine lege.' Unless there be a
violation of law preannounced, and this by a constant and responsible
tribunal, there is no crime, and can be no punishment.' 1 Cr. Law Mag. 56.
The same author, in his treatise on Pleading and Practice, concludes his
examination of the question in these words: 'The conclusion we must
therefore accept is that the jury are no more judges of law in criminal than
in civil cases, with the qualification that, owing to the peculiar doctrine
of autrefois acquit, a criminal acquitted cannot be overhauled by the court.
In the federal courts such is now the established rule.' Sections 809, 810.
Forsyth, in his History of Trial by Jury, -- a work of merit, -- discusses

the doctrine advanced by some that the jury were entitled in all cases,
where no special pleas have been put on the record, to give a general
verdict according to their own views of the law, in criminal as well as in
civil cases. He says: 'It is impossible to uphold the doctrine. It is
founded on a confusion between the ideas of power and right.' 'Indeed, it is
difficult to understand how any one acquainted with the principles and
settled practice of the English law can assert that it sanctions the
doctrine which is here combated.' Again: 'The distinction between the
province of the judge and that of the jury is, in the English law, clearly
defined, and observed with jealous accuracy. The jury must in all cases
determine the value and effect of evidence which is submitted to them. They
must decide what degree of credit is to be given to a witness, and hold the
balance between conflicting probabilities. The law throws upon them the
whole responsibility of ascertaining facts in dispute, and the judge does
not attempt to interfere with the exercise of their unfettered discretion in
this respect. But, on the other hand, the judge has his peculiar duty in the
conduct of a trial. He must determine whether the kind of evidence offered
is such as ought or ought not to be submitted to the jury, and what
liabilities it imposes. When any questions of law arise, he alone determines
them, and their consideration is absolutely withdrawn from the jury, who
must in such cases follow the direction of the judge; or if they perversely

refuse to do so, their verdict (in civil cases) will be set aside, and a new
trial granted.' Pages 235, 236 (Morgan's Ed.).
Worthington, in his Inquiry into Power of Juries, an English work Published

in 1825, and often cited in the adjudged cases, says: 'Were they [ the jury]
permitted to decide the law, the principles of justice would be subverted;
the law would become as variable as the prejudices, the inclinations, and
the passions of men. If they could legally decide upon questions of law,
their decision must, of necessity, be final and conclusive, which would
involve an absurdity in all judicial proceedings, and would be contradictory
to the fundamental principles of our jurisprudence.' 'The jury, when called
upon to decide facts which are complicated with law, are therefore
constitutionally, and must be, from the nature and intention of the
institution, bound to seek and to obey the direction of the judge with
respect to the law. It becomes their duty to apply to the law thus explained
to them the facts (which it is their exclusive province to find), and thus
they deliver a verdict compounded of law and fact, but they do not determine
or decide upon the law in any case.' Pages 193, 194.
Judge Thompson, in his work on Trials (sections 1016, 1017), thus states the
principles: 'The judge decides questions of law; the jury, questions of
fact.' So, in Proff. Jury, 375: 'The preponderance of judicial authority in
this country is in favor of the doctrine that the jury should take the law
from the court, and apply it to the evidence under its direction.'
The language of some judges and statesmen in the early history of the
country, implying that the jury were entitled to disregard the law as
expounded by the court, is perhaps to be explained by the fact that 'in many
of the states the arbitrary temper of the colonial judges, holding office
directly from the crown, had made the independence of the jury, in law as
well as in fact, of much popular importance.' Whart. Cr. Pl. (8th Ed.) 806;
Williams v. State, 32 Miss. 389, 396.
Notwithstanding the declarations of eminent jurists and of numerous courts,

as disclosed in the authorities cited, it is sometimes confindently asserted
that they all erred when adjudging that the rule at common law was that the
jury, in criminal cases, could not properly disregard the law as given by
the court. We are of opinion that the law in England at the date of our
separation from that country was as declared in the authorities we have
cited. The contrary view rests, as we think, in large part, upon expressions
of certain judges and writers, enforcing the principle that when the
question is compounded of law and fact a general verdict, ex necessitate,
disposes of the case in hand, both as to law and fact. That is what Lord
Somers meant when he said in his essay on 'The Security of Englishmen's
Lives, or the Trust, Power, and Duty of the Grand Juries of England,' that
jurors only 'are the judges from whose sentence the indicted are to expect
life or death,' and that,'by finding guilty or not guilty, they do
complicately resolve both law and fact.' In the speeches of many statesmen
and in the utterances of many jurists will be found the general observation
that when law and fact are 'blended' their combined consideration is for the
jury, and a verdict of guilty or not guilty will determine both for the
particular case in hand. But this falls far short of the contention that
jury, in applying the law to the facts, may rightfully refuse to act upon
the principles of law announced by the court.
It is to be observed that those who have maintained the broad position that
a jury may, of right, disregard the law as declared by the court, cite the
judgment of Chief Justice Vaughan in Bushell's Case, Vaughan, 135. In that
case the accused were acquitted by a general verdict, in opposition, as it
was charged, to the directions of the court. And the question presented upon
habeas corpus was whether, for so doing, they were subject to be fined, and

committed to prison until the fine was paid. Upon a careful examination of
the elaborate opinion in that case, it will become clear that the
fundamental proposition decided was that in view of the different functions
of court and jury, and because a general verdict, of necessity, resolves
'both law and fact complicately, and not the fact by itself,' it could
never be proved, where the case went to the jury upon both law and facts,
that the jurors did not proceed upon their view of the evidence. Chief
Justice Vaughan said that the words in the warrant,'that the jury did
acquit against the direction of the court in matter of law, literally taken,
and de plano, are insignificant, and not intelligible, for no issue can be
joined of matter in law; no jury can be charged with the trial of matter in
law barely; no evidence ever was or can be given to a jury of what is law or
not, nor no such oath can be given to or taken by a jury, to try matter in
law, nor no attaint can lie for such a false oath.' Id. 143. Touching the
distinction between the oath of a witness and that of a juror, he said: 'A
witness swears but to what hath fallen under his senses. But a juryman
swears to what he can infer and conclude from the testimony of such
witnesses, by the act and force of his own understanding, to be the fact
inquired after, which differs nothing in the reason, though much in the
punishment, from what a judge, out of various cases considered by him infers
to be law in the question before him.' Id. 139, 142.
In referring to the opinion in Bushell's Case, Mr. Justice Curtis well

observed that it would be found that Chief Justice Vaughan 'confines himself
to a narrow, though, for the case, a conclusive, line of argument, -- that,
the general issue embracing fact as well as law, it can never be proved that
the jury believed the testimony on which the fact depended, and in reference
to which the direction was given, and so they cannot be shown to be builty
of any legal misdemeanor in returning a verdict, though apparently against
the direction of the court in matter of law.' And this is the view of the
opinion in Bushell's Case, expressed by Hallam in his Constitutional History
of England (chapter 13).
A similar criticism was made by the supreme judicial court of Massachusetts

in the Case of Anthes. Chief Justice Shaw, after stating the principles
involved in Bushell's Case, said: 'It may be remarked that from the improved
views of the nature of jury trials, during the two hundred years which have
elapsed since the decision of Chief Justice Vaughan, the juror is now in no
more danger of punishment for giving an erroneous judgment in matter of fact
than a judgeis for giving an erroneous judgment in matter of law. But his
statement clearly implies that the judge, within his appropriate sphere, is
to act by the force of his reason and understanding, and, by the aid of his
knowledge of the law and all appropriate means, to adjudge all questions of
law, and direct the jury thereon; and in like manner the jury, by the force
of their reason and understanding, acting upon all the competent evidence in
the case, to reason, weigh evidence, draw inferences, and adjudge the
question of fact embraced in the issue. Again: 'In these cases the jury, and
not the judge, resolve and find what the fact is. Therefore, always, in
discreet and lawful assistance of the jury, the judge's direction is
hypothetical and upon supposition, and not positive, upon coercion, namely:
'If you find the fact thus [leaving it to them what to find], then you are
to find for the plaintiff; but, if you find the fact thus, then it is for
the defendant.' Vaughan, 144." 'It is strange,' Chief Justice Shaw felt
constrained to say,'that the authority of Vaughan, C. J., in this case,
should be cited, as it has been, to prove that a juror, in finding a general
verdict, embracing law and fact, being sworn to try the issue, must find his
verdict upon his own conviction and conscience, relying, in support of the
proposition, upon the following words of Vaughan, C. J.: 'A man cannot see
by another's eye, nor hear by another's ear. No more can a man decide and
infer the thing to be resolved by another's understanding or reasoning.' Id.
148.' Had these words been applied to the whole issue embraced in a general

verdict, as would be implied from the manner of referring to them, they

would have countenanced the proposition; but they are used expressly to
illustrate the position that the jury cannot be required implicitly to give
a verdict by the dictates and authority of the judge. 'I refer,' Chief
Justice Shaw continued,'only to one other passage, which serves as a key to
the whole judgment. He says: 'That decantatum in our books,'Ad quaestionem
facti non respondent judices, ad quaestionem legis non respondent juratores,
' literally taken, is true, for if it be demanded, what is the fact? the
judge cannot answer; if be asked, what is the law in the case? the jury
cannot answer it.' Id. 149.' All this tends to show that the leading thought
in the opinion of Chief Justice Vaughan was that while the jury cannot
answer as to the law, nor the court as to the fact, a general verdict,
compounded of law and fact, of necessity determines both as to the case on
trial.
In Townsend's Case, an office taken by virtue of a writ of mandamus, and

decided in the sixteenth century, the court said: 'For the office of twelve
men is no other than to inquire of matters of fact, and not to adjudge what
the law is, for that is the office of the court, and not of the jury; and if
they find the matter of fact at large, and further say that thereupon the
law is so, where in truth the law is not so, the judges shall adjudge
according to the matter of fact, and not according to the conclusion of the
jury.' 1 Plow. 110, 114. In Willion v. Berkley, Id. 222, 230, also a civil
case: 'Matters of fact, being traverse, shall be tried by twelve men; and,
if the plaintiff should take a traverse here, it would be to make twelve
illiterate men try a matter of law, whereof they have no knowledge. It is
not their office to try matters of law, but only to try matters of fact; for
at the beginning of our law it was ordained that matters of fact should be
tried by twelve men of the country where the matter arises, and matters of
law by twelve judges of the law, for which purpose there were six judges
here, and six in the king's bench, who, upon matters of law, used to
assemble together in a certain place, in order to discuss what the law was
therein. So that, if a traverse should be here taken, it would be to make
twelve ignorant men of the country try that whereof they are not judges, and
which does not belong to them to try.' See, also, Grendon v. Bishop of
Lincoln, 2 Plow. 493, 496.
As early as 1727, Raymond, C. J., delivering the unanimous opinion of the

twelve judges of the King's bench in a case of murder, said that the jury
are judges only of the fact, and the court of the law. 2 Strange, 766, 773.
The force of this language as to the functions of judge and jury is not
materially weakened by the fact that the case was before the judges upon a
special verdict, for it was expressly declared that jurors were judges only
of the fact.
Within a few years after Oneby's Case, 2 Strange, 766, was determined, in
1734, the case of King v. Poole, which was a criminal information in the
nature of a quo warranto, came before Lord Hardwicke. In passing upon a
motion for a new trial, that famous judge -- than whom there could be no
higher authority as to what was the settled law of England -- said: 'The
thing that governs greatly in this determination is that the point of law is
not to be determined by juries; juries have a power by law to determine
matters of fact only; and it is of the greatest consequence to the law of
England, and to the subject, that these powers of the judge and the jury are
kept distinct; that the judge determines the law, and the jury the fact;
and, if ever they come to be confounded, founded, it will prove the
confusion and destruction of the law of England.' Cas. t. Hardw. 27.
Upon the question here under examination, Mr. Foster, to whose work Chief
Justice Marshall frequently refers in his opinion or charge delivered in
Burr's Case, says, in the first edition of his work, which appeared in 1762,

and again in the third edition, which appeared in 1792: 'In every case where
the point turneth upon the question whether the homicide was committed
willfully and maliciously, or under circumstances justifying, excusing, or
alleviating the matter of fact, viz. whether the facts alleged by way of
justification, excuse, or alleviation are true, is the proper and only
province of the jury. But whether, upon a supposition of the truth of facts,
such homicide be justified, excused, or alleviated, must be submitted to the
judgment of the court; for the construction the law putteth upon facts
stated and agreed, or found by a jury, is in this, as in all other cases,
undoubtedly the proper province of the court. In cases of doubt and real
difficulty, it is commonly recommended to the jury to state facts and
circumstances in a special verdict. But where the law is clear the jury,
under the direction of the court in point of law, matters of fact being
still left to their determination, may, and, if they are well advised,
always will, find a general verdict conformably to such direction.' Fost.
Cr. Law (3d Ed.) 255, 256. See, also, Rex v. Withers (Lord Kenyon) 3 Term
R. 428; Bac. Abr. tit. 'Juries,' M 2; 2 Hawk. P. C. c. 22, 21; 1 Duncomb,
Trials per Pais (Dublin, 1793) pp. 229, 231.
In Wynne's Eunomus, or Dialogues Concerning the Law and Constitution of

England, a work of considerable reputation, the first edition having been
published about the time of the adoption of our constitution, the principle
is thus stated: 'All that I have said or have to say upon the subject of
juries is agreeable to the established maxim that 'juries must answer to
questions of fact, and judges to questions of law.' This is the fundamental
maxim acknowledged by the constitution.' 'It is undoubtedly true that the
jury are judges -- the only judges -- of the fact. Is it not equally within
the spirit of the maxim that judges only have the competent cognizance of
the law? Can it be contended that the jury have in reality an adequate
knowledge of law? Or that the constitution ever designed they should?' 'Well
-- 'but the law and the fact are often complicated' -- then it is the
province of the judge to distinguish them; to tell the jury that, supposing
such and such facts were done, what the law is in such circumstances. This
is an unbiased direction; this keeps the province of judge and jury
distinct; the facts are left altogether to the jury, and the law does not
control the fact, but arises from it.' 'Every verdict is compounded of law
and fact, but the law and fact are always distinct in their nature.' Wynne,
Eunomus, Dialogue 3 (5th Ed. 1822) 53, pp. 523, 527, 528.
Mr. Stephens, in his great work on the History of the Criminal Law of
England, in discussing the powers of juries in France, says: 'The right of
the counsel for the defense to address the jury on questions of law, as, for
instance, whether killing in a duel is meurtre, is one of the features in
which the administration of justice in France differs essentially from the
administration of justice in England. In England the judge's duty is to
direct the jury in all matters of law, and any arguments of counsel upon the
subject must be addressed to him, and not to the jury. This is not only
perfectly well established as matter of law, but it is as a fact acquiesced
in by all whom it concerns.' Volume 1, p. 551.
To the same effect is Levi v. Milne, 4 Bing. 196, reported as Levy v. Milne,
12 Moore, 418, and decided in 1827. That was an action of libel. Mr.
Sergeant Wilde, a counsel in the case, contended that in cases of libel the
jury are judges of the law as well as of the fact. But Lord Chief Justice
Best said: 'If the jury were to be made judges of the law as well as of
fact, parties would be always liable to suffer from an arbitrary decision.
In the present case the jury have made themselves judges of the law, and
have found against it.' 'My Brother Wilde has stated that in cases of libel
the jury are judges of the law as well as of fact, but I beg to deny that.
Juries are not judges of the law, or, at any rate, not in civil actions. The
authority on which the learned sergeant has probably grounded his

supposition is 32 Geo. III. c. 60, which was the famous bill brought in by
Mr. Fox, or, more properly, by Lord Erskine. But whoever reads that act will
see that it does not apply to civil actions; it applies only to criminal
cases. There is nothing in it that in any way touches civil actions, and the
jury, with respect to them, stand in the same situation as they ever have
done. I mean, however, to protest against juries, even in criminal cases,
becoming judges of the law. The act only says that they may find a general
verdict. Has a jury then a right to act against the opinion of the judge,
and to return a verdict on their own construction of the law? I am clearly
of opinion that they have not.' The report by Moore of this opinion is not
as full as the report in Bingham, but the two reports do not differ in any
material respect.
But a later decision was that by Lord Abinger, C. B., in 1837, in Reg. v.
Parish, 8 Car. & P. 94. That was an indictment for offering, disposing of,
and putting off a forged bill of enchange. In the course of his argument to
the jury, the counsel for the accused read the observations of Mr. Justice
Coleridge in a certain case as sustaining his view of the law. He was
interrupted by the judge, who said: 'I cannot allow you to read cases to the
jury. It is the duty of the jury to take the law from the judge. It no doubt
often happens that, in an address to the jury, counsel cite cases, but then
it is considered that that part of the speech of the counsel is addressed to
the judge. That cannot be so here, as you very properly in the first
instance referred me to the case, and you have my opinion upon it; you can
therefore make no further legitimate use of the case, and the only effect of
reading it would be it discuss propositions of law with the jury, with which
they have nothing to do, and which they ought to take from me.'
The case of Parmiter v. Coupeland, 6 Mees. & W. 104, 106, 108, which was an
action for libel, is not without value, as tending to show that Fox's libel
bill, so far from changing the rule, as generally applicable in criminal
cases, only required the same practice to be pursued in prosecutions for
libel as in other criminal cases. In the course of the argument of counsel,
Parke, B., said: 'In criminal cases the judge is to define the crime, and
the jury are to find whether the party has committed that offense. Mr. Fox's
act made it the same in cases of libel, the practice having been otherwise
before.' Again: 'But it has been the course for a long time for a judge, in
cases of libel, as in other cases of a criminal nature, first to give a
legal definition of the offense, and then to leave it to the jury to say
whether the facts necessary to constitute that offense are proved to their
satisfaction; and that whether the libel is the subject of a criminal
prosecution or civil action. A publication, without justification or lawful
excuse, which is calculated to injure the reputation of another, by exposing
him to hatred, contempt, or ridicule, is a libel. Whether the particular
publication, the subject of inquiry, is of that character, and would be
likely to produce that effect, is a question upon which a jury is to
exercise their judgment, and pronounce their opinion, as a question of fact.
The judge, as a matter of advice to them in deciding that question, might
have given his own opinion as to the nature of the publication, but was not
bound to do so as a matter of law. Mr. Fox's libel bill was a declaratory
act, and put prosecution for libel on the same footing as other criminal
cases.' Alderson, B., concurring, said that the judge 'ought, having defined
what is a libel, to refer to the jury the consideration of the particular
publication, whether falling within that definition or not.'
It is therefore a mistake to suppose that the English libel act changed in

any degree the general common-law rule in criminal cases, as to the right of
the court to decide the law, and the duty of the jury to apply the law thus
given to the facts, subject to the condition, inseparable from the jury
system, that the jury, by a general verdict, of necessity determined in the
particular case both law and fact, as compounded in the issue submitted to

them. That act provides that 'the court or judge, before whom such
indictment or information shall be tried, shall, according to their or his
discretion, give their or his opinion and directions to the jury on the
matter in issue between the king and the defendant, in like manner as in
other criminal cases.' 'This seems,' Mr. Justice Curtis well said,'to carry
the clearest implication that in this and all other criminal cases the jury
may be directed by the judge, and that, while the object of the statute was
to declare that there was other matter of fact besides publication and the
innuendoes to be decided by the jury, it was not intended to interfere with
the proper province of the judge to decide all matters of law.' U. S. v.
Morris, 1 Curt. 55, Fed. Cas. No. 15, 815. And this accords with the views
expressed by Lord Abinger in Reeves v. Templar, 2 Jur. 137. He said: 'Before
that statute a practice had arisen of considering that the question, libel
or no libel, was always for the court, independent of the intention and
meaning of the party publishing. That statute corrected the error, and now,
if the intention does not appear on the body of the libel, a variety of
circumstances are to be left to the jury from which to infer it; but it was
never intended to take from the court the power of deciding whether certain
words are, per se, libelous or not.' The rule that jurors do not respond to
questions of law was illustrated in Bishop of Meath v. Marquis of
Winchester, 4 Clark & F. 445, 556, 557, where Lord Chief Justice Tindal,
delivering the unanimous opinion of the judges, said: 'With respect to the
second question lastly above proposed to us, viz. whether, if the fine were
received in evidence it ought to be left to the jury to say whether it
barred the action of quare impedit, we all think that the legal effect of
such fine as a bar to the action of quare impedit is a matter of law merely,
and not in any way a matter of fact; and, consequently, the judge who tried
the cause should state to the jury whether, in point of law, the fine had
that effect, or what other effect, on the rights of the litigant parties,
upon the general and acknowledged principle 'ad quaestionem juris non
respondent juratores."
Briefly stated, the contention of the accused is that, although there may
not have been any evidence whatever to support a verdict of guilty of an
offense less than the one charged, -- and such was the case here, -- yet, to
charge the jury, as matter of law, that the evidence in the case did not
authorize any verdict except one of guilty or one of not guilty of the
particular offense charged, was an interference with their legitimate
functions, and therefore with the constitutional right of the accused to be
tried by a jury.
The error in the argument on behalf of the accused is in making the general
rule as to the respective functions of court and jury applicable equally to
a case in which there is some substantial evidence to support the particular
right asserted and a case in which there is an entire absence of evidence to
establish such right. In the former class of cases the court may not,
without impairing the constitutional right of trial by jury, do what, in the
latter cases, it may often do without at all intrenching upon the
constitutional functions of the jury. The law makes it the duty of the jury
to return a verdict according to the evidence in the particular case before
them. But, if there are no facts in evidence bearing upon the issue to be
determined, it is the duty of the court, especially when so requested, to
instruct them as to the law arising out of that state of case. So, if there
be some evidence bearing upon a particular issue in a cause, but it is so
meager as not, in law, to justify a verdict in favor of the party producing
it, the court is in the line of duty when it so declares to the jury.
Pleasants v. Fant. 22 Wall. 116, 121; Montclair v. Dana, 107 U.S. 162, 2
Sup. Ct. 403; Randall v. Railroad Co., 109 U.S. 478, 482, 3 S. Sup. Ct. 322;
Schofield v. Railway Co., 114 U.S. 615, 619, 5 S. Sup. Ct. 1125; Marshall v.
Hubbard, 117 U.S. 415, 419, 6 S. Sup. Ct. 806; Meehan v. Valentine, 145 U.S.
611, 625, 12 S. Sup. Ct. 972.

The cases just cited were, it is true, of a civil nature; but the rules they
announce are, with few exceptions, applicable to criminal causes, and
indicate the true test for determining the respective functions of court and
jury. Who can doubt, for instance, that the court has the right, even in a
capital case, to instruct the jury as matter of law to return a verdict of
acquittal on the evidence adduced by the prosecution? Could it be said, in
view of the established principles of criminal law, that such an instruction
intrenched upon the province of the jury to determine from the evidence
whether the accused was guilty or not guilty of the offense charaged, or of
some lesser offense included in the one charged? Under a given state of
facts, outlined in an instruction to the jury, certain legal presumptions
may arise. May not the court tell the jury what those presumptions are, and
should not the jury assume that they are told truly? If the court excludes
evidence given in the hearing of the jury, and instructs them to disregard
it altogether, is it not their duty to obey that instruction, whatever may
be their view of the admissibilty of such evidence? In Smith v. U. S., 151
U.S. 50, 55, 14 S. Sup. Ct. 234, which was an indictment for the murder, in
the Indian Territory, of one Gentry,'a white man, and not an Indian,' we
said: 'That Gentry was a white man, and not an Indian, was a fact which the
government was bound to establish, and, if it failed to introduce any
evidence upon that point, defendant was entitled to an instruction to that
effect. Without expressing any opinion as to the correctness of the legal
propositions embodied in this charge, we think there was no testimony which
authorized the court to submit to the jury the question whether Gentry was a
white man and not an Indian. The objection went to the jurisdiction of the
court, and, if no other reasonable inference could have been drawn from the
evidence that Gentry was an Indian, defendant, was entitled, as matter of
law, to an acquittal,' -- citing Pleasants v. Fant, 22 Wall. 116;
Commissioners v. Clark. 94 U.S. 278; and Marshall v. Hubbard, 117 U.S. 415,
6 Sup. Ct. 806. So, in this case, it was competent for the court to say to
the jury that, on account of the absence of all evidence tending to show
that the defendants were guilty of manslaughter, they could not,
consistently with law, return a verdict of guilty of that crime.
Any other rule than that indicated in the above observations would bring
confusion and uncertainty in the administration of the criminal law. Indeed,
if a jury may rightfully disregard the direction of the court in matter of
law, and determine for themselves what the law is in the particular case
before them, it is difficult to perceive any legal ground upon which a
verdict of conviction can be set aside by the court as being against law. If
it be the function of the jury to decide the law as well the facts, -- if
the function of the court be only advisory as to the law, -- why should the
court interfere for the protection of the accused against what it deems an
error of the jury in matter of law?
Public and private safety alike would be in peril if the principle be

established that juries in criminal cases may, of right, disregard the law
as expounded to them by the court, and become a law unto themselves. Under
such a system, the principal function of the judge would be to preside and
keep order while jurymen, untrained in the law, would determine questions
affecting life, liberty, or property according to such legal principles as,
in their judgment, were applicable to the particular case being tried. If
because, generally speaking, it is the function of the jury to determine the
guilt or innocence of the accused according to the evidence, of the truth or
weight of which they are to judge, the court should be held bound to
instruct them upon a point in respect to which there was no evidence
whatever, or to forbear stating what the law is upon a given state of facts,
the result would be that the enforcement of the law against criminals, and
the protection of citizens against unjust and groundless prosecutions, would
depend entirely upon juries uncontrolled by any settled, fixed, legal

principles. And if it be true that a jury in a criminal case are under no

legal obligation to take the law from the court, and may determine for
themselves what the law is, it necessarily results that counsel for the
accused may, of right, in the presence of both court and jury, contend that
what the court declares to be the law applicable to the case in hand is not
the law, and, in support of his contention, read to the jury the reports of
adjudged cases, and the views of elementary writers. Undoubtedly, in some
jurisdictions, where juries in criminal cases have the right, in virtue of
constitutional or statutory provisions, to decide both law and facts upon
their own judgment as to what the law is and as to what the facts are, it
may be the privilege of counsel to read and discuss adjudged cases before
the jury. And in a few jurisdictions, in which it is held that the court
alone responds as to the law, that practice is allowed in deference to long
usage. But upon principle, where the matter is not controlled by express
constitutional or statutory provisions, it cannot be regarded as the right
of counsel to dispute before the jury the law as declared by the court.
Under the contrary view -- if it be held that the court may not
authoritatively decide all questions of law arising in criminal cases -- the
result will be that when a new trial in a criminal case is ordered, even by
this court, the jury, upon such trial, may of right return a verdict based
upon the assumption that what this court has adjudged to be law is not law.
We cannot give our sanction to any rule that will lead to such a result. We
must hold firmly to the doctrine that in the courts of the United States it
is the duty of juries in criminal cases to take the law from the court, and
apply that law to the facts as they find them to be from the evidence. Upon
the court rests the responsibility of declaring the law; upon the jury, the
responsibility of applying the law so declared to the facts as they, upon
their conscience, believe them to be. Under any other system, the courts,
although established in order to declare the law, would for every practical
purpose be eliminated from our system of government as instrumentalities
devised for the protection equally of society and of individuals in their
essential rights. When that occurs our government will cease to be a
government of laws, and become a government of men. Liberty regulated by law
is the underlying principle of our institutions.
To instruct the jury in a criminal case that the defendant cannot properly
be convicted of a crime less than that charged, or to refuse to instruct
them in respect to the lesser offenses that might, under some circumstances,
be included in the one so charged -- there being no evidence whatever upon
which any verdict could be properly returned except one of guilty or one of
not guilty of the particular offense charged -- is not error; for the
instructing or refusing to instruct, under the circumstances named, rests
upon legal principles or presumptions which it is the province of the court
to declare for the guidance of the jury. In the case supposed the court is
as clearly in the exercise of its legitimate functions as it is when ruling
that particular evidence offered is not competent, or that evidence once
admitted shall be stricken out and not be considered by the jury, or when it
withdraws from the jury all proof of confessions by the accused upon the
ground that such confessions, not having been made freely and voluntarily,
are inadmissible under the law as evidence against the accused.
These views are sustained by a very great weight of authority in this

country. In People v. Barry, 90 Cal. 41, 27 Pac. 62 (which was a criminal
prosecution for an assault with intent to commit robbery, the accused having
been twice before convicted of petit larceny), it was held not to be error
to refuse to instruct the jury that under the charge they might find him
guilty of simple assault, because 'the evidence tended to show that he was
guilty of the crime charged or of no offense at all,' and therefore 'the
instruction asked was not applicable to the facts of the case'; in People v.
McNutt, 93 Cal. 658, 29 Pac. 243 (the offense charged being an assault with
a deadly weapon and with intent to commit murder), that an instruction that

the jury might convict of a simple assault could have been properly refused,
because,'under the evidence, he was either guilty of an offense more
serious than simple assault, or he was not guilty'; in Clark v. Com., 123
Pa. St. 81, 16 Atl. 795 (a case of murder), that the omission of an
instruction on the law of voluntary manslaughter, and the power of the jury
to find it, was not error, because the murder was deliberate murder, and
'there was no evidence on which it could be reduced to a milder form of
homicide'; in State v. Lane, 64 Mo. 319, 324 (which was an indictment for
murder in the first degree), that,'if the evidence makes out a case of
murder in the first degree, and applies to that kind of killing, and no
other, the court would commit no error in confining its instructions to that
offense, and refusing to instruct either as to murder in the second degree
or manslaughter in any of its various degrees,' and when an instruction 'is
given for any less grade of offense, and there is no evidence upon which to
base it,' the judgment should be reversed for error; in McCoy v. State, 27
Tex. App. 415, 11 S. W. 454 (the charge being murder of the first degree),
that the refusal to charge the law of murder in the second degree was not
error, for the reason that, if the defendant was 'criminally responsible at
all for the homicide, the grade of the offense under the facts is not short
of murder of the first degree'; in State v. McKinney, 111 N. C. 683, 16 S.
E. 235 (a murder case), that, as there was no testimony on either side
tending to show manslaughter, a charge that there was no element of
manslaughter in the case, and that the defendant was guilty of murder or not
guilty of anything at all, as the jury should find the facts, was strictly
in accordance with the testimony and the precedents; in State v. Musick, 101
Mo. 261, 270, 14 S. W. 212 (where the charge was an assault with malice
aforethought, punishable by confinement in the penitentiary), that an
instruction looking to a conviction for a lower grade, included in the
offense charged, was proper where there was evidence justifying it; in State
v. Casford, 76 Iowa, 332, 41 N. W. 32, that the defendant, so charged in an
indictment that he could be convicted of rape, an assault to commit rape, or
an assault and battery, was not prejudiced by the omission of the court to
instruct the jury that he would be convicted of a simple assault, there
being no evidence to authorize a verdict for the latter offense; in Jones v.
State, 52 Ark. 346, 12 S. W. 704 (a murder case), that it was not error to
refuse to charge as to a lower grade of offense, there being 'no evidence of
any crime less than murder in the first degree,' and the defendant being,
therefore, guilty of 'murder in the first degree, or innocent'; in
McClernand v. Com. (Ky.) 12 S. W. 148, and in O'Brien v. Com., 89 Ky. 354,
12 S. W. 471 (murder cases), that an instruction as to manslaughter need
not be given, unless there is evidence to justify it; in State v. Estep, 44
Kan. 575, 24 Pac. 986 (a case of murder of the first degree), that there was
no testimony tending to show that the dependant was guilty of manslaughter
in either the first, second, or fourth degree, instructions as to those
degrees should not have been given; and in Robinson v. State, 84 Ga. 674, 11
S. E. 544 (a case of assault with intent to murder), that the refusal to
instruct the jury that the defendant could have been found guilty of an
assault, or of assault and battery, was not error,'for there was nothing in
the evidence to justify the court in so instructing the jury.'
We have said that, with few exceptions, the rules which obtain in civil
cases in relation to the authority of the court to instruct the jury upon
all matters of law arising upon the issues to be tried, are applicable in
the trial of criminal cases. The most important of those exceptions is that
it is not competent for the court, in a criminal case, to instruct the jury
peremptorily to find the accused guilty of the offense charged, or of any
criminal offense less than that charged. The grounds upon which this
exception rests were well stated by Judge McCrary, Mr. Justice Miller
concurring, in U. S. v. Taylor, 3 McCrary, 500, 505, 11 Fed. 470. It was
there said: 'In a civil case, the court may set aside the verdict, whether
it be for the plaintiff or defendant, upon the ground that it is contrary to

the law as given by the court; but in a criminal case, if the verdict is one
of acquittal, the court has no power to set it aside. It would be a useless
form for a court to submit a civil case, involving only questions of law, to
the consideration of a jury, where the verdict, when found, if not in
accordance with the court's view of the law, would be set aside. The same
result is accomplished by an instruction given in advance to find a verdict
in accordance with the court's opinion of the law. But not so in criminal
cases. A verdict of acquittal cannot be set aside; and therefore, if the
court can direct a verdict of guilty, it can do indirectly that which it has
on power to do directly.'
We are of opinion that the court below did not err in saying to the jury
that they could not, consistently with the law arising from the evidence,
find the defendants guilty of manslaughter, or of any offense less than the
one charged; that if the defendants were not guilty of the offense charged,
the duty of the jury was to return a verdict of not guilty. No instruction
was given that questioned the right of the jury to determine whether the
witnesses were to be believed or not, nor whether the defendant was guilty
or not guilty of the offense charged. On the contrary, the court was careful
to say that the jury were the exclusive judges of the facts, and that they
were to determine -- applying to the facts the principles of law announced
by the court -- whether the evidence established the guilt or innocence of
the defendants of the charge set out in the indictment.
The trial was thus conducted upon the theory that it was the duty of the
court to expound the law, and that of the jury to apply the law as thus
declared to the facts as ascertained by them. In this separation of the
functions of court and jury is found the chief value, as well as safety, of
the jury system. Those functions cannot be confounded or disregarded without
endangering the stability of public justice, as well as the security of
private and personal rights.
The main reason ordinarily assigned for a recognition of the right of the
jury, in a criminal case, to take the law into their own hands, and to
disregard the directions of the court in matters of law, is that the safety
and liberty of the citizen will be thereby more certainly secured. That view
was urged upon Mr. Justice Curtis. After stating that, if he conceived the
reason assigned to be well founded, he would pause long before denying the
existence of the power claimed, he said that a good deal of reflection had
convinced him that the argument was the other way. He wisely observed that:
'As long as the judges of the United States are obliged to express their
opinions publicly, to give their reasons for them when called upon in the
usual mode, and to stand responsible for them, not only to public opinion,
but to a court of impeachment, I can apprehend very little danger of the
laws being wrested to purposes of injustice. But, on the other hand, I do
consider that this power and corresponding duty of the court authoritatively
to declare the law is one of the highest safeguards of the citizen. The sole
end of courts of justice is to enforce the laws uniformly and impartially,
without respect of persons or times or the opinions of men. To enforce
popular laws is easy. But when an unpopular cause is a just cause; when a
law, unpopular in some locality, is to be enforced, -- there then comes the
strain upon the administration of justice; and few unprejudiced men would
hesitate as to where that strain would be most firmly borne.' U. S. v.
Morris, 1 Curt. 62, 63, Fed. Cas. No. 15, 815.
The questions above referred to are the only ones that need be considered on
this writ of error.
Mr. Justice JACKSON participated in the decision of this case, and concurs
in the views herein expressed.

The judgment of the circuit court is affirmed as to Hansen, but is reversed

as to Sparf, with directions for a new trial as to him.
(Jan. 14, 1895.)
Footnotes
1. Foreman: There is one of us who wishes to be instructed by your honor as

to certain points upon the question of United States marine laws in regard
to murder on the high seas.
Court: The instruction which I gave you, gentlemen, in regard to the law
upon which the indictment was based, was section 5339 of the Revised
Statutes, which I will read to you again. Juror: Your honor, I would like to
know in regard to the interpretation of the laws of the United States in
regard to manslaughter, as to whether the defendants can be found guilty of
manslaughter, or that the defendants must be found guilty.
Court: I will read the section to you, and see if that touches the
proposition. The indictment is based upon section 5339, which provides,
among other things,'that every' person who commits murder upon the high
seas, or in any arm of the sea, or in any river, haven, creek, basin, or bay
within the admiralty and maritime jurisdiction of the United States, and out
of the jurisdiction of any particular state, or who, upon any such waters,
maliciously strikes, stabs, wounds, poisons,'or shoots any other person, of
which striking, stabbing, wounding, poisoning, or shooting such other person
dies on land or at sea, within or without the United States, shall suffer
death.' Hence that is the penalty for the offense described in the
indictment. I have given you the definition of 'murder.' If you remember it,
you will connect it with these words: 'Every person who commits murder upon
the high seas, or in any arm of the sea, or in any river, haven,' etc.
Juror: Are the two words 'aiding' or 'abeting' defined? Court: The words
'aiding' or 'abetting' are not defined, but I have instructed you as to the
legal effect of aiding and abetting, and this you should accept as law. If I
have made an error, there is a higher tribunal to correct it.
Juror: I am the spokesman for two of us. We desire to clearly understand the
matter. It is a barrier in our mind to our determining the matter. The
question arising amongst us is to aiding and abetting.
FJ: Furthermore, as I understand, it must be one thing or the other. It must

be guilty or not guilty. Court: Yes; under the instructions I have given
you. I will read them to you again, so as to be careful, and that you may
understand. Murder is the unlawful killing of a human being in the peace of
the state, with malice aforethought, either express or implied. I defined to
you what malice was, and I assume you can recall my definition to your
minds. Manslaughter is the unlawful killing of a human being without malice,
either express or implied. I do not consider it necessary to explain it
further. If a felonious homicide has been committed by either of the
defendants, of which you are to be the judges from the proof, there is
nothing in this case to reduce it below the grade of murder.
Juror: Then, as I understand your honor clearly, there is nothing about

manslaughter in this court? Court: No; I do not wish to be so understood. A
verdict must be based on evidence, and in a proper case a verdict for
manslaughter may be rendered.
Juror: A crim committed on the high seas must have been murder, or can it be
manslaughter? Court: In a proper case, it may be murder, or it may be
manslaughter; but in this case it cannot be properly manslaughter. As I have

said, if a felonious homicide has been committed, the facts of the case do
not reduce it below murder. Do not understand me to say that manslaughter or
murder has ben committed. That is for you gentlemen to determine, from the
testimony and the instructions I have given you.... Mr. Smith: We take an
exception. Juror: We have got to bring a verdict for either manslaughter or
murder? Court: Do not misunderstand me. I have not said so. Juror: I know
you have not. Court: I cannot direct you what conclusion to come to from the
facts. I direct you only as to the law. A judgment on the facts is your
province.
Mr. Garter: Any I ask the court to instruct this jury that in cases where
persons are being upon a charge of murder, and the facts proven at their
trial show that the defendants are guilty of manslaughter, under an
indictment, they may find him guilty of manslaughter, as a general rule;
but, however, if the facts show that the defendants have been guilty of
murder; and that, in this case, there is no evidence tending to establish
the crime or offense of manslaughter --
Mr. Smith: It is the province of the jury. Court: I have already so

instructed the jury. I have endeavored to make mayself understood. Juror: If
we bring in a verdict of guilty, that is capital punishment? Court: Yes.
Juror: Then there is no other verdict we can bring in except guilty or not
guilty? Court: In a proper case, a verdict for manslaughter may be rendered,
as the district attorney has stated, and even in this case you have the
physical power to do so; but, as one of the tribunals of the country, a jury
is expected to be governed by law, and the law it should receive from the
court. Juror: There has been a misunderstanding amongst us. Now it is
clearly interpreted to us, and no doubt we can now agree on certain facts.
2. People v. Wright, 93 Cal. 564, 29 Pac. 240; Brown v. Com., 87 Va. 215, 12
S. E. 472; People v. Barry, 90 Cal. 41, 27 Pac. 62; People v. Madden, 76
Cal. 521, 18 Pac. 402; State v. Jeandell, 5 Har. (Del.) 475; State v.
Wright, 53 Me. 328; Com. v. Van Tuyl, 1 Metc. (Ky.) 1; Montgomery v. State,
11 Ohio, 427; Adams v. State, 29 Ohio St. 412; Robbins v. State, 8 Ohio St.
131, 167; Williams v. State, 32 Miss. 389, 396; Pleasant v. State, 13 Ark.
360, 372; Robinson v. State, 66 Ga. 517; Brown v. State, 40 Ga. 689, 695;
Hunt v. State (Ga.) 7 S. E. 142; State v. Drawdy, 14 Rich. Law, 87; Nels v.
Republic, 2 Tex. 280; Myers v. State, 33 Tex. 525; State v. Jones, 64 Mo.
391; Hardy v. State, 7 Mo. 607; State v. Elwood, 73 N. C. 189; State v.
McLain, 104 N. C. 894, 10 S. E. 518; People v. Neumann, 85 Mich. 98, 48 N.
W. 290; State v. Johnson, 30 La. Ann. pt. 1, p. 904; State v. Ford, 37 La.
Ann. 443, 465; Fisher v. Railway Co., 131 Pa. St. 292, 297, 18 Atl. 1016;
Railway Co. v. Hutchinson, 40 Kan. 51, 19 Pac. 312.


Mr. Justice BREWER, dissenting.
I concur in the views expressed in the opinion of the court as to the separate functions of court and jury,
and in the judgment of affirmance against Hansen; but I do not concur in holding that the trial court erred
in admitting evidence of confessions, or in the judgment of reversal as to Sparf.
The facts, briefly stated, are these: There was a single indictment, charging the defendants jointly with
the crime of murder. There was a single case on trial, — a case in which the government was the party on
one side and the two defendants the party on the other. These two defendants were represented by the
same counsel. Three witnesses testified to confessions of Hansen. Counsel for defendants objected to
each of these confessions. These objections were in the same form. They purported to be for the
defendants jointly, and not separately for each. Two of the confessions were given in the presence of
Sparf, and in admitting them it is not pretended that there was any error. One was made in the absence of
Sparf, and it is held that the court erred in overruling the objection to it. The objection was that the
testimony offered was 'irrelevant, immaterial, and incompetent, and upon the ground that any statement
made by Hansen was not, and could not be, voluntary.' It will be noticed that this objection was both
general and special; the special ground — that which would naturally arrest the attention of the court —
being that the confession was not voluntary. This ground of objection, it is admitted, was not well taken.
If there was any error it was in overruling the general objection that the testimony was irrelevant,
immaterial, and incompetent. But it is conceded that this confession was material, relevant, and
competent, was properly admitted in evidence on the single trial then pending, and properly heard by the
jury. The real burden of complaint is that, when the court admitted the testimony, it ought to have
instructed the jury that it was evidence only against Hansen, and not against Sparf. But, in common
fairness, ought not the attention of the court to have been called to the difference, and a ruling had upon
that difference? Cannot parties present a joint objection to testimony, and rest their case upon such
objection? Is it the duty of the court to consider a matter which is not called to its attention, and make a
ruling which it is not asked to make? Is it not the duty of the court to be impartial between the
government and the defendant, and decide simply the questions which each party presents? Is it its duty
to watch over the interests of either party, and to put into the mouth of counsel an objection which he
does not make? To my mind, such a doctrine is both novel and dangerous. I do not question the
proposition that a confession made by one of two defendants in the absence of the other is to be
considered by the jury only as against the one making it, and I admit that, if a separate objection had been
made by Sparf, the court would have been called upon to formally sustain such objection, and instruct the
jury that such testimony was to be considered by them only as against Hansen. If an instruction had been
asked, as is the proper way, the attention of the court would have been directed to the matter, and an
adverse ruling would have rightly presented the error which is now relied upon. But I need not refer to
the oft-repeated decisions of this court that there is no error in failing to give an instruction which is not
asked, unless it be one of those which a statute in terms requires the court to give, and there is no
pretense of any such statute. Lewis v. Lee Co., 66 Ala. 480, 489, was decided in accordance with the
views which I have expressed. The court in that case say:
● 'The witness Frazier's testimony as to his conversation with the defendant Lewis regarding the
condition of his accounts as county treasurer was properly admitted in evidence. It was certainly
good as an admission against him, and could not be excluded because not admissible against the
sureties, who were his codefendants in the action. The practice on this point is well settled in this

state that the only remedy of a codefendant in such a case is to request a charge from the court to
the jury, limiting the operation of the evidence, so as to confine its influence only to the defendant
against whom it is admissible.'
So in State v. Brite, 73 N. C. 26, 28, a similar ruling was made, the court saying:
● 'The defendant's first exception is that his honor allowed Culpepper, a codefendant, to introduce
witnesses to prove his (Brite's) declarations while in jail, which tended to exonerate Culpepper.'
● 'While these declarations are not evidence, either for or against Culpepper, being, as to him, res
inter alios acta, and made by one not under oath and subject to cross-examination, yet they are
clearly admissible against Brite, and it makes no difference whether they were called forth by the
state, or by Culpepper, without objection, or rather with the sanction of the state.'
I have been able to find no case laying down a contrary doctrine. In Insurance Co. v. Hillmon, 145 U.S.
285, 12 Sup. Ct. 909, each defendant separately for itself presented the objection, and each, therefore,
had the right to avail itself of the ruling made by the court. Indeed, I think this will be found to be the
first case in which it has been held that, while the court properly allowed testimony to go to the jury on
the trial of a case, the judgment has been reversed because it failed to call the attention of the jury to the
bearing of that evidence upon the different parties when such parties never asked the court to so instruct
the jury.
I am authorized to say that Mr. Justice BROWN concurs in these views.
(Jan. 21, 1895.)

Mr. Justice BREWER, dissenting.
I concur in the views expressed in the opinion of the court as to the

separate functions of court and jury, and in the judgment of affirmance
against Hansen; but I do not concur in holding that the trial court erred in
admitting evidence of confessions, or in the judgment of reversal as to
Sparf.
The facts, briefly stated, are these: There was a single indictment,
charging the defendants jointly with the crime of murder. There was a single
case on trial, -- a case in which the government was the party on one side
and the two defendants the party on the other. These two defendants were
represented by the same counsel. Three witnesses testified to confessions of
Hansen. Counsel for defendants objected to each of these confessions. These
objections were in the same form. They purported to be for the defendants
jointly, and not separately for each. Two of the confessions were given in
the presence of Sparf, and in admitting them it is not pretended that there
was any error. One was made in the absence of Sparf, and it is held that the
court erred in overruling the objection to it. The objection was that the
testimony offered was 'irrelevant, immaterial, and incompetent, and upon the
ground that any statement made by Hansen was not, and could not be,
voluntary.' It will be noticed that this objection was both general and
special; the special ground -- that which would naturally arrest the
attention of the court -- being that the confession was not voluntary. This
ground of objection, it is admitted, was not well taken. If there was any
error it was in overruling the general objection that the testimony was
irrelevant, immaterial, and incompetent. But it is conceded that this
confession was material, relevant, and competent, was properly admitted in
evidence on the single trial then pending, and properly heard by the jury.
The real burden of complaint is that, when the court admitted the testimony,
it ought to have instructed the jury that it was evidence only against
Hansen, and not against Sparf. But, in common fairness, ought not the
attention of the court to have been called to the difference, and a ruling
had upon that difference? Cannot parties present a joint objection to
testimony, and rest their case upon such objection? Is it the duty of the
court to consider a matter which is not called to its attention, and make a
ruling which it is not asked to make? Is it not the duty of the court to be
impartial between the government and the defendant, and decide simply the
questions which each party presents? Is it its duty to watch over the
interests of either party, and to put into the mouth of counsel an objection
which he does not make? To my mind, such a doctrine is both novel and
dangerous. I do not question the proposition that a confession made by one
of two defendants in the absence of the other is to be considered by the
jury only as against the one making it, and I admit that, if a separate
objection had been made by Sparf, the court would have been called upon to
formally sustain such objection, and instruct the jury that such testimony
was to be considered by them only as against Hansen. If an instruction had
been asked, as is the proper way, the attention of the court would have been
directed to the matter, and an adverse ruling would have rightly presented
the error which is now relied upon. But I need not refer to the oft-repeated
decisions of this court that there is no error in failing to give an
instruction which is not asked, unless it be one of those which a statute in
terms requires the court to give, and there is no pretense of any such
statute. Lewis v. Lee Co., 66 Ala. 480, 489, was decided in accordance with
the views which I have expressed. The court in that case say:
'The witness Frazier's testimony as to his conversation with the

defendant Lewis regarding the condition of his accounts as
county treasurer was properly admitted in evidence. It was

certainly good as an admission against him, and could not be

excluded because not admissible against the sureties, who were
his codefendants in the action. The practice on this point is well
settled in this state that the only remedy of a codefendant in such
a case is to request a charge from the court to the jury, limiting
the operation of the evidence, so as to confine its influence only
to the defendant against whom it is admissible.'
So in State v. Brite, 73 N. C. 26, 28, a similar ruling was made, the

court saying:
'The defendant's first exception is that his honor allowed

Culpepper, a codefendant, to introduce witnesses to prove his
(Brite's) declarations while in jail, which tended to exonerate
Culpepper.'
'While these declarations are not evidence, either for or against

Culpepper, being, as to him, res inter alios acta, and made by
one not under oath and subject to cross-examination, yet they
are clearly admissible against Brite, and it makes no difference
whether they were called forth by the state, or by Culpepper,
without objection, or rather with the sanction of the state.'
I have been able to find no case laying down a contrary doctrine. In

Insurance Co. v. Hillmon, 145 U.S. 285, 12 Sup. Ct. 909, each defendant
separately for itself presented the objection, and each, therefore, had the
right to avail itself of the ruling made by the court. Indeed, I think this
will be found to be the first case in which it has been held that, while the
court properly allowed testimony to go to the jury on the trial of a case,
the judgment has been reversed because it failed to call the attention of
the jury to the bearing of that evidence upon the different parties when
such parties never asked the court to so instruct the jury.
I am authorized to say that Mr. Justice BROWN concurs in these

views.
(Jan. 21, 1895.)


Mr. Justice GRAY, with whom concurred Mr. Justice SHIRAS, dissenting.
Mr. Justice SHIRAS and myself concur in so much of the opinion of the majority of the court as awards
a new trial to one of the defendants by reason of the admission in evidence against him of confessions
made in his absence by the other.
But from the greater part of that opinion, and from the affirmance of the conviction of the other
defendant, we are compelled to dissent, because, in our judgment, the case, involving the question of life
or death to the prisoners, was not submitted to the decision of the jury as required by the constitution and
laws of the United States.
The two defendants, Herman Sparf and Hans Hansen, together with Thomas St. Clair, seamen on board
the brig Hesper, an American vessel, were indicted for the murder of Maurice Fitzgerald, the second
mate, on the high seas, on January 13, 1893, by striking him with a weapon, and by throwing him
overboard and drowning him.
St. Clair was separately tried, convicted, and sentenced, and his conviction was affirmed by this court at
the last term. 154 U.S. 134, 14 Sup. Ct. 1002. At the trial of Sparf and Hansen, there was no direct
testimony of any eyewitness to the killing, or to any assault or affray. There was evidence that at 10
o'clock in the evening of the day in question the second mate was at the wheel, in charge of the starboard
watch, consisting of St. Clair, Sparf, Hansen, and another seaman; and that, when the watch was changed
at midnight, the second mate could not be found, and there was much blood on the deck, as well as a
bloody broomstick and a wooden bludgeon. The rest of the evidence consisted of testimony of other
seamen to acts and statements of each defendant and of St. Clair, before and after the disappearance of
the second mate, tending to prove a conspiracy to kill him; and to subsequent confessions of Hansen,
tending to show that the killing was premeditated.
The judge, in his charge to the jury, gave the following instructions: 'The indictment is based upon
section 5339 of the Revised Statutes, which provides, among other things, that 'every person who
commits murder' 'upon the high seas, or in any arm of the sea, or in any river, haven, creek, basin or bay,
within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any
particular state, or who upon any of such waters maliciously strikes, stabs, wounds, poisons or shoots at
any other person, of which striking, stabbing, wounding, poisoning or shooting such other person dies,
either on land or at sea, within or without the United States, shall suffer death."
● 'Murder is the unlawful killing of a human being in the peace of the state, with malice
aforethought, express or implied.' 'Express malice' was defined as 'deliberate premeditation and
design, formed in advance, to kill or to do bodily harm, the premeditation and design being
implied from external circumstances capable of proof, such as lying in wait, antecedent threats,
and concerted schemes against a victim'; and 'implied malice' as 'an inference of the law from any
deliberate and cruel act committed by one person against another,' 'that is, malice is inferred when
one kills another without provocation, or when the provocation is not great.' 'Manslaughter is the
unlawful killing of a human being without malice, either express or implied. I do not consider it
necessary, gentlemen, to explain it further; for, if a felonious homicide has been committed, — of
which you are to be the judges from the proof, — there is nothing in this case to reduce it below
the grade of murder.' 'Every person present at a murder, willingly aiding or abetting its
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perpetration, is guilty of murder, and may be indicted and convicted as principal in the first
degree.' 'It is not my purpose, nor is it my function, to assume any fact to be proven, nor to suggest
to you that any fact has been proven. You are the exclusive judges of the facts.'
The defendants requested the judge to instruct the jury that 'under the indictment in this case the
defendants may be convicted of murder or manslaughter or of an attempt to commit murder or
manslaughter; and if, after a full and careful consideration of all the evidence before you, you believe
beyond a reasonable doubt that the defendants are guilty either of manslaughter, or of an assault with
intent to commit murder or manslaughter, you should so find your verdict.' The judge refused to give this
instruction, and the defendants excepted to the refusal.
The jury, after deliberating on the case for some time, returned into court, and, being asked whether they
had agreed upon a verdict, the foreman said that one of the jurors wished to be instructed upon certain
points under the laws of the United States as to murder upon the high seas. One of the jurors then said
that he 'would like to know, in regard to the interpretation of the laws of the United States in regard to
manslaughter, as to whether the defendants can be found guilty of manslaughter, or that the defendants
must be found guilty,' evidently meaning 'of murder,' the whole offense charged in the indictment. The
judge then read again section 5339 of the Revised Statutes. The juror asked. 'Are the two words 'aiding'
or 'abetting' defined?' The judge replied: 'The words 'aiding or abetting' are not defined. But I have
instructed you as to the legal effect of aiding and abetting, and this you should accept as law. If I have
made an error, there is a higher tribunal to correct it.' The juror said: 'I am the spokesman for two of us.
We desire to clearly understand the matter. It is a barrier in our mind to our determining the matter. The
question arising amongst us is as to aiding and abetting. Furthermore, as I understand, it must be one
thing or the other. It must be either guilty or not guilty.' The judge replied: 'Yes, under the instructions I
have given you.' The judge, then, after repeating the general definitions, as before given, of murder and
of manslaughter, said: 'If a felonious homicide has been committed by either of the defendants, — of
which you are to be the judges from the proof, — there is nothing in this case to reduce it below the
grade of murder;' and in answer to further questions of the juror repeated this again and again, and said:
'In a proper case, it may be murder, or it may be manslaughter, but in this case it cannot properly be
manslaughter.' The defendants excepted to these instructions. And finally, in answer to the juror's direct
question, 'Then there is no other verdict we can bring in, except guilty or not guilty?' the judge said: 'In a
proper case, a verdict for manslaughter may be rendered, as the district attorney has stated; and even in
this case you have the physical power to do so; but, as one of the tribunals of the country, a jury is
expected to be governed by law, and the law it should receive from the court.' The juror then said: 'There
has been a misunderstanding amongst us. Now, it is clearly interpreted to us, and no doubt we can now
agree on certain facts.' Thereupon a verdict of guilty of murder was returned against both defendants, and
they were sentenced to death, and sued out this writ of error.
The judge, by instructing the jury that they were bound to accept the law as given to them by the court,
denied their right to decide the law. And by instructing them that, if a felonious homicide by the
defendants was proved, there was nothing in the case to reduce it below the grade of murder, and they
could not properly find it to be manslaughter, and by declining to submit to them the question whether
the defendants were guilty of manslaughter only, he denied their right to decide the fact. The colloquy
between the judge and the jurors, when they came in for further instructions, clearly shows that the jury,
after deliberating upon the case, were in doubt whether the crime which the defendants had committed
was murder or manslaughter; and that it was solely by reason of these instructions of the judge that they
returned a verdict of the higher crime.

It is our deep and settled conviction, confirmed by a re-examination of the authorities under the
responsibility of taking part in the consideration and decision of the capital case now before the court,
that the jury, upon the general issue of guilty or not guilty in a criminal case, have the right, as well as the
power, to decide, according to their own judgment and consciences, all questions, whether of law or of
fact, involved in that issue.
The question of the right of the jury to decide the law in criminal cases has been the subject of earnest
and repeated controversy in England and America, and eminent jurists have differed in their conclusions
upon the question. In this country, the opposing views have been fully and strongly set forth by
Chancellor Kent in favor of the right of the jury, and by Chief Justice Lewis against it, in People v.
Croswell, 3 Johns. Cas. 337; by Judge Hall in favor of the right, and by Judge Bennett against it, in State
v. Croteau, 23 Vt. 14; and by Chief Justice Shaw against the right, and by Mr. Justice Thomas in its
favor, in Com. v. Anthes, 5 Gray, 185.
The question of the right of the jury under the constitution of the United States cannot be usefully or
satisfactorily discussed without examining and stating the authorities which bear upon the scope and
effect of the provisions of the constitution regarding this subject. In pursuing this inquiry, it will be
convenient to consider, first, the English authorities; secondly, the authorities in the several colonies and
states of America; and lastly, the authorities under the national government of the United States.
By Magna Charta, no person could be taken or imprisoned or deprived of his freehold or of his liberties
or free customs, unless by the lawful judgment of his peers, or the law of the land, — 'nisi per legale
judicium parium suorum, vel per legem terrae.' Accordingly, by the law of England, at the time of the
discovery and settlement of this country by Englishmen, every subject (not a member of the house of
lords) indicted for treason, murder, or other felony had the right to plead the general issue of not guilty,
and thereupon to be tried by a jury; and, if they acquitted him the verdict of acquittal was conclusive, in
his favor, of both the law and the fact involved in the issue. The jury, in any case, criminal or civil, might
indeed, by finding a special verdict reciting the facts, refer a pure question of law to the court; but they
were not bound and could not be compelled to do so, even in a civil action.
By the statute of 2 Westm. (13 Edw. I.) c. 30, 'it is ordained that the justices assigned to take assizes shall
not compel the jurors to say precisely whether it be disseisin or not, so that they do shew the truth of the
fact, and require aid of the justices; but, if they of their own head will say that it is or is not disseisin,
their verdict shall be admitted at their own peril.' 1 St. Realm, 86. That statute, as Lord Coke tells us, was
declaratory of the common law; and before its enactment some justices directed juries to return general
verdicts, thus subjecting them to the peril of an attaint if they mistook the law. 2 Inst. 422, 425.
Littleton, speaking of civil actions in which the jury, upon the general issue pleaded, might return a
special verdict, says that, 'if they will take upon them the knowledge of the law upon the matter, they
may give their verdict generally, as is put in their charge.' Co. Litt. 368. And accordingly Lord Coke
says: 'Although the jury, if they will take upon them (as Littleton here saith) the knowledge of the law,
may give a general verdict, yet it is dangerous for them so to do; for, if they do mistake the law, they run
into the danger of an attaint; therefore to find the special verdict is the safest, where the case is doubtful.'
Co. Litt. 227b.
Lord Coke elsewhere says that 'the jury ought, if they will not find the special matter, to find 'at their
peril' according to law.' Rawlyns' Case, 4 Coke, 52a, 53b. And Lord Chief Justice Hobart says: 'Legally it
will be hard to quit a jury that finds against the law, either common law or several statute law, whereof

all men were to take knowledge, and whereupon verdict is to be given, whether any evidence be given to
them or not,' and 'though no man informed them what the law was in that case.' Needler v. Bishop of
Winchester, Hob. 220, 227.
The peril or danger, above spoken of, into which the jury ran by taking upon themselves the knowledge
of the law, and undertaking to decide by a general verdict the law involved in the issue of fact submitted
to them, was the peril of an attaint, upon which their verdict might be set aside and themselves punished.
Upon the attaint, however, the trial was not by the court, but by a jury of twenty-four; it was only by a
verdict of the second jury, and not by judgment of the court only, that the first verdict could be set aside;
and, if not so set aside, the second verdict was final and conclusive. Co. Litt. 293a, 294b; Vin. Abr.
'Attaint,' A. (6); Com. Dig. 'Attaint,' B. Moreover, no attaint lay in a criminal case. Bushell's Case,
Vaughan, 135, 146; King v. Shipley, 4 Doug. 73, 115.
Lord Bacon, in his History of Henry VII. (originally written and published in English, and afterwards
translated into Latin by himself or under his supervision), speaking of the parliament held in the eleventh
year of his reign, says: 'This parliament also made that good law which gave the attaint upon a false
verdict between party and party, which before was a kind of evangile, irremediable, — in the Latin,
judicia juratorum, quae veredicta vocantur, quae ante illud tempus evangelii cujusdam instar erant, atque
plane irrevocabilia. It extends not to causes capital; as well because they are for the most part at the
king's suit, as because in them, if they be followed in course of indictment, there passeth a double jury,
the indictors and the triers, and so not twelve men, but four and twenty. But it seemeth that was not the
only reason; for this reason holdeth not in the appeal, — ubi causa capitalis a parte gravata peragitur.
[That is, the appeal of murder, brought by the heir of the deceased. See Railroad v. Clarke, 152 U.S. 230,
239, 14 S. Sup. Ct. 579.] But the great reason was, lest it should tend to the discouragement of jurors in
cases of life and death, — ne forte juratores in causis capitalibus timidius se gererent, — if they should
be subject to suit and penalty, where the favour of life maketh against them.' 6 Bac. Works (Ed. 1858) 5,
7, 160, 161; 5 Bac. Works (Ed. 1803) 117; 9 Bac. Works, 483.
Lord Bacon was mistaken in assuming that the attaint was introduced by the statute of 11 Hen. VII. c. 24;
for it existed at common law in writs of assize, and had been regulated and extended to other civil actions
by many earlier statutes. 2 Inst. 130, 237, 427; Finch, Law, lib. 4, c. 47.
But the mistake does not diminish the force of Lord Bacon's statements that, wherever an attaint did not
lie, the 'judgment of the jury, commonly called 'verdict,' was considered as a kind of gospel'; and that the
reasons why an attaint did not lie in a capital case were not only that two juries, the indictors and the
triers, had passed upon the case, but chiefly that juries, in cases of life and death, should not be
discouraged, or act timidly, by being subjected to suit and penalty if they decided in favor of life.
John Milton, in his Defence of the People of England, after speaking of the king's power in his courts and
through his judges, adds: 'Nay, all the ordinary power is rather the people's, who determine all
controversies themselves by juries of twelve men. And hence it is that when a malefactor is asked at his
arraignment, 'How will you be tried?' he answers always, according to law and custom, 'By God and my
country'; not by God and the king, or the king's deputy.' 8 Milton, Works (Pickering's Ed.) 198, 199, The
idea is as old as Bracton. Bract. 119.
In the reign of Charles II. some judges undertook to instruct juries that they must take the law from the
court, and to punish them if they returned a verdict in favor of the accused against the judge's
instructions. But, as often as application was made to higher judicial authority, the punishments were set

aside, and the rights of juries vindicated.

In 1665, upon the trial of an indictment against three Quakers for an unlawful conventicle. Wagstaffe and
other jurors were fined by Chief Justice Kelyng for acquitting 'against full evidence, and against the
direction of the court in matter of law, in said court openly given and declared,' — 'contra plenam
evidentiam, et contra directionem curiae in materia legis, in dicta curia ibidem aperte datam et
declaratam.' His reasons for this (as stated in his own manuscript note of the case, not included in the first
edition of his Reports, published by Lord Holt in 1708) were 'that they and others may know that a
willful jury cannot make an act of parliament or the law of England of no effect, but they are accountable
and punishable for it'; and 'that in criminal cases the court may fine a jury who will give a verdict
contrary to their evidence; and the reason (as I take it) is that otherwise a headstrong jury might
overthrow all the course of justice, for no attaint lieth in criminal causes, and also one verdict is
peremptory, and a new trial cannot be granted in criminal causes, and therefore the judges have always
punished such willful juries by fine and imprisonment and binding them to their good behaviour.' But at
the end of his report is this memorandum: 'Note. The whole Case of the Quakers, as to fining jury, now
not law.' J. Kelyng (3d Ed.) 69-75. And Lord Hale, then chief baron, tells us that the jurors 'were
thereupon committed, and brought their habeas corpus in the court of common bench, and all the judges
of England were assembled to consider of the legality of this fine, and the imprisonment thereupon'; and
the jurors were discharged of their imprisonment, for the following reasons:
● 'It was agreed by all the judges of England (one only dissenting) that this fine was not legally set
upon the jury, for they are the judges of matters of fact; and although it was inserted in the fine,
that it was contra directionem curiae in materia legis, this mended not the matter, for it was
impossible any matter of law could come in question till the matter of fact were settled and stated
and agreed by the jury, and of such matter of fact they were the only competent judges. And
although the witnesses might perchance swear the fact to the satisfaction of the court, yet the jury
are judges, as well of the credibility of the witnesses as of the truth of the fact; for possibly they
might know somewhat of their own knowledge that what was sworn was untrue, and possibly they
might know the witnesses to be such as they could not believe, and it is the conscience of the jury
that must pronounce the prisoner guilty or not guilty. And to say the truth, it were the most
unhappy case that could be to the judge, if he at his peril must take upon him the guilt or innocence
of the prisoner; and if the judge's opinion must rule the matter of fact, the trial by jury would be
useless.' 2 Hale, P. C. 312, 313.
Lord Hale's apparent meaning is that, at a trial upon the plea of not guilty, the jury are the judges of the
issue of fact thereby presented, and it is the conscience of the jury that must pronounce the prisoner
guilty or not guilty; that, as no matter of law can come in question unless the facts are first found by the
jury in a special verdict, it were idle to say that a general verdict was against the judge's direction or
opinion in matter of law; and that, if the judge's opinion in matter of law must rule the issue of fact
submitted to the jury, the trial by jury would be useless.
The reasons are more fully brought out in Bushell's Case, in 1670, not mentioned in the text of Lord
Hale's treatise, and doubtless decided after that was written. William Penn and William Mead having
been indicted and tried for a similar offense, and acquitted against the instructions of the court, Bushell
and the other jurors who tried them were fined by Sir John Howell, recorder of London, and Bushell was
committed to prison, in like terms, for not paying his fine, and sued out a writ of habeas corpus. Penn and
Mead's Case, 6 How. State Tr. 951; Bushell's Case, Vaughan, 135, 6 How. State Tr. 999; 1 Freem. 1; T.

Jones, 13.
At the hearing thereon, Scroggs, the king's serjeant, argued: 'It is granted that, in matters of fact only, the
jury are to be judges; but, when the matter of fact is mixed with matter of law, the law is to guide the
fact, and they are to be guided by the court. The jury are at no inconvenience, for if they please they may
find the special matter; but if they will take upon them to know the law, and do mistake, they are
punishable.' 1 Freem. 3.
But Bushell was discharged from imprisonment, for reasons stated in the judgment delivered by Sir John
Vaughan, chief justice of the common pleas, after a conference of all the judges of England, including
Lord Hale, and with the concurrence of all except Chief Justice Kelyng. Vaughan, 144, 145; 1 Freem. 5;
Lord Holt in Groenvelt v. Burwell, 1 Ld. Raym. 454, 470.
In that great judgment, as reported by himself, Chief Justice Vaughan discussed separately the two parts
of the return: First, that the acquittal was 'against full and manifest evidence'; and, second, that it was
'against the direction of the court in matter of law.'
It was in discussing the first part that he observed 'that the verdict of a jury and evidence of a witness are
very different things, in the truth and falsehood of them. A witness swears but to what he hath heard or
seen; generally or more largely, to what hath fallen under his senses. But a juryman swears to what he
can infer and conclude from the testimony of such witnesses, by the act and force of his understanding, to
be the fact inquired after, which differs nothing in the reason, though much in the punishment, from what
a judge, out of various cases by him, infers to be the law in the question before him.' Vaughan, 142.
After disposing of that part of the return, he proceeds as follows: 'We come now to the next part of the
return, viz.: That the jury acquitted those indicted against the direction of the court in matter of law,
openly given and declared to them in court.
● 'The words, 'that the jury did acquit, against the direction of the court in matter of law,' literally
taken, and de plano, are insignificant, and not intelligible; for on issue can be joined of matter of
law, no jury can be charged with the trial of matter in law barely, no evidence ever was or can be
given to a jury of what is law or not, nor no such oath can be given to or taken by a jury to try
matter in law, nor no attaint can lie for such a false oath. 'Therefore we must take off this vail and
color of words, which make a show of being something, and in truth are nothing.
● 'If the meaning of these words, 'finding against the direction of the court in matter of law,' be that
if the judge, having heard the evidence given in court (for he knows no other), shall tell the jury,
upon this evidence, the law is for the plaintiff, or for the defendant, and you are under the pain of
fine and imprisonment to find accordingly, then the jury ought of duty so to do. Every man sees
that the jury is but a troublesome delay, great charge, and of no use in determining right and
wrong, and therefore the trials by them may be better abolished than continued; which were a
strange new-found conclusion, after a trial so celebrated for many hundreds of years.
● 'For if the judge, from the evidence, shall by his own judgment first resolve upon any trial what the
fact is, and so knowing the fact shall then resolve what the law is, and order the jury penally to
find accordingly, what either necessary or convenient use can be fancied of juries, or to continue
trials by them at all?
● 'But if the jury be not obliged in all trials to follow such directions, if given, but only in some sort
of trials (as, for instance, in trials for criminal matters upon indictments or appeals), why then the

consequence will be, though not in all, yet in criminal trials, the jury (as of no material use) ought
to be either omitted or abolished, which were the greater mischief to the people than to abolish
them in civil trials.
● 'And how the jury should, in any other manner, according to the course of trials used, find against
the direction of the court in matter of law, is really not conceptible.' Vaughan, 143, 144.
He then observes: 'This is ordinary, when the jury find unexpectedly for the plaintiff or defendant, the
judge will ask, how do you find such a fact in particular? and upon their answer he will say, then it is for
the defendant, though they find for the plaintiff, or econtrario, contrario, and thereupon they rectify their
verdict. And in these cases the jury, and not the judge, resolve and find what the fact is. Therefore
always, in discreet and lawful assistance of the jury, the judge's direction is hypothetical, and upon
supposition, and not positive and upon coercion, viz.: If you find the fact thus (leaving it to them what to
find), then you are to find for the plaintiff; but if you find the fact thus, then it is for the defendant.' But
he is careful to add that 'whatsover they have answered the judge upon an interlocutory question or
discourse they may lawfully vary from it if they find cause, and are not thereby concluded.' Pages 144,
145.
It is difficult to exhibit the strength of Chief Justice Vaughan's reasoning by detached extracts from his
opinion. But a few other passages are directly in point:
● 'A man cannot see by another's eye, nor hear by another's ear; no more can a man conclude or infer
the thing to be resolved by another's understanding or reasoning; and though the verdict be right
the jury give, yet they, being not assured it is so from their own understanding, are forsworn, at
least in foro conscientiae.' Page 148.
● 'That decantatum in our books, 'ad quaestionem facti non respondent judices, ad quaestionem legis
non respondent juratores,' literally taken, is true; for if it be demanded, what is the fact? the judge
cannot answer it; if it be asked, what is the law in the case? the jury cannot answer it.' He then
explains this by showing that upon demurrers, special verdicts, or motions in arrest of judgment
'the jury inform the naked fact, and the court deliver the law.' 'But upon all general issues, as upon
not culpable pleaded in trespass, nil debet in debt, nul tort, nul disseisin in assize, ne disturba pas
in quare impedit, and the like, though it be matter of law whether the defendant be a trespasser, a
debtor, disseisor, or disturber, in the particular cases in issue, yet the jury find not (as in a special
verdict) the fact of every case by itself, leaving the law to the court, but find for the plaintiff or
defendant upon the issue to be tried, wherein they resolve both law and fact complicately, and not
the fact by itself; so as though they answer not singly to the question what is the law, yet they
determine the law in all matters, where issue is joined and tried in the principal case, but [i. e.
except] where the verdict is special.' Pages 149, 150.
He then observes that 'to this purpose the Lord Hobart in Needler's Case against the Bishop of
Winchester is very apposite,' citing the passage quoted near the beginning of this opinion; and concluded
his main argument as follows:
● 'The legal verdict of the jury, to be recorded, is finding for the plaintiff or defendant; what they
answer, if asked, to questions concerning some particular fact, is not of their verdict essentially,
nor are they bound to agree in such particulars; if they all agree to find their issue for the plaintiff
or defendant, they may differ in the motives wherefore [therefor], as well as judges, in giving
judgment for the plaintiff or defendant, may differ in the reasons wherefore they give that
judgment, which is very ordinary.' Page 150.

That judgment thus clearly appears to have been rested, not merely on the comparatively technical
ground that upon the general issue no matter of law could come in question until the facts had been found
by the jury, nor yet upon the old theory, that the jurors might have personal knowledge of some facts not
appearing in evidence, but mainly on the broad reasons that if the jury, especially in criminal trials, were
obliged to follow the directions of the court in matter of law, no necessary or convenient use could be
found of juries, or to continue trials by them at all; that though the verdict of the jury be right according
to the law as laid down by the court, yet, if they are not assured by their own understanding that it is so,
they are forsworn, at least in foro conscientiae; and that the 'decantatum' in our books, 'ad questionem
facti non respondent judices, ad quaestionem legis non respondent juratores,' means that issues of law, as
upon demurrers, special verdicts, or motions in arrest of judgment, are to be decided by the court; but
that upon general issues of fact, involving matter of law, the jury resolve both law and fact complicately,
and so determine the law.
Notwithstanding that authoritative declaration of the right of the jury, upon the general issue, to
determine the law, Chief Justice Scroggs, upon the trial of Harris for a seditions libel in 1680 (7 How.
State Tr. 925, 930), insisted that the jury must take the law from the court; and Chief Justice Jeffreys,
presiding at the trial of Algernon Sidney in 1683, charged the jury as follows: 'It is our duty upon our
oaths to declare the law to you, and you are bound to receive our declaration of the law, and upon this
declaration to inquire whether there be a fact, sufficiently proved, to find the prisoner guilty of the high
treason of which he stands indicted.' And Sidney was convicted, sentenced, and executed. 9 How. State
Tr. 817, 889.
In the last year of the reign of James II., the Trial of the Seven Bishops, reported 12 How. State Tr. 183,
took place upon an information for a seditious libel contained in their petition to the king, praying that he
would be pleased not to insist on their distributing and reading in the churches his declaration dispensing
with the penal statutes concerning the exercise of religion. The trial was at bar before all the justices of
the king's bench, upon a general plea of not guilty. A principal ground of defense was that the king had
no dispense was therefore the petition of the bishops to him was an innocent exercise of the right of
petition, and was not a libel. In support of this defense, ancient acts of parliament were given in
evidence; and, upon the offer of one in Norman French, the chief justice said, 'Read it in English, for the
jury to understand it,' and it was so read by a sworn interpreter. Pages 374, 375. And, when the attorney
general argued that these matters were not pertinent to the case, the chief justice, interrupting him, said:
'Yes, Mr. Attorney, I'll tell you what they offer, which it will lie upon you to give an answer to; they
would have you show how this has disturbed the government, or diminished the king's authority.' Page
399.
At the close of the arguments, each of the four judges in turn charged the jury. Lord Chief Justice Wright
said: 'The only question before me is, and so it is before you, gentlemen, it being a question of fact,
whether here be a certain proof of a publication. And then the next question is a question of law, indeed,
whether, if there be a publication proved, it be a libel.' 'Now, gentlemen, anything that shall disturb the
government, or make mischief and a stir among the people, is certainly within the case of libellus
famosis; and I must, in short, give you my opinion. I do take it to be a libel. Now, this being a point of
law, if my brothers have anything to say to it, I suppose they will deliver their opinions.'
Mr. Justice Holloway said: 'If you are satisfied there was an ill intention of sedition, or the like, you
ought to find them guilty; but if there be nothing in the case that you find, but only that they did deliver a
petition to save themselves harmless and to free themselves from blame, by showing the reason of their

disobedience to the king's command, which they apprehended to be a grievance to them, and which they
could not in conscience give obedience to, I cannot think it is a libel. It is left to you, gentlemen, but that
is my opinion.'
Mr. Justice Powell also expressed his opinion that the paper was not a libel, and said: 'Now, gentlemen,
the matter of it is before you; you are to consider of it, and it is worth your consideration.' He then
expressed his opinion that the king had no dispensing power, and concluded: 'If this be once allowed of,
there will need no parliament; all the legislation will be in the king, which is a thing worth considering,
and I leave the issue to God and your consciences.'
Mr. Justice Allybone, after saying, 'The single question that falls to may share is, to give my sense of this
petition, whether it shall be in construction of law a libel in itself, or a thing of great innocence,'
expressed his opinion that it was a libel.
The jury, on retiring, requested, and were allowed by the court, to take with them the statute book, the
information, the petition of the bishops, and the declaration of the king; and they returned a verdict of not
guilty, whereat there was great popular rejoicing in London and throughout England. 12 How. State Tr.
425-431; 1 Burnet's Own Time, 744.
It thus clearly appears that upon that trial, one of the most important in English history, deeply affecting
the liberties of the people, the four judges of the king's bench, while differing among themselves upon
the question whether the petition of the bishops was a libel, concurred in submitting that question, as a
question of law, to the decision of the jury, not as umpires between those judges who thought the paper
was a libel and those judges who thought it was not, but as the tribunal vested by the law of England with
the power and the right of ultimately determining, as between the crown and the accused, all matters of
law, as well as of fact, involved in the general issue of guilty or not guilty.
Upon the accession of William and Mary, parliament declared the king's power of dispensing with the
laws to be unlawful; and reversed the conviction of Algernon Sidney, 'for a partial and unjust
construction of the statute' of treasons in the instructions by which his conviction had been procured. St.
1 W. & M. Sess. 2, c. 2; 6 St. Realm, 143, 155; 9 How. State Tr. 996. And early in the new reign Holt
was appointed lord chief justice, and Somers lord keeper.
Lord Somers, in the opening pages of his essay on 'The Security of Englishmen's Lives. or the Trust,
Power, and Duty of the Grand Juries of England' (first published in 1681, and republished in 1714,
towards the end of his life, after he had been lord chancellor), lays down in the clearest terms the right of
the jury to decide the law, saying: 'It is made a fundamental in our government that (unless it be by
parliament) no man's life shall be touched for any crime whatsoever, save by the judgment of at least
twenty-four men, — that is, twelve or more, to find the bill of indictment, whether he be peer of the
realm or commoner; and twelve peers or above, if a lord, if not, twelve commoners, to give the judgment
upon the general issue of not guilty joined.' 'The office and power of these juries is judicial. They only
are the judges from whose sentence the indicted are to expect life or death. Upon their integrity and
understanding the lives of all that are brought into judgment do ultimately depend. From their verdict
there lies no appeal. By finding guilty or not guilty they do complicately resolve both law and fact. As it
hath been the law, so it hath always been the custom and practice, of these juries, upon all general issues,
pleaded in cases, civil as well as criminal, to judge both of the law and fact.' 'Our ancestors were careful
that all men of the like condition and quality, presumed to be sensible of each other's infirmity, should
mutually be judges of each other's lives, and alternately taste of subjection and rule, every man being

equally liable to be accused or indicted, and perhaps to be suddenly judged by the party, of whom he is at
present judge, if he be found innocent.'
Lord Chief Justice Holt declared that 'in all cases and in all actions the jury may give a general or special
verdict, as well in causes criminal as civil, and the court ought to receive it, if pertinent to the point in
issue; for if the jury doubt they may refer themselves to the court, but are not bound so to do.' Anon.
(1697) 3 Salk. 373. And upon the trial of an information for a seditious libel, while he expressed his
opinion that the paper was upon its face a criminal libel, he submitted the question whether it was such to
the jury, saying: 'Now you are to consider whether these words I have read to you do not tend to beget an
ill opinion of the administration of the government.' Tutchin's Case (1704) 14 How. State Tr. 1095, 1128.
Although he concluded his charge with the words, 'If you are satisfied that he is guilty of composing and
publishing these papers at London, you are to find him guilty,' yet, as Mr. Starkie well observes, 'these
words have immediate reference to the ground of defense upon which Mr. Tutchin's counsel meant to
rely, namely, that the offense had not been proved to have been committed in London; and cannot be
considered as used for the purpose of withdrawing the attention of the jury from the quality of the
publication, upon which they had just before received instructions; and, indeed, to suppose it had so
meant would prove too much, since, if so, the jury were directed not to find the truth of the innuendoes.'
Starkie, Sland. & L. 56.
Some decisions, often cited as against the right of the jury by a general verdict to determine matter of law
involved in the general issue of guilty or not guilty, were upon special verdicts presenting pure questions
of law. Such were Townsend's Case (1554) 1 Plow. 111, and Rex v. Oneby (1726) 2 Ld. Raym. 1485; 2
Strange, 766; 1 Barnard, 17; 17 How. State Tr. 29.
After the accession of George II., Lord Chief Justice Raymond, on trials at nisi prius for seditious libels
(ignoring the Cases of Tutchin and of the Seven Bishops), told juries that they were bound to take the law
from the court, and that the question whether the paper which the defendant was accused of writing and
publishing was a libel was a mere question of law, with which the jury had nothing to do. Clarke's Case
(1729) 17 How. State Tr. 667, note, 1 Barnard, 304; Francklin's Case (1731) 17 How. State Tr. 625, 672.
In 1734, upon an information in the nature of a quo warranto against the defendant to show cause by
what authority he acted as mayor of Liverpool, his motion for a new trial, because the jury had found a
general verdict for the crown against the instructions of the judge, and notwithstanding he ordered them
to return a special verdict, was granted by the court of king's bench, Lord Chief Justice Hardwicks
saying: 'The general rule is that if the judge of nisi prius directs the jury on the point of law, and they
think fit obstinately to find a verdict contrary to his direction, that is sufficient ground for granting a new
trial; and when the judge upon a doubt of law directs the jury to bring in the matter specially, and they
find a general verdict, that also is a sufficient foundation for a new trial.' 'The thing that governs greatly
in this determination is that the point of law is not to be determined by juries; juries have a power by law
to determine matters of fact only; and it is of the greatest consequence to the law of England and to the
subject that these powers of the judge and jury are kept distinct; that the judge determines the law, and
the jury the fact; and, if ever they come to be confounded, it will prove the confusion and destruction of
the law of England.' Rex v. Poole, Cas. t. Hardw. 23, 26, 28, Cunn. 11, 14, 16.
But such an information to try title to a civil office (though it had some of the forms of a criminal
prosecution) was brought for the mere purpose of trying a civil right, and was considered as in the nature
of a civil proceeding. 3 Bl. Comm. 263; Rex v. Francis, 2 Term R. 484; Ames v. Kansas, 111 U.S. 449,

460, 461 S., 4 Sup. Ct. 437. And, as appears by the first passage above cited from Lord Hardwicke's
opinion, it was evidently so treated by the court, under the practice of granting new trials on motion of
either party to a civil case, which had gradually grown up within the century preceding, as a substitute for
attaints. Bell v. Wardell (1740) Willes, 204, 206; Witham v. Lewis (1744) 1 Wils. 48, 55; Bright v.
Eynon (1757) 1 Burrows, 390, 394. In a criminal case, certainly, the court could not compel the jury to
return a special verdict, Nothing, therefore, was adjudged in Poole's Case as to the right of the jury to
decide the law in prosecutions for crime. And it is significant that, although both reports of that case were
published in 1770, it was not cited by Lord Mansfield, in 1784, when collecting the authorities against
the right of the jury in criminal cases. King v. Shipley, 4 Doug. 73, 168.
Lord Hardwicke's own opinion, indeed, may be presumed to have been against the right of the jury; for
when attorney general he had so argued in Francklin's Case, 17 How. State Tr. 669; and he was, as justly
observed by Mr. Hallam, 'a regularly bred crown lawyer, and in his whole life disposed to hold very high
the authority of government.' 3 Hall. Hist. (9th Ed.) 287. His opinion, therefore, is of less weight upon a
constitutional question affecting the liberty of the subject than upon other questions of law or of equity.
The later history of the law of England upon the right of the jury to decide the law in criminal cases is
illustrated by a long conflict between the views of Mr. Murray, afterwards Lord Mansfield, against the
right, and of Mr. Pratt, afterwards Lord Camden, in its favor, which, after the public sentiment had been
aroused by the great argument of Mr. Erskine in Dean of St. Asaph's Case, was finally settled, in
accordance with Lord Camden's view, by a declaratory act of parliament.
Upon the trial of Owen, in 1752, for publishing a libel Mr. Murray, as solicitor general, argued to the jury
that if they determined the question of fact of publication, the judge determined the law. But Mr. Pratt, of
counsel for the defendant, argued the whole matter to the jury; and, although the publication was fully
proved, and Chief Justice Lee told the jury that, this being so, they could not avoid bringing in the
defendant guilty, they returned and persisted in a general verdict of acquittal. 18 How. State Tr. 1203,
1223, 1227, 1228; 29 Parl. Hist. 1408
In the like Case of Nutt, in 1728, 1 Barnard, 306 (Starkie, Sland. & L. 615), conducted by Mr. Murray as
attorney general, the like direction was given to the jury by Chief Justice Ryder. Lord Mansfield, in Rex
v. Shipley, 4 Doug, 168.
In the similar Case of Shebbeare, in 1758 (Starkie, Sland. & L. 56, 616), Mr. Pratt, as attorney general,
when moving before Lord Mansfield for leave to file the information, said: 'It is merely to put the matter
in a way of trial; for I admit, and his lordship well knows, that the jury are judges of the law as well as
the fact, and have an undoubted right to consider whether, upon the whole, the pamphlet in question be
or be not published with a wicked, seditious intent, and be or not a false, malicious, and scandalous libel.'
Second postscript to Letter to Mr. Almon on Libels (1770) p. 7; 4 Collection of Tracts (1763-1770) p.
162. And at the trial, as he afterwards said in the house of lords, he 'went into court predetermined to
insist on the jury taking the whole of the libel into consideration,' and 'so little did he attend to the
authority of the judges on that subject that he turned his back on them, and directed all he had to say to
the jury.' 29 Parl. Hist. 1408. And see 20 How. State Tr. 709. But Lord Mansfield instructed the jury that
the question whether the publication was a libel was to be determined by the court. 4 Doug. 169.
Lord Camden, when chief justice of the common pleas, presiding at criminal trials, instructed the jury
that they were judges of the law as well as the fact. Pett. Jur. (1769) cited in 21 How. State Tr. 853; 29
Parl. Hist. 1404, 1408.

In the prosecutions, in the summer of 1770, of Miller and Woodfall for publishing the letter of Junius to
the king, Lord Mansfield instructed the jury in the same way as in Shebbeare's Case. In Miller's Case the
jury returned a verdict of not guilty. In Woodfall's Case the jury returned a verdict of 'guilty of printing
and publishing only'; and the court therefore granted a motion for a new trial. But Lord Mansfield, on
November 20, 1770, in delivering judgment upon that motion, took occasion to say that the court was of
opinion 'that the direction is right and according to law.' Miller's Case, 20 How. State Tr. 869, 893, 895;
Woodfall's Case, Id. 895, 901-903, 918, 920, 5 Burrows, 2661, 2666, 2668.
On December 5, 1770, in the house of lords, the judgment in Woodfall's Case was attacked by Lord
Chatham, and defended by Lord Mansfield, in replying to whom Lord Chatham said: 'This, my lords. I
never understood to be the law of England, but the contrary. I always understood that the jury were
competent judges of the law as well as the fact; and, indeed, if they were not, I can see no essential
benefit from their institution to the community.' And Lord Camden, after observing that it would be
highly necessary to have an authentic statement of the direction to the jury in that case laid before the
house, said: 'If we can obtain this direction, and obtain it fully stated, I shall very readily deliver may
opinion upon the doctrines it inculcates, and, if they appear to me contrary to the known and the
established principles of the constitution, I shall not scruple to tell the author of his mistake in the open
face of this assembly.' 16 Parl. Hist. 1302-1307.
On the next day, a warm debate took place in the house of commons upon a motion by Serjeant Glynn
for a committee 'to inquire into the administration of criminal justice, and the proceedings of the judges
in Westminster Hall, particularly in cases relating to the liberty of the press and the constitutional power
and duty of juries,' in the course of which Mr. Dunning, then the leader of the bar, and afterwards Lord
Ashburton, emphatically denied that the doctrine of Lord Raymond and Lord Mansfield was the
established law of the land. 16 Parl. Hist. 1212, 1276. See, also, 2 Cavendish's Debates, 141, 369.
Pursuant to a wish expressed by Lord Mansfield on the day after, the house of lords met on December
10th, when he informed the house that he had left with its clerk a copy of the judgment of the court in
Woodfall's Case. Lord Camden thereupon said that he considered the paper as a challenge directed
personally to him, which he accepted, and said: 'In direct contradiction to him, I maintain that his
doctrine is not the law of England. I am ready to enter into debate whenever the noble lord will fix a day
for it.' And he proposed questions in writing to Lord Mansfield, framed with the view of ascertaining
how far that judgment denied the right of the jury, by a general verdict in a criminal case, to determine
the law as well as the fact. Lord Mansfield evaded answering the questions, and, while declaring himself
ready to discuss them at some future day, declined to name one. And the matter dropped for the time. 16
Parl. Hist. 1312-1322.
In 1783, after the independence of the United States had been recognized by Great Britain, came the case
of King v. Shipley, commonly known as Dean of St. Asaph's Case, fully reported in 4 Doug. 73, and in
21 How. State Tr. 847, and briefly stated in 3 Term R. 428, note, which was a criminal prosecution for a
seditious libel contained in a pamphlet written by Sir William Jones. Mr. Justice Buller, at the trial, told
the jury that the only questions for them were whether the defendant published the pamphlet, and
whether the innuendoes in the indictment were true; and that the question of libel or no libel was a
question of law for the court, and not for the jury, upon which he declined to express any opinion, but
that it would be open for the consideration of the court upon a motion in arrest of judgment. The jury
returned a verdict of 'guilty of publishing only,' but were persuaded by the judge to put it in this form:
'Guilty of publishing, but whether a libel or not the jury do not find.' 4 Doug. 81, 82, 85, 86; 21 How.

State Tr. 946, 950-955. The effect of all this was that the defendant was found guilty of publishing a
paper, which neither the judge nor the jury had held to be a libel; and judgment was ultimately arrested
upon the ground that, as set out in the indictment, it was not libelous. Id. 1044.
But, before the motion in arrest of judgment was argued, Mr. Erskine obtained a rule to show cause why
a new trial should not be granted, principally upon the ground that the judge told the jury that the
question whether libel or not was not for their decision; whereas the jury, upon the general issue, had not
only the power, but the right, to decide the law. It was upon this rule that Mr. Erskine made his famous
argument in support of the rights of juries, and that Lord Mansfield delivered the judgment, in which Mr.
Justice Ashurst concurred, which has since been the principal reliance of those who deny the right of the
jury to decide the law involved in the general issue in a criminal case.
It should not be overlooked that, at the hearing of this motion, Mr. Bearcroft, the leading counsel for the
crown, said he 'agreed with the counsel for the defendant that it is the right of the jury, if they please, on
the plea of not guilty, to take upon themselves the decision of every question of law necessary to the
acquittal of the defendant; and, Lord Mansfield observing that he should call it the 'power,' not the 'right,'
he adhered to the latter expression; and added that he though it an important privilege, and which, on
particular occasions, — as, for instance, if a proper censure of the measures of the servants of the crown
were to be construed by a judge to be libelous, — it would be laudable and justifiable in them to
exercise.' 4 Doug. 94, note. See, also, page 108.
Mr. Justice Willes, dissenting from the opinion of the court, said he was sure that these statements of Mr.
Bearcroft expressed 'the sentiments of the greater part of Westminster Hall,' and declared: 'I conceive it
to be the law of this country that the jury, upon a plea of not guilty, or upon the general issue, upon an
indictment or an information for a libel, have a constitutional right, if they think fit, to examine the
innocence or criminality of the paper, notwithstanding there is sufficient proof given of the publication.'
'I believe no man will venture to say they have not the power, but I mean expressly to say they have the
right. Where a civil power of this sort has been exercised without control, it presumes — nay, by
continual usage, it gives — the right. It was the right which juries exercised in those times of violence
when the Seven Bishops were tried, and which even the partial judges who then presided did not dispute,
but authorized them to exercise upon the subject-matter of the libel; and the jury, by their solemn verdict
upon that occasion, became one of the happy instruments, under Providence, of the salvation of this
country. This privilege has been assumed by the jury in a variety of ancient and modern instances, and
particularly in the case of Rex v. Owen, without any correction or even reprimand of the court. It is a
right, for the most cogent reasons, lodged in the jury, as without this restraint the subject in bad times
would have no security for his life, liberty, or property.' And he concurred in refusing a new trial, solely
because, in his opinion, neither the counsel for the prosecution, nor the judge presiding at the trial, had
impugned these doctrines, and the verdict returned by the jury was in the nature of a special verdict, in
effect submitting the law to the court. 4 Doug. 171-175.
In 1789, in Rex v. Withers, 3 Term R. 428, Lord Kenyon instructed a jury in the same way that Mr.
Justice Buller had done in Dean of St. Asaph's Case.
In 1791, the declaratory statute, entitled 'An act to remove doubts respecting the functions of juries in
cases of libel,' and known as 'Fox's Libel Act,' was introduced in parliament, and was passed in 1792. St.
32 Geo. III. c. 60.
By that act, 'the legislature,' as lately observed by Lord Blackburn in the house of lords, 'adopted almost

the words and quite the substance' of that passage of the opinion of Mr. Justice Willes first above quoted.
Bank v. Henty, L. R. 7 App. Cas. 741, 775.
The doubts which the act was passed to remove were, as recited at the beginning of the act, upon the
question whether upon the trial of an indictment or information for libel, on the plea of not guilty, 'it be
competent to the jury impaneled to try the same to give their verdict upon the whole matter put in issue';
and it was 'therefore declared and enacted [not merely enacted, but declared to be the law as already
existing] that on every such trial the jury sworn to try the issue may give a general verdict of guilty or not
guilty upon the whole matter put in issue upon such indictment or information; and shall not be required
or directed, by the court or judge before whom such indictment or information shall be tried, to find the
defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of
the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information.'
The act then provides — First, that the presiding judge may, at his discretion, give instructions to the
jury; second, that the jury may, at their discretion, return a special verdict; and, third, that the defendant,
if found guilty, may move in arrest of judgment. The first of these provisos, and the only one requiring
particular notice, is that the judge shall, at his discretion, give 'his opinion and directions to the jury on
the matter at issue,' 'in like manner as in other criminal cases.' His 'opinion and directions' clearly means
by way of advice and instruction only, and not by way of order or command; and the explanation, 'in like
manner as in other criminal cases,' shows that no particular rule was intended to be laid down in the case
of libel. And that this was the understanding at the time is apparent from the debate on the proviso, which
was adopted on the motion of Sir John Scott (then solicitor general, and afterwards Lord Eldon) just
before the bill passed the house of commons in 1791. 29 Parl. Hist. 594-602.
The clear effect of the whole act is to declare that the jury (after receiving the instructions of the judge, if
he sees fit to give any instructions) may decide, by a general verdict, 'the whole matter put in issue, '
which necessarily includes all questions of law, as well as of fact, involved in the general issue of guilty
or not guilty, and to recognize the same rule as existing in all criminal cases.
Not only is this the clear meaning of the words of the act, but that such was its intent and effect is shown
by the grounds taken by supporters and its opponents in parliament, as well as by subsequent judicial
opinions in England. Mr. Fox, upon moving the introduction of the bill in the house of commons in 1791,
after observing that he was not ignorant that 'power' and 'right' were not convertible terms, said that, 'if a
power was vested in any person, it was surely meant to be exercised'; that 'there was a power vested in
the jury to judge the law and fact, as often as they were united, and, if the jury were not to be understood
to have a right to exercise that power, the constitution would never have intrusted them with it'; 'but they
knew it was the province of the jury to judge of law and fact, and this was the case, not of murder only,
but of felony, high and of every other criminal indictment'; and that 'it must be left in all cases to a jury to
infer the guilt of men, and an English subject could not lose his life but by a judgment of his peers.' 29
Parl. Hist. 564, 565, 597. And Mr. Pitt, in supporting the bill, declared that his own opinion was against
the practice of the judges, 'and that he saw no reason why, in the trial of a libel, the whole consideration
of the case might not go precisely to the unfettered judgment of twelve men, sworn to give their verdict
honestly and conscientiously, as it did in matters of felony and other crimes of a high nature.' 29 Parl.
Hist. 588.
In the debate in the house of lords, on a motion of Lord Chancellor Thurlow to put off the reading of the
bill, Lord Camden said: 'He would venture to affirm, and should not be afraid of being contradicted by

any professional man, that, by the law of England as it now stood, the jury had a right, in deciding on a
libel, to judge whether it was criminal or not; and juries not only possessed that right, but they had
exercised it in various instances.' He added, as 'a matter which he conceived should be imprinted on
every juror's mind, that if they found a verdict of the publishing, and left the criminality to the judge,
they had to answer to God and their consciences for the punishment that might, by such judge, be
inflicted on the defendant, whether it was fine, imprisonment, loss of ears, whipping, or any other
disgrace, which was the sentence of the court.' After further enforcing his opinion, he said: 'I will affirm
that they have that right, and that there is no power by the law of this country to prevent them from the
exercise of that right, if they think fit to maintain it; and, when they are pleased to acquit any defendant,
their acquittal will stand good until the law of England is changed.' 'My lords,' said he, 'give to the jury or
to the judge the right of trial of the subjects of this country. You must give it to one of them, and I think
you can have no difficulty which to prefer.' And he concluded by saying that 'he did not apprehend that
the bill had a tendency to alter the law, but merely to remove doubts that ought never to have been
entertained, and therefore the bill had his hearty concurrence; but, as he was assured that the proposed
delay was not hostile to the principle of the bill, but only to take it into serious consideration, and to bring
it again forward, he had no objection to the motion of the lord chancellor.' 29 Parl. Hist. 729, 730, 732.
In the house of lords in 1792, the bill having again passed the house of commons, Lord Loughborough,
for many years chief justice of the common pleas, said that he 'had ever deemed it his duty, in cases of
libel, to state the law as it bore on the facts, and to refer the combined consideration to the jury'; and that
'their decision was final. There was no control upon them in their verdict. The evident reason and good
sense of this was that every man was held to be acquainted with the criminal law of the land. Ignorance
was no plea for the commission of a crime, and no man was therefore supposed to be ignorant of judging
upon the evidence adduced of the guilt or innocence of a defendant. It was the admitted maxim of law,
'Ad quaestionem juris respondent judices, ad quaestionem facti juratores;' but, when the law and the fact
were blended, it was the undoubted right of the jury to decide. If the law was put to them fairly, there was
undoubtedly not one case in a thousand on which they would not decide properly. If they were kept in the
dark, they were sometimes led into wrong, through mere jealousy of their own right.' 29 Parl. Hist. 1296,
1297.
Pending the debate, the house of lords put questions to the judges, who returned an opinion, in which,
after saying that 'the general criminal law of England is the law of libel,' they laid down, as a
fundamental proposition, applicable to treason as well as to other crimes, 'that the criminality or
innocence of any act done (which includes any paper written) is the result of the judgment which the law
pronounces upon that act, and must therefore be in all cases, and under all circumstances, matter of law,
and not matter of fact.' With such a basis, it is hardly to be wondered at that they 'conceived the law to be
that the judge is to declare to the jury what the law is,' and 'that it is the duty of the jury, if they will find
a general verdict upon the whole matter in issue, to compound that verdict of the fact as it appears in
evidence before them, and of the law as it is declared to them by the judge.' The judges, however, 'took
this occasion to observe' that they had 'offered no opinion which will have the effect of taking matter of
law out of a general issue, or out of a general verdict,' and 'disclaimed the folly of undertaking to prove
that a jury, who can find a general verdict, cannot take upon themselves to deal with matter of law arising
in a general issue, and to hazard a verdict made up of the fact, and of the matter of law, according to their
conception of that law, against all direction by the judge.' 29 Parl. Hist. 1361-1369.
On Lord Camden's motion, the bill was postponed, in order to enable the house to consider the opinion of
the judges, and was then proceeded with, when Lord Camden 'exposed the fallacy of the pretended

distinction between law and fact, in the question of guilty or not guilty of printing and publishing a libel.
They were united as much as intent and action in the consideration of all other criminal proceedings.
Without an implied malice, a man could not be found guilty, even of murder. The simply killing of a man
was nothing, until it was proved that the act arose from malice. A man might kill another in his own
defense, or under various circumstances which rendered the killing no murder. How were these things to
be explained? By the circumstances of the case. What was the ruling principle? The intention of the
party. Who were judges of the intention of the party, — the judge? No; the jury. So that the jury were
allowed to judge of the intention upon an indictment for murder, and not to judge of the intention of the
party upon libel.' And Lord Loughborough, as well as Lord Camden, distinctly affirmed, and Lord
Thurlow as distinctly denied, that upon the general issue in criminal cases, after the judge had stated the
law to the jury, the jury were to decide both the question of law and the question of fact. 29 Parl. Hist.
1370, 1405, 1406, 1426, 1429.
Towards the close of the debate, Lord Thurlow moved to amend the bill by inserting the words 'that the
judge state to the jury the legal effect of the record.' Lord Camden successfully opposed the amendment
'as an attempt indirectly to convert the bill into the very opposite of what it was intended to be, and to
give the judges a power ten times greater than they had ever yet exercised,' and said: 'He must contend
that the jury had an undoubted right to form their verdict themselves according to their consciences,
applying the law to the fact. If it were otherwise, the first principle of the law of England would be
defeated and overthrown. If the twelve judges were to assert the contrary again and again, he would deny
it utterly, because every Englishman was to be tried by his country; and who was his country but his
twelve peers, sworn to condemn or acquit according to their consciences? If the opposite doctrine were to
obtain, trial by jury would be a nominal trial, a mere form; for, in fact, the judge, and not the jury, would
try the man. He would contend for the truth of this argument to the latest hour of his life, manibus
pedibusque. With regard to the judge stating to the jury what the law was upon each particular case, it
was his undoubted duty so to do; but, having done so, the jury were to take both law and fact into their
consideration, and to exercise their discretion and discharge their consciences.' 29 Parl. Hist. 1535, 1536.
The first ground of the protest of Lord Thurlow, Lord Bathurst, Lord Kenyon, and three other lords
against the passage of the act was 'because the rule laid down by the bill, contrary to the determination of
the judges and the unvaried practice of ages, subverts a fundamental and important principle of English
jurisprudence, which, leaving to the jury the trial of the fact, reserves to the court the decision of the law.'
29 Parl. Hist. 1537.
Lord Brougham, in his sketch of Lord Camden, declares that 'the manly firmness which he uniformly
displayed in maintaining the free principles of the constitution, wholly unmixed with any leaning towards
extravagant popular opinions, or any disposition to court vulgar favour, justly entitles him to the very
highest place among the judges of England'; and, speaking of his conduct in carrying the libel bill
through the house of lords, says that 'nothing can be more refreshing to the lovers of liberty, or more
gratifying to those who venerate the judicial character, than to contemplate the glorious struggle for his
longcherished principles with which Lord Camden's illustrious life closed'; and quotes some of his
statements, above cited, as passages upon which 'the mind fondly and reverently dwells,' 'hopeful that
future lawyers and future judges may emulate the glory and the virtue of this great man.' 3 Brougham's
Statesmen of George III. (Ed. 1843) 156, 178, 179.
In the well-known case of Rex v. Burdett, 3 Barn. & Ald. 717, 4 Barn. & Ald. 95, and 1 State Tr. (N. S.)
1, for publishing a seditious libel, Mr. Justice Best (afterwards chief justice of the common pleas, and

Lord Wynford) told the jury that, in his opinion, the publication was a libel; that they were to decide
whether they would adopt his opinion; but that they were to take the law from him, unless they were
satisfied that he was wrong. 4 Barn. & Ald. 131, 147, 183. The defendant having been convicted, the
court of king's bench, upon a motion for a new trial, held, after advisement, that this instruction was
correct.
Mr. Justice Best said: 'It must not be supposed that the statute of George III. made the question of libel a
question of fact. If it had, instead of removing an anomaly, it would have created one. Libel is a question
of law, and the judge is the judge of the law in libel as in all other cases, the jury having the power of
acting agreeably to his statement of the law or not. All that the statute does is to prevent the question
from being left to the jury in the narrow way in which it was left before that time. The jury were then
only to find the fact of the publication, and the truth of the innuendoes; for the judges used to tell them
that the intent was an inference of law, to be drawn from the paper, with which the jury had nothing to
do. The legislature has said that that is not so, but that the whole case is to be left to the jury. But judges
are in express terms directed to lay down the law as in other cases. In all cases the jury may find a
general verdict. They do so in cases of murder and treason, but there the judge tells them what is the law,
though they may find against him, unless they are satisfied with his opinion. And this is plain from the
words of the statute.' 4 Barn. & Ald. 131, 132.
Justices Holroyd and Bayley and Chief Justice Abbott (afterwards Lord Tenterden) expressed the same
view. 4 Barn. & Ald. 145-147, 183, 184. Mr. Justice Bayley said: 'The old rule of law is, 'Ad
quaestionem juris respondent judices, ad quaestionem facti respondent juratores;' and I take it to be the
bounden duty of the judge to lay down the law as it strikes him, and that of the jury to accede to it, unless
they have superior knowledge on the subject: and the direction in this case did not take away from the
jury the power of acting on their own judgment.' And the chief justice said: 'If the judge is to give his
opinion to the jury, as in other criminal cases, it must be not only competent, but proper, for him to tell
the jury, if the case will so warrant, that, in his opinion, the publication before them is of the character
and tendency attributed to it by the indictment; and that, if it be so in their opinion, the publication is an
offense against the law.' 'The statute was not intended to confine the matter in issue exclusively to the
jury without hearing the opinion of the judge, but to declare that they should be at liberty to exercise their
own judgment upon the whole matter in issue, after receiving thereupon the opinion and directions of the
judge.'
The weight of this deliberate and unanimous declaration of the rightful power of the jury to decide the
law in criminal cases is not impaired by the obiter dictum hastily uttered and promptly recalled by Chief
Justice Best in the civil case (summarily decided upon a narrower point) of Levi v. Milne, and reported
so differently in 4 Bing. 195, and in 12 Moore, 418, as to leave it doubtful what he really said. And
according to later English authorities, even in civil actions, the question of libel or no libel may be
submitted by the judge to the jury, without expressing his own opinion upon it. Parmiter v. Coupland, 6
Mees. & W. 105, 108; Baylis v. Lawrence, 11 Adol. & E. 920, 3 Perry & D. 526; Cox v. Lee, L. R. 4
Exch. 284.
It is to be remembered that, by the law of England, a person convicted of treason or felony could not
appeal, or move for a new trial, or file a bill of exceptions, or in any other manner obtain a judicial
review of rulings or instructions not appearing upon the record, unless the judge himself saw fit to
reserve the question for the opinion of all the judges. In short, as observed by Dr. Lushington, in
delivering judgment in the privy council, 'the prisoner has no 'legal right,' in the proper sense of the term,

to demand a reconsideration, by a court of law, of the verdict, or of any legal objection raised at the trial.'
Reg. v. Eduljee Byramjee, 5 Moore, P. C. 276, 287; Reg. v. Bertrand, L. R. 1 P. C. 520; 1 Chit. Cr. Law,
622, 654; 3 Russ. Crimes (9th Ed.) 212. Consequently, a prisoner tried before an arbitrary, corrupt, or
ignorant judge had no protection but in the conscience and the firmness of the jury.
There is no occasion further to pursue the examination of modern English authorities, because in this
country, from the time of its settlement until more than half a century after the Declaration of
Independence, the law as to the rights of juries, as generally understood and put in practice, was more in
accord with the views of Bacon, Hale, Vaughan, Somers, Holt, and Camden than with those of Kelying,
Scroggs, Jeffreys, Raymond, Hardwicke, and Mansfield. Upon a constitutional question, affecting the
liberty of the subject, there can be no doubt that the opinions of Somers and of Camden, especially, were
of the very highest authority, and were so considered by the founders of the Republic.
In Massachusetts, the leading authorities upon the question, nearest the time of the Declaration of
Independence and the adoption of the constitution of the United States, are John Adams and Theophilus
Parsons, each of whom was appointed, with the general approval of the bar and the people, chief justice
of the state; the one, appointed to that office by the revolutionary government in 1775, resigning it the
next year, remaining in the continental congress to support the Declaration of Independence, and
afterwards the first vice president and the second president of the United States; the other, a leading
supporter of the constitution of the United States in the convention of 1788, by which Massachusetts
ratified the constitution, appointed by President Adams, in 1801, attorney general of the United States,
but declining that office, and becoming chief justice of Massachusetts in 1806.
John Adams, writing in 1771, said: 'Juries are taken, by lot or by suffrage, from the mass of the people,
and no man can be condemned of life or limb or property or reputation without the concurrence of the
voice of the people.' 'The British empire has been much alarmed, of late years, with doctrines concerning
juries, their powers and duties, which have been said, in printed papers and pamphlets, to have been
delivered from the highest tribunals of justice. Whether these accusations are just or not, it is certain that
many persons are misguided and deluded by them to such a degree that we often hear in conversation
doctrines advanced for law which, if true, would render juries a mere ostentation and pageantry, and the
court absolute judges of law and fact.' 'Whenever a general verdict is found, it assuredly determines both
the fact and the law. It was never yet disputed or doubted that a general verdict, given under the direction
of the court in point of law, was a legal determination of the issue. Therefore, the jury have a power of
deciding an issue upon a general verdict. And, if they have, is it not an absurdity to suppose that the law
would oblige them to find a verdict according to the direction of the court, against their own opinion,
judgment, and conscience?' 'The general rules of law and common regulations of society, under which
ordinary transactions arrange themselves, are well enough known to ordinary jurors. The great principles
of the constitution are intimately known. They are sensibly felt by every Briton. It is scarcely extravagant
to say they are drawn in and imbibed with the nurse's milk and first air. Now, should the melancholy case
arise that the judges should give their opinions to the jury against one of these fundamental principles, is
a juror obliged to give his verdict generally, according to this direction, or even to find the fact specially,
and submit the law to the court? Every man, of any feeling or conscience, will answer, 'No.' It is not only
his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment,
and conscience, though in direct opposition to the direction of the court.' 'The English law obliges no
man to decide a cause upon oath against his own judgment.' 2 John Adams' Works, 253-255.
Theophilus Parsons, in the Massachusetts convention of 1788, answering the objection that the

constitution of the United States, as submitted to the people for adoption, contained no bill of rights, said:
'The people themselves have it in their power effectually to resist usurpation, without being driven to an
appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his
resistance. Let him be considered as a criminal by the general government; yet only his fellow-citizens
can convict him. They are his jury, and, if they pronounce him innocent, not all the powers of congress
can hurt him; and innocent they certainly will pronounce him if the supposed law he resisted was an act
of usurpation.' 2 Elliot, Deb. 94; 2 Bancroft, Hist. Const. 267.
In 1808, Chief Justice Parsons, in delivering judgment in a civil action for slander, said: 'Both parties
have submitted the trial of this issue to a jury. The issue involved both law and fact, and the jury must
decide the law and the fact. To enable them to settle the fact, they were to weigh the testimony. That they
might truly decide the law, they were entitled to the assistance of the judge. If the judge had declined his
aid in a matter of law, yet the jury must have formed their conclusion of law as correctly as they were
able.' And, as the reporter states: 'In this opinion of the chief justice the other judges, viz. Sedgwick,
Sewall, Thatcher, and Parker, severally declared their full and entire concurrence.' Coffin v. Coffin, 4
Mass. 1, 25, 37.
In 1816, upon the trial of an indictment for murder, the supreme judicial court of Massachusetts, held by
Chief Justice Parker and Justices Jackson and Putnam, instructed the jury as follows: 'In all capital cases
the jury are the judges of the law and fact. The court are to direct them in matters of law, and, although it
is safer for them to rely on the instructions derived from that source, still, gentlemen, they are to decide
for themselves.' Bowen's Trial, 13 Mass. 356.
In 1826, Mr. Justice Wilde, speaking for the whole court, assumed, as unquestionable, that 'in criminal
prosecutions the jury are the judges of both law and fact.' Com. v. Worcester, 3 Pick. 462, 475.
In 1830, in a celebrated trial for murder, before Justices Putnam, Wilde, and Morton, the right and duty
of the jury to decide the law as well as the fact involved in the general issue were recognized and
affirmed in the charge to the jury, and were distinguished from the right of deciding questions of
evidence, as follows: 'As the jury have the right, and, if required by the prisoner, are bound, to return a
general verdict of guilty or not guilty, they must necessarily, in the discharge of this duty, decide such
questions of law, as well as of fact, as are involved in this general question; and there is no mode in
which their opinions upon questions of law can be reviewed by this court or by any other tribunal. But
this does not diminish the obligation resting upon the court to explain the law, or their responsibility for
the correctness of the principles of law by them laid down. The instructions of the court in matters of law
may safely guide the consciences of the jury, unless they known them to be wrong. And, when the jury
undertake to decide the law (as they undoubtedly have the power to do) in opposition to the advice of the
court, they assume a high responsibility, and should be very careful to see clearly that they are right.
Although the jury have the power, and it is their duty, to decide all points of law which are involved in
the general question of the guilt or innocence of the prisoner, yet when questions of law arise in the
arraignment of the prisoner, or in the progress of the trial, in relation to the admissibility of evidence,
they must be decided by the court, and may not afterwards be reviewed by the jury.' Com. v. Knapp, 10
Pick. 477, 496.
Many other Massachusetts authorities, from the earliest times to the date last mentioned, tending to
maintain the right of the jury to decide the law involved in the general issue, are collected in the opinion
of Mr. Justice Thomas in Com. v. Anthes, 5 Gray, 275-280, and in a note to Quincy, 558-560, 563-567.

To that date, or later, the right of the jury in criminal cases to decide both the law and the fact, even
against the directions of the court, was certainly recognized and acted on throughout New England,
unless in Rhode Island. State v. Snow (1841) 18 Me. 346; Doe, C. J., in State v. Hodge, 50 N. H. 510,
523; State v. Wilkinson (1829) 2 Vt. 480, 488; State v. Croteau (1849) 23 Vt. 14; Witter v. Brewster
(1788) Kirb. 422; Bartholomew v. Clark (1816) 1 Conn. 472, 481; State v. Buckley (1873) 40 Conn. 246.
See Laws 1647, in 1 R. I. Col. Rec. 157, 195, 203, 204.
In the province of New York, in 1702, on the trial of Col. Nicholas Bayard for high treason, it was
argued by his counsel, and not denied by the court, that the jury, upon the general issue of not guilty,
were judges as well of matter of law as of matter of fact. 14 How. State Tr. 471, 502, 503, 505.
In the same province, in 1735, upon the trial of John Peter Zenger for a seditious libel, his counsel,
Andrew Hamilton, of Philadelphia, while admitting that the jury might, if they pleased, find the
defendant guilty of printing and publishing, and leave it to the court to judge whether the words were
libelous, said, without contradiction by the court: 'But I do likewise know they may do otherwise. I know
they have the right, beyond all dispute, to determine both the law and the fact; and, where they do not
doubt of the law, they ought to do so.' The court afterwards submitted to the jury, in the words of Lord
Chief Justice Holt, in Tutchin's Case, 14 How. State Tr. 1128, above cited, the question whether the
words set forth were libelous. And Zenger was acquitted by the jury. 17 How. State Tr. 675, 706, 716,
722.
Upon the trial in the supreme court of the state of New York, in 1803, of an indictment for a libel on the
president of the United States, Chief Justice Lewis instructed the jury, among other things, that the
question of libel or no libel was an inference of law from the fact, and that the law as laid down by Lord
Mansfield in Dean of St. Asaph's Case was the law of this state. The defendant was convicted, and
brought the question of the correctness of these instructions before the full court in 1804, upon a motion
for a new trial. People v. Croswell, 3 Johns. Cas. 337, 341, 342.
Alexander Hamilton was of counsel for the defendant. Two reports of his argument upon that motion
have come down to us, the one in 3 Johns. Cas. 352-362, the other in a contemporary pamphlet of the
speeches in the case (pages 62-78), and reprinted in 7 Hamilton's Works (Ed. 1886) 336-373. But the
most compact and trustworthy statement of his position upon the general question, unsurpassed for
precision and force by anything on the subject to be found elsewhere, is in three propositions upon his
brief (Id. 335, 336), read by him in recapitulating his argument (3 Johns. Cas. 361, 362), which were as
follows:
● 'That, in the general distribution of powers in our system of jurisprudence, the cognizance of law
belongs to the court, of fact to the jury. That, as often as they are not blended, the power of the
court is absolute and exclusive. That in civil cases it is always so, and may rightfully be so exerted.
That in criminal cases, the law and fact being always blended, the jury, for reasons of a political
and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both
law and fact.
● 'That this distinction results: (1) From the ancient forms of pleading in civil cases, none but special
pleas being allowed in matter of law; in criminal, none but the general issue. (2) From the liability
of the jury to attaint in civil cases, and the general power of the court as its substitute in granting
new trials, and from the exemption of the jury from attaint in criminal cases, and the defect of
power to control their verdicts by new trials; the test of every legal power being its capacity to
produce a definitive effect, liable neither to punishment nor control.

● 'That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter
of law, who may compromit their conscience by lightly or rashly disregarding that advice, but may
still more compromit their consciences by following it, if, exercising their judgments with
discretion and honesty, they have a clear conviction that the charge of the court is wrong.'
The court was equally divided in opinion, Judge Kent (afterwards chief justice and chancellor) and Judge
Thompson being in favor of a new trial, and Chief Justice Lewis and Judge Livingston against it. Judge
Kent drew up a careful opinion, in which he reviewed the leading English authorities, and from which
the following passages are taken:
● 'In every criminal case, upon the plea of not guilty, the jury may, and indeed they must, unless they
choose to find a special verdict, take upon themselves the decision of the law, as well as the fact,
and bring in a verdict as comprehensive as the issue, because in every such case they are charged
with the deliverance of the defendant from the crime of which he is accused.' 'The law and fact are
so involved that the jury are under an indispensable necessity to decide both, unless they separate
them by a special verdict. This right in the jury to determine the law as well as the fact has
received the sanction of some of the highest authorities in the law.'
● 'But, while the power of the jury is admitted, it is denied that they can rightfully or lawfully
exercise it, without compromitting their consciences, and that they are bound implicitly, in all
cases, to receive the law from the court. The law must, however, have intended, in granting this
power to a jury, to grant them a lawful and rightful power, or it would have provided a remedy
against the undue exercise of it. The true criterion of a legal power is its capacity to produce a
definitive effect, liable neither to censure nor review. And the verdict of not guilty, in a criminal
case, is, in every respect, absolutely final. The jury are not liable to punishment, nor the verdict to
control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has
been sanctioned and upheld in constant activity from the earliest ages.' People v. Croswell, 3
Johns. Cas. 366-368.
● 'The result from this view is, to my mind, a firm conviction that this court is not bound by the
decisions of Lord Raymond and his successors. By withdrawing from the jury the consideration of
the essence of the charge, they render their function nugatory and contemptible. Those opinions
are repugnant to the more ancient authorities, which had given to the jury the power, and with it
the right, to judge of the law and fact, when they were blended by the issue, and which rendered
their decisions in criminal cases final and conclusive. The English bar steadily resisted those
decisions, as usurpations on the rights of the jury. Some of the judges treated the doctrine as
erroneous, and the parliament, at last, declared it an innovation, by restoring the trial by jury, in
cases of libel, to that ancient vigor and independence by which it had grown so precious to the
nation, as the guardian of liberty and life, against the power of the court, the vindictive persecution
of the prosecutor, and the oppression of the government.
● 'I am aware of the objection to the fitness and competency of a jury to decide upon questions of
law, and, especially, with a power to overrule the directions of the judge. In the first place,
however, it is not likely often to happen that the jury will resist the opinion of the court on the
matter of law. That opinion will generally receive its due weight and effect; an in civil cases it can
and always ought to be ultimately enforced by the power of setting aside the verdict. But in human
institutions the question is not whether every evil contingency can be avoided, but what
arrangement will be productive of the least inconvenience. And it appears to be most consistent
with the permanent security of the subject that in criminal cases the jury should, after receiving the

advice and assistance of the judge as to the law, take into their consideration all the circumstances
of the case, and the intention with which the act was done, and to determine, upon the whole,
whether the act done be, or be not, within the meaning of the law. This distribution of power, by
which the court and jury mutually assist and mutually check each other, seems to be the safest, and
consequently the wisest, arrangement in respect to the trial of crimes. The constructions of judges,
on the intention of the party, may often be (with the most upright motives) too speculative and
refined, and not altogether just in their application to every case. Their rules may have too
technical a cast, and become, in their operation, severe and oppressive. To judge accurately of
motives and intentions does not require a master's skill in the science of the law. It depends more
on a knowledge of the passions, and of the springs of human action, and may be the lot of ordinary
experience and sagacity.' 3 Johns. Cas. 375, 376.
In April, 1805, the legislature of New York passed a statute, very like Fox's libel act, declaring that upon
an indictment or information for libel 'the jury, who shall try the same, shall have a right to determine the
law and the fact, under the direction of the court in like manner as in other criminal cases.' And the
reporter notes that 'in consequence of this declaratory statute the court, in August term, 1805 (no motion
having been made for judgment on the verdict) unanimously awarded a new trial in the above cause.' 3
Johns. Cas. 412, 413.
In 1825, Judge Walworth (afterwards chancellor) presiding in a court of oyer and terminer, at trials of
indictments for murder, instructed the jury 'that in criminal trials they had a right to decide both as to the
law and the facts of the case; that the court was bound, by the oaths of office of its judges, honestly and
impartially to decide the questions of law arising in the case, and state them to the jury; but the jury had a
right to disregard the decision of the court upon questions of law, especially in favor of life, if they were
fully satisfied that such decision was wrong.' People v. Thayer, 1 Parker, Cr. Cas. 595, 598; People v.
Videto, Id. 603, 604. In New Jersey, by provincial laws of 1676 and 1681, it was not only enacted 'that
the trial of all causes, civil and criminal, shall be heard and decided by the verdict of twelve honest men
of the neighbourhood,' but also 'that there shall be, in every court, three justices or commissioners, who
shall sit with the twelve men of the neighbourhood, with them to hear all causes, and to assist the said
twelve men of the neighbourhood in case of law; and that they the said justices shall pronounce such
judgment as they shall receive from, and be directed by the said twelve men, in whom only the judgment
resides, and not otherwise; and, in case of their neglect and refusal, that then one of the twelve, by
consent of the rest, pronounce their own judgment as the justices should have done.' Leaming & Spicer's
Laws, pp. 396-398, 428, 429. How far, under the present constitution and laws of the state, juries, in
criminal cases, have the right to decide the law for themselves, disregarding the instructions of the judge
presiding at the trial, does not appear to be settled. State v. Jay (1871) 34 N. J. Law, 368; Drake v. State
(1890) 53 N. J. Law, 23, 20 Atl. 747.
In Pennsylvania, Chief Justice Sharswood said: 'No one acquainted with the life of the founder of this
commonwealth can entertain any doubt of his opinion, or that of his friends and followers'; referring to
the Case of Penn and Mead before the recorder of London, and to that of Bushell, upon habeas corpus,
cited in the earlier part of this opinion, as well as to the argument of Andrew Hamilton, of Philadelphia,
'certainly the foremost lawyer of the colonies,' in Zenger's Case, above cited. And the right of the jury in
criminal cases to decide both law and fact, notwithstanding opinions to the contrary expressed near the
end of the last century by a judge of a county court, in charging juries and grand juries (Buchanan v.
Taylor, Add. 160; Pennsylvania v. McFall, Id. 257, and Charges, pp. 57-63), was long and generally
recognized in that state. Kane v. Com., 89 Pa. St. 522, 526; Testimony of William Lewis and Edward

Tilghman, Chase's Trial (Evans' Ed.) 20, 21, 27.

In Maryland, the provision of the constitution of 1851 (article 10, 5), repeated in the constitutions of
1864 (article 12, 4), and of 1867 (article 15, 5), that 'in the trial of all criminal cases the jury shall be the
judges of law as well as fact,' has been held by the court of appeals to be merely declaratory of the
pre-existing law, but not applicable to the question of the constitutionality of a statute. 1 Charters and
Constitutions, 858, 885, 918; Franklin v. State (1858) 12 Md. 236, 249. As has been said by that court,
speaking by Mr. Justice Alvey: 'The jury are made the judges of law as well as of fact, in the trial of
criminal cases, under the constitution of this state; and any instruction given by the court as to the law of
the crime is but advisory, and in no manner binding upon the jury, except in regard to questions as to
what shall be considered as evidence.' Wheeler v. State (1875) 42 Md. 563, 570. See, also, Broll v. State
(1876) 45 Md. 356; Bloomer v. State (1878) 48 Md. 521, 538, 539; World v. State (1878) 50 Md. 49, 55.
In Virginia, the doctrine that the jury, upon the general issue in a criminal case, had the right, as well as
the power, to decide both law and fact, appears to have been generally admitted and practiced upon until
1829, when, to the surprise of the bar, it was treated by the court of appeals as doubtful. Dance's Case
(1817) 5 Munf. 349, 363; Baker v. Preston (1821) Gilmer, 235, 303; Davenport v. Com. (1829) 1 Leigh,
588, 596; Com. v. Garth (1827) 3 Leigh, 761, 770; 3 Rob. Va. Prac. (1839) c. 23.
In Georgia, Alabama, and Louisiana, the right of the jury was formerly recognized. McGuffie v. State
(1855) 17 Ga. 497, 513; McDaniel v. State (1860) 30 Ga. 853; State v. Jones (1843) 5 Ala. 666;
Bostwick v. Gasquet (1836) 10 La. 80; State v. Scott (1856) 11 La. Ann. 429; State v. Jurche (1865) 17
La. Ann. 71.
The ordinance of the continental congress of 1787 for the government of the Northwest Territory
provided that the inhabitants of the territory should always be entitled to the benefit of the trial by jury,
and that no man should be deprived of his liberty or property, but by the judgment of his peers or the law
of the land; and the constitutions of the state of Indiana in 1816, and of Illinois in 1818 and 1848,
contained similar provisions. 1 Charters and Constitutions, 431, 446, 447, 466, 500, 501.
In Indiana, the supreme court, under the constitution of 1816, having alternately denied and affirmed the
right of the jury in criminal cases to decide the law, the people, by the constitution which took effect in
November, 1851, declared that 'in all criminal cases whatever the jury shall have the right to determine
the law and the facts'; and this right has since been maintained by that court, even when the
constitutionality of a statute was involved. Townsend v. State (1828) 2 Blackf. 151; Warren v. State
(1836) 4 Blackf. 150; Carter v. State (May, 1851) 2 Ind. 617; 1 Charters and Constitutions, 513, 526;
Lynch v. State (1857) 9 Ind. 541; McCarthy v. State (1877) 56 Ind. 203; Hudelson v. State (1883) 94 Ind.
426; Blaker v. State (1891) 130 Ind. 203, 29 N. E. 1077.
In Illinois, the Criminal Code having declared that 'juries in all cases shall be judges of the law and the
fact,' the jury, at a trial for murder, after being out for some time, came into court, and, through their
foreman, suggested that a juror maintained that he was competent to judge of the correctness of the
instructions of the judge as the juror's opinion of the law might dictate. The judge instructed the jury that
they must take the law as laid down to them by the court, and could not determine for themselves
whether the law so given to them was or was not the law. Upon exception to the instructions, the
supreme court of Illinois, speaking by Judge Breese, granted a new trial, and said: 'Being judges of the
law and the fact, they are not bound by the law as given to them by the court, but can assume the
responsibility of deciding, each juror for himself, what the law is. If they can say, upon their oaths, that

they know the law better than the court, they have the power so to do. If they are prepared to say the law
is different from what it is declared to be by the court, they have a perfect legal right to say so, and find
the verdict according to their own notions of the law. It is a matter between their consciences and their
God, with which no power can interfere.' Fisher v. People (1860) 23 Ill. 283, 294. See, also, Mullinix v.
People (1875) 76 Ill. 211; Spies v. Illinois (1887) 122 Ill. 1, 252, 12 N. E. 865, and 17 N. E. 898.
In the declaration of rights unanimously adopted October 14, 1774, by the continental congress, of which
John Adams, Samuel Adams, Roger Sherman, John Jay, Samuel Chase, George Washington, and Patrick
Henry were members, it was resolved 'that the respective colonies are entitled to the common law of
England, and more especially to the great and inestimable privilege of being tried by their peers of the
vicinage, according to the course of that law.' 1 Jour. Cong. 28.
The constitution of the United States, as framed in 1787, and adopted in 1788, ordained, in article 3, 2,
that 'the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held
in the state where the said crime shall have been committed'; and, in the fifth, sixth, and seventh
amendments, adopted in 1791, 'nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb,' 'nor be deprived of life, liberty or property, without due process of law'; 'in all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury
of the state and district wherein the crime shall have been committed, which district shall have been
previously ascertained by law'; and 'in suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise
reexamined in any court of the United States, than according to the rules of the common law.'
Within six years after the constitution was established, the right of the jury, upon the general issue, to
determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by
this court, in the first of the very few trials by jury ever had at its bar, under the original jurisdiction
conferred upon it by the constitution.
That trial took place at February term, 1794, in State v. Brailsford, 3 Dall. 1, which was an action at law
by the state of Georgia against Brailsford and others, British subjects. The pleadings, as appears by the
files of this court, were as follows: The declaration was in assumpsit, for money had and received; the
defendants pleaded non assumpsit, and 'put themselves upon the country'; and the replication was, 'and
the said state of Georgia also putteth herself upon the country.' The action, as the report shows, was
brought to recover moneys received by the defendants upon a bond of a citizen of Georgia to them, to
which the state of Georgia claimed title under an act of confiscation passed by that state in 1782, during
the Revolutionary War, under circumstances which were agreed to be as stated in the suit in equity
between the same parties, reported in 2 Dall. 402, 415. After the case had been argued for four days to
the court and jury, Chief Justice Jay, on February 7, 1794, as the report states, 'delivered the following
charge':
● 'This cause has been regarded as of great importance, and doubtless it is so. It has accordingly been
treated by the counsel with great learning, diligence, and ability; and on your part, it has been
heard with particular attention. It is therefore unnecessary for me to follow the investigation over
the extensive field into which it has been carried. You are now, if ever you can be, completely
possessed of the merits of the cause.
● 'The facts comprehended in the case are agreed. The only point that remains is to settle what is the
law of the land arising from those facts; and, on that point, it is proper that the opinion of the court
should be given. It is fortunate on the present, as it must be on every, occasion, to find the opinion

of the court unanimous. We entertain no diversity of sentiment, and we have experienced no

difficulty in uniting in the charge which it is my province to deliver.'
The chief justice, after stating the opinion of the court in favor of the defendants upon the questions of
law, proceeded as follows: 'It may not be amiss, here, gentlemen, to remind you of the good old rule, that
on questions of fact it is the province of the jury, on questions of law it is the province of the court, to
decide. But it must be observed that by the same law, which recognizes this reasonable distribution of
jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the
law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt
you will pay that respect which is due to the opinion of the court; for as, on the one hand, it is presumed
that juries are the best judges of facts, it is, on the other hand, presumable that the court are the best
judges of law. But still both objects are lawfully within your power of decision.'
Then, after telling the jury that they should not be influenced by a consideration of the comparative
situations and means of the parties, he concluded the charge thus: 'Go, then, gentlemen, from the bar,
without any impressions of favor or prejudice for the one party or the other. Weigh well the merits of the
case, and do on this, as you ought to do on every, occasion, equal and impartial justice.' The jury, after
coming into court, and requesting and receiving further explanations of the questions of law, returned a
verdict for the defendants, without going again from the bar. 3 Dall. 3-5.
The report shows that, in a case in which there was no controversy about the facts, the court, while
stating to the jury its unanimous opinion upon the law of the case, and reminding them of 'the good old
rule that on questions of fact it is the province of the jury, on questions of law it is the province of the
court, to decide,' expressly informed them that 'by the same law, which recognizes this reasonable
distribution of jurisdiction,' the jury 'have nevertheless a right to take upon yourselves to judge of both,
and to determine the law as well as the fact in controversy.'
The court at that time consisted of Chief Justice Jay and Justices Cushing, Wilson, Blair, Iredell, and
Paterson, all of whom, as appears by its records, except Justice Iredell, were present at the trial.
The doubts which have been sometimes expressed of the accuracy of Mr. Dallas' report are unfounded, as
is apparent from several considerations. He was of counsel for the plaintiff. The court was then held at
Philadelphia; and there is no reason to doubt that the practice mentioned in the preface to his first
volume, containing reports of cases in the courts of Pennsylvania only, by which 'each case, before it was
sent to the press, underwent the examination of the presiding judge of the court in which it was
determined,' was continued in his succeeding volumes containing 'reports of cases ruled and adjudged in
the several courts of the United States and of Pennsylvania, held at the seat of the federal government.'
The charge contains internal evidence of being reported verbatim, and has quotation marks at the end,
although they are omitted at the beginning And the charge, in the same words, with the prefix that it 'was
delivered by Jay, Chief Justice, on the 7th of February, in the following lowing terms,' is printed in
Dunlop & Claypole's American Daily Advertiser of February 17, 1794.
That was not a criminal case, nor a suit to recover a penalty. Had it been, it could hardly have been
brought within the original jurisdiction of this court. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 294,
295 S., 8 Sup. Ct. 1370. But it was a suit by a state to assert a title acquired by an act of its legislature in
the exercise of its sovereign powers in time of war against private individuals. As the charge of the court
dealt only with the case before it, without any general discussion, it does not appear whether the opinion
expressed as to the right of the jury to determine the law was based upon a supposed analogy between

such a suit and a prosecution for crime, or upon the theory, countenanced by many American authorities
of the period, that at the foundation of the republic, as in early times in England, the right of the jury
extended to all cases, civil or criminal, tried upon the general issue.
However that may have been, it cannot be doubted that this court, at that early date, was of opinion that
the jury had the right to decide for themselves all matters of law involved in the general issue in criminal
cases; and it is certain that in the century that has since elapsed there has been no judgment or opinion of
the court deciding or intimating, in any form, that the right does not appertain to the jury in such cases.
And the opinions expressed by individual justices of the court upon the subject, near the time of the
decision in State v. Brailsford, or within 40 years afterwards, of which any reports are known to exist,
tend, more or less directly, to affirm this right of the jury. That there is not a greater accumulation of
evidence to this effect is easily accounted for when it is remembered that comparatively few reports of
trials were printed, and that the right of the jury was considered to be so well settled that it was seldom
controverted in practice, or specially noticed in reporting trials.
Upon the trial of Gideon Henfield in the circuit court of the United States for the district of Pennsylvania
in 1793, before Justices Wilson and Iredell and Judge Peters, for illegal privateering, Mr. Justice Wilson
told the jury that, 'the questions of law coming into joint consideration with the facts, it is the duty of the
court to explain the law to the jury and give it to them in direction'; and, after expressing the unanimous
opinion of the court upon the questions of law involved in the case, 'concluded by remarking that the
jury, in a general verdict, must decide both law and fact, but that this did not authorize them to decide it
as they pleased. They were as much bound to decide by law as the judges. The responsibility was equal
upon both.' Whart. St. Tr. 49, 84, 87, 88, Fed. Cas. No. 6, 360.
This statement that the jury, in a general verdict, must decide both law and fact, and were as much bound
to decide by law as the judges, and under an equal responsibility, is quite inconsistent with the idea that
the jury were bound to accept the explanation and direction of the court in matter of law as controlling
their judgment. That neither Mr. Justice Wilson nor Mr. Justice Iredell entertained any such idea is
conclusively disproved by authentic and definite statements of their views upon the question.
Mr. Justice Iredell, speaking for himself only, in a civil case before this court, at February term, 1795,
said: 'It will not be sufficient that the court might charge the jury to find for the defendant, because,
though the jury will generally respect the sentiments of the court on points of law, they are not bound to
deliver a verdict conformably to them.' Bingham v. Cabbot, 3 Dall. 19, 33. [158-Continued]
In a charge to the grand jury of the circuit court of the United States for the district of Georgia, in 1792,
Mr. Justice Iredell said: 'Where a killing is clearly proved, if the case be not very plain indeed, the grand
jury should find the indictment for murder, and leave the consideration as to the species of homicide to
the court and jury on the trial. I say the court and jury; for though it is held to be the province of the court
to decide what species of homicide the offense belongs to, and that the province of the jury is merely to
be confined to the facts, yet, in my opinion, this can mean nothing more, according to the true principles
of law, than that, if a jury find a special verdict stating the facts, the court may pronounce the law upon it,
and give judgment as effectually as they could have done on a general verdict. But as it is in the option of
the jury to give a special verdict or not, and as they unquestionably may find a general verdict, I conceive
they must find that verdict conscientiously, on the best of their judgment, after receiving all such
assistance as the court may think proper to give them, which assistance, where points of law are
complicated with facts, will often be found very useful, and in some instances absolutely necessary. But

as they, in the case of a general verdict, are by the law judges in the last resort (so far, at least, as the
giving of that verdict is concerned), they have, I think, clearly a right, as well as power, to determine as
shall appear to them just; since it seems to me absurd to say that, where there is a lawful authority to
determine, that determination must be made, not according to the judgment of those who have such
authority, but according to the judgment of those who have it not. I know no trammels of precedent in
this country to overrule a principle which appears to me so plain, and which is so well calculated to guard
against indecent altercations between a court and jury, as well as, in my opinion, to prevent any of the
rights or liberties of the citizens being overborne (as might otherwise sometimes be the case) by violent
exertions of power.' 2 McRee, Life of Iredell, 350.
Mr. Justice Wilson, in his lectures on law at the Philadelphia College in 1790 and 1791, discussing the
maxim that the judges determine the law and the jury determine the fact, made the following
observations:
● 'This well-known division between their provinces has been long recognized and established.
When the question of law and the question of fact can be decided separately, there is no doubt or
difficulty in saying by whom the separate decision shall be made. If, between the parties litigant,
there is no contention concerning the facts, but an issue is joined upon a question of law, as is the
case in a demurrer, the determination of this question, and the trial of this issue, belongs
exclusively to the judges. On the other hand, when there is no question concerning the law, and the
controversy between the parties depends entirely upon a matter of fact, the determination of this
matter, brought to an issue, belongs exclusively to the jury. But in many cases the question of law
is intimately and inseparably blended with the question of fact, and when this is the case the
decision of one necessarily involves the decision of the other. When this is the case it is incumbent
on the judges to inform the jury concerning the law, and it is incumbent on the jury to pay much
regard to the information which they receive from the judges. But now the difficulty in this
interesting subject begins to press upon us. Suppose that, after all the precautions taken to avoid it,
a difference of sentiment takes place between the judges and the jury with regard to a point of law.
Suppose the law and the fact to be so closely interwoven that a determination of one must at the
same time embrace the determination of the other. Suppose a matter of this description to come in
trial before a jury. What must the jury do? The jury must do their duty, and their whole duty. They
must decide the law as well as the fact. This doctrine is peculiarly applicable to criminal cases, and
from them, indeed, derives its peculiar importance.'
● 'Juries undoubtedly may make mistakes. They may commit errors. They may commit gross ones.
But, changed as they constantly are, their errors and mistakes can never grow into a dangerous
system. The native uprightness of their sentiments will not be bent under the weight of precedent
and authority. The esprit de corps will not be introduced among them, nor will society experience
from them those mischiefs of which the esprit de corps, unchecked, is sometimes productive.
Besides, their mistakes and their errors, except the venial ones on the side of mercy made by
traverse juries, are not without redress. The court, if dissatisfied with their verdict, have the power,
and will exercise the power, of granting a new trial. This power, while it prevents or corrects the
effects of their errors, preserves the jurisdiction of juries unimpaired. The cause is not evoked
before a tribunal of another kind. A jury of the country — an abstract, as it has been called, of the
citizens at large — summoned, selected, impaneled, and sworn as the former, must still decide.'
● 'One thing, however, must not escape our attention. In the cases and on the principles which we
have mentioned, jurors possess the power of determining legal questions. But they must determine

them according to law.' 2 Wilson, Works, 371-374.

In closing his discussion of the subject, and reviewing the principles before stated, he said: 'With regard
to the law in criminal cases, every citizen, in a government such as ours, should endeavor to acquire a
reasonable knowledge of its principles and rules, for the direction of his conduct, when he is called to
obey, when he is called to answer, and when he is called to judge. On questions of law, his deficiencies
will be supplied by the professional directions of the judges, whose duty and whose business it is
professionally to direct him; for, as we have seen, verdicts in criminal cases generally determine the
question of law as well as the question of fact. Questions of fact, it is his exclusive province to determine.
With the consideration of evidence unconnected with the question which he is to try, his attention will
not be distracted, for everything of that nature, we presume, will be excluded by the court. The collected
powers of his mind, therefore, will be fixed, steadily and without interruption, upon the issue which he is
sworn to try. This issue is an issue of fact.' 2 Wilson, Works, 386, 387.
These passages, taken together, clearly evince the view of Mr. Justice Wilson to have been that, while an
issue of law is to be tried and decided by the judge, an issue of fact, although it involve a question of law
blended and interwoven with the fact, is to be tried and decided by the jury after receiving the
instructions of the court, and, if a difference of opinion arise between them and the judge upon the
question of law, it is their right and their duty to decide the law as well as the fact; that a reasonable
knowledge of the principles and rules of law is important to the citizen, not only 'when he is called to
obey,' as an individual, and 'when he is called to answer,' as a defendant, but also 'when he is called to
judge,' as a juror; and that the general issue which the jury in a criminal case are sworn to try, and which
it is their duty to decide, even if it involve questions of law, is 'an issue of fact.'
The provision of section 3 of the act of congress of July 14, 1798 (chapter 74), for punishing seditious
libels, that 'the jury who shall try the cause shall have a right to determine the law and the fact, under the
direction of the court, as in other cases' (1 Stat. 597), is a clear and express recognition of the right of the
jury, in all criminal cases, to determine the law and the fact. The words, 'direction of the court,' as here
used, like the words 'opinions and directions' in the English libel act, do not oblige the jury to adopt the
opinion of the court, but are merely equivalent to 'instruction,' 'guide,' or 'aid,' and not to 'order,'
'command,' or 'control.' The provision is in affirmance of the general rule, and not by way of creating an
exception, and the reason for inserting it probably was that the right of the jury had been more often
denied by the English courts in prosecutions for seditious libels than in any other class of cases.
Upon the trial of John Fries for treason, in 1800, before Mr. Justice Chase and Judge Peters, in the circuit
court of the United States for the district of Pennsylvania, the district attorney having quoted from
English law books definitions of actual and constructive treason, Mr. Justice Chase said: 'They may, any
of them, be read to the jury, and the decisions thereupon, not as authorities whereby we are bound, but as
the opinions and decisions of men of great legal learning and ability. But even then the court would
attend carefully to the time of the decision, and in no case must it be binding upon our juries.' Trials of
Fries, 180. And he afterwards instructed the jury as follows: 'It is the duty of the court in this case, and in
all criminal cases, to state to the jury their opinion of the law arising on the facts; but the jury are to
decide on the present and in all criminal cases both the law and the facts, on their consideration of the
whole case.' And he concluded his charge in these words: 'If, upon consideration of the whole matter
(law as well as fact), you are not fully satisfied, without any doubt, that the prisoner is guilty of the
treason charged in the indictment, you will find him not guilty; but if, upon the consideration of the
whole matter (law as well as fact), you are convinced that the prisoner is guilty of the treason charged in

the indictment, you will find him guilty.' These instructions, with words italicized as above, are in the
exhibits annexed by Mr. Justice Chase to his answer upon the impeachment in 1805. Chase, Trial (Evans'
Ed.) Append. 44, 45, 48. See, also, Trials of Fries, 196, 199, Whart. St. Tr. 634, 636, Fed. Cas. No. 5,
127.
In 1806, at the trial of William S. Smith, in the circuit court of the United States for the district of New
York, upon an indictment for setting out a military expedition against a foreign country at peace with the
United States, Judge Talmadge said to the jury: 'You have heard much said upon the right of a jury to
judge of the law as well as the fact.' 'The law is now settled that this right appertains to a jury in all
criminal cases. They unquestionably may determine upon all the circumstances, if they will take the
responsibility and hazard of judging incorrectly upon questions of mere law. But the jury is not therefore
above the law. In exercising this right, they attach to themselves the character of judges, and as such are
as much bound by the rules of legal decision as those who preside upon the bench.' Trials of Smith and
Ogden, 236, 237.
In prosecutions in the district court of the United States for the district of Massachusetts, under the act of
congress of January 8, 1808 (chapter 8), laying an embargo (2 Stat. 453), Samuel Dexter argued the
unconstitutionality of the act to the jury; and they acquitted the defendant, although the evidence of the
violation of the act was clear, and the court held, and instructed the jury, that the act was constitutional. 3
Bradf. Hist. Mass. 108, note; 3 Webst. Works, 329, 330; U. S. v. The William, 2 Hall, Law J. 255;
Sigma, Reminiscences of Dexter, 60, 61.
In 1812, at the trial of an action in the district court of the United States for the district of New York,
upon a bond given under the embargo act, Judge Van Ness instructed the jury that 'this was in its nature
and essence, though not in its form, a penal or criminal action, and they were therefore entitled to judge
both of the law and the fact.' U. S. v. Poillon, 1 Car. Law Repos. 60, 66.
In 1815, at the trial of John Hodges, in the circuit court of the United States for the district of Maryland,
for treason, William Pinkney, for the defendant, argued: 'The best security for the rights of individuals is
to be found in the trial by jury. But the excellence of this institution consists in its exclusive power. The
jury are here judges of law and fact, and are responsible only to God, to the prisoner, and to their own
consciences.' And Mr. Justice Duvall, of this court, after expressing his opinion upon the law of the case,
said, with the concurrence of Judge Houston: 'The jury are not bound to conform to this opinion, because
they have a right, in all criminal cases, to decide on the law and the facts.' Hall, Law Tracts, III. 19, 28; 2
Wheeler, Cr. Cas. 477, 478, 485; Fed. Cas. No. 15, 374.
In 1830, George Wilson and James Porter were jointly indicted in the circuit court of the United States
for the district of Pennsylvania for robbing the mail, and were tried separately. In Wilson's Case, Mr.
Justice Baldwin (Judge Hopkinson concurring), after expressing to the jury an opinion upon the law, said
to them: 'We have thus stated to you the law of this case, under the solemn duties and obligations
imposed on us, under the clear conviction that in doing so we have presented to you the true test by
which you will apply the evidence to the case; but you will distinctly understand that you are the judges
both of the law and fact in a criminal case, and are not bound by the opinion of the court; you may judge
for yourselves, and, if you should feel it your duty to differ from us, you must find your verdict
accordingly. At the same time, it is our duty to say that it is in perfect accordance with the spirit of our
legal institutions that courts should decide questions of law; and the juries, of facts. The nature of the
tribunals naturally leads to this division of duties, and it is better, for the sake of public justice, that it

should be so. When the law is settled by a court, there is more certainty than when done by a jury. It will
be better known, and more respected in public opinion. But, if you are prepared to say that the law is
different from what you have heard from us, you are in the exercise of a constitutional right to do so. We
have only one other remark to make on this subject: By taking the law as given by the court, you incur no
moral responsibility; in making a rule of your own, there may be some danger of a mistake.' Baldw. 78,
99, 100, Fed. Cas. No. 16, 730. And in Porter's Case, the court, after repeating and explaining these
instructions, said to the jury: 'In a word, gentlemen, decide on the law and the facts as best comports with
your sense of duty to the public and yourselves. Act on the same rule under which you would be guided,
as a magistrate or judge, on the oath and responsibility of office. Then you will not err.' Baldw. 108, 109,
Fed. Cas. No. 16, 730.
Some justices of this court, indeed, who, as already shown, admitted the general right of jurors in
criminal cases to decide both law and fact, denied their right to pass upon the constitutionality of a
statute, apparently upon the ground that the question of the existence or the validity of a statute was for
the court alone. Paterson, J., in Lyon's Case (1798) Whart. St. Tr. 333, 336, Fed. Cas. No. 8, 646; Chase,
J., in Callender's Case (1800) Whart. St. Tr. 688, 710-718, Fed. Cas. No. 14, 709; Baldwin, J., in U. S. v.
Shive (1832) Baldw. 510, Fed. Cas No. 16, 278. It may well be doubted whether such a distinction can
be maintained. Com. v. Anthes, 5 Gray, 185, 188-192, 262; Cooley, Const. Lim. (6th Ed.) 567. But the
point does not arise in this case Upon the general question of the right of the jury in criminal cases to
decide the law, Chief Justice Marshall's opinion is of so great weight that the evidence of that opinion,
although, perhaps, not so satisfactory as might be wished, should not be disregarded.
At the trial of Aaron Burr in the circuit court of the United States for the district of Virginia, in 1808, for
treason by levying war in Blennerhassett's Island, Chief Justice Marshall, in delivering an opinion upon
the order of evidence, said: 'Levying of war is a fact, which must be decided by the jury. The court may
give general instructions on this, as on every other question brought before them, but the jury must
decide upon it as compounded of fact and law.' 1 Burr's Trial, 470.
In the charge, Drawn up by the chief justice in writing, and read by him to the jury, speaking of the
question of the defendant's constructive presence, he said: 'Had he not arrived in the island, but had taken
a position near enough to co-operate with those on the island, to assist them in any act of hostility, or to
aid them if attacked, the question whether he was constructively present would be a question
compounded of law and fact, which would be decided by the jury, with the aid of the court, so far as
respected the law.' 2 Burr's Trial, 429.
The chief justice took occasion to demonstrate that questions of the admissibility of evidence must be
decided by the court only, saying: 'No person will contend that in a civil or criminal case either party is at
liberty to introduce what testimony he pleases, legal or illegal, and to consume the whole term in details
of facts unconnected with the particular case. Some tribunal, then, must decide on the admissibility of
testimony. The parties cannot constitute this tribunal, for they do not agree. The jury cannot constitute it,
for the question is whether they shall hear the testimony or not. Who then but the court can constitute it?
It is, of necessity, the peculiar province of the court to judge of the admissibility of testimony.' Page 443.
Referring to his previous opinion on the order of testimony, he remarked: 'It was said that levying war is
an act compounded of law and fact, of which the jury, aided by the court, must judge. To that declaration
the court still adheres.' Page 444. And he concluded his charge thus: 'The jury have now heard the
opinion of the court on the law of the case. They will apply that law to the facts, and will find a verdict of

guilty or not guilty as their own consciences may direct.' Page 445.
It thus appears that Chief Justice Marshall, while affirming that a question of the admissibility of
evidence must be decided by the court, because that question was whether the jury should hear the
evidence or not, yet told the jury (in many forms, but of the same meaning) that upon a question
compounded of fact and law, involved in the issue submitted to the jury, the court might give general
instructions, but the jury must decide it; that such a question, compounded of law and fact, would be
decided by the jury, with the aid of the court, so far as respects the law; that of such a question the jury,
aided by the court, must judge; and that, having 'heard the opinion of the court on the law of the case,
they will apply,' not 'that opinion,' but 'that law,' namely, the law as to which the court had expressed its
opinion, 'to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct.'
The manifest intent and effect of all this were that the jury, after receiving the aid of the instructions of
the court on matter of law, must judge of and determine, as their own consciences might direct, every
question compounded of law and fact involved in the general issue of guilty or not guilty.
The meaning of the charge in this respect, as carefully prepared by the chief justice, is too clear to be
controlled by the words attributed to him by the reporter, on page 448, in the course of a desultory
conversation with counsel in regard to other defendants, after the jury had found Burr not guilty.
In 1817, before Chief Justice Marshall, in the same court, there was tried an indictment for piracy, by
robbing on the high seas, under Act Cong. April 30, 1790, c. 9, 8 (1 Stat. 113; Rev. St. 5372), enacting
that any person committing upon the high seas 'murder or robbery, or any other offense which, if
committed within the body of a county, would by the laws of the United States be punishable with death,'
should be deemed a pirate. Mr. Upshur, for the defendant, argued 'that it was necessary that robbery
should first be made punishable with death by the laws of the United States, when committed on land,
before it could amount to piracy, when committed on the sea, which was not now the case; that Judge
Johnson had so decided in South Carolina, although a contrary decision had been subsequently
pronounced by Judge Washington; that the conflict between these two learned judges proved that the law
was at least doubtful; that the jury, in a capital case, were judges as well of the law as the fact, and were
bound to acquit, where either was doubtful.' Chief Justice Marshall (far from denying this right of the
jury), 'being appealed to for the interpretation of the law, decided that it was not necessary that robbery
should be punishable by death when committed on land, in order to amount to piracy if committed on the
ocean; but as two judges (for both of whom the court entertained the highest respect) had pronounced
opposite decisions upon it, the court could not undertake to say that it was not at least doubtful.' And, the
case being submitted to the jury, they returned a verdict of not guilty. U. S. v. Hutchings, 2 Wheel. Cr.
Cas. 543, 547, 548, Fed. Cas. No. 15, 429.3
It may be added that Mr. Conway Robinson, well known to many members of this court and this bar as a
most careful and accurate as well as learned lawyer, informed Mr. Justice Blatchford and myself that he
well remembered hearing Chief Justice Marshall, presiding at the trial of a criminal case in the circuit
court of the United States at Richmond, after expressing, at the request of the counsel on both sides, his
own opinion upon the construction of the statute on which the indictment was founded, conclude his
charge to the jury by telling them that, as it was a criminal case, they were not bound to accept his
opinion, but had the right to decide both the law and the fact.
Until nearly 40 years after the adoption of the constitution of the United States, not a single decision of
the highest court of any state, or of any judge of a court of the United States, has been found, denying the

right of the jury upon the general issue in a criminal case to decide, according to their own judgment and
consciences, the law involved in that issue, except the two or three cases, above mentioned, concerning
the constitutionality of a statute. And it cannot have escaped attention that many of the utterances above
quoted, maintaining the right of the jury, were by some of the most eminent and steadfast supporters of
the constitution of the United States, and of the authority of the national judiciary.
It must frankly be admitted that in more recent times, beginning with the judgment of the court of
appeals of Kentucky in 1830 in Montee v. Com., 3 J. J. Marsh. 132, and with Mr. Justice Story's charge
to a jury in 1835 in U. S. v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14, 545, the general tendency of
decision in this country (as appears by the cases cited in the opinion of the majority of the court) has been
against the right of the jury, as well in the courts of the several states, including many states where the
right was once established, as in the circuit courts of the United States. The current has been so strong
that in Massachusetts, where counsel are admitted to have the right to argue the law to the jury, it has yet
been held that the jury have no right to decide it, and it has also been held, by a majority of the court, that
the legislature could not constitutionally confer upon the jury the right to determine, against the
instructions of the court, questions of law involved in the general issue in criminal cases; and in Georgia
and in Louisiana a general provision in the constitution of the state declaring that 'in criminal cases the
jury shall be judges of the law and fact' has been held not to authorize them to decide the law against the
instructions of the court. Com. v. Porter, 10 Metc. (Mass.) 263; Com. v. Anthes, 5 Gray, 185; Ridenhour
v. State, 75 Ga. 382; State v. Tisdale, 41 La. Ann. 338, 6 South. 579.
But, upon the question of the true meaning and effect of the constitution of the United States in this
respect, opinions expressed more than a generation after the adoption of the constitution have far less
weight than the almost unanimous voice of earlier and nearly contemporaneous judicial declarations and
practical usage. Stuart v. Laird, 1 Cranch, 299. And, upon this constitutional question, neither decisions
of state courts, nor rulings of lower courts of the United States, can relieve this court from the duty of
exercising its own judgment. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 443, 9 S.
Sup. Ct. 469; Andrews v. Hovey, 124 U.S. 694, 717, 8 S. Sup. Ct. 676; The J. E. Rumbell, 148 U.S. 1,
17, 13 S. Sup. Ct. 498.
The principal grounds which have been assigned for denying the right of a jury, upon the general issue in
a criminal case, to determine the law against the instructions of the court, have been that the old maxim,
'Ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores,' is of universal
application; that judges are more competent than juries to determine questions of law; and that decisions
upon such questions in one case become precedents to guide the decision of subsequent cases.
But the question, what are the rights, in this respect, of persons accused of crime, and of juries
summoned and impaneled to try them, under the constitution of the United States, is not a question to be
decided according to what the court may think would be the wisest and best system to be established by
the people or by the legislature; but what, in the light of previous law, and of contemporaneous or early
construction of the constitution, the people did affirm and establish by that instrument.
This question, like all questions of constitutional construction, is largely an historical question; and it is
for that reason that it has seemed necessary, at the risk of tediousness, to review and to state at some
length the principal authorities upon the subject in England and America. The reasons to be derived from
these authorities for maintaining the contested right of the jury in this regard may be summed up as
follows:

By the Great Charter of England, and by the American constitutions, it is not by a decision of the ablest
or most learned judges that the citizen can be deprived of his life or liberty, but it is only by 'the
judgment of his peers, ' or, in the ancient phrase, 'by his country,' — a jury taken from the body of the
people.
The ancient forms, used before and since the adoption of the constitution, and hardly altered at the
present day, in which the general issue is pleaded by the accused, and submitted to the jury, are
significant. When the defendant, being arraigned upon the indictment, pleads not guilty, he is asked by
the clerk of the court, 'How will you be tried?' and answers, 'By God and my country.' The oath
administered to each juror as he is called and accepted is: 'You shall well and truly try and true
deliverance make between our sovereign lord the king [or the state or people, or the United States, as the
case may be] and the prisoner at the bar, whom you shall have in charge, according to your evidence. So
help you God.' And, after the jury have been impaneled, the clerk reads the indictment to the jury, and
then says to them: 'To this indictment the prisoner at the bar has pleaded not guilty, and for trial has put
himself upon the country, which country you are. You are now sworn to try the issue. If he is guilty, you
will say so; if not guilty, you will say so; and no more.'
In the maxim, 'Ad quaestionem juris respondent judices, ad quaestionem facti respondent juratores,' the
word 'quaestio' denotes an issue joined by the pleadings of the parties, or otherwise stated on the record,
for decision by the appropriate tribunal. Issues of law, so joined or stated, are to be decided by the judge;
issues of fact, by the jury. If the accused demurs to the indictment, an issue of law only is presented,
which must be decided and judgment rendered thereon by the court, and by the court alone. But, if the
accused pleads generally not guilty, the only issue joined is an issue of fact, to be decided by the jury,
and by the jury only, unless the jury choose to return a special verdict, so that the record may present an
issue of mere law, to be decided by the court. After a verdict of guilty, again, any defense in matter of
law, apparent on the record, is to be considered and decided by the court on motion in arrest of judgment.
The maxim has no application to rulings, in the course of the trial, upon the admission of evidence. The
object of rules as to the competency of evidence is to prevent trials from being unduly prolonged, and the
consideration and decision of the merits of the real issue on trial obscured, embarrassed, or prejudiced by
the introduction of irrelevant matter. The question whether particular evidence shall be admitted or not is
one to be decided before the evidence can be submitted to the jury at all, and must be, as it always is,
decided by the court; and this is so, whether the admissibility of the evidence depends, as it usually does,
upon a question of law only, or depends largely or wholly upon a question of fact, as whether dying
declarations were made under immediate apprehension of death, or whether a confession of the
defendant was voluntary, or whether sufficient foundation has been laid for the introduction of secondary
evidence, or for permitting a witness to testify as an expert. To infer, because the court must decide
questions of law upon which the admissibility of evidence depends, that the jury have no right to
determine the matter of law involved in the general issue, would be as unwarrantable as to infer, because
the court must decide questions of fact upon which the admissibility of evidence depends, that the jury
have no right to decide the matter of fact involved in that issue.
The jury to whom the case is submitted, upon the general issue of guilty or not guilty, are intrusted with
the decision of both the law and the facts involved in that issue. To assist them in the decision of the
facts, they hear the testimony of witnesses; but they are not bound to believe the testimony. To assist
them in the decision of the law, they receive the instructions of the judge; but they are not obliged to
follow his instructions.

Upon the facts, although the judge may state his view of them, the duty of decision remains with the jury,
and cannot be thrown by them upon the judge. Upon the law involved in the issue of fact, the jury, if they
are satisfied to do so, may let it be decided by the judge, either by returning a general verdict in
accordance with his opinion as expressed to them, or by returning a special verdict reciting the facts as
found by them, and, by thus separating the law from the facts, put the question of law in a shape to be
decided by the court in a more formal manner. But the whole issue, complicated of law and fact, being
submitted to their determination, the law does not require them to separate the law from the fact, but
authorizes them to decide both at once by a general verdict.
The duty of the jury, indeed, like any other duty imposed upon any officer or private person by the law of
his country, must be governed by the law, and not by willfulness or caprice. The jury must ascertain the
law as well as they can. Usually they will, and safely may, take it from the instructions of the court. But,
if they are satisfied on their consciences that the law is other than as laid down to them by the court, it is
their right and their duty to decide by the law as they know or believe it to be.
In the forcible words of Chief Justice Vaughan in Bushell's Case, Vaughan, 135, 148, already quoted: 'A
man cannot see by another's eye, nor hear by another's ear; no more can a man conclude or infer the thing
to be resolved by another's understanding or reasoning; and, though the verdict be right the jury give, yet
they, being not assured it is so from their own understanding, are forsworn, at least in foro conscientiae.'
Or, as more briefly stated in another report of the same case: 'The jury are perjured if the verdict be
against their own judgment, although by directions of the court, for their oath binds them to their own
judgment.' T. Jones, 13, 17.
It is universally conceded that a verdict of acquittal, although rendered against the instructions of the
judge, is final, and cannot be set aside; and, consequently, that the jury have the legal power to decide for
themselves the law involved in the general issue of guilty or not guilty. It has sometimes, however, been
asserted that, although they have the power, they have no right to do this, and that it is their legal, or at
least their moral, duty, in every criminal case, to obey and follow the judge's instructions in matter of
law. The suggestion is not that the jury ought not to exercise the power wrongfully, but that they ought
not to exercise it at all; that, whether the instructions of the court be right or wrong, just or arbitrary,
according to the law as known of all men, or directly contrary to it, the jury must be controlled by and
follow them.
But a legal duty which cannot in any way, directly or indirectly, be enforced, and a legal power of which
there can never, under any circumstances, be a rightful and lawful exercise, are anomalies; 'the test of
every legal power [as said by Alexander Hamilton, and affirmed by Chancellor Kent, in People v.
Croswell, 3 Johns. Cas. 362, 368, above cited] being its capacity to produce a definitive effect, liable
neither to punishment nor control,' 'to censure nor review.'
It has been said that, if not their legal duty, it is their moral duty, to follow the instructions of the court in
matter of law. But moral duties, as distinguished from legal duties, are governed, not by human, but by
divine, laws; and the oath which the jurors in a capital case severally take to the Almighty Judge is to
well and truly try and true deliverance make between the government and the prisoner at the bar,
according to their evidence, not according to the instructions of the court, and to decide whether, in their
own judgment and conscience, the accused is guilty or not guilty.
The rules and principles of the criminal law are, for the most part, elementary and simple, and easily
understood by jurors taken from the body of the people. As every citizen or subject is conclusively

presumed to know the law, and cannot set up his ignorance of it to excuse him from criminal
responsibility for offending against it, a jury of his peers must be presumed to have equal knowledge,
and, especially after being aided by the explanation and exposition of the law by counsel and court, to be
capable of applying it to the facts as proved by the evidence before them. On the other hand, it is a matter
of common observation that judges and lawyers, even the most upright, able, and learned, are sometimes
too much influenced by technical rules; and that those judges who are wholly or chiefly occupied in the
administration of criminal justice are apt, not only to grow severe in their sentences, but to decide
questions of law too unfavorably to the accused.
The jury having the undoubted and uncontrollable power to determine for themselves the law as well as
the fact by a general verdict of acquittal, a denial by the court of their right to exercise this power will be
apt to excite in them a spirit of jealousy and contradiction, and to prevent them from giving due
consideration and weight to the instructions due consideration and weight to the instructions
In civil cases, doubtless, since the power to grant new trials has become established, the court, having the
right to grant one to either party as often as the verdict appears to be contrary to the law, or to the
evidence, may, in order to avoid unnecessary delay, whenever, in its opinion, the evidence will warrant a
verdict for one party only, order a verdict accordingly. Pleasants v. Fant, 22 Wall. 116; Hendrick v.
Lindsay, 93 U.S. 143; Schofield v. Railway Co., 114 U.S. 615, 5 Sup. Ct. 1125.
But a person accused of crime has a twofold protection — in the court and the jury — against being
unlawfully convicted. If the evidence appears to the court to be insufficient in law to warrant a
conviction, the court may direct an acquittal. Smith v. U. S., 151 U.S. 50, 14 Sup. Ct. 234. But the court
can never order the jury to convict, for no one can be found guilty but by the judgment of his peers.
Decisions of courts, and especially of courts of last resort, upon issues of law, such as are presented by a
demurrer or by a special verdict, become precedents to govern judicial decisions in like cases in the
future. But the verdict of a jury, upon the general issue of guilty or not guilty, settles nothing but the guilt
or innocence of the accused in the particular case; and the issue decided is so complicated of law and
fact, blended together, that no distinct decision of any question of law is recorded or made. The purpose
of establishing trial by jury was not to obtain general rules of law for future use, but to secure impartial
justice between the government and the accused in each case as it arose.
As said by Alexander Hamilton in Croswell's Case, above cited, the power of deciding both law and fact
upon the general issue in a criminal case is intrusted to the jury, 'for reasons of a political and peculiar
nature, for the security of life and liberty.' 7 Hamilton's Works, 335; 3 Johns. Cas. 362. The people, by a
jury drawn from among themselves, take part in every conviction of a person accused of crime by the
government; and the general knowledge that no man can be otherwise convicted increases public
confidence in the justice of convictions, and is a strong bulwark of the administration of the criminal law.
By the law of England, as has been seen, a person accused of murder or other felony, and convicted
before a single judge, could not move for a new trial, and had no means of reviewing his instructions to
the jury upon any question of law, unless the judge himself saw fit to reserve the question for decision by
higher judicial authority.
Although Mr. Justice Story, in U. S. v. Gibert (1834) 2 Sumn. 19, Fed. Cas. No. 15, 204, thought that a
new trial could not be granted to a man convicted of murder by a jury, because to do so would be to put
him twice in jeopardy of his life, yet the circuit courts of the United States may doubtless grant new trials

after conviction, though not after acquittal, in criminal cases tried before them. U. S. v. Fries (1799) 3
Dall. 515, Fed. Cas. No. 5, 126; U. S. v. Wilson & Porter (1830) Baldw. 78, 108, Fed. Cas. No. 16, 730;
U. S. v. Harding (1846) 1 Wall. Jr. 127, Fed Cas. No. 15, 301; U. S. v. Keen (1839) 1 McLean, 429, Fed.
Cas. No. 15, 510; U. S. v. Macomb (1851) 5 McLean, 286, Fed. Cas. No. 15, 702; U. S. v. Smith (1855)
3 Blatchf. 255, Fed. Cas. No. 16, 320; U. S. v. Williams (1858) 1 Cliff. 5, Fed. Cas. No. 16, 707. But the
granting or refusal of a new trial rests wholly in the discretion of the court in which the trial was had, and
cannot be reviewed on error. Blitz v. U. S., 153 U.S. 308, 14 Sup. Ct. 924.
By the constitution of the United States, this court has appellate jurisdiction in such cases, and under
such regulations only, as congress may prescribe; and, under the legislation of congress before 1889, no
rulings or instructions of a circuit court of the United States in a criminal case could be brought to this
court, unless upon a certificate of division of opinion between two judges presiding at the trial. A person
accused of murder or other crime might be tried, and, if convicted by the jury, sentenced before a single
judge, perhaps only a district judge; and, if so convicted and sentenced, there was no way in which the
judge's rulings could be reviewed by this court. Act April 29, 1802, c. 31, 6 (2 Stat. 159); Rev. St. 651,
697; U. S. v. More, 3 Cranch, 159, 172; Ex parte Kearney, 7 Wheat. 38, 42; Ex parte Gordon, 1 Black,
503; Ex parte Yarbrough, 110 U.S. 651, 4 Sup. Ct. 152; U. S. v. Perrin, 131 U.S. 55, 9 Sup. Ct. 681.
By the acts of February 6, 1889 (chapter 113, 6), and March 3, 1891 (chapter 517), indeed, a person
convicted of murder or other infamous crime in a circuit court of the United States may bring the case to
this court by writ of error, although the United States cannot do so. 25 Stat. 656; 26 Stat. 827; U. S. v.
Sanges, 144 U.S. 310, 12 Sup. Ct. 609. But the right of review, so given to this court, cannot supersede
or impair the rightful power of the jury under the constitution, in deciding the issue submitted to them at
the trial.
There may be less danger of prejudice or oppression from judges appointed by the president elected by
the people than from judges appointed by an hereditary monarch. But, as the experience of history
shows, it cannot be assumed that judges will always be just and impartial, and free from the inclination,
to which even the most upright and learned magistrates have been known to yield, — from the most
patriotic motives, and with the most honest intent to promote symmetry and accuracy in the law, — of
amplifying their own jurisdiction and powers at the expense of those intrusted by the constitution to other
bodies. And there is surely no reason why the chief security of the liberty of the citizen — the judgment
of his peers — should be held less sacred in a republic than in a monarchy.
Upon these considerations, we are of opinion that the learned judge erred in instructing the jury that they
were bound to accept the law as stated in his instructions, and that this error requires the verdict to be set
aside as to both defendants.
But we are also of opinion that the judge committed an equally grave error in declining to submit to the
jury matter of fact involved in the issue on trial.
It clearly appears that the jury were not only instructed that, while they had the physical power to return a
verdict of manslaughter, yet they must take the law from the court; but that they were also instructed that,
if they found these defendants guilty of any crime, it could not properly be manslaughter. There can be
no doubt upon the record before us — and it is admitted in the opinion of the majority of the court — that
the judge denied the right of the jury to find as a fact that the defendants had been guilty of manslaughter
only. Nor can there be any doubt that the jury were thereby led to agree upon a verdict of guilty of
murder, to the great prejudice of the defendants.

In a case in which the jury, as appeared by their inquiries of the court, were in doubt whether the
homicide committed by the defendants was murder or manslaughter, to instruct them that they could not
acquit the defendants of murder and convict them of manslaughter only, but must find them guilty of
murder or of no crime at all, does not appear to us to differ, in principle, from instructing them, in a case
in which there was no question of manslaughter, that there was no evidence upon which they could
acquit the defendant, or do anything but convict him of murder.
This is not a case in which the judge simply declined to give any instructions upon a question of law
which he thought did not arise upon the evidence. But, after giving sufficient definitions both of murder
and of manslaughter, he peremptorily told them that they could not convict the defendants of
manslaughter only, and thereby denied the right of the jury to pass upon a matter of fact necessarily
included in the issue presented by the general plea of not guilty.
This appears to us to be inconsistent with settled principles of law and with well-considered authorities.
As said by this court, speaking by Mr. Justice Clifford: 'In criminal cases the true rule is that the burden
of proof never shifts; that in all cases, before a conviction can be had, the jury must be satisfied from the
evidence, beyond a reasonable doubt, of the affirmative of the issue presented in the accusation that the
defendant is guilty in the manner and form as charged in the indictment.' Lilienthal's Tobacco v. U. S., 97
U.S. 237, 266. See, also, Potter v. U. S., 155 U.S. 438, 15 Sup. Ct. 144; Com. v. McKie, 1 Gray, 61;
People v. Downs, 123 N. Y. 558, 25 N. E. 988.
Upon the trial of an indictment under a statute of the territory of Utah, establishing two degrees of
murder, with different punishments, the jury were instructed 'that an atrocious and dastardly murder has
been committed by some person is apparent, but in your deliberations you should be careful not to be
influenced by any feeling'; and the defendant was found guilty of murder in the first degree, and
sentenced to death. This court, upon writ of error to the supreme court of the territory, reversed the
judgment, because that instruction must have been regarded by the jury as 'an instruction that the offense,
by whomsoever committed, was murder in the first degree; whereas it was for the jury, having been
informed as to what was murder by the laws of Utah, to say whether the facts made a case of murder in
the first degree or murder in the second degree'; and 'the prisoner had the right to the judgment of the jury
upon the facts, uninfluenced by any direction from the court as to the weight of the evidence.' Hopt v.
People, 110 U.S. 574, 582, 583 S., 4 Sup. Ct. 202.
As stated by the chief justice, speaking for this court, in a case of murder, decided at the last term: 'It is
true that in the federal courts the rule that obtains is similar to that in the English courts, and the
presiding judge may, if in his discretion he think proper, sum up the facts to the jury; and if no rule of
law is incorrectly stated, and the matters of fact are ultimately submitted to the determination of the jury,
it has been held that an expression of opinion upon the facts is not reviewable on error. Rucker v.
Wheeler, 127 U.S. 85, 93, 8 Sup. Ct. 1142; Lovejoy v. U. S., 128 U.S. 171, 173, 9 S. Sup. Ct. 57. But he
should take care to separate the law from the facts, and to leave the latter in unequivocal terms to the
judgment of the jury as their true and peculiar province. M'Lanahan v. Insurance Co., 1 Pet. 170, 182. As
the jurors are the triers of facts, expressions of opinion by the court should be so guarded as to leave the
jury free in the exercise of their own judgments.' Starr v. U. S., 153 U.S. 614, 624, 625 S., 14 Sup. Ct.
919.
The supreme court of Michigan, speaking by Chief Justice Cooley, in setting aside a verdict of murder, in
a case in which the homicide was admitted, and the only question was whether it was murder or

manslaughter, said: 'The trial of criminal cases is by a jury of the country, and not by the court. The
jurors, and they alone, are to judge of the facts, and weigh the evidence. The law has established this
tribunal, because it is believed that, from its numbers, the mode of their selection, and the fact that the
jurors come from all classes of society, they are better calculated to judge of motives, weigh
probabilities, and take what may be called a 'common-sense view' of a set of circumstances, involving
both act and intent, than any single man, however pure, wise, and eminent he may be. This is the theory
of the law, and, as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and
to justice. But, to give it full effect, the jury must be left to weigh the evidence, and to examine the
alleged motives by their own tests. They cannot properly be furnished for this purpose with balances
which leave them no discretion, but which, under certain circumstances, will compel them to find a
malicious intent when they cannot conscientiously say they believe such an intent to exist.' People v.
Garbutt, 17 Mich. 9, 27.
In Rex v. Burdett, cited in the earlier part of this opinion, Mr. Justice Best said: 'If there was any
evidence, it was my duty to leave it to the jury, who alone could judge of its weight. The rule that
governs a judge as to evidence applies equally to the case offered on the part of the defendant, and that in
support of the prosecution. It will hardly be contended that, if there was evidence offered on the part of
the defendant, a judge would have a right to take on himself to decide on the effect of the evidence, and
to withdraw it from the jury. Were a judge so to act, he might, with great justice, be charged with
usurping the privileges of the jury, and making a criminal trial, not what it is by our law, a trial by jury,
but a trial by the judge.' And Lord Tenterden, in words peculiarly applicable to the present case, said: 'In
cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous
ingredients poured into the cup. In drawing an inference or conclusion from facts proved, regard must
always be had to the nature of the particular case, and the facility that appears to be afforded, either of
explanation or contradiction.' 'The premises may lead more or less strongly to the conclusion, and care
must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the
certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar
advantages of our jurisprudence that the conclusion is to be drawn by the unanimous judgment and
conscience of twelve men, conversant with the affairs and business of life, and who know that, where
reasonable doubt is entertained, it is their duty to acquit; and not of one or more lawyers, whose habits
might be suspected of leading them to the indulgence of too much subtilty and refinement.' 4 Barn. &
Ald. 95, 121, 161, 162.
The care with which courts of the highest authority have guarded the exclusive right of the jury to decide
the facts in a criminal case is exemplified in a very recent case before the judicial committee of the privy
council, in which, under section 423 of the criminal law amendment act of 1883 (46 Vict. c. 17),
authorizing the judge presiding at a criminal trial to reserve questions of law for review, with a proviso
that no judgment should be reversed 'unless for some substantial wrong or other miscarriage of justice,'
the questions reserved were whether certain evidence had been improperly admitted, and whether, if the
court came to the conclusion that it was not legally admissible, the court could nevertheless affirm the
judgment if it was of opinion that, independently of that evidence, there was sufficient evidence to
support the conviction, and that the accused was guilty of the offense with which he was charged. It was
argued that if, without the inadmissible evidence, there was evidence sufficient to sustain the verdict, and
to show that the accused was guilty, there had been no substantial wrong or miscarriage of justice in
affirming a judgment upon the conviction by the jury. But Lord Chancellor Herschell, speaking for six
other law lords as well as for himself, held otherwise, and said: 'It is obvious that the construction

contended for transfers from the jury to the court the determination of the question whether the evidence
— that is to say, what the law regards as evidence — establishes the guilt of the accused. The result is
that, in a case where the accused has the right to have his guilt or innocence tried by a jury, the judgment
passed upon him is made to depend, not on the finding of the jury, but on the decision of the court. The
judges are in truth substituted for the jury. The verdict becomes theirs, and theirs alone, and is arrived at
upon a perusal of the evidence, with out any opportunity of seeing the demeanor of the witnesses and
weighing the evidence with the assistance which this affords. It is impossible to deny that such a change
of the law would be a very serious one, and that the construction which their lordships are invited to put
upon the enactment would gravely affect the much-cherished right of trial by jury in criminal cases.'
Makin v. Attorney General App. Cas. 57, 69, 70.
By section 1035 of the Revised Statutes, 'in all criminal causes, the defendant may be found guilty of any
offence the commission of which is necessarily included in that with which he is charged in the
indictment, or may be found guilty of an attempt to commit the offence so charged: provided, that such
attempt be itself a separate offence.' The defendants, therefore, under this indictment, might have been
convicted of murder, or of manslaughter, or of an assault only. Having pleaded not guilty, they could
only be convicted by the verdict of a jury. If a homicide was committed with malice, it was murder; if
committed without malice, but without any lawful excuse, it was manslaughter only. The burden of proof
at every step was upon the government. In order to obtain a conviction of murder, it must prove beyond a
reasonable doubt that the homicide was committed with malice. The question whether, taking into
consideration all the circumstances in evidence, as well as the credibility of the several witnesses, there
was a criminal homicide, and, if so, whether it was murder or only manslaughter, could be finally
decided against the defendants by the jury alone. According to the settled practice of the courts of the
United States, indeed, the court, even in a criminal case, may express its opinion to the jury upon any
question of fact, provided that it submits that question to the jury for decision. But the court in this case
went beyond this, and distinctly told the jury that, if they found that a felonious homicide had been
committed by the defendants, they could not properly convict them of manslaughter, which was
equivalent to saying that, if any crime was proved, it was murder. This instruction had the direct
tendency and the actual effect of inducing the jury to return a verdict of guilty of the higher crime. The
jury may have been satisfied that the defendants killed the mate without lawful excuse, and may yet have
had doubts whether, upon so much of the testimony as they believed to be true, the killing was malicious,
and therefore murder. That doubts had occurred to the jurors upon this point is shown by the questions
addressed by one of them to the presiding judge. The judge dispelled those doubts, not by further
defining the distinction as matter of law between murder and manslaughter, but by telling the jury that, as
matter of fact, they could not convict the defendants of manslaughter only. He thus substituted his own
decision upon this question of fact for the decision of the jury, to which the defendants were entitled
under the constitution and laws of the United States. If all the justices of this court should concur in the
opinion of the judge below upon this question of fact, still the defendants have not had the question
decided by the only tribunal competent to do so under the constitution and laws.
For the twofold reason that the defendants, by the instructions given by the court to the jury, have been
deprived both of their right to have the jury decide the law involved in the general issue, and also of their
right to have the jury decide every matter of fact involved in that issue, we are of opinion that the
judgment should be reversed, and the case remanded, with directions to order a new trial as to both
defendants.

Footnotes
3. The decision of Mr. Justice Johnson, there referred to, does not appear to have been reported. But the
decision of Mr. Justice Washington is reported as U. S. v. Jones (1813) 3 Wash. C. C. 209, Fed. Cas. No.
15, 494; and the point was decided the same way by this court (Mr. Justice Johnson dissenting) in U. S.
v. Palmer (1818) 3 Wheat. 610.

http://www.constitution.org/ussc/156-051c.txt
Mr. Justice GRAY, with whom concurred Mr. Justice SHIRAS, dissenting.
Mr. Justice SHIRAS and myself concur in so much of the opinion of the
majority of the court as awards a new trial to one of the defendants by
reason of the admission in evidence against him of confessions made in his
absence by the other.
But from the greater part of that opinion, and from the affirmance of the
conviction of the other defendant, we are compelled to dissent, because, in
our judgment, the case, involving the question of life or death to the
prisoners, was not submitted to the decision of the jury as required by the
constitution and laws of the United States.
The two defendants, Herman Sparf and Hans Hansen, together with Thomas St.
Clair, seamen on board the brig Hesper, an American vessel, were indicted
for the murder of Maurice Fitzgerald, the second mate, on the high seas, on
January 13, 1893, by striking him with a weapon, and by throwing him
overboard and drowning him.
St. Clair was separately tried, convicted, and sentenced, and his conviction
was affirmed by this court at the last term. 154 U.S. 134, 14 Sup. Ct. 1002.
At the trial of Sparf and Hansen, there was no direct testimony of any
eyewitness to the killing, or to any assault or affray. There was evidence
that at 10 o'clock in the evening of the day in question the second mate was
at the wheel, in charge of the starboard watch, consisting of St. Clair,
Sparf, Hansen, and another seaman; and that, when the watch was changed at
midnight, the second mate could not be found, and there was much blood on
the deck, as well as a bloody broomstick and a wooden bludgeon. The rest of
the evidence consisted of testimony of other seamen to acts and statements
of each defendant and of St. Clair, before and after the disappearance of
the second mate, tending to prove a conspiracy to kill him; and to
subsequent confessions of Hansen, tending to show that the killing was
premeditated.
The judge, in his charge to the jury, gave the following instructions: 'The
indictment is based upon section 5339 of the Revised Statutes, which
provides, among other things, that 'every person who commits murder' 'upon
the high seas, or in any arm of the sea, or in any river, haven, creek,
basin or bay, within the admiralty and maritime jurisdiction of the United
States, and out of the jurisdiction of any particular state, or who upon any
of such waters maliciously strikes, stabs, wounds, poisons or shoots at any
other person, of which striking, stabbing, wounding, poisoning or shooting
such other person dies, either on land or at sea, within or without the
United States, shall suffer death."
'Murder is the unlawful killing of a human being in the peace of

the state, with malice aforethought, express or implied.' 'Express
malice' was defined as 'deliberate premeditation and design,
formed in advance, to kill or to do bodily harm, the
premeditation and design being implied from external
circumstances capable of proof, such as lying in wait, antecedent
threats, and concerted schemes against a victim'; and 'implied
malice' as 'an inference of the law from any deliberate and cruel
act committed by one person against another,' 'that is, malice is
inferred when one kills another without provocation, or when the
provocation is not great.' 'Manslaughter is the unlawful killing of
a human being without malice, either express or implied. I do not
consider it necessary, gentlemen, to explain it further; for, if a
felonious homicide has been committed, -- of which you are to
http://www.constitution.org/ussc/156-051c.txt (1 of 42) [1/9/2001 8:02:46 PM]

be the judges from the proof, -- there is nothing in this case to

reduce it below the grade of murder.' 'Every person present at a
murder, willingly aiding or abetting its perpetration, is guilty of
murder, and may be indicted and convicted as principal in the
first degree.' 'It is not my purpose, nor is it my function, to
assume any fact to be proven, nor to suggest to you that any fact
has been proven. You are the exclusive judges of the facts.'
The defendants requested the judge to instruct the jury that 'under the
indictment in this case the defendants may be convicted of murder or
manslaughter or of an attempt to commit murder or manslaughter; and if,
after a full and careful consideration of all the evidence before you, you
believe beyond a reasonable doubt that the defendants are guilty either of
manslaughter, or of an assault with intent to commit murder or manslaughter,
you should so find your verdict.' The judge refused to give this
instruction, and the defendants excepted to the refusal.
The jury, after deliberating on the case for some time, returned into court,
and, being asked whether they had agreed upon a verdict, the foreman said
that one of the jurors wished to be instructed upon certain points under the
laws of the United States as to murder upon the high seas. One of the jurors
then said that he 'would like to know, in regard to the interpretation of
the laws of the United States in regard to manslaughter, as to whether the
defendants can be found guilty of manslaughter, or that the defendants must
be found guilty,' evidently meaning 'of murder,' the whole offense charged
in the indictment. The judge then read again section 5339 of the Revised
Statutes. The juror asked. 'Are the two words 'aiding' or 'abetting'
defined?' The judge replied: 'The words 'aiding or abetting' are not
defined. But I have instructed you as to the legal effect of aiding and
abetting, and this you should accept as law. If I have made an error, there
is a higher tribunal to correct it.' The juror said: 'I am the spokesman for
two of us. We desire to clearly understand the matter. It is a barrier in
our mind to our determining the matter. The question arising amongst us is
as to aiding and abetting. Furthermore, as I understand, it must be one
thing or the other. It must be either guilty or not guilty.' The judge
replied: 'Yes, under the instructions I have given you.' The judge, then,
after repeating the general definitions, as before given, of murder and of
manslaughter, said: 'If a felonious homicide has been committed by either of
the defendants, -- of which you are to be the judges from the proof, --
there is nothing in this case to reduce it below the grade of murder;' and
in answer to further questions of the juror repeated this again and again,
and said: 'In a proper case, it may be murder, or it may be manslaughter,
but in this case it cannot properly be manslaughter.' The defendants
excepted to these instructions. And finally, in answer to the juror's direct
question, 'Then there is no other verdict we can bring in, except guilty or
not guilty?' the judge said: 'In a proper case, a verdict for manslaughter
may be rendered, as the district attorney has stated; and even in this case
you have the physical power to do so; but, as one of the tribunals of the
country, a jury is expected to be governed by law, and the law it should
receive from the court.' The juror then said: 'There has been a
misunderstanding amongst us. Now, it is clearly interpreted to us, and no
doubt we can now agree on certain facts.' Thereupon a verdict of guilty of
murder was returned against both defendants, and they were sentenced to
death, and sued out this writ of error.
The judge, by instructing the jury that they were bound to accept the law as
given to them by the court, denied their right to decide the law. And by
instructing them that, if a felonious homicide by the defendants was proved,
there was nothing in the case to reduce it below the grade of murder, and
they could not properly find it to be manslaughter, and by declining to
submit to them the question whether the defendants were guilty of

manslaughter only, he denied their right to decide the fact. The colloquy
between the judge and the jurors, when they came in for further
instructions, clearly shows that the jury, after deliberating upon the case,
were in doubt whether the crime which the defendants had committed was
murder or manslaughter; and that it was solely by reason of these
instructions of the judge that they returned a verdict of the higher crime.
It is our deep and settled conviction, confirmed by a re-examination of the

authorities under the responsibility of taking part in the consideration and
decision of the capital case now before the court, that the jury, upon the
general issue of guilty or not guilty in a criminal case, have the right, as
well as the power, to decide, according to their own judgment and
consciences, all questions, whether of law or of fact, involved in that
issue.
The question of the right of the jury to decide the law in criminal cases
has been the subject of earnest and repeated controversy in England and
America, and eminent jurists have differed in their conclusions upon the
question. In this country, the opposing views have been fully and strongly
set forth by Chancellor Kent in favor of the right of the jury, and by Chief
Justice Lewis against it, in People v. Croswell, 3 Johns. Cas. 337; by Judge
Hall in favor of the right, and by Judge Bennett against it, in State v.
Croteau, 23 Vt. 14; and by Chief Justice Shaw against the right, and by Mr.
Justice Thomas in its favor, in Com. v. Anthes, 5 Gray, 185.
The question of the right of the jury under the constitution of the United
States cannot be usefully or satisfactorily discussed without examining and
stating the authorities which bear upon the scope and effect of the
provisions of the constitution regarding this subject. In pursuing this
inquiry, it will be convenient to consider, first, the English authorities;
secondly, the authorities in the several colonies and states of America; and
lastly, the authorities under the national government of the United States.
By Magna Charta, no person could be taken or imprisoned or deprived of his

freehold or of his liberties or free customs, unless by the lawful judgment
of his peers, or the law of the land, -- 'nisi per legale judicium parium
suorum, vel per legem terrae.' Accordingly, by the law of England, at the
time of the discovery and settlement of this country by Englishmen, every
subject (not a member of the house of lords) indicted for treason, murder,
or other felony had the right to plead the general issue of not guilty, and
thereupon to be tried by a jury; and, if they acquitted him the verdict of
acquittal was conclusive, in his favor, of both the law and the fact
involved in the issue. The jury, in any case, criminal or civil, might
indeed, by finding a special verdict reciting the facts, refer a pure
question of law to the court; but they were not bound and could not be
compelled to do so, even in a civil action.
By the statute of 2 Westm. (13 Edw. I.) c. 30, 'it is ordained that the
justices assigned to take assizes shall not compel the jurors to say
precisely whether it be disseisin or not, so that they do shew the truth of
the fact, and require aid of the justices; but, if they of their own head
will say that it is or is not disseisin, their verdict shall be admitted at
their own peril.' 1 St. Realm, 86. That statute, as Lord Coke tells us, was
declaratory of the common law; and before its enactment some justices
directed juries to return general verdicts, thus subjecting them to the
peril of an attaint if they mistook the law. 2 Inst. 422, 425.
Littleton, speaking of civil actions in which the jury, upon the general
issue pleaded, might return a special verdict, says that, 'if they will take
upon them the knowledge of the law upon the matter, they may give their
verdict generally, as is put in their charge.' Co. Litt. 368. And

accordingly Lord Coke says: 'Although the jury, if they will take upon them
(as Littleton here saith) the knowledge of the law, may give a general
verdict, yet it is dangerous for them so to do; for, if they do mistake the
law, they run into the danger of an attaint; therefore to find the special
verdict is the safest, where the case is doubtful.' Co. Litt. 227b.
Lord Coke elsewhere says that 'the jury ought, if they will not find the
special matter, to find 'at their peril' according to law.' Rawlyns' Case, 4
Coke, 52a, 53b. And Lord Chief Justice Hobart says: 'Legally it will be hard
to quit a jury that finds against the law, either common law or several
statute law, whereof all men were to take knowledge, and whereupon verdict
is to be given, whether any evidence be given to them or not,' and 'though
no man informed them what the law was in that case.' Needler v. Bishop of
Winchester, Hob. 220, 227.
The peril or danger, above spoken of, into which the jury ran by taking upon
themselves the knowledge of the law, and undertaking to decide by a general
verdict the law involved in the issue of fact submitted to them, was the
peril of an attaint, upon which their verdict might be set aside and
themselves punished. Upon the attaint, however, the trial was not by the
court, but by a jury of twenty-four; it was only by a verdict of the second
jury, and not by judgment of the court only, that the first verdict could be
set aside; and, if not so set aside, the second verdict was final and
conclusive. Co. Litt. 293a, 294b; Vin. Abr. 'Attaint,' A. (6); Com. Dig.
'Attaint,' B. Moreover, no attaint lay in a criminal case. Bushell's Case,
Vaughan, 135, 146; King v. Shipley, 4 Doug. 73, 115.
Lord Bacon, in his History of Henry VII. (originally written and published
in English, and afterwards translated into Latin by himself or under his
supervision), speaking of the parliament held in the eleventh year of his
reign, says: 'This parliament also made that good law which gave the attaint
upon a false verdict between party and party, which before was a kind of
evangile, irremediable, -- in the Latin, judicia juratorum, quae veredicta
vocantur, quae ante illud tempus evangelii cujusdam instar erant, atque
plane irrevocabilia. It extends not to causes capital; as well because they
are for the most part at the king's suit, as because in them, if they be
followed in course of indictment, there passeth a double jury, the indictors
and the triers, and so not twelve men, but four and twenty. But it seemeth
that was not the only reason; for this reason holdeth not in the appeal, --
ubi causa capitalis a parte gravata peragitur. [That is, the appeal of
murder, brought by the heir of the deceased. See Railroad v. Clarke, 152
U.S. 230, 239, 14 S. Sup. Ct. 579.] But the great reason was, lest it should
tend to the discouragement of jurors in cases of life and death, -- ne forte
juratores in causis capitalibus timidius se gererent, -- if they should be
subject to suit and penalty, where the favour of life maketh against them.'
6 Bac. Works (Ed. 1858) 5, 7, 160, 161; 5 Bac. Works (Ed. 1803) 117; 9 Bac.
Works, 483.
Lord Bacon was mistaken in assuming that the attaint was introduced by the
statute of 11 Hen. VII. c. 24; for it existed at common law in writs of
assize, and had been regulated and extended to other civil actions by many
earlier statutes. 2 Inst. 130, 237, 427; Finch, Law, lib. 4, c. 47.
But the mistake does not diminish the force of Lord Bacon's statements that,
wherever an attaint did not lie, the 'judgment of the jury, commonly called
'verdict,' was considered as a kind of gospel'; and that the reasons why an
attaint did not lie in a capital case were not only that two juries, the
indictors and the triers, had passed upon the case, but chiefly that juries,
in cases of life and death, should not be discouraged, or act timidly, by
being subjected to suit and penalty if they decided in favor of life.

John Milton, in his Defence of the People of England, after speaking of the
king's power in his courts and through his judges, adds: 'Nay, all the
ordinary power is rather the people's, who determine all controversies
themselves by juries of twelve men. And hence it is that when a malefactor
is asked at his arraignment, 'How will you be tried?' he answers always,
according to law and custom, 'By God and my country'; not by God and the
king, or the king's deputy.' 8 Milton, Works (Pickering's Ed.) 198, 199, The
idea is as old as Bracton. Bract. 119.
In the reign of Charles II. some judges undertook to instruct juries that
they must take the law from the court, and to punish them if they returned a
verdict in favor of the accused against the judge's instructions. But, as
often as application was made to higher judicial authority, the punishments
were set aside, and the rights of juries vindicated.
In 1665, upon the trial of an indictment against three Quakers for an

unlawful conventicle. Wagstaffe and other jurors were fined by Chief Justice
Kelyng for acquitting 'against full evidence, and against the direction of
the court in matter of law, in said court openly given and declared,' --
'contra plenam evidentiam, et contra directionem curiae in materia legis, in
dicta curia ibidem aperte datam et declaratam.' His reasons for this (as
stated in his own manuscript note of the case, not included in the first
edition of his Reports, published by Lord Holt in 1708) were 'that they and
others may know that a willful jury cannot make an act of parliament or the
law of England of no effect, but they are accountable and punishable for
it'; and 'that in criminal cases the court may fine a jury who will give a
verdict contrary to their evidence; and the reason (as I take it) is that
otherwise a headstrong jury might overthrow all the course of justice, for
no attaint lieth in criminal causes, and also one verdict is peremptory, and
a new trial cannot be granted in criminal causes, and therefore the judges
have always punished such willful juries by fine and imprisonment and
binding them to their good behaviour.' But at the end of his report is this
memorandum: 'Note. The whole Case of the Quakers, as to fining jury, now not
law.' J. Kelyng (3d Ed.) 69-75. And Lord Hale, then chief baron, tells us
that the jurors 'were thereupon committed, and brought their habeas corpus
in the court of common bench, and all the judges of England were assembled
to consider of the legality of this fine, and the imprisonment thereupon';
and the jurors were discharged of their imprisonment, for the following
reasons:
'It was agreed by all the judges of England (one only dissenting)
that this fine was not legally set upon the jury, for they are the
judges of matters of fact; and although it was inserted in the fine,
that it was contra directionem curiae in materia legis, this
mended not the matter, for it was impossible any matter of law
could come in question till the matter of fact were settled and
stated and agreed by the jury, and of such matter of fact they
were the only competent judges. And although the witnesses
might perchance swear the fact to the satisfaction of the court,
yet the jury are judges, as well of the credibility of the witnesses
as of the truth of the fact; for possibly they might know
somewhat of their own knowledge that what was sworn was
untrue, and possibly they might know the witnesses to be such
as they could not believe, and it is the conscience of the jury that
must pronounce the prisoner guilty or not guilty. And to say the
truth, it were the most unhappy case that could be to the judge,
if he at his peril must take upon him the guilt or innocence of the
prisoner; and if the judge's opinion must rule the matter of fact,
the trial by jury would be useless.' 2 Hale, P. C. 312, 313.
Lord Hale's apparent meaning is that, at a trial upon the plea of not

guilty, the jury are the judges of the issue of fact thereby presented, and
it is the conscience of the jury that must pronounce the prisoner guilty or
not guilty; that, as no matter of law can come in question unless the facts
are first found by the jury in a special verdict, it were idle to say that a
general verdict was against the judge's direction or opinion in matter of
law; and that, if the judge's opinion in matter of law must rule the issue
of fact submitted to the jury, the trial by jury would be useless.
The reasons are more fully brought out in Bushell's Case, in 1670, not
mentioned in the text of Lord Hale's treatise, and doubtless decided after
that was written. William Penn and William Mead having been indicted and
tried for a similar offense, and acquitted against the instructions of the
court, Bushell and the other jurors who tried them were fined by Sir John
Howell, recorder of London, and Bushell was committed to prison, in like
terms, for not paying his fine, and sued out a writ of habeas corpus. Penn
and Mead's Case, 6 How. State Tr. 951; Bushell's Case, Vaughan, 135, 6 How.
State Tr. 999; 1 Freem. 1; T. Jones, 13.
At the hearing thereon, Scroggs, the king's serjeant, argued: 'It is granted
that, in matters of fact only, the jury are to be judges; but, when the
matter of fact is mixed with matter of law, the law is to guide the fact,
and they are to be guided by the court. The jury are at no inconvenience,
for if they please they may find the special matter; but if they will take
upon them to know the law, and do mistake, they are punishable.' 1 Freem. 3.
But Bushell was discharged from imprisonment, for reasons stated in the
judgment delivered by Sir John Vaughan, chief justice of the common pleas,
after a conference of all the judges of England, including Lord Hale, and
with the concurrence of all except Chief Justice Kelyng. Vaughan, 144, 145;
1 Freem. 5; Lord Holt in Groenvelt v. Burwell, 1 Ld. Raym. 454, 470.
In that great judgment, as reported by himself, Chief Justice Vaughan

discussed separately the two parts of the return: First, that the acquittal
was 'against full and manifest evidence'; and, second, that it was 'against
the direction of the court in matter of law.'
It was in discussing the first part that he observed 'that the verdict of a
jury and evidence of a witness are very different things, in the truth and
falsehood of them. A witness swears but to what he hath heard or seen;
generally or more largely, to what hath fallen under his senses. But a
juryman swears to what he can infer and conclude from the testimony of such
witnesses, by the act and force of his understanding, to be the fact
inquired after, which differs nothing in the reason, though much in the
punishment, from what a judge, out of various cases by him, infers to be the
law in the question before him.' Vaughan, 142.
After disposing of that part of the return, he proceeds as follows: 'We come
now to the next part of the return, viz.: That the jury acquitted those
indicted against the direction of the court in matter of law, openly given
and declared to them in court.
'The words, 'that the jury did acquit, against the direction of the
court in matter of law,' literally taken, and de plano, are
insignificant, and not intelligible; for on issue can be joined of
matter of law, no jury can be charged with the trial of matter in
law barely, no evidence ever was or can be given to a jury of
what is law or not, nor no such oath can be given to or taken by
a jury to try matter in law, nor no attaint can lie for such a false
oath. 'Therefore we must take off this vail and color of words,
which make a show of being something, and in truth are nothing.

'If the meaning of these words, 'finding against the direction of

the court in matter of law,' be that if the judge, having heard the
evidence given in court (for he knows no other), shall tell the
jury, upon this evidence, the law is for the plaintiff, or for the
defendant, and you are under the pain of fine and imprisonment
to find accordingly, then the jury ought of duty so to do. Every
man sees that the jury is but a troublesome delay, great charge,
and of no use in determining right and wrong, and therefore the
trials by them may be better abolished than continued; which
were a strange new-found conclusion, after a trial so celebrated
for many hundreds of years.
'For if the judge, from the evidence, shall by his own judgment
first resolve upon any trial what the fact is, and so knowing the
fact shall then resolve what the law is, and order the jury penally
to find accordingly, what either necessary or convenient use can
be fancied of juries, or to continue trials by them at all?
'But if the jury be not obliged in all trials to follow such

directions, if given, but only in some sort of trials (as, for
instance, in trials for criminal matters upon indictments or
appeals), why then the consequence will be, though not in all, yet
in criminal trials, the jury (as of no material use) ought to be
either omitted or abolished, which were the greater mischief to
the people than to abolish them in civil trials.
'And how the jury should, in any other manner, according to the
course of trials used, find against the direction of the court in
matter of law, is really not conceptible.' Vaughan, 143, 144.
He then observes: 'This is ordinary, when the jury find unexpectedly for the
plaintiff or defendant, the judge will ask, how do you find such a fact in
particular? and upon their answer he will say, then it is for the defendant,
though they find for the plaintiff, or econtrario, contrario, and thereupon
they rectify their verdict. And in these cases the jury, and not the judge,
resolve and find what the fact is. Therefore always, in discreet and lawful
assistance of the jury, the judge's direction is hypothetical, and upon
supposition, and not positive and upon coercion, viz.: If you find the fact
thus (leaving it to them what to find), then you are to find for the
plaintiff; but if you find the fact thus, then it is for the defendant.' But
he is careful to add that 'whatsover they have answered the judge upon an
interlocutory question or discourse they may lawfully vary from it if they
find cause, and are not thereby concluded.' Pages 144, 145.
It is difficult to exhibit the strength of Chief Justice Vaughan's reasoning

by detached extracts from his opinion. But a few other passages are directly
in point:
'A man cannot see by another's eye, nor hear by another's ear;
no more can a man conclude or infer the thing to be resolved by
another's understanding or reasoning; and though the verdict be
right the jury give, yet they, being not assured it is so from their
own understanding, are forsworn, at least in foro conscientiae.'
Page 148.
'That decantatum in our books, 'ad quaestionem facti non

respondent judices, ad quaestionem legis non respondent
juratores,' literally taken, is true; for if it be demanded, what is
the fact? the judge cannot answer it; if it be asked, what is the
law in the case? the jury cannot answer it.' He then explains this
by showing that upon demurrers, special verdicts, or motions in

arrest of judgment 'the jury inform the naked fact, and the court
deliver the law.' 'But upon all general issues, as upon not
culpable pleaded in trespass, nil debet in debt, nul tort, nul
disseisin in assize, ne disturba pas in quare impedit, and the like,
though it be matter of law whether the defendant be a
trespasser, a debtor, disseisor, or disturber, in the particular
cases in issue, yet the jury find not (as in a special verdict) the
fact of every case by itself, leaving the law to the court, but find
for the plaintiff or defendant upon the issue to be tried, wherein
they resolve both law and fact complicately, and not the fact by
itself; so as though they answer not singly to the question what is
the law, yet they determine the law in all matters, where issue is
joined and tried in the principal case, but [i. e. except] where the
verdict is special.' Pages 149, 150.
He then observes that 'to this purpose the Lord Hobart in Needler's Case
against the Bishop of Winchester is very apposite,' citing the passage
quoted near the beginning of this opinion; and concluded his main argument
as follows:
'The legal verdict of the jury, to be recorded, is finding for the

plaintiff or defendant; what they answer, if asked, to questions
concerning some particular fact, is not of their verdict essentially,
nor are they bound to agree in such particulars; if they all agree
to find their issue for the plaintiff or defendant, they may differ in
the motives wherefore [therefor], as well as judges, in giving
judgment for the plaintiff or defendant, may differ in the reasons
wherefore they give that judgment, which is very ordinary.' Page
150.
That judgment thus clearly appears to have been rested, not merely on the
comparatively technical ground that upon the general issue no matter of law
could come in question until the facts had been found by the jury, nor yet
upon the old theory, that the jurors might have personal knowledge of some
facts not appearing in evidence, but mainly on the broad reasons that if the
jury, especially in criminal trials, were obliged to follow the directions
of the court in matter of law, no necessary or convenient use could be found
of juries, or to continue trials by them at all; that though the verdict of
the jury be right according to the law as laid down by the court, yet, if
they are not assured by their own understanding that it is so, they are
forsworn, at least in foro conscientiae; and that the 'decantatum' in our
books, 'ad questionem facti non respondent judices, ad quaestionem legis non
respondent juratores,' means that issues of law, as upon demurrers, special
verdicts, or motions in arrest of judgment, are to be decided by the court;
but that upon general issues of fact, involving matter of law, the jury
resolve both law and fact complicately, and so determine the law.
Notwithstanding that authoritative declaration of the right of the jury,

upon the general issue, to determine the law, Chief Justice Scroggs, upon
the trial of Harris for a seditions libel in 1680 (7 How. State Tr. 925,
930), insisted that the jury must take the law from the court; and Chief
Justice Jeffreys, presiding at the trial of Algernon Sidney in 1683, charged
the jury as follows: 'It is our duty upon our oaths to declare the law to
you, and you are bound to receive our declaration of the law, and upon this
declaration to inquire whether there be a fact, sufficiently proved, to find
the prisoner guilty of the high treason of which he stands indicted.' And
Sidney was convicted, sentenced, and executed. 9 How. State Tr. 817, 889.
In the last year of the reign of James II., the Trial of the Seven Bishops,
reported 12 How. State Tr. 183, took place upon an information for a
seditious libel contained in their petition to the king, praying that he

would be pleased not to insist on their distributing and reading in the

churches his declaration dispensing with the penal statutes concerning the
exercise of religion. The trial was at bar before all the justices of the
king's bench, upon a general plea of not guilty. A principal ground of
defense was that the king had no dispense was therefore the petition of the
bishops to him was an innocent exercise of the right of petition, and was
not a libel. In support of this defense, ancient acts of parliament were
given in evidence; and, upon the offer of one in Norman French, the chief
justice said, 'Read it in English, for the jury to understand it,' and it
was so read by a sworn interpreter. Pages 374, 375. And, when the attorney
general argued that these matters were not pertinent to the case, the chief
justice, interrupting him, said: 'Yes, Mr. Attorney, I'll tell you what they
offer, which it will lie upon you to give an answer to; they would have you
show how this has disturbed the government, or diminished the king's
authority.' Page 399.
At the close of the arguments, each of the four judges in turn charged the
jury. Lord Chief Justice Wright said: 'The only question before me is, and
so it is before you, gentlemen, it being a question of fact, whether here be
a certain proof of a publication. And then the next question is a question
of law, indeed, whether, if there be a publication proved, it be a libel.'
'Now, gentlemen, anything that shall disturb the government, or make
mischief and a stir among the people, is certainly within the case of
libellus famosis; and I must, in short, give you my opinion. I do take it to
be a libel. Now, this being a point of law, if my brothers have anything to
say to it, I suppose they will deliver their opinions.'
Mr. Justice Holloway said: 'If you are satisfied there was an ill intention
of sedition, or the like, you ought to find them guilty; but if there be
nothing in the case that you find, but only that they did deliver a petition
to save themselves harmless and to free themselves from blame, by showing
the reason of their disobedience to the king's command, which they
apprehended to be a grievance to them, and which they could not in
conscience give obedience to, I cannot think it is a libel. It is left to
you, gentlemen, but that is my opinion.'
Mr. Justice Powell also expressed his opinion that the paper was not a
libel, and said: 'Now, gentlemen, the matter of it is before you; you are to
consider of it, and it is worth your consideration.' He then expressed his
opinion that the king had no dispensing power, and concluded: 'If this be
once allowed of, there will need no parliament; all the legislation will be
in the king, which is a thing worth considering, and I leave the issue to
God and your consciences.'
Mr. Justice Allybone, after saying, 'The single question that falls to may
share is, to give my sense of this petition, whether it shall be in
construction of law a libel in itself, or a thing of great innocence,'
expressed his opinion that it was a libel.
The jury, on retiring, requested, and were allowed by the court, to take
with them the statute book, the information, the petition of the bishops,
and the declaration of the king; and they returned a verdict of not guilty,
whereat there was great popular rejoicing in London and throughout England.
12 How. State Tr. 425-431; 1 Burnet's Own Time, 744.
It thus clearly appears that upon that trial, one of the most important in
English history, deeply affecting the liberties of the people, the four
judges of the king's bench, while differing among themselves upon the
question whether the petition of the bishops was a libel, concurred in
submitting that question, as a question of law, to the decision of the jury,
not as umpires between those judges who thought the paper was a libel and

those judges who thought it was not, but as the tribunal vested by the law
of England with the power and the right of ultimately determining, as
between the crown and the accused, all matters of law, as well as of fact,
involved in the general issue of guilty or not guilty.
Upon the accession of William and Mary, parliament declared the king's power
of dispensing with the laws to be unlawful; and reversed the conviction of
Algernon Sidney, 'for a partial and unjust construction of the statute' of
treasons in the instructions by which his conviction had been procured. St.
1 W. & M. Sess. 2, c. 2; 6 St. Realm, 143, 155; 9 How. State Tr. 996. And
early in the new reign Holt was appointed lord chief justice, and Somers
lord keeper.
Lord Somers, in the opening pages of his essay on 'The Security of

Englishmen's Lives. or the Trust, Power, and Duty of the Grand Juries of
England' (first published in 1681, and republished in 1714, towards the end
of his life, after he had been lord chancellor), lays down in the clearest
terms the right of the jury to decide the law, saying: 'It is made a
fundamental in our government that (unless it be by parliament) no man's
life shall be touched for any crime whatsoever, save by the judgment of at
least twenty-four men, -- that is, twelve or more, to find the bill of
indictment, whether he be peer of the realm or commoner; and twelve peers or
above, if a lord, if not, twelve commoners, to give the judgment upon the
general issue of not guilty joined.' 'The office and power of these juries
is judicial. They only are the judges from whose sentence the indicted are
to expect life or death. Upon their integrity and understanding the lives
of all that are brought into judgment do ultimately depend. From their
verdict there lies no appeal. By finding guilty or not guilty they do
complicately resolve both law and fact. As it hath been the law, so it hath
always been the custom and practice, of these juries, upon all general
issues, pleaded in cases, civil as well as criminal, to judge both of the
law and fact.' 'Our ancestors were careful that all men of the like
condition and quality, presumed to be sensible of each other's infirmity,
should mutually be judges of each other's lives, and alternately taste of
subjection and rule, every man being equally liable to be accused or
indicted, and perhaps to be suddenly judged by the party, of whom he is at
present judge, if he be found innocent.'
Lord Chief Justice Holt declared that 'in all cases and in all actions the
jury may give a general or special verdict, as well in causes criminal as
civil, and the court ought to receive it, if pertinent to the point in
issue; for if the jury doubt they may refer themselves to the court, but are
not bound so to do.' Anon. (1697) 3 Salk. 373. And upon the trial of an
information for a seditious libel, while he expressed his opinion that the
paper was upon its face a criminal libel, he submitted the question whether
it was such to the jury, saying: 'Now you are to consider whether these
words I have read to you do not tend to beget an ill opinion of the
administration of the government.' Tutchin's Case (1704) 14 How. State Tr.
1095, 1128. Although he concluded his charge with the words, 'If you are
satisfied that he is guilty of composing and publishing these papers at
London, you are to find him guilty,' yet, as Mr. Starkie well observes,
'these words have immediate reference to the ground of defense upon which
Mr. Tutchin's counsel meant to rely, namely, that the offense had not been
proved to have been committed in London; and cannot be considered as used
for the purpose of withdrawing the attention of the jury from the quality of
the publication, upon which they had just before received instructions; and,
indeed, to suppose it had so meant would prove too much, since, if so, the
jury were directed not to find the truth of the innuendoes.' Starkie, Sland.
& L. 56.
Some decisions, often cited as against the right of the jury by a general

verdict to determine matter of law involved in the general issue of guilty

or not guilty, were upon special verdicts presenting pure questions of law.
Such were Townsend's Case (1554) 1 Plow. 111, and Rex v. Oneby (1726) 2 Ld.
Raym. 1485; 2 Strange, 766; 1 Barnard, 17; 17 How. State Tr. 29.
After the accession of George II., Lord Chief Justice Raymond, on trials at
nisi prius for seditious libels (ignoring the Cases of Tutchin and of the
Seven Bishops), told juries that they were bound to take the law from the
court, and that the question whether the paper which the defendant was
accused of writing and publishing was a libel was a mere question of law,
with which the jury had nothing to do. Clarke's Case (1729) 17 How. State
Tr. 667, note, 1 Barnard, 304; Francklin's Case (1731) 17 How. State Tr.
625, 672.
In 1734, upon an information in the nature of a quo warranto against the

defendant to show cause by what authority he acted as mayor of Liverpool,
his motion for a new trial, because the jury had found a general verdict for
the crown against the instructions of the judge, and notwithstanding he
ordered them to return a special verdict, was granted by the court of king's
bench, Lord Chief Justice Hardwicks saying: 'The general rule is that if the
judge of nisi prius directs the jury on the point of law, and they think fit
obstinately to find a verdict contrary to his direction, that is sufficient
ground for granting a new trial; and when the judge upon a doubt of law
directs the jury to bring in the matter specially, and they find a general
verdict, that also is a sufficient foundation for a new trial.' 'The thing
that governs greatly in this determination is that the point of law is not
to be determined by juries; juries have a power by law to determine matters
of fact only; and it is of the greatest consequence to the law of England
and to the subject that these powers of the judge and jury are kept
distinct; that the judge determines the law, and the jury the fact; and, if
ever they come to be confounded, it will prove the confusion and destruction
of the law of England.' Rex v. Poole, Cas. t. Hardw. 23, 26, 28, Cunn. 11,
14, 16.
But such an information to try title to a civil office (though it had some
of the forms of a criminal prosecution) was brought for the mere purpose of
trying a civil right, and was considered as in the nature of a civil
proceeding. 3 Bl. Comm. 263; Rex v. Francis, 2 Term R. 484; Ames v. Kansas,
111 U.S. 449, 460, 461 S., 4 Sup. Ct. 437. And, as appears by the first
passage above cited from Lord Hardwicke's opinion, it was evidently so
treated by the court, under the practice of granting new trials on motion of
either party to a civil case, which had gradually grown up within the
century preceding, as a substitute for attaints. Bell v. Wardell (1740)
Willes, 204, 206; Witham v. Lewis (1744) 1 Wils. 48, 55; Bright v. Eynon
(1757) 1 Burrows, 390, 394. In a criminal case, certainly, the court could
not compel the jury to return a special verdict, Nothing, therefore, was
adjudged in Poole's Case as to the right of the jury to decide the law in
prosecutions for crime. And it is significant that, although both reports of
that case were published in 1770, it was not cited by Lord Mansfield, in
1784, when collecting the authorities against the right of the jury in
criminal cases. King v. Shipley, 4 Doug. 73, 168.
Lord Hardwicke's own opinion, indeed, may be presumed to have been against
the right of the jury; for when attorney general he had so argued in
Francklin's Case, 17 How. State Tr. 669; and he was, as justly observed by
Mr. Hallam, 'a regularly bred crown lawyer, and in his whole life disposed
to hold very high the authority of government.' 3 Hall. Hist. (9th Ed.)
287. His opinion, therefore, is of less weight upon a constitutional
question affecting the liberty of the subject than upon other questions of
law or of equity.

The later history of the law of England upon the right of the jury to decide
the law in criminal cases is illustrated by a long conflict between the
views of Mr. Murray, afterwards Lord Mansfield, against the right, and of
Mr. Pratt, afterwards Lord Camden, in its favor, which, after the public
sentiment had been aroused by the great argument of Mr. Erskine in Dean of
St. Asaph's Case, was finally settled, in accordance with Lord Camden's
view, by a declaratory act of parliament.
Upon the trial of Owen, in 1752, for publishing a libel Mr. Murray, as
solicitor general, argued to the jury that if they determined the question
of fact of publication, the judge determined the law. But Mr. Pratt, of
counsel for the defendant, argued the whole matter to the jury; and,
although the publication was fully proved, and Chief Justice Lee told the
jury that, this being so, they could not avoid bringing in the defendant
guilty, they returned and persisted in a general verdict of acquittal. 18
How. State Tr. 1203, 1223, 1227, 1228; 29 Parl. Hist. 1408
In the like Case of Nutt, in 1728, 1 Barnard, 306 (Starkie, Sland. & L.
615), conducted by Mr. Murray as attorney general, the like direction was
given to the jury by Chief Justice Ryder. Lord Mansfield, in Rex v. Shipley,
4 Doug, 168.
In the similar Case of Shebbeare, in 1758 (Starkie, Sland. & L. 56, 616),
Mr. Pratt, as attorney general, when moving before Lord Mansfield for leave
to file the information, said: 'It is merely to put the matter in a way of
trial; for I admit, and his lordship well knows, that the jury are judges of
the law as well as the fact, and have an undoubted right to consider
whether, upon the whole, the pamphlet in question be or be not published
with a wicked, seditious intent, and be or not a false, malicious, and
scandalous libel.' Second postscript to Letter to Mr. Almon on Libels (1770)
p. 7; 4 Collection of Tracts (1763-1770) p. 162. And at the trial, as he
afterwards said in the house of lords, he 'went into court predetermined to
insist on the jury taking the whole of the libel into consideration,' and
'so little did he attend to the authority of the judges on that subject that
he turned his back on them, and directed all he had to say to the jury.' 29
Parl. Hist. 1408. And see 20 How. State Tr. 709. But Lord Mansfield
instructed the jury that the question whether the publication was a libel
was to be determined by the court. 4 Doug. 169.
Lord Camden, when chief justice of the common pleas, presiding at criminal
trials, instructed the jury that they were judges of the law as well as the
fact. Pett. Jur. (1769) cited in 21 How. State Tr. 853; 29 Parl. Hist. 1404,
1408.
In the prosecutions, in the summer of 1770, of Miller and Woodfall for

publishing the letter of Junius to the king, Lord Mansfield instructed the
jury in the same way as in Shebbeare's Case. In Miller's Case the jury
returned a verdict of not guilty. In Woodfall's Case the jury returned a
verdict of 'guilty of printing and publishing only'; and the court therefore
granted a motion for a new trial. But Lord Mansfield, on November 20, 1770,
in delivering judgment upon that motion, took occasion to say that the court
was of opinion 'that the direction is right and according to law.' Miller's
Case, 20 How. State Tr. 869, 893, 895; Woodfall's Case, Id. 895, 901-903,
918, 920, 5 Burrows, 2661, 2666, 2668.
On December 5, 1770, in the house of lords, the judgment in Woodfall's Case

was attacked by Lord Chatham, and defended by Lord Mansfield, in replying to
whom Lord Chatham said: 'This, my lords. I never understood to be the law of
England, but the contrary. I always understood that the jury were competent
judges of the law as well as the fact; and, indeed, if they were not, I can
see no essential benefit from their institution to the community.' And Lord

Camden, after observing that it would be highly necessary to have an

authentic statement of the direction to the jury in that case laid before
the house, said: 'If we can obtain this direction, and obtain it fully
stated, I shall very readily deliver may opinion upon the doctrines it
inculcates, and, if they appear to me contrary to the known and the
established principles of the constitution, I shall not scruple to tell the
author of his mistake in the open face of this assembly.' 16 Parl. Hist.
1302-1307.
On the next day, a warm debate took place in the house of commons upon a
motion by Serjeant Glynn for a committee 'to inquire into the administration
of criminal justice, and the proceedings of the judges in Westminster Hall,
particularly in cases relating to the liberty of the press and the
constitutional power and duty of juries,' in the course of which Mr.
Dunning, then the leader of the bar, and afterwards Lord Ashburton,
emphatically denied that the doctrine of Lord Raymond and Lord Mansfield was
the established law of the land. 16 Parl. Hist. 1212, 1276. See, also, 2
Cavendish's Debates, 141, 369. Pursuant to a wish expressed by Lord
Mansfield on the day after, the house of lords met on December 10th, when he
informed the house that he had left with its clerk a copy of the judgment of
the court in Woodfall's Case. Lord Camden thereupon said that he considered
the paper as a challenge directed personally to him, which he accepted, and
said: 'In direct contradiction to him, I maintain that his doctrine is not
the law of England. I am ready to enter into debate whenever the noble lord
will fix a day for it.' And he proposed questions in writing to Lord
Mansfield, framed with the view of ascertaining how far that judgment denied
the right of the jury, by a general verdict in a criminal case, to determine
the law as well as the fact. Lord Mansfield evaded answering the questions,
and, while declaring himself ready to discuss them at some future day,
declined to name one. And the matter dropped for the time. 16 Parl. Hist.
1312-1322.
In 1783, after the independence of the United States had been recognized by
Great Britain, came the case of King v. Shipley, commonly known as Dean of
St. Asaph's Case, fully reported in 4 Doug. 73, and in 21 How. State Tr.
847, and briefly stated in 3 Term R. 428, note, which was a criminal
prosecution for a seditious libel contained in a pamphlet written by Sir
William Jones. Mr. Justice Buller, at the trial, told the jury that the only
questions for them were whether the defendant published the pamphlet, and
whether the innuendoes in the indictment were true; and that the question of
libel or no libel was a question of law for the court, and not for the jury,
upon which he declined to express any opinion, but that it would be open for
the consideration of the court upon a motion in arrest of judgment. The jury
returned a verdict of 'guilty of publishing only,' but were persuaded by
the judge to put it in this form: 'Guilty of publishing, but whether a libel
or not the jury do not find.' 4 Doug. 81, 82, 85, 86; 21 How. State Tr. 946,
950-955. The effect of all this was that the defendant was found guilty of
publishing a paper, which neither the judge nor the jury had held to be a
libel; and judgment was ultimately arrested upon the ground that, as set out
in the indictment, it was not libelous. Id. 1044.
But, before the motion in arrest of judgment was argued, Mr. Erskine
obtained a rule to show cause why a new trial should not be granted,
principally upon the ground that the judge told the jury that the question
whether libel or not was not for their decision; whereas the jury, upon the
general issue, had not only the power, but the right, to decide the law. It
was upon this rule that Mr. Erskine made his famous argument in support of
the rights of juries, and that Lord Mansfield delivered the judgment, in
which Mr. Justice Ashurst concurred, which has since been the principal
reliance of those who deny the right of the jury to decide the law involved
in the general issue in a criminal case.

It should not be overlooked that, at the hearing of this motion, Mr.

Bearcroft, the leading counsel for the crown, said he 'agreed with the
counsel for the defendant that it is the right of the jury, if they please,
on the plea of not guilty, to take upon themselves the decision of every
question of law necessary to the acquittal of the defendant; and, Lord
Mansfield observing that he should call it the 'power,' not the 'right,'
he adhered to the latter expression; and added that he though it an
important privilege, and which, on particular occasions, -- as, for
instance, if a proper censure of the measures of the servants of the crown
were to be construed by a judge to be libelous, -- it would be laudable and
justifiable in them to exercise.' 4 Doug. 94, note. See, also, page 108.
Mr. Justice Willes, dissenting from the opinion of the court, said he was
sure that these statements of Mr. Bearcroft expressed 'the sentiments of the
greater part of Westminster Hall,' and declared: 'I conceive it to be the
law of this country that the jury, upon a plea of not guilty, or upon the
general issue, upon an indictment or an information for a libel, have a
constitutional right, if they think fit, to examine the innocence or
criminality of the paper, notwithstanding there is sufficient proof given of
the publication.' 'I believe no man will venture to say they have not the
power, but I mean expressly to say they have the right. Where a civil power
of this sort has been exercised without control, it presumes -- nay, by
continual usage, it gives -- the right. It was the right which juries
exercised in those times of violence when the Seven Bishops were tried, and
which even the partial judges who then presided did not dispute, but
authorized them to exercise upon the subject-matter of the libel; and the
jury, by their solemn verdict upon that occasion, became one of the happy
instruments, under Providence, of the salvation of this country. This
privilege has been assumed by the jury in a variety of ancient and modern
instances, and particularly in the case of Rex v. Owen, without any
correction or even reprimand of the court. It is a right, for the most
cogent reasons, lodged in the jury, as without this restraint the subject in
bad times would have no security for his life, liberty, or property.' And he
concurred in refusing a new trial, solely because, in his opinion, neither
the counsel for the prosecution, nor the judge presiding at the trial, had
impugned these doctrines, and the verdict returned by the jury was in the
nature of a special verdict, in effect submitting the law to the court. 4
Doug. 171-175.
In 1789, in Rex v. Withers, 3 Term R. 428, Lord Kenyon instructed a jury in

the same way that Mr. Justice Buller had done in Dean of St. Asaph's Case.
In 1791, the declaratory statute, entitled 'An act to remove doubts

respecting the functions of juries in cases of libel,' and known as 'Fox's
Libel Act,' was introduced in parliament, and was passed in 1792. St. 32
Geo. III. c. 60.
By that act, 'the legislature,' as lately observed by Lord Blackburn in the

house of lords, 'adopted almost the words and quite the substance' of that
passage of the opinion of Mr. Justice Willes first above quoted. Bank v.
Henty, L. R. 7 App. Cas. 741, 775.
The doubts which the act was passed to remove were, as recited at the
beginning of the act, upon the question whether upon the trial of an
indictment or information for libel, on the plea of not guilty, 'it be
competent to the jury impaneled to try the same to give their verdict upon
the whole matter put in issue'; and it was 'therefore declared and enacted
[not merely enacted, but declared to be the law as already existing] that on
every such trial the jury sworn to try the issue may give a general verdict
of guilty or not guilty upon the whole matter put in issue upon such

indictment or information; and shall not be required or directed, by the

court or judge before whom such indictment or information shall be tried, to
find the defendant or defendants guilty, merely on the proof of the
publication by such defendant or defendants of the paper charged to be a
libel, and of the sense ascribed to the same in such indictment or
information.'
The act then provides -- First, that the presiding judge may, at his
discretion, give instructions to the jury; second, that the jury may, at
their discretion, return a special verdict; and, third, that the defendant,
if found guilty, may move in arrest of judgment. The first of these
provisos, and the only one requiring particular notice, is that the judge
shall, at his discretion, give 'his opinion and directions to the jury on
the matter at issue,' 'in like manner as in other criminal cases.' His
'opinion and directions' clearly means by way of advice and instruction
only, and not by way of order or command; and the explanation, 'in like
manner as in other criminal cases,' shows that no particular rule was
intended to be laid down in the case of libel. And that this was the
understanding at the time is apparent from the debate on the proviso, which
was adopted on the motion of Sir John Scott (then solicitor general, and
afterwards Lord Eldon) just before the bill passed the house of commons in
1791. 29 Parl. Hist. 594-602.
The clear effect of the whole act is to declare that the jury (after
receiving the instructions of the judge, if he sees fit to give any
instructions) may decide, by a general verdict, 'the whole matter put in
issue,' which necessarily includes all questions of law, as well as of fact,
involved in the general issue of guilty or not guilty, and to recognize the
same rule as existing in all criminal cases.
Not only is this the clear meaning of the words of the act, but that such
was its intent and effect is shown by the grounds taken by supporters and
its opponents in parliament, as well as by subsequent judicial opinions in
England. Mr. Fox, upon moving the introduction of the bill in the house of
commons in 1791, after observing that he was not ignorant that 'power' and
'right' were not convertible terms, said that, 'if a power was vested in any
person, it was surely meant to be exercised'; that 'there was a power vested
in the jury to judge the law and fact, as often as they were united, and, if
the jury were not to be understood to have a right to exercise that power,
the constitution would never have intrusted them with it'; 'but they knew it
was the province of the jury to judge of law and fact, and this was the
case, not of murder only, but of felony, high and of every other criminal
indictment'; and that 'it must be left in all cases to a jury to infer the
guilt of men, and an English subject could not lose his life but by a
judgment of his peers.' 29 Parl. Hist. 564, 565, 597. And Mr. Pitt, in
supporting the bill, declared that his own opinion was against the practice
of the judges, 'and that he saw no reason why, in the trial of a libel, the
whole consideration of the case might not go precisely to the unfettered
judgment of twelve men, sworn to give their verdict honestly and
conscientiously, as it did in matters of felony and other crimes of a high
nature.' 29 Parl. Hist. 588.
In the debate in the house of lords, on a motion of Lord Chancellor Thurlow

to put off the reading of the bill, Lord Camden said: 'He would venture to
affirm, and should not be afraid of being contradicted by any professional
man, that, by the law of England as it now stood, the jury had a right, in
deciding on a libel, to judge whether it was criminal or not; and juries not
only possessed that right, but they had exercised it in various instances.'
He added, as 'a matter which he conceived should be imprinted on every
juror's mind, that if they found a verdict of the publishing, and left the
criminality to the judge, they had to answer to God and their consciences

for the punishment that might, by such judge, be inflicted on the defendant,
whether it was fine, imprisonment, loss of ears, whipping, or any other
disgrace, which was the sentence of the court.' After further enforcing his
opinion, he said: 'I will affirm that they have that right, and that there
is no power by the law of this country to prevent them from the exercise of
that right, if they think fit to maintain it; and, when they are pleased to
acquit any defendant, their acquittal will stand good until the law of
England is changed.' 'My lords,' said he, 'give to the jury or to the judge
the right of trial of the subjects of this country. You must give it to one
of them, and I think you can have no difficulty which to prefer.' And he
concluded by saying that 'he did not apprehend that the bill had a tendency
to alter the law, but merely to remove doubts that ought never to have been
entertained, and therefore the bill had his hearty concurrence; but, as he
was assured that the proposed delay was not hostile to the principle of the
bill, but only to take it into serious consideration, and to bring it again
forward, he had no objection to the motion of the lord chancellor.' 29 Parl.
Hist. 729, 730, 732.
In the house of lords in 1792, the bill having again passed the house of
commons, Lord Loughborough, for many years chief justice of the common
pleas, said that he 'had ever deemed it his duty, in cases of libel, to
state the law as it bore on the facts, and to refer the combined
consideration to the jury'; and that 'their decision was final. There was no
control upon them in their verdict. The evident reason and good sense of
this was that every man was held to be acquainted with the criminal law of
the land. Ignorance was no plea for the commission of a crime, and no man
was therefore supposed to be ignorant of judging upon the evidence adduced
of the guilt or innocence of a defendant. It was the admitted maxim of
law, 'Ad quaestionem juris respondent judices, ad quaestionem facti
juratores;' but, when the law and the fact were blended, it was the
undoubted right of the jury to decide. If the law was put to them fairly,
there was undoubtedly not one case in a thousand on which they would not
decide properly. If they were kept in the dark, they were sometimes led into
wrong, through mere jealousy of their own right.' 29 Parl. Hist. 1296, 1297.
Pending the debate, the house of lords put questions to the judges, who
returned an opinion, in which, after saying that 'the general criminal law
of England is the law of libel,' they laid down, as a fundamental
proposition, applicable to treason as well as to other crimes, 'that the
criminality or innocence of any act done (which includes any paper written)
is the result of the judgment which the law pronounces upon that act, and
must therefore be in all cases, and under all circumstances, matter of law,
and not matter of fact.' With such a basis, it is hardly to be wondered at
that they 'conceived the law to be that the judge is to declare to the jury
what the law is,' and 'that it is the duty of the jury, if they will find a
general verdict upon the whole matter in issue, to compound that verdict of
the fact as it appears in evidence before them, and of the law as it is
declared to them by the judge.' The judges, however, 'took this occasion to
observe' that they had 'offered no opinion which will have the effect of
taking matter of law out of a general issue, or out of a general verdict,'
and 'disclaimed the folly of undertaking to prove that a jury, who can find
a general verdict, cannot take upon themselves to deal with matter of law
arising in a general issue, and to hazard a verdict made up of the fact, and
of the matter of law, according to their conception of that law, against all
direction by the judge.' 29 Parl. Hist. 1361-1369.
On Lord Camden's motion, the bill was postponed, in order to enable the
house to consider the opinion of the judges, and was then proceeded with,
when Lord Camden 'exposed the fallacy of the pretended distinction between
law and fact, in the question of guilty or not guilty of printing and
publishing a libel. They were united as much as intent and action in the

consideration of all other criminal proceedings. Without an implied malice,

a man could not be found guilty, even of murder. The simply killing of a man
was nothing, until it was proved that the act arose from malice. A man might
kill another in his own defense, or under various circumstances which
rendered the killing no murder. How were these things to be explained? By
the circumstances of the case. What was the ruling principle? The intention
of the party. Who were judges of the intention of the party, -- the judge?
No; the jury. So that the jury were allowed to judge of the intention upon
an indictment for murder, and not to judge of the intention of the party
upon libel.' And Lord Loughborough, as well as Lord Camden, distinctly
affirmed, and Lord Thurlow as distinctly denied, that upon the general issue
in criminal cases, after the judge had stated the law to the jury, the jury
were to decide both the question of law and the question of fact. 29 Parl.
Hist. 1370, 1405, 1406, 1426, 1429.
Towards the close of the debate, Lord Thurlow moved to amend the bill by
inserting the words 'that the judge state to the jury the legal effect of
the record.' Lord Camden successfully opposed the amendment 'as an attempt
indirectly to convert the bill into the very opposite of what it was
intended to be, and to give the judges a power ten times greater than they
had ever yet exercised,' and said: 'He must contend that the jury had an
undoubted right to form their verdict themselves according to their
consciences, applying the law to the fact. If it were otherwise, the first
principle of the law of England would be defeated and overthrown. If the
twelve judges were to assert the contrary again and again, he would deny it
utterly, because every Englishman was to be tried by his country; and who
was his country but his twelve peers, sworn to condemn or acquit according
to their consciences? If the opposite doctrine were to obtain, trial by jury
would be a nominal trial, a mere form; for, in fact, the judge, and not the
jury, would try the man. He would contend for the truth of this argument to
the latest hour of his life, manibus pedibusque. With regard to the judge
stating to the jury what the law was upon each particular case, it was his
undoubted duty so to do; but, having done so, the jury were to take both law
and fact into their consideration, and to exercise their discretion and
discharge their consciences.' 29 Parl. Hist. 1535, 1536.
The first ground of the protest of Lord Thurlow, Lord Bathurst, Lord Kenyon,
and three other lords against the passage of the act was 'because the rule
laid down by the bill, contrary to the determination of the judges and the
unvaried practice of ages, subverts a fundamental and important principle of
English jurisprudence, which, leaving to the jury the trial of the fact,
reserves to the court the decision of the law.' 29 Parl. Hist. 1537.
Lord Brougham, in his sketch of Lord Camden, declares that 'the manly
firmness which he uniformly displayed in maintaining the free principles of
the constitution, wholly unmixed with any leaning towards extravagant
popular opinions, or any disposition to court vulgar favour, justly entitles
him to the very highest place among the judges of England'; and, speaking of
his conduct in carrying the libel bill through the house of lords, says that
'nothing can be more refreshing to the lovers of liberty, or more gratifying
to those who venerate the judicial character, than to contemplate the
glorious struggle for his longcherished principles with which Lord Camden's
illustrious life closed'; and quotes some of his statements, above cited, as
passages upon which 'the mind fondly and reverently dwells,' 'hopeful that
future lawyers and future judges may emulate the glory and the virtue of
this great man.' 3 Brougham's Statesmen of George III. (Ed. 1843) 156, 178,
179.
In the well-known case of Rex v. Burdett, 3 Barn. & Ald. 717, 4 Barn. & Ald.
95, and 1 State Tr. (N. S.) 1, for publishing a seditious libel, Mr. Justice
Best (afterwards chief justice of the common pleas, and Lord Wynford) told

the jury that, in his opinion, the publication was a libel; that they were
to decide whether they would adopt his opinion; but that they were to take
the law from him, unless they were satisfied that he was wrong. 4 Barn. &
Ald. 131, 147, 183. The defendant having been convicted, the court of king's
bench, upon a motion for a new trial, held, after advisement, that this
instruction was correct.
Mr. Justice Best said: 'It must not be supposed that the statute of George
III. made the question of libel a question of fact. If it had, instead of
removing an anomaly, it would have created one. Libel is a question of law,
and the judge is the judge of the law in libel as in all other cases, the
jury having the power of acting agreeably to his statement of the law or
not. All that the statute does is to prevent the question from being left to
the jury in the narrow way in which it was left before that time. The jury
were then only to find the fact of the publication, and the truth of the
innuendoes; for the judges used to tell them that the intent was an
inference of law, to be drawn from the paper, with which the jury had
nothing to do. The legislature has said that that is not so, but that the
whole case is to be left to the jury. But judges are in express terms
directed to lay down the law as in other cases. In all cases the jury may
find a general verdict. They do so in cases of murder and treason, but there
the judge tells them what is the law, though they may find against him,
unless they are satisfied with his opinion. And this is plain from the words
of the statute.' 4 Barn. & Ald. 131, 132.
Justices Holroyd and Bayley and Chief Justice Abbott (afterwards Lord
Tenterden) expressed the same view. 4 Barn. & Ald. 145-147, 183, 184. Mr.
Justice Bayley said: 'The old rule of law is, 'Ad quaestionem juris
respondent judices, ad quaestionem facti respondent juratores;' and I take
it to be the bounden duty of the judge to lay down the law as it strikes
him, and that of the jury to accede to it, unless they have superior
knowledge on the subject: and the direction in this case did not take away
from the jury the power of acting on their own judgment.' And the chief
justice said: 'If the judge is to give his opinion to the jury, as in other
criminal cases, it must be not only competent, but proper, for him to tell
the jury, if the case will so warrant, that, in his opinion, the publication
before them is of the character and tendency attributed to it by the
indictment; and that, if it be so in their opinion, the publication is an
offense against the law.' 'The statute was not intended to confine the
matter in issue exclusively to the jury without hearing the opinion of the
judge, but to declare that they should be at liberty to exercise their own
judgment upon the whole matter in issue, after receiving thereupon the
opinion and directions of the judge.'
The weight of this deliberate and unanimous declaration of the rightful

power of the jury to decide the law in criminal cases is not impaired by the
obiter dictum hastily uttered and promptly recalled by Chief Justice Best in
the civil case (summarily decided upon a narrower point) of Levi v. Milne,
and reported so differently in 4 Bing. 195, and in 12 Moore, 418, as to
leave it doubtful what he really said. And according to later English
authorities, even in civil actions, the question of libel or no libel may be
submitted by the judge to the jury, without expressing his own opinion upon
it. Parmiter v. Coupland, 6 Mees. & W. 105, 108; Baylis v. Lawrence, 11
Adol. & E. 920, 3 Perry & D. 526; Cox v. Lee, L. R. 4 Exch. 284.
It is to be remembered that, by the law of England, a person convicted of

treason or felony could not appeal, or move for a new trial, or file a bill
of exceptions, or in any other manner obtain a judicial review of rulings or
instructions not appearing upon the record, unless the judge himself saw fit
to reserve the question for the opinion of all the judges. In short, as
observed by Dr. Lushington, in delivering judgment in the privy council, 'the

prisoner has no 'legal right,' in the proper sense of the term, to demand a
reconsideration, by a court of law, of the verdict, or of any legal
objection raised at the trial.' Reg. v. Eduljee Byramjee, 5 Moore, P. C.
276, 287; Reg. v. Bertrand, L. R. 1 P. C. 520; 1 Chit. Cr. Law, 622, 654; 3
Russ. Crimes (9th Ed.) 212. Consequently, a prisoner tried before an
arbitrary, corrupt, or ignorant judge had no protection but in the
conscience and the firmness of the jury.
There is no occasion further to pursue the examination of modern English

authorities, because in this country, from the time of its settlement until
more than half a century after the Declaration of Independence, the law as
to the rights of juries, as generally understood and put in practice, was
more in accord with the views of Bacon, Hale, Vaughan, Somers, Holt, and
Camden than with those of Kelying, Scroggs, Jeffreys, Raymond, Hardwicke,
and Mansfield. Upon a constitutional question, affecting the liberty of the
subject, there can be no doubt that the opinions of Somers and of Camden,
especially, were of the very highest authority, and were so considered by
the founders of the Republic.
In Massachusetts, the leading authorities upon the question, nearest the

time of the Declaration of Independence and the adoption of the constitution
of the United States, are John Adams and Theophilus Parsons, each of whom
was appointed, with the general approval of the bar and the people, chief
justice of the state; the one, appointed to that office by the revolutionary
government in 1775, resigning it the next year, remaining in the continental
congress to support the Declaration of Independence, and afterwards the
first vice president and the second president of the United States; the
other, a leading supporter of the constitution of the United States in the
convention of 1788, by which Massachusetts ratified the constitution,
appointed by President Adams, in 1801, attorney general of the United
States, but declining that office, and becoming chief justice of
Massachusetts in 1806.
John Adams, writing in 1771, said: 'Juries are taken, by lot or by suffrage,
from the mass of the people, and no man can be condemned of life or limb or
property or reputation without the concurrence of the voice of the people.'
'The British empire has been much alarmed, of late years, with doctrines
concerning juries, their powers and duties, which have been said, in printed
papers and pamphlets, to have been delivered from the highest tribunals of
justice. Whether these accusations are just or not, it is certain that many
persons are misguided and deluded by them to such a degree that we often
hear in conversation doctrines advanced for law which, if true, would render
juries a mere ostentation and pageantry, and the court absolute judges of
law and fact.' 'Whenever a general verdict is found, it assuredly determines
both the fact and the law. It was never yet disputed or doubted that a
general verdict, given under the direction of the court in point of law, was
a legal determination of the issue. Therefore, the jury have a power of
deciding an issue upon a general verdict. And, if they have, is it not an
absurdity to suppose that the law would oblige them to find a verdict
according to the direction of the court, against their own opinion,
judgment, and conscience?' 'The general rules of law and common regulations
of society, under which ordinary transactions arrange themselves, are well
enough known to ordinary jurors. The great principles of the constitution
are intimately known. They are sensibly felt by every Briton. It is scarcely
extravagant to say they are drawn in and imbibed with the nurse's milk and
first air. Now, should the melancholy case arise that the judges should give
their opinions to the jury against one of these fundamental principles, is a
juror obliged to give his verdict generally, according to this direction, or
even to find the fact specially, and submit the law to the court? Every man,
of any feeling or conscience, will answer, 'No.' It is not only his right,
but his duty, in that case, to find the verdict according to his own best

understanding, judgment, and conscience, though in direct opposition to the

direction of the court.' 'The English law obliges no man to decide a cause
upon oath against his own judgment.' 2 John Adams' Works, 253-255.
Theophilus Parsons, in the Massachusetts convention of 1788, answering the

objection that the constitution of the United States, as submitted to the
people for adoption, contained no bill of rights, said: 'The people
themselves have it in their power effectually to resist usurpation, without
being driven to an appeal to arms. An act of usurpation is not obligatory;
it is not law; and any man may be justified in his resistance. Let him be
considered as a criminal by the general government; yet only his
fellow-citizens can convict him. They are his jury, and, if they pronounce
him innocent, not all the powers of congress can hurt him; and innocent they
certainly will pronounce him if the supposed law he resisted was an act of
usurpation.' 2 Elliot, Deb. 94; 2 Bancroft, Hist. Const. 267.
In 1808, Chief Justice Parsons, in delivering judgment in a civil action for

slander, said: 'Both parties have submitted the trial of this issue to a
jury. The issue involved both law and fact, and the jury must decide the law
and the fact. To enable them to settle the fact, they were to weigh the
testimony. That they might truly decide the law, they were entitled to the
assistance of the judge. If the judge had declined his aid in a matter of
law, yet the jury must have formed their conclusion of law as correctly as
they were able.' And, as the reporter states: 'In this opinion of the chief
justice the other judges, viz. Sedgwick, Sewall, Thatcher, and Parker,
severally declared their full and entire concurrence.' Coffin v. Coffin, 4
Mass. 1, 25, 37.
In 1816, upon the trial of an indictment for murder, the supreme judicial
court of Massachusetts, held by Chief Justice Parker and Justices Jackson
and Putnam, instructed the jury as follows: 'In all capital cases the jury
are the judges of the law and fact. The court are to direct them in matters
of law, and, although it is safer for them to rely on the instructions
derived from that source, still, gentlemen, they are to decide for
themselves.' Bowen's Trial, 13 Mass. 356.
In 1826, Mr. Justice Wilde, speaking for the whole court, assumed, as
unquestionable, that 'in criminal prosecutions the jury are the judges of
both law and fact.' Com. v. Worcester, 3 Pick. 462, 475.
In 1830, in a celebrated trial for murder, before Justices Putnam, Wilde,

and Morton, the right and duty of the jury to decide the law as well as the
fact involved in the general issue were recognized and affirmed in the
charge to the jury, and were distinguished from the right of deciding
questions of evidence, as follows: 'As the jury have the right, and, if
required by the prisoner, are bound, to return a general verdict of guilty
or not guilty, they must necessarily, in the discharge of this duty, decide
such questions of law, as well as of fact, as are involved in this general
question; and there is no mode in which their opinions upon questions of law
can be reviewed by this court or by any other tribunal. But this does not
diminish the obligation resting upon the court to explain the law, or their
responsibility for the correctness of the principles of law by them laid
down. The instructions of the court in matters of law may safely guide the
consciences of the jury, unless they known them to be wrong. And, when the
jury undertake to decide the law (as they undoubtedly have the power to do)
in opposition to the advice of the court, they assume a high responsibility,
and should be very careful to see clearly that they are right. Although the
jury have the power, and it is their duty, to decide all points of law which
are involved in the general question of the guilt or innocence of the
prisoner, yet when questions of law arise in the arraignment of the
prisoner, or in the progress of the trial, in relation to the admissibility

of evidence, they must be decided by the court, and may not afterwards be
reviewed by the jury.' Com. v. Knapp, 10 Pick. 477, 496.
Many other Massachusetts authorities, from the earliest times to the date
last mentioned, tending to maintain the right of the jury to decide the law
involved in the general issue, are collected in the opinion of Mr. Justice
Thomas in Com. v. Anthes, 5 Gray, 275-280, and in a note to Quincy, 558-560,
563-567.
To that date, or later, the right of the jury in criminal cases to decide
both the law and the fact, even against the directions of the court, was
certainly recognized and acted on throughout New England, unless in Rhode
Island. State v. Snow (1841) 18 Me. 346; Doe, C. J., in State v. Hodge, 50
N. H. 510, 523; State v. Wilkinson (1829) 2 Vt. 480, 488; State v. Croteau
(1849) 23 Vt. 14; Witter v. Brewster (1788) Kirb. 422; Bartholomew v. Clark
(1816) 1 Conn. 472, 481; State v. Buckley (1873) 40 Conn. 246. See Laws
1647, in 1 R. I. Col. Rec. 157, 195, 203, 204.
In the province of New York, in 1702, on the trial of Col. Nicholas Bayard
for high treason, it was argued by his counsel, and not denied by the court,
that the jury, upon the general issue of not guilty, were judges as well of
matter of law as of matter of fact. 14 How. State Tr. 471, 502, 503, 505.
In the same province, in 1735, upon the trial of John Peter Zenger for a
seditious libel, his counsel, Andrew Hamilton, of Philadelphia, while
admitting that the jury might, if they pleased, find the defendant guilty of
printing and publishing, and leave it to the court to judge whether the
words were libelous, said, without contradiction by the court: 'But I do
likewise know they may do otherwise. I know they have the right, beyond all
dispute, to determine both the law and the fact; and, where they do not
doubt of the law, they ought to do so.' The court afterwards submitted to
the jury, in the words of Lord Chief Justice Holt, in Tutchin's Case, 14
How. State Tr. 1128, above cited, the question whether the words set forth
were libelous. And Zenger was acquitted by the jury. 17 How. State Tr. 675,
706, 716, 722.
Upon the trial in the supreme court of the state of New York, in 1803, of an
indictment for a libel on the president of the United States, Chief Justice
Lewis instructed the jury, among other things, that the question of libel or
no libel was an inference of law from the fact, and that the law as laid
down by Lord Mansfield in Dean of St. Asaph's Case was the law of this
state. The defendant was convicted, and brought the question of the
correctness of these instructions before the full court in 1804, upon a
motion for a new trial. People v. Croswell, 3 Johns. Cas. 337, 341, 342.
Alexander Hamilton was of counsel for the defendant. Two reports of his
argument upon that motion have come down to us, the one in 3 Johns. Cas.
352-362, the other in a contemporary pamphlet of the speeches in the case
(pages 62-78), and reprinted in 7 Hamilton's Works (Ed. 1886) 336-373. But
the most compact and trustworthy statement of his position upon the general
question, unsurpassed for precision and force by anything on the subject to
be found elsewhere, is in three propositions upon his brief (Id. 335, 336),
read by him in recapitulating his argument (3 Johns. Cas. 361, 362), which
were as follows:
'That, in the general distribution of powers in our system of

jurisprudence, the cognizance of law belongs to the court, of fact
to the jury. That, as often as they are not blended, the power of
the court is absolute and exclusive. That in civil cases it is always
so, and may rightfully be so exerted. That in criminal cases, the
law and fact being always blended, the jury, for reasons of a

political and peculiar nature, for the security of life and liberty, is
intrusted with the power of deciding both law and fact.
'That this distinction results: (1) From the ancient forms of

pleading in civil cases, none but special pleas being allowed in
matter of law; in criminal, none but the general issue. (2) From
the liability of the jury to attaint in civil cases, and the general
power of the court as its substitute in granting new trials, and
from the exemption of the jury from attaint in criminal cases, and
the defect of power to control their verdicts by new trials; the
test of every legal power being its capacity to produce a
definitive effect, liable neither to punishment nor control.
'That in criminal cases, nevertheless, the court are the

constitutional advisers of the jury in matter of law, who may
compromit their conscience by lightly or rashly disregarding that
advice, but may still more compromit their consciences by
following it, if, exercising their judgments with discretion and
honesty, they have a clear conviction that the charge of the court
is wrong.'
The court was equally divided in opinion, Judge Kent (afterwards chief
justice and chancellor) and Judge Thompson being in favor of a new trial,
and Chief Justice Lewis and Judge Livingston against it. Judge Kent drew up
a careful opinion, in which he reviewed the leading English authorities, and
from which the following passages are taken:
'In every criminal case, upon the plea of not guilty, the jury may,
and indeed they must, unless they choose to find a special
verdict, take upon themselves the decision of the law, as well as
the fact, and bring in a verdict as comprehensive as the issue,
because in every such case they are charged with the
deliverance of the defendant from the crime of which he is
accused.' 'The law and fact are so involved that the jury are
under an indispensable necessity to decide both, unless they
separate them by a special verdict. This right in the jury to
determine the law as well as the fact has received the sanction of
some of the highest authorities in the law.'
'But, while the power of the jury is admitted, it is denied that

they can rightfully or lawfully exercise it, without compromitting
their consciences, and that they are bound implicitly, in all cases,
to receive the law from the court. The law must, however, have
intended, in granting this power to a jury, to grant them a lawful
and rightful power, or it would have provided a remedy against
the undue exercise of it. The true criterion of a legal power is its
capacity to produce a definitive effect, liable neither to censure
nor review. And the verdict of not guilty, in a criminal case, is, in
every respect, absolutely final. The jury are not liable to
punishment, nor the verdict to control. No attaint lies, nor can a
new trial be awarded. The exercise of this power in the jury has
been sanctioned and upheld in constant activity from the earliest
ages.' People v. Croswell, 3 Johns. Cas. 366-368.
'The result from this view is, to my mind, a firm conviction that
this court is not bound by the decisions of Lord Raymond and
his successors. By withdrawing from the jury the consideration
of the essence of the charge, they render their function nugatory
and contemptible. Those opinions are repugnant to the more
ancient authorities, which had given to the jury the power, and
with it the right, to judge of the law and fact, when they were

blended by the issue, and which rendered their decisions in

criminal cases final and conclusive. The English bar steadily
resisted those decisions, as usurpations on the rights of the jury.
Some of the judges treated the doctrine as erroneous, and the
parliament, at last, declared it an innovation, by restoring the trial
by jury, in cases of libel, to that ancient vigor and independence
by which it had grown so precious to the nation, as the guardian
of liberty and life, against the power of the court, the vindictive
persecution of the prosecutor, and the oppression of the
government.
'I am aware of the objection to the fitness and competency of a

jury to decide upon questions of law, and, especially, with a
power to overrule the directions of the judge. In the first place,
however, it is not likely often to happen that the jury will resist
the opinion of the court on the matter of law. That opinion will
generally receive its due weight and effect; an in civil cases it can
and always ought to be ultimately enforced by the power of
setting aside the verdict. But in human institutions the question is
not whether every evil contingency can be avoided, but what
arrangement will be productive of the least inconvenience. And it
appears to be most consistent with the permanent security of the
subject that in criminal cases the jury should, after receiving the
advice and assistance of the judge as to the law, take into their
consideration all the circumstances of the case, and the intention
with which the act was done, and to determine, upon the whole,
whether the act done be, or be not, within the meaning of the
law. This distribution of power, by which the court and jury
mutually assist and mutually check each other, seems to be the
safest, and consequently the wisest, arrangement in respect to
the trial of crimes. The constructions of judges, on the intention
of the party, may often be (with the most upright motives) too
speculative and refined, and not altogether just in their
application to every case. Their rules may have too technical a
cast, and become, in their operation, severe and oppressive. To
judge accurately of motives and intentions does not require a
master's skill in the science of the law. It depends more on a
knowledge of the passions, and of the springs of human action,
and may be the lot of ordinary experience and sagacity.' 3
Johns. Cas. 375, 376.
In April, 1805, the legislature of New York passed a statute, very like
Fox's libel act, declaring that upon an indictment or information for libel
'the jury, who shall try the same, shall have a right to determine the law
and the fact, under the direction of the court in like manner as in other
criminal cases.' And the reporter notes that 'in consequence of this
declaratory statute the court, in August term, 1805 (no motion having been
made for judgment on the verdict) unanimously awarded a new trial in the
above cause.' 3 Johns. Cas. 412, 413.
In 1825, Judge Walworth (afterwards chancellor) presiding in a court of oyer

and terminer, at trials of indictments for murder, instructed the jury 'that
in criminal trials they had a right to decide both as to the law and the
facts of the case; that the court was bound, by the oaths of office of its
judges, honestly and impartially to decide the questions of law arising in
the case, and state them to the jury; but the jury had a right to disregard
the decision of the court upon questions of law, especially in favor of
life, if they were fully satisfied that such decision was wrong.' People v.
Thayer, 1 Parker, Cr. Cas. 595, 598; People v. Videto, Id. 603, 604. In New
Jersey, by provincial laws of 1676 and 1681, it was not only enacted 'that
the trial of all causes, civil and criminal, shall be heard and decided by

the verdict of twelve honest men of the neighbourhood,' but also 'that there
shall be, in every court, three justices or commissioners, who shall sit
with the twelve men of the neighbourhood, with them to hear all causes, and
to assist the said twelve men of the neighbourhood in case of law; and that
they the said justices shall pronounce such judgment as they shall receive
from, and be directed by the said twelve men, in whom only the judgment
resides, and not otherwise; and, in case of their neglect and refusal, that
then one of the twelve, by consent of the rest, pronounce their own judgment
as the justices should have done.' Leaming & Spicer's Laws, pp. 396-398,
428, 429. How far, under the present constitution and laws of the state,
juries, in criminal cases, have the right to decide the law for themselves,
disregarding the instructions of the judge presiding at the trial, does not
appear to be settled. State v. Jay (1871) 34 N. J. Law, 368; Drake v. State
(1890) 53 N. J. Law, 23, 20 Atl. 747.
In Pennsylvania, Chief Justice Sharswood said: 'No one acquainted with the
life of the founder of this commonwealth can entertain any doubt of his
opinion, or that of his friends and followers'; referring to the Case of
Penn and Mead before the recorder of London, and to that of Bushell, upon
habeas corpus, cited in the earlier part of this opinion, as well as to the
argument of Andrew Hamilton, of Philadelphia, 'certainly the foremost lawyer
of the colonies,' in Zenger's Case, above cited. And the right of the jury
in criminal cases to decide both law and fact, notwithstanding opinions to
the contrary expressed near the end of the last century by a judge of a
county court, in charging juries and grand juries (Buchanan v. Taylor, Add.
160; Pennsylvania v. McFall, Id. 257, and Charges, pp. 57-63), was long and
generally recognized in that state. Kane v. Com., 89 Pa. St. 522, 526;
Testimony of William Lewis and Edward Tilghman, Chase's Trial (Evans' Ed.)
20, 21, 27.
In Maryland, the provision of the constitution of 1851 (article 10, 5),

repeated in the constitutions of 1864 (article 12, 4), and of 1867 (article
15, 5), that 'in the trial of all criminal cases the jury shall be the
judges of law as well as fact,' has been held by the court of appeals to be
merely declaratory of the pre-existing law, but not applicable to the
question of the constitutionality of a statute. 1 Charters and
Constitutions, 858, 885, 918; Franklin v. State (1858) 12 Md. 236, 249. As
has been said by that court, speaking by Mr. Justice Alvey: 'The jury are
made the judges of law as well as of fact, in the trial of criminal cases,
under the constitution of this state; and any instruction given by the court
as to the law of the crime is but advisory, and in no manner binding upon
the jury, except in regard to questions as to what shall be considered as
evidence.' Wheeler v. State (1875) 42 Md. 563, 570. See, also, Broll v.
State (1876) 45 Md. 356; Bloomer v. State (1878) 48 Md. 521, 538, 539; World
v. State (1878) 50 Md. 49, 55.
In Virginia, the doctrine that the jury, upon the general issue in a
criminal case, had the right, as well as the power, to decide both law and
fact, appears to have been generally admitted and practiced upon until 1829,
when, to the surprise of the bar, it was treated by the court of appeals as
doubtful. Dance's Case (1817) 5 Munf. 349, 363; Baker v. Preston (1821)
Gilmer, 235, 303; Davenport v. Com. (1829) 1 Leigh, 588, 596; Com. v. Garth
(1827) 3 Leigh, 761, 770; 3 Rob. Va. Prac. (1839) c. 23.
In Georgia, Alabama, and Louisiana, the right of the jury was formerly
recognized. McGuffie v. State (1855) 17 Ga. 497, 513; McDaniel v. State
(1860) 30 Ga. 853; State v. Jones (1843) 5 Ala. 666; Bostwick v. Gasquet
(1836) 10 La. 80; State v. Scott (1856) 11 La. Ann. 429; State v. Jurche
(1865) 17 La. Ann. 71.
The ordinance of the continental congress of 1787 for the government of the

Northwest Territory provided that the inhabitants of the territory should

always be entitled to the benefit of the trial by jury, and that no man
should be deprived of his liberty or property, but by the judgment of his
peers or the law of the land; and the constitutions of the state of Indiana
in 1816, and of Illinois in 1818 and 1848, contained similar provisions. 1
Charters and Constitutions, 431, 446, 447, 466, 500, 501.
In Indiana, the supreme court, under the constitution of 1816, having

alternately denied and affirmed the right of the jury in criminal cases to
decide the law, the people, by the constitution which took effect in
November, 1851, declared that 'in all criminal cases whatever the jury shall
have the right to determine the law and the facts'; and this right has since
been maintained by that court, even when the constitutionality of a statute
was involved. Townsend v. State (1828) 2 Blackf. 151; Warren v. State (1836)
4 Blackf. 150; Carter v. State (May, 1851) 2 Ind. 617; 1 Charters and
Constitutions, 513, 526; Lynch v. State (1857) 9 Ind. 541; McCarthy v. State
(1877) 56 Ind. 203; Hudelson v. State (1883) 94 Ind. 426; Blaker v. State
(1891) 130 Ind. 203, 29 N. E. 1077.
In Illinois, the Criminal Code having declared that 'juries in all cases
shall be judges of the law and the fact,' the jury, at a trial for murder,
after being out for some time, came into court, and, through their foreman,
suggested that a juror maintained that he was competent to judge of the
correctness of the instructions of the judge as the juror's opinion of the
law might dictate. The judge instructed the jury that they must take the law
as laid down to them by the court, and could not determine for themselves
whether the law so given to them was or was not the law. Upon exception to
the instructions, the supreme court of Illinois, speaking by Judge Breese,
granted a new trial, and said: 'Being judges of the law and the fact, they
are not bound by the law as given to them by the court, but can assume the
responsibility of deciding, each juror for himself, what the law is. If they
can say, upon their oaths, that they know the law better than the court,
they have the power so to do. If they are prepared to say the law is
different from what it is declared to be by the court, they have a perfect
legal right to say so, and find the verdict according to their own notions
of the law. It is a matter between their consciences and their God, with
which no power can interfere.' Fisher v. People (1860) 23 Ill. 283, 294.
See, also, Mullinix v. People (1875) 76 Ill. 211; Spies v. Illinois (1887)
122 Ill. 1, 252, 12 N. E. 865, and 17 N. E. 898.
In the declaration of rights unanimously adopted October 14, 1774, by the

continental congress, of which John Adams, Samuel Adams, Roger Sherman, John
Jay, Samuel Chase, George Washington, and Patrick Henry were members, it was
resolved 'that the respective colonies are entitled to the common law of
England, and more especially to the great and inestimable privilege of being
tried by their peers of the vicinage, according to the course of that law.'
1 Jour. Cong. 28.
The constitution of the United States, as framed in 1787, and adopted in

1788, ordained, in article 3, 2, that 'the trial of all crimes, except in
cases of impeachment, shall be by jury; and such trial shall be held in the
state where the said crime shall have been committed'; and, in the fifth,
sixth, and seventh amendments, adopted in 1791, 'nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb,'
'nor be deprived of life, liberty or property, without due process of law';
'in all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the state and district wherein the
crime shall have been committed, which district shall have been previously
ascertained by law'; and 'in suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise reexamined in any

court of the United States, than according to the rules of the common law.'
Within six years after the constitution was established, the right of the
jury, upon the general issue, to determine the law as well as the fact in
controversy, was unhesitatingly and unqualifiedly affirmed by this court, in
the first of the very few trials by jury ever had at its bar, under the
original jurisdiction conferred upon it by the constitution.
That trial took place at February term, 1794, in State v. Brailsford, 3

Dall. 1, which was an action at law by the state of Georgia against
Brailsford and others, British subjects. The pleadings, as appears by the
files of this court, were as follows: The declaration was in assumpsit, for
money had and received; the defendants pleaded non assumpsit, and 'put
themselves upon the country'; and the replication was, 'and the said state
of Georgia also putteth herself upon the country.' The action, as the report
shows, was brought to recover moneys received by the defendants upon a bond
of a citizen of Georgia to them, to which the state of Georgia claimed title
under an act of confiscation passed by that state in 1782, during the
Revolutionary War, under circumstances which were agreed to be as stated in
the suit in equity between the same parties, reported in 2 Dall. 402, 415.
After the case had been argued for four days to the court and jury, Chief
Justice Jay, on February 7, 1794, as the report states, 'delivered the
following charge':
'This cause has been regarded as of great importance, and

doubtless it is so. It has accordingly been treated by the counsel
with great learning, diligence, and ability; and on your part, it has
been heard with particular attention. It is therefore unnecessary
for me to follow the investigation over the extensive field into
which it has been carried. You are now, if ever you can be,
completely possessed of the merits of the cause.
'The facts comprehended in the case are agreed. The only point
that remains is to settle what is the law of the land arising from
those facts; and, on that point, it is proper that the opinion of the
court should be given. It is fortunate on the present, as it must be
on every, occasion, to find the opinion of the court unanimous.
We entertain no diversity of sentiment, and we have experienced
no difficulty in uniting in the charge which it is my province to
deliver.'
The chief justice, after stating the opinion of the court in favor of the
defendants upon the questions of law, proceeded as follows: 'It may not be
amiss, here, gentlemen, to remind you of the good old rule, that on
questions of fact it is the province of the jury, on questions of law it is
the province of the court, to decide. But it must be observed that by the
same law, which recognizes this reasonable distribution of jurisdiction, you
have nevertheless a right to take upon yourselves to judge of both, and to
determine the law as well as the fact in controversy. On this and on every
other occasion, however, we have no doubt you will pay that respect which is
due to the opinion of the court; for as, on the one hand, it is presumed
that juries are the best judges of facts, it is, on the other hand,
presumable that the court are the best judges of law. But still both objects
are lawfully within your power of decision.'
Then, after telling the jury that they should not be influenced by a
consideration of the comparative situations and means of the parties, he
concluded the charge thus: 'Go, then, gentlemen, from the bar, without any
impressions of favor or prejudice for the one party or the other. Weigh well
the merits of the case, and do on this, as you ought to do on every,
occasion, equal and impartial justice.' The jury, after coming into court,

and requesting and receiving further explanations of the questions of law,

returned a verdict for the defendants, without going again from the bar. 3
Dall. 3-5.
The report shows that, in a case in which there was no controversy about the
facts, the court, while stating to the jury its unanimous opinion upon the
law of the case, and reminding them of 'the good old rule that on questions
of fact it is the province of the jury, on questions of law it is the
province of the court, to decide,' expressly informed them that 'by the same
law, which recognizes this reasonable distribution of jurisdiction,' the
jury 'have nevertheless a right to take upon yourselves to judge of both,
and to determine the law as well as the fact in controversy.'
The court at that time consisted of Chief Justice Jay and Justices Cushing,
Wilson, Blair, Iredell, and Paterson, all of whom, as appears by its
records, except Justice Iredell, were present at the trial.
The doubts which have been sometimes expressed of the accuracy of Mr.
Dallas' report are unfounded, as is apparent from several considerations. He
was of counsel for the plaintiff. The court was then held at Philadelphia;
and there is no reason to doubt that the practice mentioned in the preface
to his first volume, containing reports of cases in the courts of
Pennsylvania only, by which 'each case, before it was sent to the press,
underwent the examination of the presiding judge of the court in which it
was determined,' was continued in his succeeding volumes containing 'reports
of cases ruled and adjudged in the several courts of the United States and
of Pennsylvania, held at the seat of the federal government.' The charge
contains internal evidence of being reported verbatim, and has quotation
marks at the end, although they are omitted at the beginning And the charge,
in the same words, with the prefix that it 'was delivered by Jay, Chief
Justice, on the 7th of February, in the following lowing terms,' is printed
in Dunlop & Claypole's American Daily Advertiser of February 17, 1794.
That was not a criminal case, nor a suit to recover a penalty. Had it been,
it could hardly have been brought within the original jurisdiction of this
court. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 294, 295 S., 8 Sup. Ct.
1370. But it was a suit by a state to assert a title acquired by an act of
its legislature in the exercise of its sovereign powers in time of war
against private individuals. As the charge of the court dealt only with the
case before it, without any general discussion, it does not appear whether
the opinion expressed as to the right of the jury to determine the law was
based upon a supposed analogy between such a suit and a prosecution for
crime, or upon the theory, countenanced by many American authorities of the
period, that at the foundation of the republic, as in early times in
England, the right of the jury extended to all cases, civil or criminal,
tried upon the general issue.
However that may have been, it cannot be doubted that this court, at that
early date, was of opinion that the jury had the right to decide for
themselves all matters of law involved in the general issue in criminal
cases; and it is certain that in the century that has since elapsed there
has been no judgment or opinion of the court deciding or intimating, in any
form, that the right does not appertain to the jury in such cases. And the
opinions expressed by individual justices of the court upon the subject,
near the time of the decision in State v. Brailsford, or within 40 years
afterwards, of which any reports are known to exist, tend, more or less
directly, to affirm this right of the jury. That there is not a greater
accumulation of evidence to this effect is easily accounted for when it is
remembered that comparatively few reports of trials were printed, and that
the right of the jury was considered to be so well settled that it was
seldom controverted in practice, or specially noticed in reporting trials.

Upon the trial of Gideon Henfield in the circuit court of the United States
for the district of Pennsylvania in 1793, before Justices Wilson and Iredell
and Judge Peters, for illegal privateering, Mr. Justice Wilson told the jury
that, 'the questions of law coming into joint consideration with the facts,
it is the duty of the court to explain the law to the jury and give it to
them in direction'; and, after expressing the unanimous opinion of the court
upon the questions of law involved in the case, 'concluded by remarking that
the jury, in a general verdict, must decide both law and fact, but that this
did not authorize them to decide it as they pleased. They were as much bound
to decide by law as the judges. The responsibility was equal upon both.'
Whart. St. Tr. 49, 84, 87, 88, Fed. Cas. No. 6, 360.
This statement that the jury, in a general verdict, must decide both law and
fact, and were as much bound to decide by law as the judges, and under an
equal responsibility, is quite inconsistent with the idea that the jury were
bound to accept the explanation and direction of the court in matter of law
as controlling their judgment. That neither Mr. Justice Wilson nor Mr.
Justice Iredell entertained any such idea is conclusively disproved by
authentic and definite statements of their views upon the question.
Mr. Justice Iredell, speaking for himself only, in a civil case before this
court, at February term, 1795, said: 'It will not be sufficient that the
court might charge the jury to find for the defendant, because, though the
jury will generally respect the sentiments of the court on points of law,
they are not bound to deliver a verdict conformably to them.' Bingham v.
Cabbot, 3 Dall. 19, 33. [158-Continued]
In a charge to the grand jury of the circuit court of the United States for
the district of Georgia, in 1792, Mr. Justice Iredell said: 'Where a killing
is clearly proved, if the case be not very plain indeed, the grand jury
should find the indictment for murder, and leave the consideration as to the
species of homicide to the court and jury on the trial. I say the court and
jury; for though it is held to be the province of the court to decide what
species of homicide the offense belongs to, and that the province of the
jury is merely to be confined to the facts, yet, in my opinion, this can
mean nothing more, according to the true principles of law, than that, if a
jury find a special verdict stating the facts, the court may pronounce the
law upon it, and give judgment as effectually as they could have done on a
general verdict. But as it is in the option of the jury to give a special
verdict or not, and as they unquestionably may find a general verdict, I
conceive they must find that verdict conscientiously, on the best of their
judgment, after receiving all such assistance as the court may think proper
to give them, which assistance, where points of law are complicated with
facts, will often be found very useful, and in some instances absolutely
necessary. But as they, in the case of a general verdict, are by the law
judges in the last resort (so far, at least, as the giving of that verdict
is concerned), they have, I think, clearly a right, as well as power, to
determine as shall appear to them just; since it seems to me absurd to say
that, where there is a lawful authority to determine, that determination
must be made, not according to the judgment of those who have such
authority, but according to the judgment of those who have it not. I know no
trammels of precedent in this country to overrule a principle which appears
to me so plain, and which is so well calculated to guard against indecent
altercations between a court and jury, as well as, in my opinion, to prevent
any of the rights or liberties of the citizens being overborne (as might
otherwise sometimes be the case) by violent exertions of power.' 2 McRee,
Life of Iredell, 350.
Mr. Justice Wilson, in his lectures on law at the Philadelphia College in

1790 and 1791, discussing the maxim that the judges determine the law and

the jury determine the fact, made the following observations:
'This well-known division between their provinces has been long

recognized and established. When the question of law and the
question of fact can be decided separately, there is no doubt or
difficulty in saying by whom the separate decision shall be made.
If, between the parties litigant, there is no contention concerning
the facts, but an issue is joined upon a question of law, as is the
case in a demurrer, the determination of this question, and the
trial of this issue, belongs exclusively to the judges. On the other
hand, when there is no question concerning the law, and the
controversy between the parties depends entirely upon a matter
of fact, the determination of this matter, brought to an issue,
belongs exclusively to the jury. But in many cases the question of
law is intimately and inseparably blended with the question of
fact, and when this is the case the decision of one necessarily
involves the decision of the other. When this is the case it is
incumbent on the judges to inform the jury concerning the law,
and it is incumbent on the jury to pay much regard to the
information which they receive from the judges. But now the
difficulty in this interesting subject begins to press upon us.
Suppose that, after all the precautions taken to avoid it, a
difference of sentiment takes place between the judges and the
jury with regard to a point of law. Suppose the law and the fact
to be so closely interwoven that a determination of one must at
the same time embrace the determination of the other. Suppose
a matter of this description to come in trial before a jury. What
must the jury do? The jury must do their duty, and their whole
duty. They must decide the law as well as the fact. This doctrine
is peculiarly applicable to criminal cases, and from them, indeed,
derives its peculiar importance.'
'Juries undoubtedly may make mistakes. They may commit

errors. They may commit gross ones. But, changed as they
constantly are, their errors and mistakes can never grow into a
dangerous system. The native uprightness of their sentiments will
not be bent under the weight of precedent and authority. The
esprit de corps will not be introduced among them, nor will
society experience from them those mischiefs of which the esprit
de corps, unchecked, is sometimes productive. Besides, their
mistakes and their errors, except the venial ones on the side of
mercy made by traverse juries, are not without redress. The
court, if dissatisfied with their verdict, have the power, and will
exercise the power, of granting a new trial. This power, while it
prevents or corrects the effects of their errors, preserves the
jurisdiction of juries unimpaired. The cause is not evoked before
a tribunal of another kind. A jury of the country -- an abstract,
as it has been called, of the citizens at large -- summoned,
selected, impaneled, and sworn as the former, must still decide.'
'One thing, however, must not escape our attention. In the cases
and on the principles which we have mentioned, jurors possess
the power of determining legal questions. But they must
determine them according to law.' 2 Wilson, Works, 371-374.
In closing his discussion of the subject, and reviewing the principles

before stated, he said: 'With regard to the law in criminal cases, every
citizen, in a government such as ours, should endeavor to acquire a
reasonable knowledge of its principles and rules, for the direction of his
conduct, when he is called to obey, when he is called to answer, and when he
is called to judge. On questions of law, his deficiencies will be supplied

by the professional directions of the judges, whose duty and whose business
it is professionally to direct him; for, as we have seen, verdicts in
criminal cases generally determine the question of law as well as the
question of fact. Questions of fact, it is his exclusive province to
determine. With the consideration of evidence unconnected with the question
which he is to try, his attention will not be distracted, for everything of
that nature, we presume, will be excluded by the court. The collected powers
of his mind, therefore, will be fixed, steadily and without interruption,
upon the issue which he is sworn to try. This issue is an issue of fact.' 2
Wilson, Works, 386, 387.
These passages, taken together, clearly evince the view of Mr. Justice
Wilson to have been that, while an issue of law is to be tried and decided
by the judge, an issue of fact, although it involve a question of law
blended and interwoven with the fact, is to be tried and decided by the jury
after receiving the instructions of the court, and, if a difference of
opinion arise between them and the judge upon the question of law, it is
their right and their duty to decide the law as well as the fact; that a
reasonable knowledge of the principles and rules of law is important to the
citizen, not only 'when he is called to obey,' as an individual, and 'when
he is called to answer,' as a defendant, but also 'when he is called to
judge,' as a juror; and that the general issue which the jury in a criminal
case are sworn to try, and which it is their duty to decide, even if it
involve questions of law, is 'an issue of fact.'
The provision of section 3 of the act of congress of July 14, 1798 (chapter
74), for punishing seditious libels, that 'the jury who shall try the cause
shall have a right to determine the law and the fact, under the direction of
the court, as in other cases' (1 Stat. 597), is a clear and express
recognition of the right of the jury, in all criminal cases, to determine
the law and the fact. The words, 'direction of the court,' as here used,
like the words 'opinions and directions' in the English libel act, do not
oblige the jury to adopt the opinion of the court, but are merely equivalent
to 'instruction,' 'guide,' or 'aid,' and not to 'order,' 'command,' or
'control.' The provision is in affirmance of the general rule, and not by
way of creating an exception, and the reason for inserting it probably was
that the right of the jury had been more often denied by the English courts
in prosecutions for seditious libels than in any other class of cases.
Upon the trial of John Fries for treason, in 1800, before Mr. Justice Chase
and Judge Peters, in the circuit court of the United States for the district
of Pennsylvania, the district attorney having quoted from English law books
definitions of actual and constructive treason, Mr. Justice Chase said:
'They may, any of them, be read to the jury, and the decisions thereupon,
not as authorities whereby we are bound, but as the opinions and decisions
of men of great legal learning and ability. But even then the court would
attend carefully to the time of the decision, and in no case must it be
binding upon our juries.' Trials of Fries, 180. And he afterwards instructed
the jury as follows: 'It is the duty of the court in this case, and in all
criminal cases, to state to the jury their opinion of the law arising on the
facts; but the jury are to decide on the present and in all criminal cases
both the law and the facts, on their consideration of the whole case.' And
he concluded his charge in these words: 'If, upon consideration of the whole
matter (law as well as fact), you are not fully satisfied, without any
doubt, that the prisoner is guilty of the treason charged in the indictment,
you will find him not guilty; but if, upon the consideration of the whole
matter (law as well as fact), you are convinced that the prisoner is guilty
of the treason charged in the indictment, you will find him guilty.' These
instructions, with words italicized as above, are in the exhibits annexed by
Mr. Justice Chase to his answer upon the impeachment in 1805. Chase, Trial
(Evans' Ed.) Append. 44, 45, 48. See, also, Trials of Fries, 196, 199,

Whart. St. Tr. 634, 636, Fed. Cas. No. 5, 127.
In 1806, at the trial of William S. Smith, in the circuit court of the

United States for the district of New York, upon an indictment for setting
out a military expedition against a foreign country at peace with the United
States, Judge Talmadge said to the jury: 'You have heard much said upon the
right of a jury to judge of the law as well as the fact.' 'The law is now
settled that this right appertains to a jury in all criminal cases. They
unquestionably may determine upon all the circumstances, if they will take
the responsibility and hazard of judging incorrectly upon questions of mere
law. But the jury is not therefore above the law. In exercising this right,
they attach to themselves the character of judges, and as such are as much
bound by the rules of legal decision as those who preside upon the bench.'
Trials of Smith and Ogden, 236, 237.
In prosecutions in the district court of the United States for the district
of Massachusetts, under the act of congress of January 8, 1808 (chapter 8),
laying an embargo (2 Stat. 453), Samuel Dexter argued the
unconstitutionality of the act to the jury; and they acquitted the
defendant, although the evidence of the violation of the act was clear, and
the court held, and instructed the jury, that the act was constitutional. 3
Bradf. Hist. Mass. 108, note; 3 Webst. Works, 329, 330; U. S. v. The
William, 2 Hall, Law J. 255; Sigma, Reminiscences of Dexter, 60, 61.
In 1812, at the trial of an action in the district court of the United

States for the district of New York, upon a bond given under the embargo
act, Judge Van Ness instructed the jury that 'this was in its nature and
essence, though not in its form, a penal or criminal action, and they were
therefore entitled to judge both of the law and the fact.' U. S. v. Poillon,
1 Car. Law Repos. 60, 66.
In 1815, at the trial of John Hodges, in the circuit court of the United
States for the district of Maryland, for treason, William Pinkney, for the
defendant, argued: 'The best security for the rights of individuals is to be
found in the trial by jury. But the excellence of this institution consists
in its exclusive power. The jury are here judges of law and fact, and are
responsible only to God, to the prisoner, and to their own consciences.' And
Mr. Justice Duvall, of this court, after expressing his opinion upon the law
of the case, said, with the concurrence of Judge Houston: 'The jury are not
bound to conform to this opinion, because they have a right, in all criminal
cases, to decide on the law and the facts.' Hall, Law Tracts, III. 19, 28; 2
Wheeler, Cr. Cas. 477, 478, 485; Fed. Cas. No. 15, 374.
In 1830, George Wilson and James Porter were jointly indicted in the circuit
court of the United States for the district of Pennsylvania for robbing the
mail, and were tried separately. In Wilson's Case, Mr. Justice Baldwin
(Judge Hopkinson concurring), after expressing to the jury an opinion upon
the law, said to them: 'We have thus stated to you the law of this case,
under the solemn duties and obligations imposed on us, under the clear
conviction that in doing so we have presented to you the true test by which
you will apply the evidence to the case; but you will distinctly understand
that you are the judges both of the law and fact in a criminal case, and are
not bound by the opinion of the court; you may judge for yourselves, and, if
you should feel it your duty to differ from us, you must find your verdict
accordingly. At the same time, it is our duty to say that it is in perfect
accordance with the spirit of our legal institutions that courts should
decide questions of law; and the juries, of facts. The nature of the
tribunals naturally leads to this division of duties, and it is better, for
the sake of public justice, that it should be so. When the law is settled by
a court, there is more certainty than when done by a jury. It will be better
known, and more respected in public opinion. But, if you are prepared to say

that the law is different from what you have heard from us, you are in the
exercise of a constitutional right to do so. We have only one other remark
to make on this subject: By taking the law as given by the court, you incur
no moral responsibility; in making a rule of your own, there may be some
danger of a mistake.' Baldw. 78, 99, 100, Fed. Cas. No. 16, 730. And in
Porter's Case, the court, after repeating and explaining these instructions,
said to the jury: 'In a word, gentlemen, decide on the law and the facts as
best comports with your sense of duty to the public and yourselves. Act on
the same rule under which you would be guided, as a magistrate or judge, on
the oath and responsibility of office. Then you will not err.' Baldw. 108,
109, Fed. Cas. No. 16, 730.
Some justices of this court, indeed, who, as already shown, admitted the
general right of jurors in criminal cases to decide both law and fact,
denied their right to pass upon the constitutionality of a statute,
apparently upon the ground that the question of the existence or the
validity of a statute was for the court alone. Paterson, J., in Lyon's Case
(1798) Whart. St. Tr. 333, 336, Fed. Cas. No. 8, 646; Chase, J., in
Callender's Case (1800) Whart. St. Tr. 688, 710-718, Fed. Cas. No. 14, 709;
Baldwin, J., in U. S. v. Shive (1832) Baldw. 510, Fed. Cas No. 16, 278. It
may well be doubted whether such a distinction can be maintained. Com. v.
Anthes, 5 Gray, 185, 188-192, 262; Cooley, Const. Lim. (6th Ed.) 567. But
the point does not arise in this case Upon the general question of the right
of the jury in criminal cases to decide the law, Chief Justice Marshall's
opinion is of so great weight that the evidence of that opinion, although,
perhaps, not so satisfactory as might be wished, should not be disregarded.
At the trial of Aaron Burr in the circuit court of the United States for the
district of Virginia, in 1808, for treason by levying war in
Blennerhassett's Island, Chief Justice Marshall, in delivering an opinion
upon the order of evidence, said: 'Levying of war is a fact, which must be
decided by the jury. The court may give general instructions on this, as on
every other question brought before them, but the jury must decide upon it
as compounded of fact and law.' 1 Burr's Trial, 470.
In the charge, Drawn up by the chief justice in writing, and read by him to
the jury, speaking of the question of the defendant's constructive presence,
he said: 'Had he not arrived in the island, but had taken a position near
enough to co-operate with those on the island, to assist them in any act of
hostility, or to aid them if attacked, the question whether he was
constructively present would be a question compounded of law and fact, which
would be decided by the jury, with the aid of the court, so far as respected
the law.' 2 Burr's Trial, 429.
The chief justice took occasion to demonstrate that questions of the

admissibility of evidence must be decided by the court only, saying: 'No
person will contend that in a civil or criminal case either party is at
liberty to introduce what testimony he pleases, legal or illegal, and to
consume the whole term in details of facts unconnected with the particular
case. Some tribunal, then, must decide on the admissibility of testimony.
The parties cannot constitute this tribunal, for they do not agree. The jury
cannot constitute it, for the question is whether they shall hear the
testimony or not. Who then but the court can constitute it? It is, of
necessity, the peculiar province of the court to judge of the admissibility
of testimony.' Page 443.
Referring to his previous opinion on the order of testimony, he remarked:

'It was said that levying war is an act compounded of law and fact, of which
the jury, aided by the court, must judge. To that declaration the court
still adheres.' Page 444. And he concluded his charge thus: 'The jury have
now heard the opinion of the court on the law of the case. They will apply

that law to the facts, and will find a verdict of guilty or not guilty as
their own consciences may direct.' Page 445.
It thus appears that Chief Justice Marshall, while affirming that a question
of the admissibility of evidence must be decided by the court, because that
question was whether the jury should hear the evidence or not, yet told the
jury (in many forms, but of the same meaning) that upon a question
compounded of fact and law, involved in the issue submitted to the jury, the
court might give general instructions, but the jury must decide it; that
such a question, compounded of law and fact, would be decided by the jury,
with the aid of the court, so far as respects the law; that of such a
question the jury, aided by the court, must judge; and that, having 'heard
the opinion of the court on the law of the case, they will apply,' not 'that
opinion,' but 'that law,' namely, the law as to which the court had
expressed its opinion, 'to the facts, and will find a verdict of guilty or
not guilty as their own consciences may direct.' The manifest intent and
effect of all this were that the jury, after receiving the aid of the
instructions of the court on matter of law, must judge of and determine, as
their own consciences might direct, every question compounded of law and
fact involved in the general issue of guilty or not guilty.
The meaning of the charge in this respect, as carefully prepared by the

chief justice, is too clear to be controlled by the words attributed to him
by the reporter, on page 448, in the course of a desultory conversation with
counsel in regard to other defendants, after the jury had found Burr not
guilty.
In 1817, before Chief Justice Marshall, in the same court, there was tried
an indictment for piracy, by robbing on the high seas, under Act Cong. April
30, 1790, c. 9, 8 (1 Stat. 113; Rev. St. 5372), enacting that any person
committing upon the high seas 'murder or robbery, or any other offense
which, if committed within the body of a county, would by the laws of the
United States be punishable with death,' should be deemed a pirate. Mr.
Upshur, for the defendant, argued 'that it was necessary that robbery should
first be made punishable with death by the laws of the United States, when
committed on land, before it could amount to piracy, when committed on the
sea, which was not now the case; that Judge Johnson had so decided in South
Carolina, although a contrary decision had been subsequently pronounced by
Judge Washington; that the conflict between these two learned judges proved
that the law was at least doubtful; that the jury, in a capital case, were
judges as well of the law as the fact, and were bound to acquit, where
either was doubtful.' Chief Justice Marshall (far from denying this right of
the jury), 'being appealed to for the interpretation of the law, decided that
it was not necessary that robbery should be punishable by death when
committed on land, in order to amount to piracy if committed on the ocean;
but as two judges (for both of whom the court entertained the highest
respect) had pronounced opposite decisions upon it, the court could not
undertake to say that it was not at least doubtful.' And, the case being
submitted to the jury, they returned a verdict of not guilty. U. S. v.
Hutchings, 2 Wheel. Cr. Cas. 543, 547, 548, Fed. Cas. No. 15, 429.3
It may be added that Mr. Conway Robinson, well known to many members of this
court and this bar as a most careful and accurate as well as learned lawyer,
informed Mr. Justice Blatchford and myself that he well remembered hearing
Chief Justice Marshall, presiding at the trial of a criminal case in the
circuit court of the United States at Richmond, after expressing, at the
request of the counsel on both sides, his own opinion upon the construction
of the statute on which the indictment was founded, conclude his charge to
the jury by telling them that, as it was a criminal case, they were not
bound to accept his opinion, but had the right to decide both the law and
the fact.

Until nearly 40 years after the adoption of the constitution of the United
States, not a single decision of the highest court of any state, or of any
judge of a court of the United States, has been found, denying the right of
the jury upon the general issue in a criminal case to decide, according to
their own judgment and consciences, the law involved in that issue, except
the two or three cases, above mentioned, concerning the constitutionality of
a statute. And it cannot have escaped attention that many of the utterances
above quoted, maintaining the right of the jury, were by some of the most
eminent and steadfast supporters of the constitution of the United States,
and of the authority of the national judiciary.
It must frankly be admitted that in more recent times, beginning with the
judgment of the court of appeals of Kentucky in 1830 in Montee v. Com., 3 J.
J. Marsh. 132, and with Mr. Justice Story's charge to a jury in 1835 in U.
S. v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14, 545, the general tendency of
decision in this country (as appears by the cases cited in the opinion of
the majority of the court) has been against the right of the jury, as well
in the courts of the several states, including many states where the right
was once established, as in the circuit courts of the United States. The
current has been so strong that in Massachusetts, where counsel are admitted
to have the right to argue the law to the jury, it has yet been held that
the jury have no right to decide it, and it has also been held, by a
majority of the court, that the legislature could not constitutionally
confer upon the jury the right to determine, against the instructions of the
court, questions of law involved in the general issue in criminal cases; and
in Georgia and in Louisiana a general provision in the constitution of the
state declaring that 'in criminal cases the jury shall be judges of the law
and fact' has been held not to authorize them to decide the law against the
instructions of the court. Com. v. Porter, 10 Metc. (Mass.) 263; Com. v.
Anthes, 5 Gray, 185; Ridenhour v. State, 75 Ga. 382; State v. Tisdale, 41
La. Ann. 338, 6 South. 579.
But, upon the question of the true meaning and effect of the constitution of
the United States in this respect, opinions expressed more than a generation
after the adoption of the constitution have far less weight than the almost
unanimous voice of earlier and nearly contemporaneous judicial declarations
and practical usage. Stuart v. Laird, 1 Cranch, 299. And, upon this
constitutional question, neither decisions of state courts, nor rulings of
lower courts of the United States, can relieve this court from the duty of
exercising its own judgment. Liverpool & G. W. Steam Co. v. Phenix Ins. Co.,
129 U.S. 397, 443, 9 S. Sup. Ct. 469; Andrews v. Hovey, 124 U.S. 694, 717, 8
S. Sup. Ct. 676; The J. E. Rumbell, 148 U.S. 1, 17, 13 S. Sup. Ct. 498.
The principal grounds which have been assigned for denying the right of a
jury, upon the general issue in a criminal case, to determine the law
against the instructions of the court, have been that the old maxim, 'Ad
quaestionem juris respondent judices, ad quaestionem facti respondent
juratores,' is of universal application; that judges are more competent than
juries to determine questions of law; and that decisions upon such questions
in one case become precedents to guide the decision of subsequent cases.
But the question, what are the rights, in this respect, of persons accused
of crime, and of juries summoned and impaneled to try them, under the
constitution of the United States, is not a question to be decided according
to what the court may think would be the wisest and best system to be
established by the people or by the legislature; but what, in the light of
previous law, and of contemporaneous or early construction of the
constitution, the people did affirm and establish by that instrument.
This question, like all questions of constitutional construction, is largely

an historical question; and it is for that reason that it has seemed

necessary, at the risk of tediousness, to review and to state at some length
the principal authorities upon the subject in England and America. The
reasons to be derived from these authorities for maintaining the contested
right of the jury in this regard may be summed up as follows:
By the Great Charter of England, and by the American constitutions, it is

not by a decision of the ablest or most learned judges that the citizen can
be deprived of his life or liberty, but it is only by 'the judgment of his
peers,' or, in the ancient phrase, 'by his country,' -- a jury taken from
the body of the people.
The ancient forms, used before and since the adoption of the constitution,
and hardly altered at the present day, in which the general issue is pleaded
by the accused, and submitted to the jury, are significant. When the
defendant, being arraigned upon the indictment, pleads not guilty, he is
asked by the clerk of the court, 'How will you be tried?' and answers, 'By
God and my country.' The oath administered to each juror as he is called and
accepted is: 'You shall well and truly try and true deliverance make between
our sovereign lord the king [or the state or people, or the United States,
as the case may be] and the prisoner at the bar, whom you shall have in
charge, according to your evidence. So help you God.' And, after the jury
have been impaneled, the clerk reads the indictment to the jury, and then
says to them: 'To this indictment the prisoner at the bar has pleaded not
guilty, and for trial has put himself upon the country, which country you
are. You are now sworn to try the issue. If he is guilty, you will say so;
if not guilty, you will say so; and no more.'
In the maxim, 'Ad quaestionem juris respondent judices, ad quaestionem facti

respondent juratores,' the word 'quaestio' denotes an issue joined by the
pleadings of the parties, or otherwise stated on the record, for decision by
the appropriate tribunal. Issues of law, so joined or stated, are to be
decided by the judge; issues of fact, by the jury. If the accused demurs to
the indictment, an issue of law only is presented, which must be decided and
judgment rendered thereon by the court, and by the court alone. But, if the
accused pleads generally not guilty, the only issue joined is an issue of
fact, to be decided by the jury, and by the jury only, unless the jury
choose to return a special verdict, so that the record may present an issue
of mere law, to be decided by the court. After a verdict of guilty, again,
any defense in matter of law, apparent on the record, is to be considered
and decided by the court on motion in arrest of judgment.
The maxim has no application to rulings, in the course of the trial, upon
the admission of evidence. The object of rules as to the competency of
evidence is to prevent trials from being unduly prolonged, and the
consideration and decision of the merits of the real issue on trial
obscured, embarrassed, or prejudiced by the introduction of irrelevant
matter. The question whether particular evidence shall be admitted or not is
one to be decided before the evidence can be submitted to the jury at all,
and must be, as it always is, decided by the court; and this is so, whether
the admissibility of the evidence depends, as it usually does, upon a
question of law only, or depends largely or wholly upon a question of fact,
as whether dying declarations were made under immediate apprehension of
death, or whether a confession of the defendant was voluntary, or whether
sufficient foundation has been laid for the introduction of secondary
evidence, or for permitting a witness to testify as an expert. To infer,
because the court must decide questions of law upon which the admissibility
of evidence depends, that the jury have no right to determine the matter of
law involved in the general issue, would be as unwarrantable as to infer,
because the court must decide questions of fact upon which the admissibility
of evidence depends, that the jury have no right to decide the matter of

fact involved in that issue.
The jury to whom the case is submitted, upon the general issue of guilty or
not guilty, are intrusted with the decision of both the law and the facts
involved in that issue. To assist them in the decision of the facts, they
hear the testimony of witnesses; but they are not bound to believe the
testimony. To assist them in the decision of the law, they receive the
instructions of the judge; but they are not obliged to follow his
instructions.
Upon the facts, although the judge may state his view of them, the duty of
decision remains with the jury, and cannot be thrown by them upon the judge.
Upon the law involved in the issue of fact, the jury, if they are satisfied
to do so, may let it be decided by the judge, either by returning a general
verdict in accordance with his opinion as expressed to them, or by returning
a special verdict reciting the facts as found by them, and, by thus
separating the law from the facts, put the question of law in a shape to be
decided by the court in a more formal manner. But the whole issue,
complicated of law and fact, being submitted to their determination, the law
does not require them to separate the law from the fact, but authorizes them
to decide both at once by a general verdict.
The duty of the jury, indeed, like any other duty imposed upon any officer
or private person by the law of his country, must be governed by the law,
and not by willfulness or caprice. The jury must ascertain the law as well
as they can. Usually they will, and safely may, take it from the
instructions of the court. But, if they are satisfied on their consciences
that the law is other than as laid down to them by the court, it is their
right and their duty to decide by the law as they know or believe it to be.
In the forcible words of Chief Justice Vaughan in Bushell's Case, Vaughan,

135, 148, already quoted: 'A man cannot see by another's eye, nor hear by
another's ear; no more can a man conclude or infer the thing to be resolved
by another's understanding or reasoning; and, though the verdict be right
the jury give, yet they, being not assured it is so from their own
understanding, are forsworn, at least in foro conscientiae.' Or, as more
briefly stated in another report of the same case: 'The jury are perjured if
the verdict be against their own judgment, although by directions of the
court, for their oath binds them to their own judgment.' T. Jones, 13, 17.
It is universally conceded that a verdict of acquittal, although rendered

against the instructions of the judge, is final, and cannot be set aside;
and, consequently, that the jury have the legal power to decide for
themselves the law involved in the general issue of guilty or not guilty. It
has sometimes, however, been asserted that, although they have the power,
they have no right to do this, and that it is their legal, or at least their
moral, duty, in every criminal case, to obey and follow the judge's
instructions in matter of law. The suggestion is not that the jury ought not
to exercise the power wrongfully, but that they ought not to exercise it at
all; that, whether the instructions of the court be right or wrong, just or
arbitrary, according to the law as known of all men, or directly contrary to
it, the jury must be controlled by and follow them.
But a legal duty which cannot in any way, directly or indirectly, be

enforced, and a legal power of which there can never, under any
circumstances, be a rightful and lawful exercise, are anomalies; 'the test
of every legal power [as said by Alexander Hamilton, and affirmed by
Chancellor Kent, in People v. Croswell, 3 Johns. Cas. 362, 368, above cited]
being its capacity to produce a definitive effect, liable neither to
punishment nor control,' 'to censure nor review.'

It has been said that, if not their legal duty, it is their moral duty, to
follow the instructions of the court in matter of law. But moral duties, as
distinguished from legal duties, are governed, not by human, but by divine,
laws; and the oath which the jurors in a capital case severally take to the
Almighty Judge is to well and truly try and true deliverance make between
the government and the prisoner at the bar, according to their evidence, not
according to the instructions of the court, and to decide whether, in their
own judgment and conscience, the accused is guilty or not guilty.
The rules and principles of the criminal law are, for the most part,
elementary and simple, and easily understood by jurors taken from the body
of the people. As every citizen or subject is conclusively presumed to know
the law, and cannot set up his ignorance of it to excuse him from criminal
responsibility for offending against it, a jury of his peers must be
presumed to have equal knowledge, and, especially after being aided by the
explanation and exposition of the law by counsel and court, to be capable of
applying it to the facts as proved by the evidence before them. On the other
hand, it is a matter of common observation that judges and lawyers, even the
most upright, able, and learned, are sometimes too much influenced by
technical rules; and that those judges who are wholly or chiefly occupied in
the administration of criminal justice are apt, not only to grow severe in
their sentences, but to decide questions of law too unfavorably to the
accused.
The jury having the undoubted and uncontrollable power to determine for
themselves the law as well as the fact by a general verdict of acquittal, a
denial by the court of their right to exercise this power will be apt to
excite in them a spirit of jealousy and contradiction, and to prevent them
from giving due consideration and weight to the instructions due
consideration and weight to the instructions
In civil cases, doubtless, since the power to grant new trials has become
established, the court, having the right to grant one to either party as
often as the verdict appears to be contrary to the law, or to the evidence,
may, in order to avoid unnecessary delay, whenever, in its opinion, the
evidence will warrant a verdict for one party only, order a verdict
accordingly. Pleasants v. Fant, 22 Wall. 116; Hendrick v. Lindsay, 93 U.S.
143; Schofield v. Railway Co., 114 U.S. 615, 5 Sup. Ct. 1125.
But a person accused of crime has a twofold protection -- in the court

and the jury -- against being unlawfully convicted. If the evidence
appears to the court to be insufficient in law to warrant a conviction,
the court may direct an acquittal. Smith v. U. S., 151 U.S. 50, 14 Sup.
Ct. 234. But the court can never order the jury to convict, for no one
can be found guilty but by the judgment of his peers.
Decisions of courts, and especially of courts of last resort, upon issues of

law, such as are presented by a demurrer or by a special verdict, become
precedents to govern judicial decisions in like cases in the future. But the
verdict of a jury, upon the general issue of guilty or not guilty, settles
nothing but the guilt or innocence of the accused in the particular case;
and the issue decided is so complicated of law and fact, blended together,
that no distinct decision of any question of law is recorded or made. The
purpose of establishing trial by jury was not to obtain general rules of law
for future use, but to secure impartial justice between the government and
the accused in each case as it arose.
As said by Alexander Hamilton in Croswell's Case, above cited, the power of

deciding both law and fact upon the general issue in a criminal case is
intrusted to the jury, 'for reasons of a political and peculiar nature, for
the security of life and liberty.' 7 Hamilton's Works, 335; 3 Johns. Cas.

362. The people, by a jury drawn from among themselves, take part in every
conviction of a person accused of crime by the government; and the general
knowledge that no man can be otherwise convicted increases public confidence
in the justice of convictions, and is a strong bulwark of the administration
of the criminal law.
By the law of England, as has been seen, a person accused of murder or other
felony, and convicted before a single judge, could not move for a new trial,
and had no means of reviewing his instructions to the jury upon any question
of law, unless the judge himself saw fit to reserve the question for
decision by higher judicial authority.
Although Mr. Justice Story, in U. S. v. Gibert (1834) 2 Sumn. 19, Fed. Cas.
No. 15, 204, thought that a new trial could not be granted to a man
convicted of murder by a jury, because to do so would be to put him twice in
jeopardy of his life, yet the circuit courts of the United States may
doubtless grant new trials after conviction, though not after acquittal, in
criminal cases tried before them. U. S. v. Fries (1799) 3 Dall. 515, Fed.
Cas. No. 5, 126; U. S. v. Wilson & Porter (1830) Baldw. 78, 108, Fed. Cas.
No. 16, 730; U. S. v. Harding (1846) 1 Wall. Jr. 127, Fed Cas. No. 15, 301;
U. S. v. Keen (1839) 1 McLean, 429, Fed. Cas. No. 15, 510; U. S. v. Macomb
(1851) 5 McLean, 286, Fed. Cas. No. 15, 702; U. S. v. Smith (1855) 3
Blatchf. 255, Fed. Cas. No. 16, 320; U. S. v. Williams (1858) 1 Cliff. 5,
Fed. Cas. No. 16, 707. But the granting or refusal of a new trial rests
wholly in the discretion of the court in which the trial was had, and cannot
be reviewed on error. Blitz v. U. S., 153 U.S. 308, 14 Sup. Ct. 924.
By the constitution of the United States, this court has appellate

jurisdiction in such cases, and under such regulations only, as congress may
prescribe; and, under the legislation of congress before 1889, no rulings or
instructions of a circuit court of the United States in a criminal case
could be brought to this court, unless upon a certificate of division of
opinion between two judges presiding at the trial. A person accused of
murder or other crime might be tried, and, if convicted by the jury,
sentenced before a single judge, perhaps only a district judge; and, if so
convicted and sentenced, there was no way in which the judge's rulings could
be reviewed by this court. Act April 29, 1802, c. 31, 6 (2 Stat. 159); Rev.
St. 651, 697; U. S. v. More, 3 Cranch, 159, 172; Ex parte Kearney, 7 Wheat.
38, 42; Ex parte Gordon, 1 Black, 503; Ex parte Yarbrough, 110 U.S. 651, 4
Sup. Ct. 152; U. S. v. Perrin, 131 U.S. 55, 9 Sup. Ct. 681.
By the acts of February 6, 1889 (chapter 113, 6), and March 3, 1891 (chapter
517), indeed, a person convicted of murder or other infamous crime in a
circuit court of the United States may bring the case to this court by writ
of error, although the United States cannot do so. 25 Stat. 656; 26 Stat.
827; U. S. v. Sanges, 144 U.S. 310, 12 Sup. Ct. 609. But the right of
review, so given to this court, cannot supersede or impair the rightful
power of the jury under the constitution, in deciding the issue submitted to
them at the trial.
There may be less danger of prejudice or oppression from judges appointed by

the president elected by the people than from judges appointed by an
hereditary monarch. But, as the experience of history shows, it cannot be
assumed that judges will always be just and impartial, and free from the
inclination, to which even the most upright and learned magistrates have
been known to yield, -- from the most patriotic motives, and with the most
honest intent to promote symmetry and accuracy in the law, -- of amplifying
their own jurisdiction and powers at the expense of those intrusted by the
constitution to other bodies. And there is surely no reason why the chief
security of the liberty of the citizen -- the judgment of his peers --
should be held less sacred in a republic than in a monarchy.

Upon these considerations, we are of opinion that the learned judge erred in
instructing the jury that they were bound to accept the law as stated in his
instructions, and that this error requires the verdict to be set aside as to
both defendants.
But we are also of opinion that the judge committed an equally grave error
in declining to submit to the jury matter of fact involved in the issue on
trial.
It clearly appears that the jury were not only instructed that, while they
had the physical power to return a verdict of manslaughter, yet they must
take the law from the court; but that they were also instructed that, if
they found these defendants guilty of any crime, it could not properly be
manslaughter. There can be no doubt upon the record before us -- and it is
admitted in the opinion of the majority of the court -- that the judge
denied the right of the jury to find as a fact that the defendants had been
guilty of manslaughter only. Nor can there be any doubt that the jury were
thereby led to agree upon a verdict of guilty of murder, to the great
prejudice of the defendants.
In a case in which the jury, as appeared by their inquiries of the court,

were in doubt whether the homicide committed by the defendants was murder or
manslaughter, to instruct them that they could not acquit the defendants of
murder and convict them of manslaughter only, but must find them guilty of
murder or of no crime at all, does not appear to us to differ, in principle,
from instructing them, in a case in which there was no question of
manslaughter, that there was no evidence upon which they could acquit the
defendant, or do anything but convict him of murder.
This is not a case in which the judge simply declined to give any
instructions upon a question of law which he thought did not arise upon the
evidence. But, after giving sufficient definitions both of murder and of
manslaughter, he peremptorily told them that they could not convict the
defendants of manslaughter only, and thereby denied the right of the jury to
pass upon a matter of fact necessarily included in the issue presented by
the general plea of not guilty.
This appears to us to be inconsistent with settled principles of law and

with well-considered authorities. As said by this court, speaking by Mr.
Justice Clifford: 'In criminal cases the true rule is that the burden of
proof never shifts; that in all cases, before a conviction can be had, the
jury must be satisfied from the evidence, beyond a reasonable doubt, of the
affirmative of the issue presented in the accusation that the defendant is
guilty in the manner and form as charged in the indictment.' Lilienthal's
Tobacco v. U. S., 97 U.S. 237, 266. See, also, Potter v. U. S., 155 U.S.
438, 15 Sup. Ct. 144; Com. v. McKie, 1 Gray, 61; People v. Downs, 123 N. Y.
558, 25 N. E. 988.
Upon the trial of an indictment under a statute of the territory of Utah,

establishing two degrees of murder, with different punishments, the jury
were instructed 'that an atrocious and dastardly murder has been committed
by some person is apparent, but in your deliberations you should be careful
not to be influenced by any feeling'; and the defendant was found guilty of
murder in the first degree, and sentenced to death. This court, upon writ of
error to the supreme court of the territory, reversed the judgment, because
that instruction must have been regarded by the jury as 'an instruction that
the offense, by whomsoever committed, was murder in the first degree;
whereas it was for the jury, having been informed as to what was murder by
the laws of Utah, to say whether the facts made a case of murder in the
first degree or murder in the second degree'; and 'the prisoner had the

right to the judgment of the jury upon the facts, uninfluenced by any
direction from the court as to the weight of the evidence.' Hopt v. People,
110 U.S. 574, 582, 583 S., 4 Sup. Ct. 202.
As stated by the chief justice, speaking for this court, in a case of

murder, decided at the last term: 'It is true that in the federal courts the
rule that obtains is similar to that in the English courts, and the
presiding judge may, if in his discretion he think proper, sum up the facts
to the jury; and if no rule of law is incorrectly stated, and the matters of
fact are ultimately submitted to the determination of the jury, it has been
held that an expression of opinion upon the facts is not reviewable on
error. Rucker v. Wheeler, 127 U.S. 85, 93, 8 Sup. Ct. 1142; Lovejoy v. U.
S., 128 U.S. 171, 173, 9 S. Sup. Ct. 57. But he should take care to separate
the law from the facts, and to leave the latter in unequivocal terms to the
judgment of the jury as their true and peculiar province. M'Lanahan v.
Insurance Co., 1 Pet. 170, 182. As the jurors are the triers of facts,
expressions of opinion by the court should be so guarded as to leave the
jury free in the exercise of their own judgments.' Starr v. U. S., 153 U.S.
614, 624, 625 S., 14 Sup. Ct. 919.
The supreme court of Michigan, speaking by Chief Justice Cooley, in setting

aside a verdict of murder, in a case in which the homicide was admitted, and
the only question was whether it was murder or manslaughter, said: 'The
trial of criminal cases is by a jury of the country, and not by the court.
The jurors, and they alone, are to judge of the facts, and weigh the
evidence. The law has established this tribunal, because it is believed
that, from its numbers, the mode of their selection, and the fact that the
jurors come from all classes of society, they are better calculated to judge
of motives, weigh probabilities, and take what may be called a 'common-sense
view' of a set of circumstances, involving both act and intent, than any
single man, however pure, wise, and eminent he may be. This is the theory of
the law, and, as applied to criminal accusations, it is eminently wise, and
favorable alike to liberty and to justice. But, to give it full effect, the
jury must be left to weigh the evidence, and to examine the alleged motives
by their own tests. They cannot properly be furnished for this purpose with
balances which leave them no discretion, but which, under certain
circumstances, will compel them to find a malicious intent when they cannot
conscientiously say they believe such an intent to exist.' People v.
Garbutt, 17 Mich. 9, 27.
In Rex v. Burdett, cited in the earlier part of this opinion, Mr. Justice
Best said: 'If there was any evidence, it was my duty to leave it to the
jury, who alone could judge of its weight. The rule that governs a judge as
to evidence applies equally to the case offered on the part of the
defendant, and that in support of the prosecution. It will hardly be
contended that, if there was evidence offered on the part of the defendant,
a judge would have a right to take on himself to decide on the effect of the
evidence, and to withdraw it from the jury. Were a judge so to act, he
might, with great justice, be charged with usurping the privileges of the
jury, and making a criminal trial, not what it is by our law, a trial by
jury, but a trial by the judge.' And Lord Tenterden, in words peculiarly
applicable to the present case, said: 'In cases of murder, it rarely happens
that the eye of any witness sees the fatal blow struck, or the poisonous
ingredients poured into the cup. In drawing an inference or conclusion from
facts proved, regard must always be had to the nature of the particular
case, and the facility that appears to be afforded, either of explanation or
contradiction.' 'The premises may lead more or less strongly to the
conclusion, and care must be taken not to draw the conclusion hastily; but
in matters that regard the conduct of men, the certainty of mathematical
demonstration cannot be required or expected; and it is one of the peculiar
advantages of our jurisprudence that the conclusion is to be drawn by the

unanimous judgment and conscience of twelve men, conversant with the affairs
and business of life, and who know that, where reasonable doubt is
entertained, it is their duty to acquit; and not of one or more lawyers,
whose habits might be suspected of leading them to the indulgence of too
much subtilty and refinement.' 4 Barn. & Ald. 95, 121, 161, 162.
The care with which courts of the highest authority have guarded the
exclusive right of the jury to decide the facts in a criminal case is
exemplified in a very recent case before the judicial committee of the privy
council, in which, under section 423 of the criminal law amendment act of
1883 (46 Vict. c. 17), authorizing the judge presiding at a criminal trial
to reserve questions of law for review, with a proviso that no judgment
should be reversed 'unless for some substantial wrong or other miscarriage
of justice,' the questions reserved were whether certain evidence had been
improperly admitted, and whether, if the court came to the conclusion that
it was not legally admissible, the court could nevertheless affirm the
judgment if it was of opinion that, independently of that evidence, there
was sufficient evidence to support the conviction, and that the accused was
guilty of the offense with which he was charged. It was argued that if,
without the inadmissible evidence, there was evidence sufficient to sustain
the verdict, and to show that the accused was guilty, there had been no
substantial wrong or miscarriage of justice in affirming a judgment upon the
conviction by the jury. But Lord Chancellor Herschell, speaking for six
other law lords as well as for himself, held otherwise, and said: 'It is
obvious that the construction contended for transfers from the jury to the
court the determination of the question whether the evidence -- that is to
say, what the law regards as evidence -- establishes the guilt of the
accused. The result is that, in a case where the accused has the right to
have his guilt or innocence tried by a jury, the judgment passed upon him is
made to depend, not on the finding of the jury, but on the decision of the
court. The judges are in truth substituted for the jury. The verdict becomes
theirs, and theirs alone, and is arrived at upon a perusal of the evidence,
with out any opportunity of seeing the demeanor of the witnesses and
weighing the evidence with the assistance which this affords. It is
impossible to deny that such a change of the law would be a very serious
one, and that the construction which their lordships are invited to put upon
the enactment would gravely affect the much-cherished right of trial by jury
in criminal cases.' Makin v. Attorney General App. Cas. 57, 69, 70.
By section 1035 of the Revised Statutes, 'in all criminal causes, the
defendant may be found guilty of any offence the commission of which is
necessarily included in that with which he is charged in the indictment, or
may be found guilty of an attempt to commit the offence so charged:
provided, that such attempt be itself a separate offence.' The defendants,
therefore, under this indictment, might have been convicted of murder, or of
manslaughter, or of an assault only. Having pleaded not guilty, they could
only be convicted by the verdict of a jury. If a homicide was committed with
malice, it was murder; if committed without malice, but without any lawful
excuse, it was manslaughter only. The burden of proof at every step was upon
the government. In order to obtain a conviction of murder, it must prove
beyond a reasonable doubt that the homicide was committed with malice. The
question whether, taking into consideration all the circumstances in
evidence, as well as the credibility of the several witnesses, there was a
criminal homicide, and, if so, whether it was murder or only manslaughter,
could be finally decided against the defendants by the jury alone. According
to the settled practice of the courts of the United States, indeed, the
court, even in a criminal case, may express its opinion to the jury upon any
question of fact, provided that it submits that question to the jury for
decision. But the court in this case went beyond this, and distinctly told
the jury that, if they found that a felonious homicide had been committed by
the defendants, they could not properly convict them of manslaughter, which

was equivalent to saying that, if any crime was proved, it was murder. This
instruction had the direct tendency and the actual effect of inducing the
jury to return a verdict of guilty of the higher crime. The jury may have
been satisfied that the defendants killed the mate without lawful excuse,
and may yet have had doubts whether, upon so much of the testimony as they
believed to be true, the killing was malicious, and therefore murder. That
doubts had occurred to the jurors upon this point is shown by the questions
addressed by one of them to the presiding judge. The judge dispelled those
doubts, not by further defining the distinction as matter of law between
murder and manslaughter, but by telling the jury that, as matter of fact,
they could not convict the defendants of manslaughter only. He thus
substituted his own decision upon this question of fact for the decision of
the jury, to which the defendants were entitled under the constitution and
laws of the United States. If all the justices of this court should concur
in the opinion of the judge below upon this question of fact, still the
defendants have not had the question decided by the only tribunal competent
to do so under the constitution and laws.
For the twofold reason that the defendants, by the instructions given by the
court to the jury, have been deprived both of their right to have the jury
decide the law involved in the general issue, and also of their right to
have the jury decide every matter of fact involved in that issue, we are of
opinion that the judgment should be reversed, and the case remanded, with
directions to order a new trial as to both defendants.
Footnotes
3. The decision of Mr. Justice Johnson, there referred to, does not appear
to have been reported. But the decision of Mr. Justice Washington is
reported as U. S. v. Jones (1813) 3 Wash. C. C. 209, Fed. Cas. No. 15, 494;
and the point was decided the same way by this court (Mr. Justice Johnson
dissenting) in U. S. v. Palmer (1818) 3 Wheat. 610.


This is the case that represents the seizure of the Supreme Court by the forces of Lord Mansfield and the
deposing of the forces of Lord Camden, two British judges who led, respectively, the doctrine that
questions of law should be decided only by the judge in a jury trial, and the doctrine that in a jury trial,
the jury are the true judges and have the duty to judge the law as well as the facts in the case. The
Mansfield doctrine has prevailed in U.S. courts ever since, extending to the state level. However, it
remains controversial, and the Camden doctrine awaits a restoration.
Historically, juries in the colonial period and early decades of the Republic decided both law and fact.
Their pre-eminence in judgement was unquestioned, and it was that model that the founders had in mind
when they adopted the requirements for jury trials in both civil and criminal trials.
There are several ways to interpret the prevailing opinion in this case, but essentially it was a ruling that
it was not a reversible error to fail to inform a jury of their right, power, and duty to decide both the law
and the facts. In one sense, that was not a remarkable position, because at the time, the power and duty of
a jury to decide both was general knowledge.
The problem for later jurisprudence is that courts have taken this precedent as a license to sanction
defendants and their counsel for attempting to inform juries of their power and duty to decide the law.
The transition from not reversing a decision for failing to inform the jury to holding a defense lawyer or
his client in contempt for trying to do so is troubling for legal philosophers, and the movement to
overturn this judicial practice is growing in strength.

This is the case that represents the seizure of the Supreme Court by the
forces of Lord Mansfield and the deposing of the forces of Lord Camden, two
British judges who led, respectively, the doctrine that questions of law
should be decided only by the judge in a jury trial, and the doctrine that
in a jury trial, the jury are the true judges and have the duty to judge the
law as well as the facts in the case. The Mansfield doctrine has prevailed
in U.S. courts ever since, extending to the state level. However, it remains
controversial, and the Camden doctrine awaits a restoration.
Historically, juries in the colonial period and early decades of the

Republic decided both law and fact. Their pre-eminence in judgement was
unquestioned, and it was that model that the founders had in mind when they
adopted the requirements for jury trials in both civil and criminal trials.
There are several ways to interpret the prevailing opinion in this case, but
essentially it was a ruling that it was not a reversible error to fail to
inform a jury of their right, power, and duty to decide both the law and the
facts. In one sense, that was not a remarkable position, because at the
time, the power and duty of a jury to decide both was general knowledge.
The problem for later jurisprudence is that courts have taken this precedent
as a license to sanction defendants and their counsel for attempting to
inform juries of their power and duty to decide the law. The transition from
not reversing a decision for failing to inform the jury to holding a defense
lawyer or his client in contempt for trying to do so is troubling for legal
philosophers, and the movement to overturn this judicial practice is growing
in strength.

Coffin v. U.S., 156 U.S. 432 (1895)
U.S. Supreme Court

COFFIN v. U.S., 156 U.S. 432 (1895)
COFFIN et al.
v.
UNITED STATES.
No. 741.
March 4, 1895. [156 U.S. 432, 433] By section 5209 of the Revised Statutes, relating to national banks,
certain acts therein enumerated are made misdemeanors punishable by imprisonment for not less than 5
nor more than 10 years. The section reads as follows:
'Every president, director, cashier, teller, clerk, or agent of any association who embezzles,
abstracts, or willfully misapplies any of the moneys, funds, or credits of the association; or
who, without authority from the directors, issues or puts in circulation any of the notes of
the association; or who, without such authority, issues or puts forth any certificate of
deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond,
draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any
book, report, or statement of the association with intent in either case to injure or defraud the
association or any other company, body politic or corporate, or any individual person, or to
deceive any officer of the association, or any agent appointed to examine the affairs of any
such association; and every person who with like intent aids or abets any officer, clerk, or
agent in any violation of this section shall be deemed guilty of a misdemeanor, and shall be
imprisoned not less than five years nor more than ten.'
The indictment in this case was found on the 21st December, 1893, against Theodore P. Haughey, who
had been president of the Indianapolis National Bank, for violations of the foregoing section. F. A.
Coffin and Percival B. Coffin, plaintiffs in error, and A. S. Reed, were charged therein with having aided
and abetted Haughey in his alleged misdemeanors. The indictment is prolix and redundant, and it is
difficult to [156 U.S. 432, 434] analyze it so as to make a concise statement of its contents. It contains 50
counts, and alleges that the various offenses enumerated in them were committed on different dates
between January 1, 1891, and July 26, 1893. The counts embrace a number of acts made misdemeanors
by the statute, and the charges are commingled in a very indefinite and confusing manner. All the counts,
however, may be classified as follows:
(1) Those which aver willful misapplication of the funds of the bank at a specified time, in a
precise sum, and by enumerated and distinctly described acts.
(2) Those which, although definite as to date and amount, are indefinite in their statement of
the precise means by which the alleged crimes were accomplished.
(3) Those which, while charging a willful misapplication of the funds of the bank for a
definite amount are entirely indefinite as to the date or dates upon which the acts took place,
and also fail to specify the particular acts by which the wrong was accomplished.
(4) Those which charge false entries in the books of the bank.

Coffin v. U.S., 156 U.S. 432 (1895)
(5) Those which charge false entries in certain official statements of the condition of the
bank made to the comptroller of the currency.
Under the first head-counts which are definite as to time, dates, amounts, and methods – are included
Nos. 1, 2, 3, and 47. The first of these in order of date – for the counts are not arranged chronologically
in the indictment – is the forty-seventh, which reads as follows:
'The grand jurors aforesaid, upon their oaths aforesaid, do further charge and present that
Theodore P. Haughey, late of said district, at the district aforesaid, on, to wit, the 21st day of
December, in the year of our Lord 1892, the said Theodore P. Haughey then and there being
president of a certain national banking association, then and there known and designated as
the Indianapolis National Bank, in the city of Indianapolis, in the state of Indiana, which
said association had been heretofore [156 U.S. 432, 435] created and organized under the laws
of the United States of America, and which said association was then and there carrying on a
banking business in the city of Indianapolis, state of Indiana, did then and there, by virtue of
his said office as president of said bank, unlawfully, feloniously, and willfully misapply the
moneys, funds, and credits of the said association, which were then and there under his
control, with intent to convert the same to the use of the Indianapolis Cabinet Company, and
to other persons to the grand jurors unknown, in a large sum, to wit, the sum of six thousand
three hundred and eighteen dollars, by then and there causing said sum to be paid out of the
moneys, funds, and credits of said association, upon a check drawn upon said association by
the Indianapolis Cabinet Company, which check was then and there cashed and paid out of
the moneys, funds, and credits of said association aforesaid, which said sum aforesaid, and
no part thereof, was said Indianapolis Cabinet Company entitled to withdraw from said
bank, because said company had no funds in said association to its credit; that said
Indianapolis Cabinet Company was then and there insolvent, as the said Theodore P.
Haughey then and there well knew, whereby said sum became lost to said association; that
all of said acts as aforesaid were done with intent to injure and defraud said association; that,
as such president aforesaid, the said Theodore P. Haughey was intrusted and charged by the
board of directors of said national banking association with the custody, control, and care of
the moneys, funds, credits, and assets of said association, and the general superintendence of
its affairs.
'And the grand jurors aforesaid do further say that Francis A. Coffin, Percival B. Coffin, and
Albert S. Reed did unlawfully, willfully, knowingly, and feloniously, and with intent to
injury and defraud said association, on to wit, the 21st day of December, in the year of our
Lord 1892, aid and abet the said Theodore P. Haughey, as aforesaid, to wrongfully,
unlawfully, feloniously, and willfully misapply the moneys, funds, and credits of said
association as aforesaid, to wit, the sum of six thousand three hundred and eighteen dollars.'
[156 U.S. 432, 436] The second and third counts are substantially like the foregoing, varying
only in the statements of date, amount, and method. The first and remaining count under this
head, after fixing the date of the offense and stating the amount at $5,802.84, describes the
method by which the misapplication was accomplished, as follows:
'The Indianapolis Cabinet Company, of Indianapolis, Indiana, presented to said bank and to
the said Theodore P. Haughey, as such president thereof, a certain bill of exchange drawn by
said Indianapolis Cabinet Company on the Indianapolis Desk Company, of London,

Coffin v. U.S., 156 U.S. 432 (1895)
England, for the sum of one thousand one hundred and ninety-four pounds sterling, and due
on June 1, 1893, which said bill of exchange was received by said Theodore P. Haughey,
and placed to the credit of the said Indianapolis Cabinet Company upon the books of said
bank, and the said Indianapolis Cabinet Campany thereupon drew its check for said sum
upon the said bank, which check was then and there paid by said bank, under the direction
of said Theodore P. Haughey; that said Indianapolis Desk Company, of London, England,
did not owe said Indianapolis Cabinet Company any sum whatever; that said Theodore P.
Haughey failed and refused to send said bill of exchange forward for collection, whereby
said sum was lost to said association; that said sum was so willfully misapplied to the use
and benefit of the Indianapolis Cabinet Company as aforesaid.'
Under the second head – those definite as to date and amount, but indefinite in the statement of the
method by which the wrong was committed – are embraced counts 4, 5, 6, 7, 8, 9, 10, 11, and 12. Of
these, the eighth is the first in order of time, and reads as follows:
Theodore P. Haughey, late of said district, at the district aforesaid, on, to wit, the 23d day of
September, in the year of our Lord 1892, the said Theodore P. Haughey then and there being
the president of a certain national banking association, then and there known and designated
as the Indianapolis National Bank, in the city of Indianapolis, in [156 U.S. 432, 437] the state
of Indiana, which said as sociation had been heretofore created and organized under the laws
of the United States of America, and which association was then and there carrying on a
banking business in the city of Indianapolis, state of Indiana, did then and there, by virtue of
his said office as president of said bank, unlawfully, feloniously, and willfully misapply the
moneys, funds, and credits of the said association, without authority of the directors thereof,
with intent to convert the same to the use of the Indianapolis Cabinet Company, and to other
persons to the grand jurors unknown, in a large sum, to wit, the sum of three thousand nine
hundred and sixty dollars and eighty-four cents, by then and there paying, and causing said
sum to be paid out of the moneys, funds, and credits of said association, upon certain divers
checks drawn upon said association by the Indianapolis Cabinet Company, which checks
were then and there cashed and paid out of the moneys, funds, and credits of said
association aforesaid, which said sum aforesaid, and no part thereof, was said Indianapolis
Cabinet Company entitled to withdraw from said bank, because said company had no funds
in said association to its credit; that said Indianapolis Cabinet Company was then and there
insolvent, as the said Theodore P. Haughey then and there well knew, whereby said sum
because lost to said association; that all of said acts, as aforesaid, were done with intent to
injure and defraud said association; that, as such president aforesaid, the said Theodore P.
Haughey was intrusted and charged by the board of directors of said national banking
association with the custody, control, and care of the moneys, funds, credits, and assets of
said association, and the general superintendence of all its affairs.
'And the grand jurors aforesaid do further say that Francis A. Coffin and Percival B. Coffin
and Albert S. Reed, at the district and state of Indiana aforesaid, did unlawfully, willfully,
knowingly, and feloniously, and with intent to injure and defraud said association, on, to
wit, the 23d day of September, in the year of our Lord 1892, aid and abet the said Theodore
P. Haughey, as aforesaid, to wrongfully, unlawful, feloniously, [156 U.S. 432, 438] and
willfully misapply the money, funds, and credits of said association, to wit, the sum of three

Coffin v. U.S., 156 U.S. 432 (1895)
thousand nine hundred and sixty dollars and eighty-four cents aforesaid.'
The other counts under this classification substantially vary only as to date and amount.
Under the third head – those which, while charging a willful misapplication of the funds of the bank for a
definite amount, are indefinite as to the date or dates upon which the acts took place, and also fail to
specify in any definite way the particular methods by which the wrong was accomplished – are embraced
counts 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36. Of these
counts, the first in order of time is the seventeenth, which is as follows:
Theodore P. Haughey, late of said district, at the district aforesaid, on, to wit, the 1st day of
January, in the year of our Lord 1891, and on divers times between said date and the 25th
day of July, in the year of our Lord 1893, the said theodore P. Haughey, then and there
being the president of a certain national banking association, then and there known and
designated as the Indianapolis National Bank, of Indianapolis, in the state of Indiana, which
said association had been heretofore created and organized under the laws of the United
States of America, and which said association was then and there carrying on a banking
business in the city of Indianapolis, state of Indiana, did then and there, by virtue of his said
office as president of said bank, and without authority of the board of directors, unlawfully,
feloniously, and willfully misapply the moneys, funds, and credits of said association, with
intent to convert the same to the use of the Indianapolis Cabinet Company, a more particular
description of said moneys, funds, and credits being to the grand jurors unknown, in a large
amount, to wit, the sum of three hundred and seventy-five thousand dollars, by then and
there cashing, discounting, and paying, for the use and benefit of said Indianapolis Cabinet
Company, out of the funds of said association, a large [156 U.S. 432, 439] number of worthless
and insolvent notes, drafts, and bills of exchange, being drawn upon and by divers persons,
firms, and companies, and corporations, each and all of whom were then insolvent, as the
said Theodore P. Haughey then and there well knew, whereby said sum was wholly lost to
said association, with intent then and there and thereby to injure and defraud said
association; that, as such president aforesaid, the said Theodore P. Haughey was intrusted
and charged by the board of directors of said national banking association with the custody,
control, and care of the funds, credits, and assets of said association, and the general
superintendence of its affairs, and agent of said association in the transaction of all its
business.
'And the grand jurors aforesaid do further say that Francis A. Coffin, Percival B. Coffin, and
Albert S. Reed, at the district and state of Indiana aforesaid, did unlawfully, willfully,
knowingly, and feloniously, and with intent to injure and defraud said association, on, to
wit, the 1st day of January, in the year of our Lord 1891, and on divers times between said
date and the 25th day of July, in the year of our Lord 1893, aid and abet the said Theodore
P. Haughey, as aforesaid, to wrongfully, unlawfully, feloniously, and willfully misapply the
moneys, funds, and credits of said association, to wit, the sum of three hundred and
seventy-five thousand dollars aforesaid.'
The vagueness of the date, as fixed in this charge, is somewhat mitigated in four of the counts coming
under this head, – counts 13, 14, 15, and 16, – wherein the offense is stated to have been committed 'on

Coffin v. U.S., 156 U.S. 432 (1895)
May 9, 1893, and at divers times between said date and June 18, 1893,' 'on June 19, 1893, and at divers
times between said date and July 13, 1893,' 'on the 3d day of March, 1893, and on divers dates between
said date and the 8th day of May, 1893,' and 'on May 8, 1893, and at divers times between that date and
June 18, 1893.' In all the other counts the offense is said to have been committed between January 1,
1891, and July 25, 1893, except in one, wherein the last date is averred to be July 26, 1893, [156 U.S. 432,
440] instead of July 25th. The sum averred to have been misapplied in counts 13, 14, 15, and 16 is
different from that charged in count 17, – it being in the fourteenth, $9,132.19; in the fifteenth,
$12,732.51; in the thirteenth and sixteenth, $10,106.08. In the other counts, where the date of the offense
is stated as being between 1891 and 1893, the amount of the alleged misapplication varies; being placed
in some at $375,000, and in others at $350,000.
The method by which the misapplication is alleged to have been accomplished is not indefinitely stated
in all the other counts, as in the seventeenth, which we have just quoted. In some, instead of charging that
the checks or 'insolvent' notes, drafts, and bills were drawn 'by or upon divers persons, firms, companies,
and corporations,' it is specified that the checks or the notes discounted were drawn by the Indianapolis
Cabinet Company. With this exception, all the counts under this head are equally vague in regard to the
specific methods of the misapplication. Some of them state that it was made by paying out the money of
the bank on worthless checks of the Indianapolis Cabinet Company, without giving the dates or the
amounts of the checks. More allege that the misapplication was brought about by allowing overdrafts,
without giving the dates of such overdrafts, or specifying the various checks through which the
overdrafting was done. Others, again, allege that the misapplication was accomplished by loaning the
money of the bank to the Indianapolis Cabinet Company, in excess of 10 per cent. of the capital stock,
without giving the dates or the precise amount of the loans. Again, it is charged that the misapplication
was concealed by discounting and entering to the credit of the Indianapolis Cabinet Company a number
of worthless notes and bills, without stating who were the drawers of the notes, or giving the dates and
amounts of the entries which it is charged were made for the purpose of concealing the misapplication.
Indeed, whatever may be the difference between the counts under this head, there is, as has been stated, a
uniformity in one respect, – their failure to disclose the specific methods by which the alleged offenses
were committed, by giving dates and amounts. The only partial exceptions to this are found in counts 35
and [156 U.S. 432, 441] 37, wherein the general charge of payment of 'a large number of worthless and
insolvent drafts and bills of exchange in large amounts, a more particular description of which is to the
grand jurors unknown, executed by and upon divers persons, firms, companies, and corporations, in large
amounts, to wit,' is followed by an enumeration of certain persons or corporations, with a lump sum as
against each person or corporation named. The intent with which the misapplication is charged to have
been committed is not uniform in all the counts. In some it is averred that the misapplications were made
to injure and defraud the bank and certain companies, bodies politic, bodies corporate, and individual
persons, whose names are to the grand jurors unknown; in others, that it was made to defraud the bank
alone; again, that entries of the worthless checks paid, or 'insolvent' paper taken, were made on the books
of the bank with intent to conceal the misapplication, and to deceive certain officers of the corporation,
whose names are to the grand jurors unknown, or to deceive certain agents appointed or to be appointed
by the comptroller of the currency, etc.
Under the fourth head – those which charge the making of false entries in the books of the bank – are
embraced counts 37, 38, 39, 40, 41, 42, 43, 44, 45, and 46. The counts under this head very only as to the
particular false entry complained of, the date when made, and the folio of the account book where
entered. Each particular false entry specified, except one, covers two counts; one charging it to have been

Coffin v. U.S., 156 U.S. 432 (1895)
made with intent to injure and defraud the association (bank), the other averring it to have been made to
deceive any agent appointed, or who might be thereafter appointed, to examine the affairs of the bank,
'the names of said agent or agents being to the grand jurors unknown.'
The remaining counts belong to the fifth class; that is, relate to false entries which it is alleged were made
in statements of the condition of the bank furnished to the comptroller of the currency.
A trial was begun under the indictment on the 10th of April, 1894, and progressed until the 25th of that
month, when, [156 U.S. 432, 442] by consent of all parties, the jury was discharged because of the corrupt
misconduct of one of the jurors. The court thereupon set the cause down for trial on the 1st of May. The
defendants applied for a continuance upon two grounds: (1) because of the accidental wounding of the
leading counsel for the accused, and his consequent inability to take part in the defense; and (2) because
the general nature of the charges involved hundreds of transactions, covering thousands of dollars, and a
long period of time, necessitating the examination of over 2,000 entries in the books of the bank, which
were in the hands of the officers of the government, who denied access thereto. The court refused the
motion for continuance, and exception was duly reserved. The trial commenced on May 4th.
During the course of the trial, many exceptions were reserved to the admission or rejection of testimony.
They went not only to the admissibility of the proffered testimony under particular counts, but were also
taken to the admission of any evidence whatever, upon the theory that the entire indictment charged no
offense, therefore no proof could be made under it. Other objections were also reserved to comments
made by the court upon the evidence as it was adduced, etc. On the close of the case for the prosecution,
the defendants moved the court to oblige the government 'to elect and specify the particular transactions
in each count of the general counts of the indictment in this case, to wit, from the 17th to 36th, both
inclusive, upon which it relies as a substantive charge, and upon which it will claim a conviction of the
defendants, or either of them; said election to be made before the evidence on behalf of the defendants is
commenced, to the end that they, and each of them, may know to what particular charge in each count
their evidence is required to be addressed.' To the refusal of the court to grant this motion, exception was
reserved. The reason for refusing the request is not stated, but in the charge of the court to the jury the
following language was used, which indicates its opinion on the subject: 'The particular acts of
misapplication described in the several specific counts must be established by proof as therein [156 U.S.
432, 443] respectively charged. If, however, there are any willful misapplications shown by the evidence
which are not covered by special or specific counts, they may be included under the general counts, and a
verdict thereon rendered accordingly.
Before the case went to the jury the prosecution abandoned the forty-seventh, forty-eighth, forty-ninth,
and fiftieth counts of the indictment; thus eliminating from it one of the specific counts, and all those
which referred to false entries in official statements as to the condition of the bank made to the
comptroller. On the close of the case the defendants proffered to the court 45 written requests to charge,
and, upon the court's refusing them all, excepted to such refusal as to each, or rather as to 44 thereof. To
the charge of the court actually delivered to the jury, the defendants reserved 26 exceptions. A
controversy exists as to whether one of the 26 exceptions was properly taken. The facts, as stated in the
bill of exceptions, are as follows:
'After the court had delivered its charge to the jury, and before it retired, the court said: 'If it
is the desire of counsel for defendant to reserve any exceptions to the charges given and
refused, the practice in this court requires that that shall be done before the jury retires.'

Coffin v. U.S., 156 U.S. 432 (1895)
'Mr. Miller: 'It is, of course, if your honor please, the desire on behalf of defendants to
reserve exceptions to the refusal of such instructions as were requested and refused, and to
parts of the instruction given. Without having a little time to examine these instructions, it is
impossible for us now to designate the particular parts. We would like to have time to look
at them for that purpose.'
'The Court: 'What length of time would you desire?'
'Mr. Miller: 'I do not know, if your honor please, how long it would take. It has taken an
hour to read them.'
'Mr. Duncan: 'They can be made, when made, as of this time, with permission of the court.'
'The Court: 'Except so far as any mere verbal changes are concerned, which, if the court's
attention was drawn to, it would at once correct, I have no objection to that method of
procedure.' [156 U.S. 432, 444] 'Mr. Miller: 'Of course, anything that is formal, of that
character, that won't go to the substance of the matter, we should not expect to insist on.
But, as your honor can see it, it is impossible for us, from hearing the instructions read for
an hour, to select the parts.'
'The Court: 'There are the instructions you propose (indicating), and these instructions I do
not care to have mislaid or lost (indicating).'
'Mr. Miller: 'No, sir; of course not. For that matter, every syllable of them has been taken
down by two stenographers here, – all of your instructions, as you read them, – so there
cannot be any possibility of any trouble about them. We take them and make —'
'The Court: 'Where is the bailiff?'
'Mr. Taylor: 'You may take these forms of the verdict and the indictment.'
"Gentlemen of the jury, you may retire with your bailiff."
The bill of exceptions then states that at the time this colloquy took place the assistant attorney for the
prosecution was present in the court room, heard the conversation, and assented to the arrangement thus
made.
It further states that a few minutes after 3 in the afternoon the jury retired to consider their verdict; that
the defendants' counsel took the instructions given by the court which were typewritten, and noted
thereon, by inclosing the same in a parenthesis mark with pencil, the parts of such instructions so given
by the court to which exceptions were taken, the parts thus marked being respectively numbered; that at 9
o'clock that night the defendants' counsel returned to the court room, and handed the instructions which
had been so marked and numbered by them to the judge, in open court, saying that the parts marked in
parentheses and numbered were those to which the defendants excepted, and to which they reserved their
bill, under the understanding previously had; that immediately thereafter the jury, which had not reached
a conclusion, was brought into court, and informed by the judge that he would be within call until 11
o'clock to receive a verdict, and if they did [156 U.S. 432, 445] not agree by that time they might seal their
verdict, and bring it into court on Monday morning, it being then Saturday evening.
On May 28th the defendants, through their counsel, wrote out in full their exceptions to the various parts

Coffin v. U.S., 156 U.S. 432 (1895)
of the charge, as marked and numbered, and presented them to the court, which declined to sign them
because of the twenty-second exception, which it considered not properly taken, under the understanding
between court and counsel above stated. However, the court signed the bill of exceptions, writing therein
a narrative of the facts, and predicating its objection to the twenty-second exception on the ground that
the matter covered by it was merely verbal, and at the time the parties were given the right to take their
bill the court did not include any mere verbal error, which would have been corrected if attention had
been called to it in proper time. The language contained in the charge covered by the disputed exception
is as follows:
'I do not wish to be understood as meaning that the intent to injure, deceive, or defraud is
conclusively established by the simple proof of the doing of the prohibited act which results
in injury. What I do mean is this: That when the prohibited acts are knowingly and
intentionally done, and their natural and legitimate consequence is to produce injury to the
bank, or to benefit the wrongdoer, the intent to injure, deceive, or defraud is thereby
sufficiently established to cast on the accused the burden of showing that their purpose was
lawful, and their acts legitimate.'
On the 28th day of May the jury returned a verdict against the plaintiffs in error of guilty as charged on
all the counts of the indictment. After an ineffectual motion for a new trial, which restated the various
grounds of objection raised to the admissibility of evidence under the indictment, and which had also
been urged in the charges which had been requested and refused, the defendants moved in arrest. After
argument upon this motion the court sustained the same as to the 17th, 18th, 19th, 20th, 21st, 22d, 23d,
24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 32d, 33d, 34th, 35th, and 36th counts.
This reduced the indictment – First, to those counts which [156 U.S. 432, 446] were specific as to date,
amount, and method; second, to those which, while specific in amount and date, were not specific as to
method; third, to four counts, Nos. 13, 14, 15, and 16, which were not specific as to date or method,
leaving in addition all the counts charging false entries in the books of the bank. The errors assigned here
are 78 in number, and cover all the objections which were made to the rulings of the court below during
the trial, and the exceptions based on charges requested and refused, as well as charges given.
W. H. H. Miller, Ferdinand Winter, and John B. Elam, for plaintiffs in error.
Mr. Justice WHITE, after making a statement of the case, delivered the opinion of the court.
Many of the exceptions taken during the trial, and the requests to charge which were refused, as well as
most of the exceptions to the charge as given, relate to the counts of the indictment which were quashed
on the motion in arrest. All these questions are therefore eliminated. We shall hence only consider the
matters which are pertinent to the remaining counts, and shall examine first the objections made to the
indictment generally, based upon the contention that all the counts fail to charge an offense; second, the
exceptions reserved to rulings of the court during the trial, the effect of which is to assail the verdict and
judgment without reference to the validity of the indictment. In making this examination, we shall
concentrate the errors complained of in proper order, thus obviating repetition; for the matters to be
considered are all reiterated by way of objection to the evidence, of exception to the refusal to charge as
requested, and of complaints of the charges which the court actually gave.
It is contended that no offense is stated against the aiders and abettors, because in none of the counts is it

Coffin v. U.S., 156 U.S. 432 (1895)
asserted that [156 U.S. 432, 447] they were officers of the bank, or occupied any specific relation to the
bank which made aiding and abetting possible. The language of the statute fully answers this contention.
It provides that 'every president, director, cashier, teller, clerk, or agent of any association, who.' etc., and
adds, after defining the acts which are made misdemeanors, 'that every person who with like intent aids
and abets,' etc. The phrase 'every person' is manifestly broader than the enumeration made in the first
portion of the statute. In other words, the unambiguous letter of the law is that every president, director,
agent, etc., who commits the designated offenses, shall suffer the penalties provided, and that every
person who aids or abets such officer, etc. The argument is that no one but an officer or an agent can be
punished as an aider and abettor, and hence that every person who aids and abets, not being an officer,
shall go unwhipped of justice. To adopt the construction contended for would destroy the letter and
violate the spirit of the law; for the letter says, 'every person who aids and abets,' and the proposition is
that we should make it say 'every officer or agent who aids and abets.' The spirit and purpose of the
statute are to punish the president, cashier, officer, or agent, etc., and likewise to punish every person
who aids and abets. The assertion that one who is not an officer, or who bears no official relation to the
bank, cannot, in the nature of things, aid or abet an official of the bank in the misapplication of its funds,
is an argument which, if sound, should be addressed to the legislative, and not the judicial, department.
We cannot destroy the law on the theory that the acts which it forbids cannot be committed. In other
words, the construction which we are asked to give does not deal with the meaning of the statute, but
simply involves the claim that it is impossible to prove the commission of the offense defined by the law.
The question whether the proof shows the commission of an offense is one of fact, and not of law. The
citation made from U. S. v. Northway, 120 U.S. 333, 7 Sup. Ct. 580, is not apposite. True, we there said,
'All the acts charged against Fuller could only be committed by him by virtue of his official relation to
the bank, and the acts charged against the [156 U.S. 432, 448] defendant likewise could only be committed
by him in his official capacity.' But in that case the indictment itself charged Northway, as president and
agent, with aiding and abetting Fuller, the cashier of the bank, and the language quoted referred to the
matter under consideration, and hence it was incidentally stated that the proof and averment must
correspond.
Nor is the contention sound that the particular act by which the aiding and abetting was consummated
must be specifically set out. The general rule upon this subject is stated in U. S. v. Simmonds, 96 U.S.
360, as follows: 'Nor was it necessary, as argued by counsel for the accused, to set forth the special
means employed to effect the alleged unlawful procurement. It is laid down as a general rule that in an
indictment for soliciting or inciting to the commission of a crime, or for aiding or assisting in the
commission of it, it is not necessary to state the particulars of the incitement or solicitation, or of the aid
or assistance. 2 Whart. Cr. Law, 1281; U. S. v. Gooding, 12 Wheat. 460.' The form books give the
indictment substantially as it appears here. Bish. Forms, 114, p. 52. Nothing in Evans v. U. S., 153 U.S.
608, 14 Sup. Ct. 939, conflicts with these views. In that case the question was whether the eighth count
stated misapplication of the funds, and not whether the particular acts by which the aiding and abetting
were done were necessary to be set out in the indictment. On the contrary, the counts there held good
charged the aiding and abetting in the very language found in the indictment in hand, – 'and the said
Evans did then and there knowingly and unlawfully aid and abet the said cashier in such willful
misapplication with intent in him, the said Evans, to injure and defraud,' etc.
2. It is said that all the counts in the indictment are bad because it is not charged that the aiders and
abettors knew that Haughey was president of the bank at the time it is averred the acts were committed.
The argument is this: The statute says that every person who with like intent aids or abets any officer,

Coffin v. U.S., 156 U.S. 432 (1895)
etc. Therefore, the fact that the aider or abettor knew that the person who misapplied the funds was [156
U.S. 432, 449] an officer, etc., must be specifically charged. Without considering the legal correctness of
this proposition, it may be observed that it has no application to this cause. Each and every count here
specifically avers that 'the said Theodore P. Haughey, then and there being president of the bank,' and
'then and there, by virtue of his said office, as such president as aforesaid,' 'misapplied the funds'; and
having thus fully averred the relation of Haughey to the bank, and the commission of the acts complained
of, in his official capacity, with intent to defraud, etc., the counts go on to charge that the plaintiffs in
error did unlawfully, willfully, feloniously, knowingly, and with intent to defraud, aid, and abet the 'said
Haughey as aforesaid.' The words 'as aforesaid' clearly relate to Haughey in the capacity in which it is
stated that he committed the offense charged against him in the body of the indictment. Without entering
into any nice question of grammar, or undertaking to discuss whether the word 'said,' before Haughey's
name, and the words 'as aforesaid,' which follow it, are adverbial, we think the plain and unmistakable
statement of the indictment, as a whole, is that the acts charged against Haughey were done by him as
president of the bank, and that the aiding and abetting were also knowingly done, by assisting him in the
offcial capacity, in which alone it is charged that he misapplied the funds.
3. It is further contended that all the counts of the indictment, except the first, are insufficient because
they fail to aver the actual conversion of the sum misapplied to the use of any particular person. This
proposition is based on the cases of U. S. v. Britton, 107 U.S. 666, 2 Sup. Ct. 512, and U. S. v. Northway,
supra. In the Britton Case we said 'that the willful misapplication which was made an offense by this
statute means a misapplication for the use, benefit, or gain of the party charged, or some other person;
and therefore, to constitute the offense of willful misapplication, there must be a conversion to the party's
own use, or to the use of some one else, of the funds of the association. This essential element of the
offense is not averred in the indictment [156 U.S. 432, 450] under consideration, but is negatived by the
averment that the shares purchased by the defendant were held by him in trust for the use of the
association; and there is no averment of a conversion by the defendant, for his own use, or the use of any
other person, of the funds used in purchasing the shares. The counts, therefore, charge maladministration
of the affairs of the bank rather than criminal misapplication of the funds.' So, in Northway's Case, we
said, 'It is of the essence of the crime of misapplication that there should be conversion of the funds to the
use of the defendant, or of some other person than the association.' The various counts of the indictment
here are all substantially alike in stating the conversion. We take the second as an example. That charges
that Haughey, being president of the Indianapolis Bank, did then and there, by virtue of his office as
president of said bank. unlawfully, feloniously, and willfully misapply the moneys, funds, and credits of
the bank, with intent to convert the same to the use of the Indianapolis Cabinet Company, by then and
there causing said sum to be paid out of the moneys, funds, and credits of the bank, upon a check drawn
upon the bank by the Indianapolis Cabinet Company, which check was then and there cashed and paid
out of the funds and credit of the bank, which sum, and no part thereof, was the said Indianapolis Cabinet
Company entitled to withdraw from the bank, because said company had no funds in the bank, and that
the said company was then and there insolvent, which Haughey then and there well knew, whereby said
sum became lost to the bank. This clearly states the misapplication and actual conversion of the money
by the methods described; that is to say, by paying it out of the funds of the bank to a designated person,
when that person was not entitled to take the funds, and that, owing to the insolvency of such person, the
money was lost to the bank. The fact that the count charges the intent to convert money to the use of the
Indianapolis Cabinet Company does not obliterate the clear statement of the actual conversion. In this
regard the count is clearer and [156 U.S. 432, 451] stronger than that held sufficient in Evans v. U. S.,
supra.

Coffin v. U.S., 156 U.S. 432 (1895)
4. The following request was made and refused:

'Each of the forty-six counts of this indictment, except the 1st, the 40th, the 41st, and the
43d, alleges that certain facts therein referred to are unknown to the grand jury. Thus, the
2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th counts each aver a misapplication of
the funds of said bank by said Haughey with intent to convert the same to the use of the
Indianapolis Cabinet Company, and to other persons to the grand jury unknown. The
averment that the names of these persons were unknown to the grand jurors is a material
averment, and is necessary to be proven by the government, in order to make out its case in
each of said counts, because in each of said counts the charge is of a misapplication of a
single, definite, fixed sum, with an intent to convert the same to the use, not merely of the
cabinet company, but of other persons. If, as a matter of fact, no evidence has been placed
before you showing, or tending to show, that the names of such persons were unknown to
the grand jury, then, as to these counts, the government's case has failed.'
In connection with this ruling, the bill of exceptions states that there was no evidence whatever on the
subject offered by either side, and nothing to indicate that there was knowledge in the grand jurors of the
matter which the indictment declared to be to them unknown. The instruction was rightly refused. It
presupposes that where there is an averment that a person or matter is unknown to a grand jury, and no
evidence upon the subject of such knowledge is offered by either side, acquittal must follow, while the
true rule is that, where nothing appears to the contrary, the verity of the averment of want of knowledge
in the grand jury is presumed. Thus, it was said in Com. v. Thornton, 14 Gray, 43: 'The fact that the name
of the person was in fact known must appear from the evidence in the case. It is immaterial whether it so
appears from the evidence offered by the government, or that offered by the defendant. But, there being
no evidence to the contrary, the objection that the party was not unknown does [156 U.S. 432, 452] not
arise.' And previously, in Com. v. Sherman, 3 Allen, 248, the court observed: 'It is always open to the
defendant to move the judge before whom the trial is had to order the prosecuting attorney to give a more
particular description, in the nature of a specification or bill of particulars, of the acts on which he intends
to rely, and to suspend the trial until this can be done; and such an order will be made whenever it
appears to be necessary to enable the defendant to meet the charge against him, or to avoid danger of
injustice. Com. v. Giles, 1 Gray, 469; King v. Curwood, 3 Adol. & El. 815; Rosc. Cr. Ev. (6th Ed.) 178,
179, 420.' It is to be observed that none of the counts as to which the prosecution was called upon to
specify remain, all having been eliminated by the action of the court on the motion in arrest.
This concludes the examination of all the general objections to the indictment which we deem it
necessary to consider, and brings us to the exceptions taken to the refusals to charge, as well as those
reserved to the charges actually given.
The forty-fourth charge asked and refused was as follows:
'The law presumes that persons charged with crime are innocent until they are proven, by
competent evidence, to be guilty. To the benefit of this presumption the defendants are all
entitled, and this presumption stands as their sufficient protection, unless it has been
removed by evidence proving their guilt beyond a reasonable doubt.'
Although the court refused to give this charge, it yet instructed the jury as follows: 'Before you can find
any one of the defendants guilty, you must be satisfied of his guilt, as charged in some of the counts of

Coffin v. U.S., 156 U.S. 432 (1895)
the indictment, beyond a reasonable doubt.' And again: 'You may find the defendants guilty on all the
counts of the indictment, if you are satisfied that, beyond a reasonable doubt, the evidence justifies it.'
And finally, stating the matter more fully, it said: 'To justify you in returning a verdict of 'Guilty,' the
evidence must be of such a character as to satisfy your judgment to the exclusion of every reasonable
doubt. If, therefore, you can reconcile the evidence with any reasonable hypothesis consistent [156 U.S.
432, 453] with the defendants' innocence, it is your duty to do so, and in that case find the defendants not
guilty. And if, after weighing all the proofs, and looking only to the proofs, you impartially and honestly
entertain the belief that the defendants may be innocent of the offenses charged against them, they are
entitled to the benefit of that doubt, and you should acquit them. It is not meant by this that the proof
should establish their guilt to an absolute certainty, but merely that you should not convict unless, from
all the evidence, you believe the defendants are guilty beyond a reasonable doubt. Speculative notions, or
possibilities resting upon mere conjecture, not arising or deducible from the proof, or the want of it,
should not be confounded with a reasonable doubt. A doubt suggested by the ingenuity of counsel, or by
your own ingenuity, not legitimately warranted by the evidence, or the want of it, or one born of a
merciful inclination to permit the defendants to escape the penalty of the law, or one prompted by
sympathy for them or those connected with them, is not what is meant by a reasonable doubt. A
'reasonable doubt,' as that term is employed in the administration of the criminal law, is an honest,
substantial misgiving, generated by the proof, or the want of it. It is such a state of the proof as fails to
convince your judgment and conscience, and satisfy your reason of the guilt of the accused. If the whole
evidence, when carefully examined, weighed, compared, and considered, produces in your minds a
settled conviction or belief of the defendants' guilt, – such an abiding conviction as you would be willing
to act upon in the most weighty and important affairs of your own life, – you may be said to be free from
any reasonable doubt, and should find a verdict in accordance with that conviction or belief.'
The fact, then, is that, while the court refused to instruct as to the presumption of innocence, it instructed
fully on the subject of reasonable doubt.
The principle that there is a presumption of innocence in favor of the accused is the undoubted law,
axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal
law. [156 U.S. 432, 454] It is stated as unquestioned in the textbooks, and has been referred to as a matter of
course in the decisions of this court and in the courts of the several states. See 1 Tayl. Ev. c. 5, 126, 127;
Wills, Circ. Ev. c. 5, 91; Best. Pres. pt. 2, c. 1, 63, 64; Id. c. 3, 31-58; Greenl. Ev. pt. 5, 29, etc.; 11 Cr.
Law Mag. 3; Whart. Ev. 1244; 2 Phil. Ev. ( Cowen & Hill's Notes) p. 289; Lilienthal's Tobacco v. U. S.,
97 U.S. 237; Hopt v. Utah, 120 U.S. 430 , 7 Sup. Ct. 614; Com. v. Webster, 5 Cush. 320; State v. Bartlett,
43 N. H. 224; Alexander v. People, 96 Ill. 96; People v. Fairchild, 48 Mich. 31, 11 N. W. 773; People v.
Millard, 53 Mich. 63, 18 N. W. 562; Com. v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581;
Wharton v. State, 73 Ala. 366; State v. Tibbetts, 35 Me. 81; Moorer v. State, 44 Ala. 15.
Greenleaf traces this presumption to Deuteronomy, and quotes Mascardius Do Probationibus to show
that it was substantially embodied in the laws of Sparta and Athens. On Evidence, pt. 5, 29, note.
Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was
pervaded with the results of this maxim of criminal administration, as the following extracts show:
'Let all accusers understand that they are not to prefer charges unless they can be proven by
proper witnesses or by conclusive documents, or by circumstantial evidence which amounts
to indubitable proof and is clearer than day.' Code, L. 4, tit. 20, 1, l. 25.

Coffin v. U.S., 156 U.S. 432 (1895)
'The noble (divus) Trajan wrote to Julius Frontonus that no man should be condemned on a
criminal charge in his absence, because it was better to let the crime of a guilty person go
unpunished than to condemn the innocent.' Dig. L. 48, tit. 19, l. 5.
'In all case of doubt the most merciful construction of facts should be preferred.' Dig. L. 50,
tit. 17, l. 56.
'In criminal cases the milder construction shall always be preserved.' Dig. L. 50, tit. 17, 1,
155, 2.
'In cases of doubt it is no less just than it is safe to adopt the milder construction.' Dig. L. 50,
tit. 17, l. 192, 1. [156 U.S. 432, 455] Ammianus Marcellinus relates an anecdote of the
Emperor Julian which illustrates the enforcement of this principle in the Roman law.
Numerius, the governor of Narbonensis, was on trial before the emperor, and, contrary to
the usage in criminal cases, the trial was public. Numerius contented himself with denying
his guilt, and there was not sufficient proof against him. His adversary, Delphidius, 'a
passionate man,' seeing that the failure of the accusation was inevitable, could not restrain
himself, and exclaimed, 'Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will
become of the guilty?' to which Julian replied, 'If it suffices to accuse, what will become of
the innocent?' Rerum Gestarum, lib. 18, c. 1. The rule thus found in the Roman law was,
along with many other fundamental and human maxims of that system, preserved for
mankind by the canon law. Decretum Gratiani de Presumptionibus, L. 2, T. 23, c. 14, A. D.
1198; Corpus Juris Canonici Hispani et Indici, R. P. Murillo Velarde, Tom. 1, L. 2, n. 140.
Exactly when this presumption was, in precise words, stated to be a part of the common law,
is involved in doubt. The writer of an able article in the North American Review (January,
1851), tracing the genesis of the principle, says that no express mention of the presumption
of innocence can be found in the books of the common law earlier than the date of
McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for
there can be no doubt that, if the principle had not found formal expression in the
common-law writers at an earlier date, yet the practice which flowed from it has existed in
the common law from the earliest time.
Fortescue says: 'Who, then, in England, can be put to death unjustly for any crime? since he
is allowed so many pleas and privileges in favor of life. None but his neighbors, men of
honest and good repute, against whom he can have no probable cause of exception, can find
the person accused guilty. Indeed, one would much rather that twenty guilty persons should
escape punishment of death than that one innocent person should be condemned and suffer
capitally.' De Laudibus Legum Angliae (Amos' translation, Cambridge, 1825). [156 U.S. 432,
456] Lord Hale (1678) says: 'In some cases presumptive evidence goes far to prove a person
guilty, though there be no express proof of the fact to be committed by him; but then it must
be very warily pressed, for it is better five guilty persons should escape unpunished than one
innocent person should die.' 2 Hale, P. C. 290. He further observes: 'And thus the reasons
stand on both sides; and, though these seem to be stronger than the former, yet in a case of
this moment it is safest to hold that in practice, which hath least doubt and danger, – 'Quod
dubitas, ne feceris." 1 Hale, P. C. 24.
Blackstone (1753-1765) maintains that 'the law holds that it is better that ten guilty persons

Coffin v. U.S., 156 U.S. 432 (1895)
escape than that one innocent suffer.' 2 Bl. Comm. c. 27, marg. p. 358, ad finem.
How fully the presumption of innocence had been evolved as a principle and applied at common law is
shown in McKinley's Case (1817) 33 State Tr. 275, 506, where Lord Gillies says: 'It is impossible to look
at it [a treasonable oath which it was alleged that McKinley had taken] without suspecting, and thinking
it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But
the presumption in favor of innocence is not to be redargued by mere suspicion. I am sorry to see, in this
information, that the public prosecutor treats this too lightly. He seems to think that the law entertains no
such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in
every code of law which has reason and religion and humanity for a foundation. It is a maxim which
ought to be inscribed in indelible characters in the heart of every judge and juryman, and I was happy to
hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal
evidence of guilt, carrying home a decree of conviction short only of absolute certainty.'
It is well settled that there is no error in refusing to give a correct charge precisely as requested, provided
the instruction actually given fairly covers and includes the instruction asked. Tweed's Case, 16 Wall.
504; Railway Co. v. Whitton, 13 Wall. 270. The contention here is that, inasmuch as the charge given by
the court [156 U.S. 432, 457] on the subject of reasonable doubt substantially embodied the statement of the
presumption of innocence, therefore the court was justified in refusing, in terms, to mention the latter.
This presents the question whether the charge that there cannot be a conviction unless the proof shows
guilt beyond a reasonable doubt so entirely embodies the statement of presumption of innocence as to
justify the court in refusing, when requested, to inform the jury concerning the latter. The authorities
upon this question are few and unsatisfactory. In Texas it has been held that it is the duty of the court to
state the presumption of innocence along with the doctrine of reasonable doubt, even though no request
be made to do so. Black v. State, 1 Tex. App. 369; Priesmuth v. State, Id. 480; McMullen v. State, 5 Tex.
App. 577. It is doubtful, however, whether the rulings in these cases were not based upon the terms of a
Texas statute, and not on the general law. In Indiana it has been held error to refuse, upon request, to
charge the presumption of innocence, even although it be clearly stated to the jury that conviction should
not be had unless guilt be proven beyond reasonable doubt. Long v. State, 46 Ind. 582; Line v. State, 51
Ind. 175. But the law of Indiana contains a similar provision to that of Texas. In two Michigan cases,
where the doctrine of reasonable doubt was fully and fairly stated, but no request to charge the
presumption of innocence was made, it was held that the failure to menion the presumption of innocence
could not be assigned for error in the reviewing court. People v. Potter, 89 Mich. 353, 50 N. W. 994;
People v. Graney, 91 Mich. 648, 52 N. W. 66. But in the same state, where a request to charge the
presumption of innocence was made and refused, the refusal was held erroneous, although the doctrine of
reasonable doubt had been fully given to the jury. People v. Macard, 73 Mich. 15, 40 N. W. 784. On the
other hand, in Ohio it has been held not error to refuse to charge the presumption of innocence where the
charge actually given was 'that the law required that the state should prove the material elements of the
crime beyond doubt.' Moorehead v. State, 34 Ohio St. 212. It may be that the paucity of authority upon
this subject results from [156 U.S. 432, 458] the fact that the presumption of innocence is so elementary that
instances of denial to charge it upon request have rarely occurred. Such is the view expressed in a careful
article in the Criminal Law Magazine for January, 1889 (volume 11, p. 3): 'The practice of stating this
principle to juries is so nearly universal that very few cases are found where error has been assigned upon
the failure or refusal of the judge so to do.' But, whatever be the cause, authorities directly apposite are
few and conflicting, and hence furnish no decisive solution of the question, which is further embarrassed
by the fact that in some few cases the presumption of innocence and the doctrine of reasonable doubt are

Coffin v. U.S., 156 U.S. 432 (1895)
seemingly treated as synonymous. Ogletree v. State, 28 Ala. 693; Moorer v. State, 44 Ala. 15; People v.
Lenon, 79 Cal. 625, 631, 21 Pac. 967. In these cases, however, it does not appear that any direct question
was made as to whether the presumption of innocence and reasonable doubt were legally equivalent; the
language used simply implying that one was practically the same as the other, both having been stated to
the jury.
Some of the text-books, also, in the same loose way, imply the identity of the two. Stephen, in his
History of the Criminal Law, tells us that 'the presumption of innocence is otherwise stated by saying the
prisoner is entitled to the benefit of every reasonable doubt.' Volume 1, p. 438. So, although Best, in his
work on Presumptions, has fully stated the presumption of innocence, yet, in a note to Chamberlayne's
edition of that author's work on Evidence (Boston, 1883; page 304, note a), it is asserted that no such
presumption obtains, and that 'apparently all that is meant by the statement thereof, as a principle of law,
is this: If a man be accused of crime, he must be proved guilty beyond reasonable doubt.'
This confusion makes it necessary to consider the distinction between the presumption of innocence and
reasonable doubt as if it were an original question. In order to determine whether the two are the
equivalents of each other, we must first ascertain, with accuracy, in what each consists. Now, the
presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof,
when brought to trial [156 U.S. 432, 459] upon a criminal charge, he must be acquitted, unless he is proven
to be guilty. In other words, this presumption is an instrument of proof created by the law in favor of one
accused, whereby his innocence is established until sufficient evidence is introduced to overcome the
proof which the law has created. This presumption, on the one hand, supplemented by any other evidence
he may adduce, and the evidence against him, on the other, constitute the elements from whch the legal
the elements from which the legal drawn.
Greenleaf thus states the doctrine: 'As men do not generally violate the Penal Code, the law presumes
every man innocent; but some men do transgress it, and therefore evidence is received to repel this
presumption. This legal presumption of innocence is to be regarded by the jury, in every case, as matter
of evidence, to the benefit of which the party is entitled.' On Evidence, pt. 1, 34.
Wills on Circumstantial Evidence says: 'In the investigation and estimate of criminatory evidence, there
is an antecedent, prima facie presumption in favor of the innocence of the party accused, grounded in
reason and justice not less than in humanity, and recognized in the judicial practice of all civilized
nations, which presumption must prevail until it be destroyed by such an overpowering amount of legal
evidence of guilt as is calculated to produce the opposite belief.' Best on Presumptions declares the
presumption of innocence to be a 'presumptio juris.' The same view is taken in the article in the Criminal
Law Magazine for January, 1888, to which we have already referred. It says: 'This presumption is in the
nature of evidence in his favor [i. e. in favor of the accused], and a knowledge of it should be
communicated to the jury. Accordingly, it is the duty of the judge, in all jurisdictions, when requested,
and in some when not requested, to explain it to the jury in his charge. The usual formula in which this
doctrine is expressed is that every man is presumed to be innocent until his guilt is proved beyond a
reasonable doubt. The accused is entitled, if he so requests it, ... to have this rule of law expounded to the
jury in this or in some equivalent form of expression.' [156 U.S. 432, 460] The fact that the presumption of
innocence is recognized as a presumption of law, and is characterized by the civilians as a presumptio
juris, demonstrates that it is evidence in favor of the accused. For, in all systems of law, legal
presumptions are treated as evidence giving rise to resulting proof, to the full extent of their legal
efficacy.

Coffin v. U.S., 156 U.S. 432 (1895)
Concluding, then, that the presumption of innocence is evidence in favor of the accused, introduced by
the law in his behalf, let us consider what is 'reasonable doubt.' It is, of necessity, the condition of mind
produced by the proof resulting from the evidence in the cause. It is the result of the proof, not the proof
itself, whereas the presumption of innocence is one of the instruments of proof, going to bring about the
proof from which reasonable doubt arises; thus one is a cause, the other an effect. To say that the one is
the equivalent of the other is therefore to say that legal evidence can be excluded from the jury, and that
such exclusion may be cured by instructing them correctly in regard to the method by which they are
required to reach their conclusion upon the proof actually before them; in other words, that the exclusion
of an important element of proof can be justified by correctly instructing as to the proof admitted. The
evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable
doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one
in order that the other may continue to exist. While Rome and the Mediaevalists taught that, wherever
doubt existed in a criminal case, acquittal must follow, the expounders of the common law, in their
devotion to human liberty and individual rights, traced this doctrine of doubt to its true origin, – the
presumption of innocence, – and rested it upon this enduring basis. The inevitable tendency to obscure
the results of a truth, when the truth itself is forgotten or ignored, admonishes that the protection of so
vital and fundamental a principle as the presumption of innocence be not denied, when requested, to any
one accused of crime. The importance of the distinction between the two is peculiarly emphasized here,
for, after having declined to [156 U.S. 432, 461] instruct the jury as to the presumption of innocence, the
court said: 'If, after weighing all the proofs, and looking only to the proofs, you impartially and honestly
entertain the belief,' etc. Whether thus confining them to 'the proofs,' and only to the proofs, would have
been error, if the jury had been instructed that the presumption of innocence was a part of the legal proof,
need not be considered, since it is clear that the failure to instruct them in regard to it excluded from their
minds a portion of the proof created by law, and which they were bound to consider. 'The proofs, and the
proofs only,' confined them to those matters which were admitted to their consideration by the court; and,
among these elements of proof, the court expressly refused to included the presumption of innocence, to
which the accused was entitled, and the benefit whereof both the court and the jury were bound to extend
him.
In addition, we think the twenty-second exception to the rulings of the court was well taken. The error
contained in the charge, which said, substantially, that the burden of proof had shifted, under the
circumstances of the case, and that therefore, it was incumbent on the accused to show the lawfulness of
their acts, was not merely verbal, but was fundamental, especially when considered in connection with
the failure to state the presumption of innocence.
There are other objections specifically raised to certain particular counts in the indictment, which we do
not deem it necessary to elaborately examine, but to which the condition of the case compels us to briefly
allude. Thus, the first count charges the receipt and placing to the credit of the Indianapolis Cabinet
Company of a bill of exchange amounting to a certain number of pounds sterling, followed by the
averment that the company thereupon drew its check for said amount. It is contended that the check
offered to show the payment of this money was for dollars and not for pounds sterling, and therefore
there was a variance between the indictment and the proof. This contention, we think, is without merit.
The count charged the misapplication of the sum of $5,802.84, and averred that the misapplication was
[156 U.S. 432, 462] effected by taking the bill of exchange and paying out that amount; in other words, the
whole context, we think, makes plain the charge that the sum which it avers to have been misapplied was
credited as the result of taking the bill of exchange, and that it was this sum which was paid out upon the

Coffin v. U.S., 156 U.S. 432 (1895)
check of the cabinet company. Of course, it is immaterial at what rate or by what rule the pounds sterling
were converted into current money. The sum of the misapplication was the amount stated as credited in
consequence of having taken the bill of sterling exchange.
On the subject of the counts covering the charge of false entries in the books of the bank, the following
requests were made and refused:
'No. 18. In considering the false-entry charges in the indictment, it is necessary that you
should know what constitutes a false entry. The books of account of a bank are kept for the
purpose of accurately and truly recording the financial transactions of the bank. An entry
upon the books of the bank of some alleged transactions which never occurred, or of a
transaction which did occur, but which is falsely recorded, would be a false entry. But any
entry in which that which has been done by the officers or agents of the bank is correctly set
forth in detail is not a false entry. If, therefore, you find from the evidence, for instance, with
reference to the alleged false entry in the 40th count, that the bank had actually given to the
cabinet company the credit for $44,000 upon the paper presented by the cabinet company,
and had authorized said cabinet company to make its checks against said credit, and that
said entry was made upon the books simply as a truthful record of that which had been done,
then the same was not a false entry, but was and is a true entry, and the indictment, so far as
based upon such entry, cannot be sustained.
'No. 19. If Mr. Haughey, as president of the bank, received from the cabinet company drafts,
bills or notes which, by reason of the insolvency of the parties, or for any other reason,
ought not to have been received, and gave to said cabinet company credit therefor, and
afterwards caused [156 U.S. 432, 463] an entry of such credit to be made upon the books of the
bank, then whatever wrong was done in the matter by Mr. Haughey was not in causing such
entry to be made, but was, further back, in receiving the paper and giving the credit. Not to
have made the entry would have been to commit another wrong, since it was his duty as
president of the bank, to see that the books should speak the exact truth as to that which he
had caused to be done; and, however wrongful may have been his previous acts, the making
of an exact and truthful record of the same in the books of the bank was and could be no
crime, under this statute.'
While we consider the charges asked were in some respects unsound, yet the exception reserved to the
charge actually given by the court was well taken, because therein the questions of misapplication and of
false entries are interblended in such a way that it is difficult to understand exactly what was intended.
We think the language used must have tended to confuse the jury, and leave upon their minds the
impression that if the transaction represented by the entry actually occurred, but amounted to a
misapplication, then its entry exactly as it occurred constituted 'a false entry'; in other words, that an
entry would be false, though it faithfully described an actual occurrence, unless the transaction which it
represented involved full and fair value for the bank. The thought thus conveyed implied that the truthful
entry of a fraudulent transaction constitutes a false entry, within the meaning of the statute. We think it is
clear that the making of a false entry is a concrete offense, which is not committed where the transaction
entered actually took place, and is entered exactly as it occurred.
Judgment reversed and case remanded, with directions to grant a new trial.

Coffin v. U.S., 156 U.S. 432 (1895)

U.S. Supreme Court
COFFIN v. U.S., 156 U.S. 432 (1895)
COFFIN et al.
v.
UNITED STATES.
No. 741.
March 4, 1895. [156 U.S. 432, 433] By section 5209 of the Revised Statutes,
relating to national banks, certain acts therein enumerated are made
misdemeanors punishable by imprisonment for not less than 5 nor more than
10 years. The section reads as follows:
'Every president, director, cashier, teller, clerk, or agent of any

association who embezzles, abstracts, or willfully misapplies
any of the moneys, funds, or credits of the association; or who,
without authority from the directors, issues or puts in
circulation any of the notes of the association; or who, without
such authority, issues or puts forth any certificate of deposit,
draws any order or bill of exchange, makes any acceptance,
assigns any note, bond, draft, bill of exchange, mortgage,
judgment, or decree; or who makes any false entry in any
book, report, or statement of the association with intent in
either case to injure or defraud the association or any other
company, body politic or corporate, or any individual person,
or to deceive any officer of the association, or any agent
appointed to examine the affairs of any such association; and
every person who with like intent aids or abets any officer,
clerk, or agent in any violation of this section shall be deemed
guilty of a misdemeanor, and shall be imprisoned not less than
five years nor more than ten.'
The indictment in this case was found on the 21st December, 1893, against
Theodore P. Haughey, who had been president of the Indianapolis National
Bank, for violations of the foregoing section. F. A. Coffin and Percival B.
Coffin, plaintiffs in error, and A. S. Reed, were charged therein with
having aided and abetted Haughey in his alleged misdemeanors. The indictment
is prolix and redundant, and it is difficult to [156 U.S. 432, 434] analyze
it so as to make a concise statement of its contents. It contains 50 counts,
and alleges that the various offenses enumerated in them were committed on
different dates between January 1, 1891, and July 26, 1893. The counts
embrace a number of acts made misdemeanors by the statute, and the charges
are commingled in a very indefinite and confusing manner. All the counts,
however, may be classified as follows:
(1) Those which aver willful misapplication of the funds of the

bank at a specified time, in a precise sum, and by enumerated
and distinctly described acts.
(2) Those which, although definite as to date and amount, are

indefinite in their statement of the precise means by which the
alleged crimes were accomplished.
(3) Those which, while charging a willful misapplication of the

funds of the bank for a definite amount are entirely indefinite as
to the date or dates upon which the acts took place, and also
fail to specify the particular acts by which the wrong was
accomplished.
(4) Those which charge false entries in the books of the bank.

(5) Those which charge false entries in certain official

statements of the condition of the bank made to the
comptroller of the currency.
Under the first head-counts which are definite as to time, dates, amounts,
and methods -- are included Nos. 1, 2, 3, and 47. The first of these in order
of date -- for the counts are not arranged chronologically in the indictment --
is the forty-seventh, which reads as follows:
'The grand jurors aforesaid, upon their oaths aforesaid, do

further charge and present that Theodore P. Haughey, late of
said district, at the district aforesaid, on, to wit, the 21st day of
December, in the year of our Lord 1892, the said Theodore P.
Haughey then and there being president of a certain national
banking association, then and there known and designated as
the Indianapolis National Bank, in the city of Indianapolis, in
the state of Indiana, which said association had been
heretofore [156 U.S. 432, 435] created and organized under the
laws of the United States of America, and which said
association was then and there carrying on a banking business
in the city of Indianapolis, state of Indiana, did then and there,
by virtue of his said office as president of said bank, unlawfully,
feloniously, and willfully misapply the moneys, funds, and
credits of the said association, which were then and there
under his control, with intent to convert the same to the use of
the Indianapolis Cabinet Company, and to other persons to the
grand jurors unknown, in a large sum, to wit, the sum of six
thousand three hundred and eighteen dollars, by then and there
causing said sum to be paid out of the moneys, funds, and
credits of said association, upon a check drawn upon said
association by the Indianapolis Cabinet Company, which
check was then and there cashed and paid out of the moneys,
funds, and credits of said association aforesaid, which said sum
aforesaid, and no part thereof, was said Indianapolis Cabinet
Company entitled to withdraw from said bank, because said
company had no funds in said association to its credit; that said
Indianapolis Cabinet Company was then and there insolvent,
as the said Theodore P. Haughey then and there well knew,
whereby said sum became lost to said association; that all of
said acts as aforesaid were done with intent to injure and
defraud said association; that, as such president aforesaid, the
said Theodore P. Haughey was intrusted and charged by the
board of directors of said national banking association with the
custody, control, and care of the moneys, funds, credits, and
assets of said association, and the general superintendence of
its affairs.
'And the grand jurors aforesaid do further say that Francis A.

Coffin, Percival B. Coffin, and Albert S. Reed did unlawfully,
willfully, knowingly, and feloniously, and with intent to injury
and defraud said association, on to wit, the 21st day of
December, in the year of our Lord 1892, aid and abet the said
Theodore P. Haughey, as aforesaid, to wrongfully, unlawfully,
credits of said association as aforesaid, to wit, the sum of six
thousand three hundred and eighteen dollars.' [156 U.S. 432, 436]
The second and third counts are substantially like the
foregoing, varying only in the statements of date, amount, and
method. The first and remaining count under this head, after
fixing the date of the offense and stating the amount at

$5,802.84, describes the method by which the misapplication

was accomplished, as follows:
'The Indianapolis Cabinet Company, of Indianapolis, Indiana,

presented to said bank and to the said Theodore P. Haughey,
as such president thereof, a certain bill of exchange drawn by
said Indianapolis Cabinet Company on the Indianapolis Desk
Company, of London, England, for the sum of one thousand
one hundred and ninety-four pounds sterling, and due on June
1, 1893, which said bill of exchange was received by said
Theodore P. Haughey, and placed to the credit of the said
Indianapolis Cabinet Company upon the books of said bank,
and the said Indianapolis Cabinet Campany thereupon drew its
check for said sum upon the said bank, which check was then
and there paid by said bank, under the direction of said
Theodore P. Haughey; that said Indianapolis Desk Company,
of London, England, did not owe said Indianapolis Cabinet
Company any sum whatever; that said Theodore P. Haughey
failed and refused to send said bill of exchange forward for
collection, whereby said sum was lost to said association; that
said sum was so willfully misapplied to the use and benefit of
the Indianapolis Cabinet Company as aforesaid.'
Under the second head -- those definite as to date and amount, but
indefinite in the statement of the method by which the wrong was committed
-- are embraced counts 4, 5, 6, 7, 8, 9, 10, 11, and 12. Of these, the
eighth is the first in order of time, and reads as follows:

said district, at the district aforesaid, on, to wit, the 23d day of
September, in the year of our Lord 1892, the said Theodore
P. Haughey then and there being the president of a certain
national banking association, then and there known and
designated as the Indianapolis National Bank, in the city of
Indianapolis, in [156 U.S. 432, 437] the state of Indiana, which
said as sociation had been heretofore created and organized
under the laws of the United States of America, and which
by virtue of his said office as president of said bank, unlawfully,
credits of the said association, without authority of the
directors thereof, with intent to convert the same to the use of
the Indianapolis Cabinet Company, and to other persons to the
grand jurors unknown, in a large sum, to wit, the sum of three
thousand nine hundred and sixty dollars and eighty-four cents,
by then and there paying, and causing said sum to be paid out
of the moneys, funds, and credits of said association, upon
certain divers checks drawn upon said association by the
Indianapolis Cabinet Company, which checks were then and
there cashed and paid out of the moneys, funds, and credits of
said association aforesaid, which said sum aforesaid, and no
part thereof, was said Indianapolis Cabinet Company entitled
to withdraw from said bank, because said company had no
funds in said association to its credit; that said Indianapolis
Cabinet Company was then and there insolvent, as the said
Theodore P. Haughey then and there well knew, whereby said
sum because lost to said association; that all of said acts, as
aforesaid, were done with intent to injure and defraud said
association; that, as such president aforesaid, the said

Theodore P. Haughey was intrusted and charged by the board

of directors of said national banking association with the
custody, control, and care of the moneys, funds, credits, and
assets of said association, and the general superintendence of
all its affairs.

Coffin and Percival B. Coffin and Albert S. Reed, at the
district and state of Indiana aforesaid, did unlawfully, willfully,
knowingly, and feloniously, and with intent to injure and
defraud said association, on, to wit, the 23d day of
September, in the year of our Lord 1892, aid and abet the said
Theodore P. Haughey, as aforesaid, to wrongfully, unlawful,
feloniously, [156 U.S. 432, 438] and willfully misapply the money,
funds, and credits of said association, to wit, the sum of three
thousand nine hundred and sixty dollars and eighty-four cents
aforesaid.'
The other counts under this classification substantially vary only as to date
and amount.
Under the third head -- those which, while charging a willful misapplication
of the funds of the bank for a definite amount, are indefinite as to the
date or dates upon which the acts took place, and also fail to specify in
any definite way the particular methods by which the wrong was accomplished
-- are embraced counts 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,
26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36. Of these counts, the first in
order of time is the seventeenth, which is as follows:

said district, at the district aforesaid, on, to wit, the 1st day of
January, in the year of our Lord 1891, and on divers times
between said date and the 25th day of July, in the year of our
Lord 1893, the said theodore P. Haughey, then and there
being the president of a certain national banking association,
then and there known and designated as the Indianapolis
National Bank, of Indianapolis, in the state of Indiana, which
said association had been heretofore created and organized
under the laws of the United States of America, and which said
by virtue of his said office as president of said bank, and
without authority of the board of directors, unlawfully,
credits of said association, with intent to convert the same to
the use of the Indianapolis Cabinet Company, a more
particular description of said moneys, funds, and credits being
to the grand jurors unknown, in a large amount, to wit, the sum
of three hundred and seventy-five thousand dollars, by then
and there cashing, discounting, and paying, for the use and
benefit of said Indianapolis Cabinet Company, out of the funds
of said association, a large [156 U.S. 432, 439] number of
worthless and insolvent notes, drafts, and bills of exchange,
being drawn upon and by divers persons, firms, and
companies, and corporations, each and all of whom were then
insolvent, as the said Theodore P. Haughey then and there well
knew, whereby said sum was wholly lost to said association,
with intent then and there and thereby to injure and defraud
said association; that, as such president aforesaid, the said
Theodore P. Haughey was intrusted and charged by the board

of directors of said national banking association with the

custody, control, and care of the funds, credits, and assets of
said association, and the general superintendence of its affairs,
and agent of said association in the transaction of all its
business.

Coffin, Percival B. Coffin, and Albert S. Reed, at the district
and state of Indiana aforesaid, did unlawfully, willfully,
knowingly, and feloniously, and with intent to injure and
defraud said association, on, to wit, the 1st day of January, in
the year of our Lord 1891, and on divers times between said
date and the 25th day of July, in the year of our Lord 1893,
aid and abet the said Theodore P. Haughey, as aforesaid, to
wrongfully, unlawfully, feloniously, and willfully misapply the
moneys, funds, and credits of said association, to wit, the sum
of three hundred and seventy-five thousand dollars aforesaid.'
The vagueness of the date, as fixed in this charge, is somewhat mitigated in

four of the counts coming under this head, -- counts 13, 14, 15, and 16, --
wherein the offense is stated to have been committed 'on May 9, 1893, and at
divers times between said date and June 18, 1893,' 'on June 19, 1893, and at
divers times between said date and July 13, 1893,' 'on the 3d day of March,
1893, and on divers dates between said date and the 8th day of May, 1893,'
and 'on May 8, 1893, and at divers times between that date and June 18,
1893.' In all the other counts the offense is said to have been committed
between January 1, 1891, and July 25, 1893, except in one, wherein the last
date is averred to be July 26, 1893, [156 U.S. 432, 440] instead of July
25th. The sum averred to have been misapplied in counts 13, 14, 15, and 16
is different from that charged in count 17, -- it being in the fourteenth,
$9,132.19; in the fifteenth, $12,732.51; in the thirteenth and sixteenth,
$10,106.08. In the other counts, where the date of the offense is stated as
being between 1891 and 1893, the amount of the alleged misapplication
varies; being placed in some at $375,000, and in others at $350,000.
The method by which the misapplication is alleged to have been accomplished

is not indefinitely stated in all the other counts, as in the seventeenth,
which we have just quoted. In some, instead of charging that the checks or
'insolvent' notes, drafts, and bills were drawn 'by or upon divers persons,
firms, companies, and corporations,' it is specified that the checks or the
notes discounted were drawn by the Indianapolis Cabinet Company. With this
exception, all the counts under this head are equally vague in regard to the
specific methods of the misapplication. Some of them state that it was made
by paying out the money of the bank on worthless checks of the Indianapolis
Cabinet Company, without giving the dates or the amounts of the checks. More
allege that the misapplication was brought about by allowing overdrafts,
without giving the dates of such overdrafts, or specifying the various
checks through which the overdrafting was done. Others, again, allege that
the misapplication was accomplished by loaning the money of the bank to the
Indianapolis Cabinet Company, in excess of 10 per cent. of the capital
stock, without giving the dates or the precise amount of the loans. Again,
it is charged that the misapplication was concealed by discounting and
entering to the credit of the Indianapolis Cabinet Company a number of
worthless notes and bills, without stating who were the drawers of the
notes, or giving the dates and amounts of the entries which it is charged
were made for the purpose of concealing the misapplication. Indeed, whatever
may be the difference between the counts under this head, there is, as has
been stated, a uniformity in one respect, -- their failure to disclose the
specific methods by which the alleged offenses were committed, by giving
dates and amounts. The only partial exceptions to this are found in counts
35 and [156 U.S. 432, 441] 37, wherein the general charge of payment of 'a

large number of worthless and insolvent drafts and bills of exchange in

large amounts, a more particular description of which is to the grand jurors
unknown, executed by and upon divers persons, firms, companies, and
corporations, in large amounts, to wit,' is followed by an enumeration of
certain persons or corporations, with a lump sum as against each person or
corporation named. The intent with which the misapplication is charged to
have been committed is not uniform in all the counts. In some it is averred
that the misapplications were made to injure and defraud the bank and
certain companies, bodies politic, bodies corporate, and individual persons,
whose names are to the grand jurors unknown; in others, that it was made to
defraud the bank alone; again, that entries of the worthless checks paid, or
'insolvent' paper taken, were made on the books of the bank with intent to
conceal the misapplication, and to deceive certain officers of the
corporation, whose names are to the grand jurors unknown, or to deceive
certain agents appointed or to be appointed by the comptroller of the
currency, etc.
Under the fourth head -- those which charge the making of false entries in
the books of the bank -- are embraced counts 37, 38, 39, 40, 41, 42, 43, 44,
45, and 46. The counts under this head very only as to the particular false
entry complained of, the date when made, and the folio of the account book
where entered. Each particular false entry specified, except one, covers two
counts; one charging it to have been made with intent to injure and defraud
the association (bank), the other averring it to have been made to deceive
any agent appointed, or who might be thereafter appointed, to examine the
affairs of the bank, 'the names of said agent or agents being to the grand
jurors unknown.'
The remaining counts belong to the fifth class; that is, relate to false
entries which it is alleged were made in statements of the condition of the
bank furnished to the comptroller of the currency.
A trial was begun under the indictment on the 10th of April, 1894, and
progressed until the 25th of that month, when, [156 U.S. 432, 442] by
consent of all parties, the jury was discharged because of the corrupt
misconduct of one of the jurors. The court thereupon set the cause down for
trial on the 1st of May. The defendants applied for a continuance upon two
grounds: (1) because of the accidental wounding of the leading counsel for
the accused, and his consequent inability to take part in the defense; and
(2) because the general nature of the charges involved hundreds of
transactions, covering thousands of dollars, and a long period of time,
necessitating the examination of over 2,000 entries in the books of the
bank, which were in the hands of the officers of the government, who denied
access thereto. The court refused the motion for continuance, and exception
was duly reserved. The trial commenced on May 4th.
During the course of the trial, many exceptions were reserved to the
admission or rejection of testimony. They went not only to the admissibility
of the proffered testimony under particular counts, but were also taken to
the admission of any evidence whatever, upon the theory that the entire
indictment charged no offense, therefore no proof could be made under it.
Other objections were also reserved to comments made by the court upon the
evidence as it was adduced, etc. On the close of the case for the
prosecution, the defendants moved the court to oblige the government 'to
elect and specify the particular transactions in each count of the general
counts of the indictment in this case, to wit, from the 17th to 36th, both
inclusive, upon which it relies as a substantive charge, and upon which it
will claim a conviction of the defendants, or either of them; said election
to be made before the evidence on behalf of the defendants is commenced, to
the end that they, and each of them, may know to what particular charge in
each count their evidence is required to be addressed.' To the refusal of

the court to grant this motion, exception was reserved. The reason for
refusing the request is not stated, but in the charge of the court to the
jury the following language was used, which indicates its opinion on the
subject: 'The particular acts of misapplication described in the several
specific counts must be established by proof as therein [156 U.S. 432, 443]
respectively charged. If, however, there are any willful misapplications
shown by the evidence which are not covered by special or specific counts,
they may be included under the general counts, and a verdict thereon
rendered accordingly.
Before the case went to the jury the prosecution abandoned the
forty-seventh, forty-eighth, forty-ninth, and fiftieth counts of the
indictment; thus eliminating from it one of the specific counts, and all
those which referred to false entries in official statements as to the
condition of the bank made to the comptroller. On the close of the case the
defendants proffered to the court 45 written requests to charge, and, upon
the court's refusing them all, excepted to such refusal as to each, or
rather as to 44 thereof. To the charge of the court actually delivered to
the jury, the defendants reserved 26 exceptions. A controversy exists as to
whether one of the 26 exceptions was properly taken. The facts, as stated in
the bill of exceptions, are as follows:
'After the court had delivered its charge to the jury, and before
it retired, the court said: 'If it is the desire of counsel for
defendant to reserve any exceptions to the charges given and
refused, the practice in this court requires that that shall be
done before the jury retires.'
'Mr. Miller: 'It is, of course, if your honor please, the desire on
behalf of defendants to reserve exceptions to the refusal of
such instructions as were requested and refused, and to parts
of the instruction given. Without having a little time to examine
these instructions, it is impossible for us now to designate the
particular parts. We would like to have time to look at them
for that purpose.'
'The Court: 'What length of time would you desire?'
'Mr. Miller: 'I do not know, if your honor please, how long it
would take. It has taken an hour to read them.'
'Mr. Duncan: 'They can be made, when made, as of this time,

with permission of the court.'
'The Court: 'Except so far as any mere verbal changes are

concerned, which, if the court's attention was drawn to, it
would at once correct, I have no objection to that method of
procedure.' [156 U.S. 432, 444] 'Mr. Miller: 'Of course, anything
that is formal, of that character, that won't go to the substance
of the matter, we should not expect to insist on. But, as your
honor can see it, it is impossible for us, from hearing the
instructions read for an hour, to select the parts.'
'The Court: 'There are the instructions you propose

(indicating), and these instructions I do not care to have mislaid
or lost (indicating).'
'Mr. Miller: 'No, sir; of course not. For that matter, every
syllable of them has been taken down by two stenographers
here, -- all of your instructions, as you read them, -- so there
cannot be any possibility of any trouble about them. We take

them and make --'
'The Court: 'Where is the bailiff?'
'Mr. Taylor: 'You may take these forms of the verdict and the
indictment.'
"Gentlemen of the jury, you may retire with your bailiff."
The bill of exceptions then states that at the time this colloquy took place
the assistant attorney for the prosecution was present in the court room,
heard the conversation, and assented to the arrangement thus made.
It further states that a few minutes after 3 in the afternoon the jury
retired to consider their verdict; that the defendants' counsel took the
instructions given by the court which were typewritten, and noted thereon,
by inclosing the same in a parenthesis mark with pencil, the parts of such
instructions so given by the court to which exceptions were taken, the parts
thus marked being respectively numbered; that at 9 o'clock that night the
defendants' counsel returned to the court room, and handed the instructions
which had been so marked and numbered by them to the judge, in open court,
saying that the parts marked in parentheses and numbered were those to which
the defendants excepted, and to which they reserved their bill, under the
understanding previously had; that immediately thereafter the jury, which
had not reached a conclusion, was brought into court, and informed by the
judge that he would be within call until 11 o'clock to receive a verdict,
and if they did [156 U.S. 432, 445] not agree by that time they might seal
their verdict, and bring it into court on Monday morning, it being then
Saturday evening.
On May 28th the defendants, through their counsel, wrote out in full their
exceptions to the various parts of the charge, as marked and numbered, and
presented them to the court, which declined to sign them because of the
twenty-second exception, which it considered not properly taken, under the
understanding between court and counsel above stated. However, the court
signed the bill of exceptions, writing therein a narrative of the facts, and
predicating its objection to the twenty-second exception on the ground that
the matter covered by it was merely verbal, and at the time the parties were
given the right to take their bill the court did not include any mere verbal
error, which would have been corrected if attention had been called to it in
proper time. The language contained in the charge covered by the disputed
exception is as follows:
'I do not wish to be understood as meaning that the intent to

injure, deceive, or defraud is conclusively established by the
simple proof of the doing of the prohibited act which results in
injury. What I do mean is this: That when the prohibited acts
are knowingly and intentionally done, and their natural and
legitimate consequence is to produce injury to the bank, or to
benefit the wrongdoer, the intent to injure, deceive, or defraud
is thereby sufficiently established to cast on the accused the
burden of showing that their purpose was lawful, and their acts
legitimate.'
On the 28th day of May the jury returned a verdict against the plaintiffs in
error of guilty as charged on all the counts of the indictment. After an
ineffectual motion for a new trial, which restated the various grounds of
objection raised to the admissibility of evidence under the indictment, and
which had also been urged in the charges which had been requested and
refused, the defendants moved in arrest. After argument upon this motion the
court sustained the same as to the 17th, 18th, 19th, 20th, 21st, 22d, 23d,

24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 32d, 33d, 34th, 35th, and
36th counts.
This reduced the indictment -- First, to those counts which [156 U.S. 432,
446] were specific as to date, amount, and method; second, to those which,
while specific in amount and date, were not specific as to method; third, to
four counts, Nos. 13, 14, 15, and 16, which were not specific as to date or
method, leaving in addition all the counts charging false entries in the
books of the bank. The errors assigned here are 78 in number, and cover all
the objections which were made to the rulings of the court below during the
trial, and the exceptions based on charges requested and refused, as well as
charges given.
W. H. H. Miller, Ferdinand Winter, and John B. Elam, for plaintiffs in error.
Mr. Justice WHITE, after making a statement of the case, delivered

the opinion of the court.
Many of the exceptions taken during the trial, and the requests to charge
which were refused, as well as most of the exceptions to the charge as
given, relate to the counts of the indictment which were quashed on the
motion in arrest. All these questions are therefore eliminated. We shall
hence only consider the matters which are pertinent to the remaining counts,
and shall examine first the objections made to the indictment generally,
based upon the contention that all the counts fail to charge an offense;
second, the exceptions reserved to rulings of the court during the trial,
the effect of which is to assail the verdict and judgment without reference
to the validity of the indictment. In making this examination, we shall
concentrate the errors complained of in proper order, thus obviating
repetition; for the matters to be considered are all reiterated by way of
objection to the evidence, of exception to the refusal to charge as
requested, and of complaints of the charges which the court actually gave.
It is contended that no offense is stated against the aiders and abettors,

because in none of the counts is it asserted that [156 U.S. 432, 447] they
were officers of the bank, or occupied any specific relation to the bank
which made aiding and abetting possible. The language of the statute fully
answers this contention. It provides that 'every president, director,
cashier, teller, clerk, or agent of any association, who.' etc., and adds,
after defining the acts which are made misdemeanors, 'that every person who
with like intent aids and abets,' etc. The phrase 'every person' is
manifestly broader than the enumeration made in the first portion of the
statute. In other words, the unambiguous letter of the law is that every
president, director, agent, etc., who commits the designated offenses, shall
suffer the penalties provided, and that every person who aids or abets such
officer, etc. The argument is that no one but an officer or an agent can be
punished as an aider and abettor, and hence that every person who aids and
abets, not being an officer, shall go unwhipped of justice. To adopt the
construction contended for would destroy the letter and violate the spirit
of the law; for the letter says, 'every person who aids and abets,' and the
proposition is that we should make it say 'every officer or agent who aids
and abets.' The spirit and purpose of the statute are to punish the
president, cashier, officer, or agent, etc., and likewise to punish every
person who aids and abets. The assertion that one who is not an officer, or
who bears no official relation to the bank, cannot, in the nature of things,
aid or abet an official of the bank in the misapplication of its funds, is
an argument which, if sound, should be addressed to the legislative, and not
the judicial, department. We cannot destroy the law on the theory that the
acts which it forbids cannot be committed. In other words, the construction

which we are asked to give does not deal with the meaning of the statute,
but simply involves the claim that it is impossible to prove the commission
of the offense defined by the law. The question whether the proof shows the
commission of an offense is one of fact, and not of law. The citation made
from U. S. v. Northway, 120 U.S. 333, 7 Sup. Ct. 580, is not apposite. True,
we there said, 'All the acts charged against Fuller could only be committed
by him by virtue of his official relation to the bank, and the acts charged
against the [156 U.S. 432, 448] defendant likewise could only be committed
by him in his official capacity.' But in that case the indictment itself
charged Northway, as president and agent, with aiding and abetting Fuller,
the cashier of the bank, and the language quoted referred to the matter
under consideration, and hence it was incidentally stated that the proof and
averment must correspond.
Nor is the contention sound that the particular act by which the aiding and
abetting was consummated must be specifically set out. The general rule upon
this subject is stated in U. S. v. Simmonds, 96 U.S. 360, as follows: 'Nor
was it necessary, as argued by counsel for the accused, to set forth the
special means employed to effect the alleged unlawful procurement. It is
laid down as a general rule that in an indictment for soliciting or inciting
to the commission of a crime, or for aiding or assisting in the commission
of it, it is not necessary to state the particulars of the incitement or
solicitation, or of the aid or assistance. 2 Whart. Cr. Law, 1281; U. S. v.
Gooding, 12 Wheat. 460.' The form books give the indictment substantially as
it appears here. Bish. Forms, 114, p. 52. Nothing in Evans v. U. S., 153
U.S. 608, 14 Sup. Ct. 939, conflicts with these views. In that case the
question was whether the eighth count stated misapplication of the funds,
and not whether the particular acts by which the aiding and abetting were
done were necessary to be set out in the indictment. On the contrary, the
counts there held good charged the aiding and abetting in the very language
found in the indictment in hand, -- 'and the said Evans did then and there
knowingly and unlawfully aid and abet the said cashier in such willful
misapplication with intent in him, the said Evans, to injure and defraud,'
etc.
2. It is said that all the counts in the indictment are bad because it is
not charged that the aiders and abettors knew that Haughey was president of
the bank at the time it is averred the acts were committed. The argument is
this: The statute says that every person who with like intent aids or abets
any officer, etc. Therefore, the fact that the aider or abettor knew that
the person who misapplied the funds was [156 U.S. 432, 449] an officer,
etc., must be specifically charged. Without considering the legal
correctness of this proposition, it may be observed that it has no
application to this cause. Each and every count here specifically avers that
'the said Theodore P. Haughey, then and there being president of the bank,'
and 'then and there, by virtue of his said office, as such president as
aforesaid,' 'misapplied the funds'; and having thus fully averred the
relation of Haughey to the bank, and the commission of the acts complained
of, in his official capacity, with intent to defraud, etc., the counts go on
to charge that the plaintiffs in error did unlawfully, willfully,
feloniously, knowingly, and with intent to defraud, aid, and abet the 'said
Haughey as aforesaid.' The words 'as aforesaid' clearly relate to Haughey in
the capacity in which it is stated that he committed the offense charged
against him in the body of the indictment. Without entering into any nice
question of grammar, or undertaking to discuss whether the word 'said,'
before Haughey's name, and the words 'as aforesaid,' which follow it, are
adverbial, we think the plain and unmistakable statement of the indictment,
as a whole, is that the acts charged against Haughey were done by him as
president of the bank, and that the aiding and abetting were also knowingly
done, by assisting him in the offcial capacity, in which alone it is charged
that he misapplied the funds.

3. It is further contended that all the counts of the indictment, except the
first, are insufficient because they fail to aver the actual conversion of
the sum misapplied to the use of any particular person. This proposition is
based on the cases of U. S. v. Britton, 107 U.S. 666, 2 Sup. Ct. 512, and U.
S. v. Northway, supra. In the Britton Case we said 'that the willful
misapplication which was made an offense by this statute means a
misapplication for the use, benefit, or gain of the party charged, or some
other person; and therefore, to constitute the offense of willful
misapplication, there must be a conversion to the party's own use, or to the
use of some one else, of the funds of the association. This essential
element of the offense is not averred in the indictment [156 U.S. 432, 450]
under consideration, but is negatived by the averment that the shares
purchased by the defendant were held by him in trust for the use of the
association; and there is no averment of a conversion by the defendant, for
his own use, or the use of any other person, of the funds used in purchasing
the shares. The counts, therefore, charge maladministration of the affairs
of the bank rather than criminal misapplication of the funds.' So, in
Northway's Case, we said, 'It is of the essence of the crime of
misapplication that there should be conversion of the funds to the use of
the defendant, or of some other person than the association.' The various
counts of the indictment here are all substantially alike in stating the
conversion. We take the second as an example. That charges that Haughey,
being president of the Indianapolis Bank, did then and there, by virtue of
his office as president of said bank. unlawfully, feloniously, and willfully
misapply the moneys, funds, and credits of the bank, with intent to convert
the same to the use of the Indianapolis Cabinet Company, by then and there
causing said sum to be paid out of the moneys, funds, and credits of the
bank, upon a check drawn upon the bank by the Indianapolis Cabinet Company,
which check was then and there cashed and paid out of the funds and credit
of the bank, which sum, and no part thereof, was the said Indianapolis
Cabinet Company entitled to withdraw from the bank, because said company had
no funds in the bank, and that the said company was then and there
insolvent, which Haughey then and there well knew, whereby said sum became
lost to the bank. This clearly states the misapplication and actual
conversion of the money by the methods described; that is to say, by paying
it out of the funds of the bank to a designated person, when that person was
not entitled to take the funds, and that, owing to the insolvency of such
person, the money was lost to the bank. The fact that the count charges the
intent to convert money to the use of the Indianapolis Cabinet Company does
not obliterate the clear statement of the actual conversion. In this regard
the count is clearer and [156 U.S. 432, 451] stronger than that held
sufficient in Evans v. U. S., supra.
4. The following request was made and refused:
'Each of the forty-six counts of this indictment, except the 1st,

the 40th, the 41st, and the 43d, alleges that certain facts
therein referred to are unknown to the grand jury. Thus, the
2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th counts
each aver a misapplication of the funds of said bank by said
Haughey with intent to convert the same to the use of the
Indianapolis Cabinet Company, and to other persons to the
grand jury unknown. The averment that the names of these
persons were unknown to the grand jurors is a material
averment, and is necessary to be proven by the government, in
order to make out its case in each of said counts, because in
each of said counts the charge is of a misapplication of a single,
definite, fixed sum, with an intent to convert the same to the
use, not merely of the cabinet company, but of other persons.
If, as a matter of fact, no evidence has been placed before you

showing, or tending to show, that the names of such persons

were unknown to the grand jury, then, as to these counts, the
government's case has failed.'
In connection with this ruling, the bill of exceptions states that there was
no evidence whatever on the subject offered by either side, and nothing to
indicate that there was knowledge in the grand jurors of the matter which
the indictment declared to be to them unknown. The instruction was rightly
refused. It presupposes that where there is an averment that a person or
matter is unknown to a grand jury, and no evidence upon the subject of such
knowledge is offered by either side, acquittal must follow, while the true
rule is that, where nothing appears to the contrary, the verity of the
averment of want of knowledge in the grand jury is presumed. Thus, it was
said in Com. v. Thornton, 14 Gray, 43: 'The fact that the name of the person
was in fact known must appear from the evidence in the case. It is
immaterial whether it so appears from the evidence offered by the
government, or that offered by the defendant. But, there being no evidence
to the contrary, the objection that the party was not unknown does [156 U.S.
432, 452] not arise.' And previously, in Com. v. Sherman, 3 Allen, 248, the
court observed: 'It is always open to the defendant to move the judge before
whom the trial is had to order the prosecuting attorney to give a more
particular description, in the nature of a specification or bill of
particulars, of the acts on which he intends to rely, and to suspend the
trial until this can be done; and such an order will be made whenever it
appears to be necessary to enable the defendant to meet the charge against
him, or to avoid danger of injustice. Com. v. Giles, 1 Gray, 469; King v.
Curwood, 3 Adol. & El. 815; Rosc. Cr. Ev. (6th Ed.) 178, 179, 420.' It is to
be observed that none of the counts as to which the prosecution was called
upon to specify remain, all having been eliminated by the action of the
court on the motion in arrest.
This concludes the examination of all the general objections to the

indictment which we deem it necessary to consider, and brings us to the
exceptions taken to the refusals to charge, as well as those reserved to the
charges actually given.
The forty-fourth charge asked and refused was as follows:
'The law presumes that persons charged with crime are

innocent until they are proven, by competent evidence, to be
guilty. To the benefit of this presumption the defendants are all
entitled, and this presumption stands as their sufficient
protection, unless it has been removed by evidence proving
their guilt beyond a reasonable doubt.'
Although the court refused to give this charge, it yet instructed the jury
as follows: 'Before you can find any one of the defendants guilty, you must
be satisfied of his guilt, as charged in some of the counts of the
indictment, beyond a reasonable doubt.' And again: 'You may find the
defendants guilty on all the counts of the indictment, if you are satisfied
that, beyond a reasonable doubt, the evidence justifies it.' And finally,
stating the matter more fully, it said: 'To justify you in returning a
verdict of 'Guilty,' the evidence must be of such a character as to satisfy
your judgment to the exclusion of every reasonable doubt. If, therefore, you
can reconcile the evidence with any reasonable hypothesis consistent [156
U.S. 432, 453] with the defendants' innocence, it is your duty to do so, and
in that case find the defendants not guilty. And if, after weighing all the
proofs, and looking only to the proofs, you impartially and honestly
entertain the belief that the defendants may be innocent of the offenses
charged against them, they are entitled to the benefit of that doubt, and
you should acquit them. It is not meant by this that the proof should

establish their guilt to an absolute certainty, but merely that you should
not convict unless, from all the evidence, you believe the defendants are
guilty beyond a reasonable doubt. Speculative notions, or possibilities
resting upon mere conjecture, not arising or deducible from the proof, or
the want of it, should not be confounded with a reasonable doubt. A doubt
suggested by the ingenuity of counsel, or by your own ingenuity, not
legitimately warranted by the evidence, or the want of it, or one born of a
merciful inclination to permit the defendants to escape the penalty of the
law, or one prompted by sympathy for them or those connected with them, is
not what is meant by a reasonable doubt. A 'reasonable doubt,' as that term
is employed in the administration of the criminal law, is an honest,
substantial misgiving, generated by the proof, or the want of it. It is such
a state of the proof as fails to convince your judgment and conscience, and
satisfy your reason of the guilt of the accused. If the whole evidence, when
carefully examined, weighed, compared, and considered, produces in your
minds a settled conviction or belief of the defendants' guilt, -- such an
abiding conviction as you would be willing to act upon in the most weighty
and important affairs of your own life, -- you may be said to be free from
any reasonable doubt, and should find a verdict in accordance with that
conviction or belief.'
The fact, then, is that, while the court refused to instruct as to the
presumption of innocence, it instructed fully on the subject of reasonable
doubt.
The principle that there is a presumption of innocence in favor of the

accused is the undoubted law, axiomatic and elementary, and its enforcement
lies at the foundation of the administration of our criminal law. [156 U.S.
432, 454] It is stated as unquestioned in the textbooks, and has been
referred to as a matter of course in the decisions of this court and in the
courts of the several states. See 1 Tayl. Ev. c. 5, 126, 127; Wills, Circ.
Ev. c. 5, 91; Best. Pres. pt. 2, c. 1, 63, 64; Id. c. 3, 31-58; Greenl. Ev.
pt. 5, 29, etc.; 11 Cr. Law Mag. 3; Whart. Ev. 1244; 2 Phil. Ev. ( Cowen &
Hill's Notes) p. 289; Lilienthal's Tobacco v. U. S., 97 U.S. 237; Hopt v.
Utah, 120 U.S. 430 , 7 Sup. Ct. 614; Com. v. Webster, 5 Cush. 320; State v.
Bartlett, 43 N. H. 224; Alexander v. People, 96 Ill. 96; People v.
Fairchild, 48 Mich. 31, 11 N. W. 773; People v. Millard, 53 Mich. 63, 18 N.
W. 562; Com. v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581;
Wharton v. State, 73 Ala. 366; State v. Tibbetts, 35 Me. 81; Moorer v.
State, 44 Ala. 15.
Greenleaf traces this presumption to Deuteronomy, and quotes Mascardius Do

Probationibus to show that it was substantially embodied in the laws of
Sparta and Athens. On Evidence, pt. 5, 29, note. Whether Greenleaf is
correct or not in this view, there can be no question that the Roman law was
pervaded with the results of this maxim of criminal administration, as the
following extracts show:
'Let all accusers understand that they are not to prefer charges
unless they can be proven by proper witnesses or by
conclusive documents, or by circumstantial evidence which
amounts to indubitable proof and is clearer than day.' Code, L.
4, tit. 20, 1, l. 25.
'The noble (divus) Trajan wrote to Julius Frontonus that no

man should be condemned on a criminal charge in his absence,
because it was better to let the crime of a guilty person go
unpunished than to condemn the innocent.' Dig. L. 48, tit. 19,
l. 5.
'In all case of doubt the most merciful construction of facts

should be preferred.' Dig. L. 50, tit. 17, l. 56.
'In criminal cases the milder construction shall always be

preserved.' Dig. L. 50, tit. 17, 1, 155, 2.
'In cases of doubt it is no less just than it is safe to adopt the

milder construction.' Dig. L. 50, tit. 17, l. 192, 1. [156 U.S. 432,
455] Ammianus Marcellinus relates an anecdote of the Emperor
Julian which illustrates the enforcement of this principle in the
Roman law. Numerius, the governor of Narbonensis, was on
trial before the emperor, and, contrary to the usage in criminal
cases, the trial was public. Numerius contented himself with
denying his guilt, and there was not sufficient proof against him.
His adversary, Delphidius, 'a passionate man,' seeing that the
failure of the accusation was inevitable, could not restrain
himself, and exclaimed, 'Oh, illustrious Caesar! if it is sufficient
to deny, what hereafter will become of the guilty?' to which
Julian replied, 'If it suffices to accuse, what will become of the
innocent?' Rerum Gestarum, lib. 18, c. 1. The rule thus found
in the Roman law was, along with many other fundamental and
human maxims of that system, preserved for mankind by the
canon law. Decretum Gratiani de Presumptionibus, L. 2, T.
23, c. 14, A. D. 1198; Corpus Juris Canonici Hispani et
Indici, R. P. Murillo Velarde, Tom. 1, L. 2, n. 140. Exactly
when this presumption was, in precise words, stated to be a
part of the common law, is involved in doubt. The writer of an
able article in the North American Review (January, 1851),
tracing the genesis of the principle, says that no express
mention of the presumption of innocence can be found in the
books of the common law earlier than the date of McNally's
Evidence (1802). Whether this statement is correct is a matter
of no moment, for there can be no doubt that, if the principle
had not found formal expression in the common-law writers at
an earlier date, yet the practice which flowed from it has
existed in the common law from the earliest time.
Fortescue says: 'Who, then, in England, can be put to death

unjustly for any crime? since he is allowed so many pleas and
privileges in favor of life. None but his neighbors, men of
honest and good repute, against whom he can have no
probable cause of exception, can find the person accused
guilty. Indeed, one would much rather that twenty guilty
persons should escape punishment of death than that one
innocent person should be condemned and suffer capitally.' De
Laudibus Legum Angliae (Amos' translation, Cambridge,
1825). [156 U.S. 432, 456] Lord Hale (1678) says: 'In some cases
presumptive evidence goes far to prove a person guilty, though
there be no express proof of the fact to be committed by him;
but then it must be very warily pressed, for it is better five
guilty persons should escape unpunished than one innocent
person should die.' 2 Hale, P. C. 290. He further observes:
'And thus the reasons stand on both sides; and, though these
seem to be stronger than the former, yet in a case of this
moment it is safest to hold that in practice, which hath least
doubt and danger, -- 'Quod dubitas, ne feceris." 1 Hale, P. C.
24.
Blackstone (1753-1765) maintains that 'the law holds that it is

better that ten guilty persons escape than that one innocent
suffer.' 2 Bl. Comm. c. 27, marg. p. 358, ad finem.

How fully the presumption of innocence had been evolved as a principle and
applied at common law is shown in McKinley's Case (1817) 33 State Tr. 275,
506, where Lord Gillies says: 'It is impossible to look at it [a treasonable
oath which it was alleged that McKinley had taken] without suspecting, and
thinking it probable, it imports an obligation to commit a capital crime.
That has been and is my impression. But the presumption in favor of
innocence is not to be redargued by mere suspicion. I am sorry to see, in
this information, that the public prosecutor treats this too lightly. He
seems to think that the law entertains no such presumption of innocence. I
cannot listen to this. I conceive that this presumption is to be found in
every code of law which has reason and religion and humanity for a
foundation. It is a maxim which ought to be inscribed in indelible
characters in the heart of every judge and juryman, and I was happy to hear
from Lord Hermand he is inclined to give full effect to it. To overturn
this, there must be legal evidence of guilt, carrying home a decree of
conviction short only of absolute certainty.'
It is well settled that there is no error in refusing to give a correct

charge precisely as requested, provided the instruction actually given
fairly covers and includes the instruction asked. Tweed's Case, 16 Wall.
504; Railway Co. v. Whitton, 13 Wall. 270. The contention here is that,
inasmuch as the charge given by the court [156 U.S. 432, 457] on the subject
of reasonable doubt substantially embodied the statement of the presumption
of innocence, therefore the court was justified in refusing, in terms, to
mention the latter. This presents the question whether the charge that there
cannot be a conviction unless the proof shows guilt beyond a reasonable
doubt so entirely embodies the statement of presumption of innocence as to
justify the court in refusing, when requested, to inform the jury concerning
the latter. The authorities upon this question are few and unsatisfactory.
In Texas it has been held that it is the duty of the court to state the
presumption of innocence along with the doctrine of reasonable doubt, even
though no request be made to do so. Black v. State, 1 Tex. App. 369;
Priesmuth v. State, Id. 480; McMullen v. State, 5 Tex. App. 577. It is
doubtful, however, whether the rulings in these cases were not based upon
the terms of a Texas statute, and not on the general law. In Indiana it has
been held error to refuse, upon request, to charge the presumption of
innocence, even although it be clearly stated to the jury that conviction
should not be had unless guilt be proven beyond reasonable doubt. Long v.
State, 46 Ind. 582; Line v. State, 51 Ind. 175. But the law of Indiana
contains a similar provision to that of Texas. In two Michigan cases, where
the doctrine of reasonable doubt was fully and fairly stated, but no request
to charge the presumption of innocence was made, it was held that the
failure to menion the presumption of innocence could not be assigned for
error in the reviewing court. People v. Potter, 89 Mich. 353, 50 N. W. 994;
People v. Graney, 91 Mich. 648, 52 N. W. 66. But in the same state, where a
request to charge the presumption of innocence was made and refused, the
refusal was held erroneous, although the doctrine of reasonable doubt had
been fully given to the jury. People v. Macard, 73 Mich. 15, 40 N. W. 784.
On the other hand, in Ohio it has been held not error to refuse to charge
the presumption of innocence where the charge actually given was 'that the
law required that the state should prove the material elements of the crime
beyond doubt.' Moorehead v. State, 34 Ohio St. 212. It may be that the
paucity of authority upon this subject results from [156 U.S. 432, 458] the
fact that the presumption of innocence is so elementary that instances of
denial to charge it upon request have rarely occurred. Such is the view
expressed in a careful article in the Criminal Law Magazine for January,
1889 (volume 11, p. 3): 'The practice of stating this principle to juries is
so nearly universal that very few cases are found where error has been
assigned upon the failure or refusal of the judge so to do.' But, whatever
be the cause, authorities directly apposite are few and conflicting, and
hence furnish no decisive solution of the question, which is further

embarrassed by the fact that in some few cases the presumption of innocence
and the doctrine of reasonable doubt are seemingly treated as synonymous.
Ogletree v. State, 28 Ala. 693; Moorer v. State, 44 Ala. 15; People v.
Lenon, 79 Cal. 625, 631, 21 Pac. 967. In these cases, however, it does not
appear that any direct question was made as to whether the presumption of
innocence and reasonable doubt were legally equivalent; the language used
simply implying that one was practically the same as the other, both having
been stated to the jury.
Some of the text-books, also, in the same loose way, imply the identity of
the two. Stephen, in his History of the Criminal Law, tells us that 'the
presumption of innocence is otherwise stated by saying the prisoner is
entitled to the benefit of every reasonable doubt.' Volume 1, p. 438. So,
although Best, in his work on Presumptions, has fully stated the presumption
of innocence, yet, in a note to Chamberlayne's edition of that author's work
on Evidence (Boston, 1883; page 304, note a), it is asserted that no such
presumption obtains, and that 'apparently all that is meant by the statement
thereof, as a principle of law, is this: If a man be accused of crime, he
must be proved guilty beyond reasonable doubt.'
This confusion makes it necessary to consider the distinction between the

presumption of innocence and reasonable doubt as if it were an original
question. In order to determine whether the two are the equivalents of each
other, we must first ascertain, with accuracy, in what each consists. Now,
the presumption of innocence is a conclusion drawn by the law in favor of
the citizen, by virtue whereof, when brought to trial [156 U.S. 432, 459]
upon a criminal charge, he must be acquitted, unless he is proven to be
guilty. In other words, this presumption is an instrument of proof created
by the law in favor of one accused, whereby his innocence is established
until sufficient evidence is introduced to overcome the proof which the law
has created. This presumption, on the one hand, supplemented by any other
evidence he may adduce, and the evidence against him, on the other,
constitute the elements from whch the legal the elements from which the
legal drawn.
Greenleaf thus states the doctrine: 'As men do not generally violate the
Penal Code, the law presumes every man innocent; but some men do transgress
it, and therefore evidence is received to repel this presumption. This legal
presumption of innocence is to be regarded by the jury, in every case, as
matter of evidence, to the benefit of which the party is entitled.' On
Evidence, pt. 1, 34.
Wills on Circumstantial Evidence says: 'In the investigation and estimate of

criminatory evidence, there is an antecedent, prima facie presumption in
favor of the innocence of the party accused, grounded in reason and justice
not less than in humanity, and recognized in the judicial practice of all
civilized nations, which presumption must prevail until it be destroyed by
such an overpowering amount of legal evidence of guilt as is calculated to
produce the opposite belief.' Best on Presumptions declares the presumption
of innocence to be a 'presumptio juris.' The same view is taken in the
article in the Criminal Law Magazine for January, 1888, to which we have
already referred. It says: 'This presumption is in the nature of evidence in
his favor [i. e. in favor of the accused], and a knowledge of it should be
communicated to the jury. Accordingly, it is the duty of the judge, in all
jurisdictions, when requested, and in some when not requested, to explain it
to the jury in his charge. The usual formula in which this doctrine is
expressed is that every man is presumed to be innocent until his guilt is
proved beyond a reasonable doubt. The accused is entitled, if he so requests
it, ... to have this rule of law expounded to the jury in this or in some
equivalent form of expression.' [156 U.S. 432, 460] The fact that the
presumption of innocence is recognized as a presumption of law, and is

characterized by the civilians as a presumptio juris, demonstrates that it

is evidence in favor of the accused. For, in all systems of law, legal
presumptions are treated as evidence giving rise to resulting proof, to the
full extent of their legal efficacy.
Concluding, then, that the presumption of innocence is evidence in favor of

the accused, introduced by the law in his behalf, let us consider what is
'reasonable doubt.' It is, of necessity, the condition of mind produced by
the proof resulting from the evidence in the cause. It is the result of the
proof, not the proof itself, whereas the presumption of innocence is one of
the instruments of proof, going to bring about the proof from which
reasonable doubt arises; thus one is a cause, the other an effect. To say that the one is
the equivalent of the other is
therefore to say that legal evidence can be excluded from the jury, and that
such exclusion may be cured by instructing them correctly in regard to the
method by which they are required to reach their conclusion upon the proof
actually before them; in other words, that the exclusion of an important
element of proof can be justified by correctly instructing as to the proof
admitted. The evolution of the principle of the presumption of innocence,
and its resultant, the doctrine of reasonable doubt, make more apparent the
correctness of these views, and indicate the necessity of enforcing the one
in order that the other may continue to exist. While Rome and the
Mediaevalists taught that, wherever doubt existed in a criminal case,
acquittal must follow, the expounders of the common law, in their devotion
to human liberty and individual rights, traced this doctrine of doubt to its
true origin, -- the presumption of innocence, -- and rested it upon this
enduring basis. The inevitable tendency to obscure the results of a truth,
when the truth itself is forgotten or ignored, admonishes that the
protection of so vital and fundamental a principle as the presumption of
innocence be not denied, when requested, to any one accused of crime. The
importance of the distinction between the two is peculiarly emphasized here,
for, after having declined to [156 U.S. 432, 461] instruct the jury as to
the presumption of innocence, the court said: 'If, after weighing all the
proofs, and looking only to the proofs, you impartially and honestly
entertain the belief,' etc. Whether thus confining them to 'the proofs,' and
only to the proofs, would have been error, if the jury had been instructed
that the presumption of innocence was a part of the legal proof, need not be
considered, since it is clear that the failure to instruct them in regard to
it excluded from their minds a portion of the proof created by law, and
which they were bound to consider. 'The proofs, and the proofs only,'
confined them to those matters which were admitted to their consideration by
the court; and, among these elements of proof, the court expressly refused
to included the presumption of innocence, to which the accused was entitled,
and the benefit whereof both the court and the jury were bound to extend
him.
In addition, we think the twenty-second exception to the rulings of the

court was well taken. The error contained in the charge, which said,
substantially, that the burden of proof had shifted, under the circumstances
of the case, and that therefore, it was incumbent on the accused to show the
lawfulness of their acts, was not merely verbal, but was fundamental,
especially when considered in connection with the failure to state the
presumption of innocence.
There are other objections specifically raised to certain particular counts

in the indictment, which we do not deem it necessary to elaborately examine,
but to which the condition of the case compels us to briefly allude. Thus,
the first count charges the receipt and placing to the credit of the
Indianapolis Cabinet Company of a bill of exchange amounting to a certain
number of pounds sterling, followed by the averment that the company
thereupon drew its check for said amount. It is contended that the check

offered to show the payment of this money was for dollars and not for pounds
sterling, and therefore there was a variance between the indictment and the
proof. This contention, we think, is without merit. The count charged the
misapplication of the sum of $5,802.84, and averred that the misapplication
was [156 U.S. 432, 462] effected by taking the bill of exchange and paying
out that amount; in other words, the whole context, we think, makes plain
the charge that the sum which it avers to have been misapplied was credited
as the result of taking the bill of exchange, and that it was this sum which
was paid out upon the check of the cabinet company. Of course, it is
immaterial at what rate or by what rule the pounds sterling were converted
into current money. The sum of the misapplication was the amount stated as
credited in consequence of having taken the bill of sterling exchange.
On the subject of the counts covering the charge of false entries in the
books of the bank, the following requests were made and refused:
'No. 18. In considering the false-entry charges in the

indictment, it is necessary that you should know what
constitutes a false entry. The books of account of a bank are
kept for the purpose of accurately and truly recording the
financial transactions of the bank. An entry upon the books of
the bank of some alleged transactions which never occurred,
or of a transaction which did occur, but which is falsely
recorded, would be a false entry. But any entry in which that
which has been done by the officers or agents of the bank is
correctly set forth in detail is not a false entry. If, therefore, you
find from the evidence, for instance, with reference to the
alleged false entry in the 40th count, that the bank had actually
given to the cabinet company the credit for $44,000 upon the
paper presented by the cabinet company, and had authorized
said cabinet company to make its checks against said credit,
and that said entry was made upon the books simply as a
truthful record of that which had been done, then the same was
not a false entry, but was and is a true entry, and the
indictment, so far as based upon such entry, cannot be
sustained.
'No. 19. If Mr. Haughey, as president of the bank, received

from the cabinet company drafts, bills or notes which, by
reason of the insolvency of the parties, or for any other reason,
ought not to have been received, and gave to said cabinet
company credit therefor, and afterwards caused [156 U.S. 432,
463] an entry of such credit to be made upon the books of the
bank, then whatever wrong was done in the matter by Mr.
Haughey was not in causing such entry to be made, but was,
further back, in receiving the paper and giving the credit. Not
to have made the entry would have been to commit another
wrong, since it was his duty as president of the bank, to see
that the books should speak the exact truth as to that which he
had caused to be done; and, however wrongful may have been
his previous acts, the making of an exact and truthful record of
the same in the books of the bank was and could be no crime,
under this statute.'
While we consider the charges asked were in some respects unsound, yet the
exception reserved to the charge actually given by the court was well taken,
because therein the questions of misapplication and of false entries are
interblended in such a way that it is difficult to understand exactly what
was intended. We think the language used must have tended to confuse the
jury, and leave upon their minds the impression that if the transaction
represented by the entry actually occurred, but amounted to a

misapplication, then its entry exactly as it occurred constituted 'a false

entry'; in other words, that an entry would be false, though it faithfully
described an actual occurrence, unless the transaction which it represented
involved full and fair value for the bank. The thought thus conveyed implied
that the truthful entry of a fraudulent transaction constitutes a false
entry, within the meaning of the statute. We think it is clear that the
making of a false entry is a concrete offense, which is not committed where
the transaction entered actually took place, and is entered exactly as it
occurred.
Judgment reversed and case remanded, with directions to grant a new trial.

Coffin v. U.S., 156 U.S. 432 (1895): Commentary
Coffin v. U.S., 156 U.S. 432 (1895)

The decision and opinion in this case are both correct, so far as they go, but are too narrow. That fact is
that Congress had and has no authority to impose criminal penalties for the act committed, and that
section 5209 of the Revised Statutes was and is unconstitutional. It would have such authority only if the
act occurred on territory ceded to the exclusive jurisdiction of Congress by an act of the Indiana
Legislature under Art. I Sec. 8 Cl. 17 of the U.S. Constitution, and no such act was adopted by the
Indiana Legislature for the parcel of land on which the acts were alleged to have occurred. Nor was or is
there any authority for the government of the United States to charter a bank to operate on other than
federal enclaves created under Art. I Sec. 8 Cl. 17 of the U.S. Constitution, and if a state should allow it
to operate on its territory, it would be governed by the laws of that state and not by the laws of the United
States.
Under the U.S. Constitution, there are only three kinds of criminal jurisdiction: territorial, subject, and
personal. The national Congress has general territorial criminal jurisdiction only over the territory of
federal enclaves created under Art. I Sec. 8 Cl. 17. It has subject jurisdiction only over (1) treason (Art.
III Sec. 3 Cl. 2), (2) counterfeiting (Art. I Sec. 8 Cl. 6), (3) piracy and felonies on the high seas (Art. I
Sec. 8 Cl. 10), (4) offences against the laws of nations (Art. I Sec. 8 Cl. 10), (5) enslavement (Amd. 13),
(6) importation of alcohol into state where prohibited (Amd. 21), and (7) denial of the right to vote on the
basis of race, color, or previous servitude (Amd. 15), sex (Amd. 19), failure to pay a tax (Amd. 24), or
age (Amd. 26). The only subjects of personal jurisdiction are military personnel and militia personnel
when in actual federal service (Art. I Sec. 8 Cl. 16).
Since the alleged offenses did not occur on a federal enclave, the only way the national government
could have criminal jurisdiction would be if the officials or employees of the national bank were military
or militia personnel in actual federal service, which they were not. A government does not acquire
criminal jurisdiction over the agents of a corporation by chartering or regulating it.

Coffin v. U.S., 156 U.S. 432 (1895)
The decision and opinion in this case are both correct, so far as they go,
but are too narrow. That fact is that Congress had and has no authority to
impose criminal penalties for the act committed, and that section 5209 of
the Revised Statutes was and is unconstitutional. It would have such
authority only if the act occurred on territory ceded to the exclusive
jurisdiction of Congress by an act of the Indiana Legislature under Art. I
Sec. 8 Cl. 17 of the U.S. Constitution, and no such act was adopted by the
Indiana Legislature for the parcel of land on which the acts were alleged to
have occurred. Nor was or is there any authority for the government of the
United States to charter a bank to operate on other than federal enclaves
created under Art. I Sec. 8 Cl. 17 of the U.S. Constitution, and if a state
should allow it to operate on its territory, it would be governed by the
laws of that state and not by the laws of the United States.
Under the U.S. Constitution, there are only three kinds of criminal
jurisdiction: territorial, subject, and personal. The national Congress has
general territorial criminal jurisdiction only over the territory of federal
enclaves created under Art. I Sec. 8 Cl. 17. It has subject jurisdiction
only over (1) treason (Art. III Sec. 3 Cl. 2), (2) counterfeiting (Art. I
Sec. 8 Cl. 6), (3) piracy and felonies on the high seas (Art. I Sec. 8 Cl.
10), (4) offences against the laws of nations (Art. I Sec. 8 Cl. 10), (5)
enslavement (Amd. 13), (6) importation of alcohol into state where
prohibited (Amd. 21), and (7) denial of the right to vote on the basis of
race, color, or previous servitude (Amd. 15), sex (Amd. 19), failure to pay
a tax (Amd. 24), or age (Amd. 26). The only subjects of personal
jurisdiction are military personnel and militia personnel when in actual
federal service (Art. I Sec. 8 Cl. 16).
Since the alleged offenses did not occur on a federal enclave, the only way
the national government could have criminal jurisdiction would be if the
officials or employees of the national bank were military or militia
personnel in actual federal service, which they were not. A government does
not acquire criminal jurisdiction over the agents of a corporation by
chartering or regulating it.

Buckley v. Valeo, 424 U.S. 1 (1976)
U.S. Supreme Court

BUCKLEY v. VALEO, 424 U.S. 1 (1976)
424 U.S. 1
BUCKLEY ET AL. v. VALEO, SECRETARY OF THE UNITED STATES SENATE, ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT.
No. 75-436.
Argued November 10, 1975.

Decided January 30, 1976. *
[ Footnote * ] Together with No. 75-437, Buckley et al. v. Valeo, Secretary of the United States Senate,
et al., on appeal from the United States District Court for the District of Columbia.
The Federal Election Campaign Act of 1971 (Act), as amended in 1974, (a) limits political contributions
to candidates for federal elective office by an individual or a group to $1,000 and by a political
committee to $5,000 to any single candidate per election, with an overall annual limitation of $25,000 by
an individual contributor; (b) limits expenditures by individuals or groups "relative to a clearly identified
candidate" to $1,000 per candidate per election, and by a candidate from his personal or family funds to
various specified annual amounts depending upon the federal office sought, and restricts overall general
election and primary campaign expenditures by candidates to various specified amounts, again
depending upon the federal office sought; (c) requires political committees to keep detailed records of
contributions and expenditures, including the name and address of each individual contributing in excess
of $10, and his occupation and [424 U.S. 1, 2] principal place of business if his contribution exceeds $100,
and to file quarterly reports with the Federal Election Commission disclosing the source of every
contribution exceeding $100 and the recipient and purpose of every expenditure over $100, and also
requires every individual or group, other than a candidate or political committee, making contributions or
expenditures exceeding $100 "other than by contribution to a political committee or candidate" to file a
statement with the Commission; and (d) creates the eight-member Commission as the administering
agency with recordkeeping, disclosure, and investigatory functions and extensive rulemaking,
adjudicatory, and enforcement powers, and consisting of two members appointed by the President pro
tempore of the Senate, two by the Speaker of the House, and two by the President (all subject to
confirmation by both Houses of Congress), and the Secretary of the Senate and the Clerk of the House as
ex officio nonvoting members. Subtitle H of the Internal Revenue Code of 1954 (IRC), as amended in
1974, provides for public financing of Presidential nominating conventions and general election and
primary campaigns from general revenues and allocates such funding to conventions and general election
campaigns by establishing three categories: (1) "major" parties (those whose candidate received 25% or
more of the vote in the most recent election), which receive full funding, (2) "minor" parties (those
whose candidate received at least 5% but less than 25% of the votes at the last election), which receive
only a percentage of the funds to which the major parties are entitled; and (3) "new" parties (all other
parties), which are limited to receipt of post-election funds or are not entitled to any funds if their
candidate receives less than 5% of the vote. A primary candidate for the Presidential nomination by a
political party who receives more than $5,000 from private sources (counting only the first $250 of each

contribution) in each of at least 20 States is eligible for matching public funds. Appellants (various
federal officeholders and candidates, supporting political organizations, and others) brought suit against
appellees (the Secretary of the Senate, Clerk of the House, Comptroller General, Attorney General, and
the Commission) seeking declaratory and injective relief against the above statutory provisions on
various constitutional grounds. The Court of Appeals, on certified questions from the District Court,
upheld all but one of the statutory provisions. A three-judge District Court upheld the constitutionality of
Subtitle H. Held: [424 U.S. 1, 3]
● 1. This litigation presents an Art. III "case or controversy," since the complaint discloses that at
least some of the appellants have a sufficient "personal stake" in a determination of the
constitutional validity of each of the challenged provisions to present "a real and substantial
controversy admitting of specific relief through a decree of a conclusive character, as distinguished
from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life
Ins. Co. v. Haworth, 300 U.S. 227, 241 . Pp. 11-12.
● 2. The Act's contribution provisions are constitutional, but the expenditure provisions violate the
First Amendment. Pp. 12-59.
❍ (a) The contribution provisions, along with those covering disclosure, are appropriate
legislative weapons against the reality or appearance of improper influence stemming from
the dependence of candidates on large campaign contributions, and the ceilings imposed
accordingly serve the basic governmental interest in safeguarding the integrity of the
electoral process without directly impinging upon the rights of individual citizens and
candidates to engage in political debate and discussion. Pp. 23-38.
❍ (b) The First Amendment requires the invalidation of the Act's independent expenditure
ceiling, its limitation on a candidate's expenditures from his own personal funds, and its
ceilings on overall campaign expenditures, since those provisions place substantial and
direct restrictions on the ability of candidates, citizens, and associations to engage in
protected political expression, restrictions that the First Amendment cannot tolerate. Pp.
39-59.
● 3. The Act's disclosure and recordkeeping provisions are constitutional. Pp. 60-84.
❍ (a) The general disclosure provisions, which serve substantial governmental interests in
informing the electorate and preventing the corruption of the political process, are not
overbroad insofar as they apply to contributions to minor parties and independent
candidates. No blanket exemption for minor parties is warranted since such parties in order
to prove injury as a result of application to them of the disclosure provisions need show only
a reasonable probability that the compelled disclosure of a party's contributors' names will
subject them to threats, harassment, or reprisals in violation of their First Amendment
associational rights. Pp. 64-74.
❍ (b) The provision for disclosure by those who make independent [424 U.S. 1, 4] contributions
and expenditures, as narrowly construed to apply only (1) when they make contributions
earmarked for political purposes or authorized or requested by a candidate or his agent to
some person other than a candidate or political committee and (2) when they make an
expenditure for a communication that expressly advocates the election or defeat of a clearly
identified candidate is not unconstitutionally vague and does not constitute a prior restraint
but is a reasonable and minimally restrictive method of furthering First Amendment values
by public exposure of the federal election system. Pp. 74-82.

❍ (c) The extension of the recordkeeping provisions to contributions as small as those just
above $10 and the disclosure provisions to contributions above $100 is not on this record
overbroad since it cannot be said to be unrelated to the informational and enforcement goals
of the legislation. Pp. 82-84.
● 4. Subtitle H of the IRC is constitutional. Pp. 85-109.
❍ (a) Subtitle H is not invalid under the General Welfare Clause but, as a means to reform the
electoral process, was clearly a choice within the power granted to Congress by the Clause
to decide which expenditures will promote the general welfare. Pp. 90-92.
❍ (b) Nor does Subtitle H violate the First Amendment. Rather than abridging, restricting, or
censoring speech, it represents an effort to use public money to facilitate and enlarge public
discussion and participation in the electoral process. Pp. 92-93.
❍ (c) Subtitle H, being less burdensome than ballot-access regulations and having been
enacted in furtherance of vital governmental interests in relieving major-party candidates
from the rigors of soliciting private contributions, in not funding candidates who lack
significant public support, and in eliminating reliance on large private contributions for
funding of conventions and campaigns, does not invidiously discriminate against minor and
new parties in violation of the Due Process Clause of the Fifth Amendment. Pp. 93-108.
❍ (d) Invalidation of the spending-limit provisions of the Act does not render Subtitle H
unconstitutional, but the Subtitle is severable from such provisions and is not dependent
upon the existence of a generally applicable expenditure limit. Pp. 108-109.
● 5. The Commission's composition as to all but its investigative and informative powers violates
Art. II, 2, cl. 2. With respect to the Commission's powers, all of which are ripe for review, [424 U.S.
1, 5] to enforce the Act, including primary responsibility for bringing civil actions against
violators, to make rules for carrying out the Act, to temporarily disqualify federal candidates for
failing to file required reports, and to authorize convention expenditures in excess of the specified
limits, the provisions of the Act vesting such powers in the Commission and the prescribed method
of appointment of members of the Commission to the extent that a majority of the voting members
are appointed by the President pro tempore of the Senate and the Speaker of the House, violate the
Appointments Clause, which provides in pertinent part that the President shall nominate, and with
the Senate's advice and consent appoint, all "Officers of the United States," whose appointments
are not otherwise provided for, but that Congress may vest the appointment of such inferior
officers, as it deems proper, in the President alone, in the courts, or in the heads of departments.
Hence (though the Commission's past acts are accorded de facto validity and a stay is granted
permitting it to function under the Act for not more than 30 days), the Commission, as presently
constituted, may not because of that Clause exercise such powers, which can be exercised only by
"Officers of the United States" appointed in conformity with the Appointments Clause, although it
may exercise such investigative and informative powers as are in the same category as those
powers that Congress might delegate to one of its own committees. Pp. 109-143.
No. 75-436, 171 U.S. App. D.C. 172, 519 F.2d 821, affirmed in part and reversed in part; No. 75-437,
401 F. Supp. 1235, affirmed.
Per curiam opinion, in the "case or controversy" part of which (post, pp. 11-12) all participating
Members joined; and as to all other Parts of which BRENNAN, STEWART, and POWELL, JJ., joined;
MARSHALL, J., joined in all but Part I-C-2; BLACKMUN, J., joined in all but Part I-B; REHNQUIST,

J., joined in all but Part III-B-1; BURGER, C. J., joined in Parts I-C and IV (except insofar as it accords
de facto validity for the Commission's past acts); and WHITE, J., joined in Part III. BURGER, C. J., post,
p. 235, WHITE, J., post, p. 257, MARSHALL, J., post, p. 286, BLACKMUN, J., post, p. 290, and
REHNQUIST, J., post, p. 290, filed opinions concurring in part and dissenting in part. STEVENS, J.,
took no part in the consideration or decision of the cases.
Ralph K. Winter, Jr., pro hac vice, Joel M. Gora, and [424 U.S. 1, 6] Brice M. Clagett argued the cause for
appellants. With them on the briefs was Melvin L. Wulf.
Deputy Solicitor General Friedman, Archibald Cox, Lloyd N. Cutler, and Ralph S. Spritzer argued the
cause for appellees. With Mr. Friedman on the brief for appellees Levi and the Federal Election
Commission were Attorney General Levi, pro se, Solicitor General Bork, and Louis F. Claiborne. With
Mr. Cutler on the brief for appellees Center for Public Financing of Elections et al. were Paul J. Mode,
Jr., William T. Lake, Kenneth J. Guido, Jr., and Fred Wertheimer. With Mr. Spritzer on the brief for
appellee Federal Election Commission was Paul Bender. Attorney General Levi, pro se, Solicitor General
Bork, and Deputy Solicitor General Randolph filed a brief for appellee Levi and for the United States as
amicus curiae.Fn
Fn [424 U.S. 1, 6] Thomas F. Monaghan filed a brief for James B. Longley as amicus curiae urging
reversal.
Mr. Cox filed a brief for Hugh Scott et al. as amici curiae urging affirmance.
Briefs of amici curiae were filed by Jerome B. Falk, Jr., Daniel H. Lowenstein, Howard F. Sachs, and
Guy L. Heinemann for the California Fair Political Practices Commission et al.; by Lee Metcalf, pro se,
and G. Roger King for Mr. Metcalf; by Vincent Hallinan for the Socialist Labor Party; by Marguerite M.
Buckley for the Los Angeles County Central Committee of the Peace and Freedom Party; and by the
Committee for Democratic Election Laws.
PER CURIAM.
These appeals present constitutional challenges to the key provisions of the Federal Election Campaign
Act of 1971 (Act), and related provisions of the Internal Revenue Code of 1954, all as amended in
1974.[1] [424 U.S. 1, 7]
The Court of Appeals, in sustaining the legislation in large part against various constitutional
challenges,[2] viewed it as "by far the most comprehensive reform legislation [ever] passed by Congress
concerning the election of the President, Vice-President, and members of Congress." 171 U.S. App. D.C.
172, 182, 519 F.2d 821, 831 (1975). The statutes at issue summarized in broad terms, contain the
following provisions: (a) individual political contributions are limited to $1,000 to any single candidate
per election, with an overall annual limitation of $25,000 by any contributor; independent expenditures
by individuals and groups "relative to a clearly identified candidate" are limited to $1,000 a year;
campaign spending by candidates for various federal offices and spending for national conventions by
political parties are subject to prescribed limits; (b) contributions and expenditures above certain
threshold levels must be reported and publicly disclosed; (c) a system for public funding of Presidential
campaign activities is established by Subtitle H of the Internal Revenue Code;[3] and (d) a Federal
Election Commission is established to administer and enforce the legislation.
This suit was originally filed by appellants in the United States District Court for the District of

Columbia. Plaintiffs included a candidate for the Presidency of the United States, a United States Senator
who is a candidate for re-election, a potential contributor, the [424 U.S. 1, 8] Committee for a
Constitutional Presidency - McCarthy '76, the Conservative Party of the State of New York, the
Mississippi Republican Party, the Libertarian Party, the New York Civil Liberties Union, Inc., the
American Conservative Union, the Conservative Victory Fund, and Human Events, Inc. The defendants
included the Secretary of the United States Senate and the Clerk of the United States House of
Representatives, both in their official capacities and as ex officio members of the Federal Election
Commission. The Commission itself was named as a defendant. Also named were the Attorney General
of the United States and the Comptroller General of the United States.
Jurisdiction was asserted under 28 U.S.C. 1331, 2201, and 2202, and 315 (a) of the Act, 2 U.S.C. 437h
(a) (1970 ed., Supp. IV).[4] The complaint sought both a [424 U.S. 1, 9] declaratory judgment that the
major provisions of the Act were unconstitutional and an injunction against enforcement of those
provisions. Appellants requested the convocation of a three-judge District Court as to all matters and also
requested certification of constitutional questions to the Court of Appeals, pursuant to the terms of 315
(a). The District Judge denied the application for a three-judge court and directed that the case be
transmitted to the Court of Appeals. That court entered an order stating that the case was "preliminarily
deemed" to be properly certified under 315 (a). Leave to intervene was granted to various groups and
individuals.[5] After considering matters regarding factfinding procedures, the Court of Appeals entered
an order en banc remanding the case to the District Court to (1) identify the constitutional issues in the
complaint; (2) take whatever evidence was found necessary in addition to the submissions suitably dealt
with by way of judicial notice; (3) make findings of fact with reference to those issues; and (4) certify the
constitutional questions arising from the foregoing steps to the Court of Appeals.[6] On remand, the
District [424 U.S. 1, 10] Judge entered a memorandum order adopting extensive findings of fact and
transmitting the augmented record back to the Court of Appeals.
On plenary review, a majority of the Court of Appeals rejected, for the most part, appellants'
constitutional attacks. The court found "a clear and compelling interest," 171 U.S. App. D.C., at 192, 519
F.2d, at 841, in preserving the integrity of the electoral process. On that basis, the court upheld, with one
exception,[7] the substantive provisions of the Act with respect to contributions, expenditures, and
disclosure. It also sustained the constitutionality of the newly established Federal Election Commission.
The court concluded that, notwithstanding the manner of selection of its members and the breadth of its
powers, which included nonlegislative functions, the Commission is a constitutionally authorized agency
created to perform primarily legislative functions.[8] [424 U.S. 1, 11] The provisions for public funding of
the three stages of the Presidential selection process were upheld as a valid exercise of congressional
power under the General Welfare Clause of the Constitution, Art. I, 8.
In this Court, appellants argue that the Court of Appeals failed to give this legislation the critical scrutiny
demanded under accepted First Amendment and equal protection principles. In appellants' view, limiting
the use of money for political purposes constitutes a restriction on communication violative of the First
Amendment, since virtually all meaningful political communications in the modern setting involve the
expenditure of money. Further, they argue that the reporting and disclosure provisions of the Act
unconstitutionally impinge on their right to freedom of association. Appellants also view the federal
subsidy provisions of Subtitle H as violative of the General Welfare Clause, and as inconsistent with the
First and Fifth Amendments. Finally, appellants renew their attack on the Commission's composition and
powers.

At the outset we must determine whether the case before us presents a "case or controversy" within the
meaning of Art. III of the Constitution. Congress may not, of course, require this Court to render
opinions in matters which are not "cases or controversies." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,
240 -241 (1937). We must therefore decide whether appellants have the "personal stake in the outcome
of the controversy" necessary to meet the requirements of Art. III. Baker v. Carr, 369 U.S. 186, 204
(1962). It is clear that Congress, in enacting [424 U.S. 1, 12] 2 U.S.C. 437h (1970 ed., Supp. IV),[9]
intended to provide judicial review to the extent permitted by Art. III. In our view, the complaint in this
case demonstrates that at least some of the appellants have a sufficient "personal stake"[10] in a
determination of the constitutional validity of each of the challenged provisions to present "a real and
substantial controversy admitting of specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna
Life Ins. Co. v. Haworth, supra, at 241.[11]
● I. CONTRIBUTION AND EXPENDITURE LIMITATIONS
The intricate statutory scheme adopted by Congress to regulate federal election campaigns includes
restrictions [424 U.S. 1, 13] on political contributions and expenditures that apply broadly to all phases of
and all participants in the election process. The major contribution and expenditure limitations in the Act
prohibit individuals from contributing more than $25,000 in a single year or more than $1,000 to any
single candidate for an election campaign[12] and from spending more than $1,000 a year "relative to a
clearly identified candidate." [13] Other provisions restrict a candidate's use of personal and family
resources in his campaign[14] and limit the overall amount that can be spent by a candidate in
campaigning for federal office.[15]
The constitutional power of Congress to regulate federal elections is well established and is not
questioned by any of the parties in this case. [16] Thus, the critical constitutional [424 U.S. 1, 14] questions
presented here go not to the basic power of Congress to legislate in this area, but to whether the specific
legislation that Congress has enacted interferes with First Amendment freedoms or invidiously
discriminates against nonincumbent candidates and minor parties in contravention of the Fifth
Amendment.
● A. General Principles
The Act's contribution and expenditure limitations operate in an area of the most fundamental First
Amendment activities. Discussion of public issues and debate on the qualifications of candidates are
integral to the operation of the system of government established by our Constitution. The First
Amendment affords the broadest protection to such political expression in order "to assure [the]
unfettered interchange of ideas for the bringing about of political and social changes desired by the
people." Roth v. United States, 354 U.S. 476, 484 (1957). Although First Amendment protections are not
confined to "the exposition of ideas," Winters v. New York, 333 U.S. 507, 510 (1948), "there is
practically universal agreement that a major purpose of that Amendment was to protect the free
discussion of governmental affairs, ... of course includ[ing] discussions of candidates . . . ." Mills v.
Alabama, 384 U.S. 214, 218 (1966). This no more than reflects our "profound national commitment to
the principle that debate on public issues should be uninhibited, robust, and wide-open," New York
Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). In a republic where the people are sovereign, the ability
of the citizenry to make informed choices among candidates [424 U.S. 1, 15] for office is essential, for the
identities of those who are elected will inevitably shape the course that we follow as a nation. As the

Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), "it can hardly be doubted that
the constitutional guarantee has its fullest and most urgent application precisely to the conduct of
campaigns for political office."
The First Amendment protects political association as well as political expression. The constitutional
right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460 (1958), stemmed from the
Court's recognition that "[e]ffective advocacy of both public and private points of view, particularly
controversial ones, is undeniably enhanced by group association." Subsequent decisions have made clear
that the First and Fourteenth Amendments guarantee "`freedom to associate with others for the common
advancement of political beliefs and ideas,'" a freedom that encompasses "`[t]he right to associate with
the political party of one's choice.'" Kusper v. Pontikes, 414 U.S. 51, 56 , 57 (1973), quoted in Cousins v.
Wigoda, 419 U.S. 477, 487 (1975).
It is with these principles in mind that we consider the primary contentions of the parties with respect to
the Act's limitations upon the giving and spending of money in political campaigns. Those conflicting
contentions could not more sharply define the basic issues before us. Appellees contend that what the Act
regulates is conduct, and that its effect on speech and association is incidental at most. Appellants
respond that contributions and expenditures are at the very core of political speech, and that the Act's
limitations thus constitute restraints on First Amendment liberty that are both gross and direct.
In upholding the constitutional validity of the Act's contribution and expenditure provisions on the
ground [424 U.S. 1, 16] that those provisions should be viewed as regulating conduct, not speech, the
Court of Appeals relied upon United States v. O'Brien, 391 U.S. 367 (1968). See 171 U.S. App. D.C., at
191, 519 F.2d, at 840. The O'Brien case involved a defendant's claim that the First Amendment
prohibited his prosecution for burning his draft card because his act was "`symbolic speech'" engaged in
as a "`demonstration against the war and against the draft.'" 391 U.S., at 376 . On the assumption that
"the alleged communicative element in O'Brien's conduct [was] sufficient to bring into play the First
Amendment," the Court sustained the conviction because it found "a sufficiently important governmental
interest in regulating the non-speech element" that was "unrelated to the suppression of free expression"
and that had an "incidental restriction on alleged First Amendment freedoms ... no greater than [was]
essential to the furtherance of that interest." Id., at 376-377. The Court expressly emphasized that O'Brien
was not a case "where the alleged governmental interest in regulating conduct arises in some measure
because the communication allegedly integral to the conduct is itself thought to be harmful." Id., at 382.
We cannot share the view that the present Act's contribution and expenditure limitations are comparable
to the restrictions on conduct upheld in O'Brien. The expenditure of money simply cannot be equated
with such conduct as destruction of a draft card. Some forms of communication made possible by the
giving and spending of money involve speech alone, some involve conduct primarily, and some involve
a combination of the two. Yet this Court has never suggested that the dependence of a communication on
the expenditure of money operates itself to introduce a non speech element or to reduce the exacting
scrutiny required by the First Amendment. See Bigelow v. Virginia, 421 U.S. 809 , [424 U.S. 1, 17] 820
(1975); New York Times Co. v. Sullivan, supra, at 266. For example, in Cox v. Louisiana, 379 U.S. 559
(1965), the Court contrasted picketing and parading with a newspaper comment and a telegram by a
citizen to a public official. The parading and picketing activities were said to constitute conduct
"intertwined with expression and association," whereas the newspaper comment and the telegram were
described as a "pure form of expression" involving "free speech alone" rather than "expression mixed

with particular conduct." Id., at 563-564.

Even if the categorization of the expenditure of money as conduct were accepted, the limitations
challenged here would not meet the O'Brien test because the governmental interests advanced in support
of the Act involve "suppressing communication." The interests served by the Act include restricting the
voices of people and interest groups who have money to spend and reducing the overall scope of federal
election campaigns. Although the Act does not focus on the ideas expressed by persons or groups subject
to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral
outcomes by placing a ceiling on expenditures for political expression by citizens and groups. Unlike
O'Brien, where the Selective Service System's administrative interest in the preservation of draft cards
was wholly unrelated to their use as a means of communication, it is beyond dispute that the interest in
regulating the alleged "conduct" of giving or spending money "arises in some measure because the
communication allegedly integral to the conduct is itself thought to be harmful." 391 U.S., at 382 .
Nor can the Act's contribution and expenditure limitations be sustained, as some of the parties suggest,
by reference to the constitutional principles reflected in such [424 U.S. 1, 18] decisions as Cox v.
Louisiana, supra; Adderley v. Florida, 385 U.S. 39 (1966); and Kovacs v. Cooper, 336 U.S. 77 (1949).
Those cases stand for the proposition that the government may adopt reasonable time, place, and manner
regulations, which do not discriminate among speakers or ideas, in order to further an important
governmental interest unrelated to the restriction of communication. See Erznoznik v. City of
Jacksonville, 422 U.S. 205, 209 (1975). In contrast to O'Brien, where the method of expression was held
to be subject to prohibition, Cox, Adderley, and Kovacs involved place or manner restrictions on
legitimate modes of expression - picketing, parading, demonstrating, and using a soundtruck. The critical
difference between this case and those time, place, and manner cases is that the present Act's contribution
and expenditure limitations impose direct quantity restrictions on political communication and
association by persons, groups, candidates, and political parties in addition to any reasonable time, place,
and manner regulations otherwise imposed.[17] [424 U.S. 1, 19]
A restriction on the amount of money a person or group can spend on political communication during a
campaign necessarily reduces the quantity of expression by restricting the number of issues discussed,
the depth of their exploration, and the size of the audience reached.[18] This is because virtually every
means of communicating ideas in today's mass society requires the expenditure of money. The
distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and
rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing
dependence on television, radio, and other mass media for news and information has made these
expensive modes of communication indispensable instruments of effective political speech.
The expenditure limitations contained in the Act represent substantial rather than merely theoretical
restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a
clearly identified candidate," 18 U.S.C. 608 (e) (1) (1970 ed., Supp. IV), would appear to exclude all
citizens and groups except candidates, political parties, and the institutional press[19] from any significant
use of the most [424 U.S. 1, 20] effective modes of communication.[20] Although the Act's limitations on
expenditures by campaign organizations and political parties provide substantially greater room for
discussion and debate, they would have required restrictions in the scope of a number of past
congressional and Presidential campaigns [21] and would operate to constrain campaigning by candidates
who raise sums in excess of the spending ceiling.

By contrast with a limitation upon expenditures for political expression, a limitation upon the amount
that any one person or group may contribute to a candidate or political committee entails only a marginal
restriction upon the contributor's ability to engage in free communication. [424 U.S. 1, 21] A contribution
serves as a general expression of support for the candidate and his views, but does not communicate the
underlying basis for the support. The quantity of communication by the contributor does not increase
perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated,
symbolic act of contributing. At most, the size of the contribution provides a very rough index of the
intensity of the contributor's support for the candidate.[22] A limitation on the amount of money a person
may give to a candidate or campaign organization thus involves little direct restraint on his political
communication, for it permits the symbolic expression of support evidenced by a contribution but does
not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions
may result in political expression if spent by a candidate or an association to present views to the voters,
the transformation of contributions into political debate involves speech by someone other than the
contributor.
Given the important role of contributions in financing political campaigns, contribution restrictions could
have a severe impact on political dialogue if the limitations prevented candidates and political
committees from amassing the resources necessary for effective advocacy. There is no indication,
however, that the contribution limitations imposed by the Act would have any dramatic adverse effect on
the funding of campaigns and political associations. [23] The overall effect of the Act's contribution [424
U.S. 1, 22] ceilings is merely to require candidates and political committees to raise funds from a greater
number of persons and to compel people who would otherwise contribute amounts greater than the
statutory limits to expend such funds on direct political expression, rather than to reduce the total amount
of money potentially available to promote political expression.
The Act's contribution and expenditure limitations also impinge on protected associational freedoms.
Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In
addition, it enables like-minded persons to pool their resources in furtherance of common political goals.
The Act's contribution ceilings thus limit one important means of associating with a candidate or
committee, but leave the contributor free to become a member of any political association and to assist
personally in the association's efforts on behalf of candidates. And the Act's contribution limitations
permit associations and candidates to aggregate large sums of money to promote effective advocacy. By
contrast, the Act's $1,000 limitation on independent expenditures "relative to a clearly identified
candidate" precludes most associations from effectively amplifying the voice of their adherents, the
original basis for the recognition of First Amendment protection of the freedom of association. See
NAACP v. Alabama, 357 U.S., at 460 . The Act's constraints on the ability of independent associations
and candidate campaign organizations to expend resources on political expression "is simultaneously an
interference with the freedom of [their] adherents," Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957)
(plurality opinion). See Cousins v. [424 U.S. 1, 23] Wigoda, 419 U.S., at 487 -488; NAACP v. Button, 371
U.S. 415, 431 (1963).
In sum, although the Act's contribution and expenditure limitations both implicate fundamental First
Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected
freedoms of political expression and association than do its limitations on financial contributions.
● B. Contribution Limitations

1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and Authorized
Campaign Committees
Section 608 (b) provides, with certain limited exceptions, that "no person shall make contributions to any
candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000." The
statute defines "person" broadly to include "an individual, partnership, committee, association,
corporation or any other organization or group of persons." 591 (g). The limitation reaches a gift,
subscription, loan, advance, deposit of anything of value, or promise to give a contribution, made for the
purpose of influencing a primary election, a Presidential preference primary, or a general election for any
federal office. [24] 591 (e) (1), (2). The [424 U.S. 1, 24] $1,000 ceiling applies regardless of whether the
contribution is given to the candidate, to a committee authorized in writing by the candidate to accept
contributions on his behalf, or indirectly via earmarked gifts passed through an intermediary to the
candidate. 608 (b) (4), (6).[25] The restriction applies to aggregate amounts contributed to the candidate
for each election -- with primaries, runoff elections, and general elections counted separately, and all
Presidential primaries held in any calendar year treated together as a single election campaign. 608 (b)
(5).
Appellants contend that the $1,000 contribution ceiling unjustifiably burdens First Amendment
freedoms, employs overbroad dollar limits, and discriminates against candidates opposing incumbent
officeholders and against minor-party candidates in violation of the Fifth Amendment. We address each
of these claims of invalidity in turn.
● (a)
As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by
the Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political
association. [424 U.S. 1, 25] The Court's decisions involving associational freedoms establish that the right
of association is a "basic constitutional freedom," Kusper v. Pontikes, 414 U.S., at 57 , that is "closely
allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society."
Shelton v. Tucker, 364 U.S. 479, 486 (1960). See, e. g., Bates v. Little Rock, 361 U.S. 516, 522 -523
(1960); NAACP v. Alabama, supra, at 460-461; NAACP v. Button, supra, at 452 (Harlan, J., dissenting).
In view of the fundamental nature of the right to associate, governmental "action which may have the
effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama,
supra, at 460-461. Yet, it is clear that "[n]either the right to associate nor the right to participate in
political activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567 (1973). Even a "`significant
interference' with protected rights of political association" may be sustained if the State demonstrates a
sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of
associational freedoms. Cousins v. Wigoda, supra, at 488; NAACP v. Button, supra, at 438; Shelton v.
Tucker, supra, at 488.
Appellees argue that the Act's restrictions on large campaign contributions are justified by three
governmental interests. According to the parties and amici, the primary interest served by the limitations
and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption
spawned by the real or imagined coercive influence of large financial contributions on candidates'
positions and on their actions if elected to office. Two "ancillary" interests underlying the Act are also
allegedly furthered by the $1,000 limits on contributions. First, the limits serve to mute the voices of
affluent persons and groups in the election [424 U.S. 1, 26] process and thereby to equalize the relative

ability of all citizens to affect the outcome of elections.[26] Second, it is argued, the ceilings may to some
extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the
political system more widely to candidates without access to sources of large amounts of money. [27]
It is unnecessary to look beyond the Act's primary purpose -- to limit the actuality and appearance of
corruption resulting from large individual financial contributions -- in order to find a constitutionally
sufficient justification for the $1,000 contribution limitation. Under a system of private financing of
elections, a candidate lacking immense personal or family wealth must depend on financial contributions
from others to provide the resources necessary to conduct a successful campaign. The increasing
importance of the communications media and sophisticated mass-mailing and polling operations to
effective campaigning make the raising of large sums of money an ever more essential ingredient of an
effective candidacy. To the extent that large contributions are given to secure a political quid pro quo
from current and potential office holders, the integrity of our system of [424 U.S. 1, 27] representative
democracy is undermined. Although the scope of such pernicious practices can never be reliably
ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the
problem is not an illusory one. [28]
Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the
appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a
regime of large individual financial contributions. In CSC v. Letter Carriers, supra, the Court found that
the danger to "fair and effective government" posed by partisan political conduct on the part of federal
employees charged with administering the law was a sufficiently important concern to justify broad
restrictions on the employees' right of partisan political association. Here, as there, Congress could
legitimately conclude that the avoidance of the appearance of improper influence "is also critical ... if
confidence in the system of representative Government is not to be eroded to a disastrous extent." 413
U.S., at 565 .[29]
Appellants contend that the contribution limitations must be invalidated because bribery laws and
narrowly drawn disclosure requirements constitute a less restrictive means of dealing with "proven and
suspected quid pro quo arrangements." But laws making criminal [424 U.S. 1, 28] the giving and taking of
bribes deal with only the most blatant and specific attempts of those with money to influence
governmental action. And while disclosure requirements serve the many salutary purposes discussed
elsewhere in this opinion,[30] Congress was surely entitled to conclude that disclosure was only a partial
measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality
or appearance of corruption inherent in a system permitting unlimited financial contributions, even when
the identities of the contributors and the amounts of their contributions are fully disclosed.
The Act's $1,000 contribution limitation focuses precisely on the problem of large campaign
contributions -- the narrow aspect of political association where the actuality and potential for corruption
have been identified -- while leaving persons free to engage in independent political expression, to
associate actively through volunteering their services, and to assist to a limited but nonetheless
substantial extent in supporting candidates and committees with financial resources.[31] Significantly, the
[424 U.S. 1, 29] Act's contribution limitations in themselves do not undermine to any material degree the
potential for robust and effective discussion of candidates and campaign issues by individual citizens,
associations, the institutional press, candidates, and political parties.
We find that, under the rigorous standard of review established by our prior decisions, the weighty

interests served by restricting the size of financial contributions to political candidates are sufficient to
justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling.
● (b)
Appellants' first overbreadth challenge to the contribution ceilings rests on the proposition that most
large contributors do not seek improper influence over a candidate's position or an officeholder's action.
Although the truth of that proposition may be assumed, it does not [424 U.S. 1, 30] undercut the validity of
the $1,000 contribution limitation. Not only is it difficult to isolate suspect contributions but, more
importantly, Congress was justified in concluding that the interest in safeguarding against the appearance
of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary
contributions be eliminated.
A second, related overbreadth claim is that the $1,000 restriction is unrealistically low because much
more than that amount would still not be enough to enable an unscrupulous contributor to exercise
improper influence over a candidate or officeholder, especially in campaigns for statewide or national
office. While the contribution limitation provisions might well have been structured to take account of
the graduated expenditure limitations for congressional and Presidential campaigns,[32] Congress' failure
to engage in such fine tuning does not invalidate the legislation. As the Court of Appeals observed, "[i]f
it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say,
a $2,000 ceiling might not serve as well as $1,000." 171 U.S. App. D.C., at 193, 519 F.2d, at 842. Such
distinctions in degree become significant only when they can be said to amount to differences in kind.
Compare Kusper v. Pontikes, 414 U.S. 51 (1973), with Rosario v. Rockefeller, 410 U.S. 752 (1973).
● (c)
Apart from these First Amendment concerns, appellants argue that the contribution limitations work such
an invidious discrimination between incumbents [424 U.S. 1, 31] and challengers that the statutory
provisions must be declared unconstitutional on their face.[33] In considering this contention, it is
important at the outset to note that the Act applies the same limitations on contributions to all candidates
regardless of their present occupations, ideological views, or party affiliations. Absent record evidence of
invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate
legislation which on its face imposes evenhanded restrictions. Cf. James v. Valtierra, 402 U.S. 137
(1971). [424 U.S. 1, 32]
There is no such evidence to support the claim that the contribution limitations in themselves
discriminate against major-party challengers to incumbents. Challengers can and often do defeat
incumbents in federal elections.[34] Major-party challengers in federal elections are usually men and
women who are well known and influential in their community or State. Often such challengers are
themselves incumbents in important local, state, or federal offices. Statistics in the record indicate that
major-party challengers as well as incumbents are capable of raising large sums for campaigning.[35]
Indeed, a small but nonetheless significant number of challengers have in recent elections outspent their
incumbent rivals.[36] And, to the extent that incumbents generally are more likely than challengers to
attract very large contributions, the Act's $1,000 ceiling has the practical effect of benefiting challengers
as a class.[37] Contrary to the broad generalization [424 U.S. 1, 33] drawn by the appellants, the practical
impact of the contribution ceilings in any given election will clearly depend upon the amounts in excess
of the ceilings that, for various reasons, the candidates in that election would otherwise have received and
the utility of these additional amounts to the candidates. To be sure, the limitations may have a

significant effect on particular challengers or incumbents, but the record provides no basis for predicting
that such adventitious factors will invariably and invidiously benefit incumbents as a class.[38] Since the
danger of corruption and the appearance of corruption apply with equal force to challengers and to
incumbents, Congress had ample justification for imposing the same fundraising constraints upon both.
The charge of discrimination against minor-party and independent candidates is more troubling, but the
record provides no basis for concluding that the Act invidiously disadvantages such candidates. As noted
above, the Act on its face treats all candidates equally with regard to contribution limitations. And the
restriction would appear to benefit minor-party and independent candidates relative to their major-party
opponents because major-party candidates receive far more money in large contributions.[39] Although
there is some [424 U.S. 1, 34] force to appellants' response that minor-party candidates are primarily
concerned with their ability to amass the resources necessary to reach the electorate rather than with their
funding position relative to their major-party opponents, the record is virtually devoid of support for the
claim that the $1,000 contribution limitation will have a serious effect on the initiation and scope of
minor-party and independent candidacies. [40] Moreover, any attempt [424 U.S. 1, 35] to exclude minor
parties and independents en masse from the Act's contribution limitations overlooks the fact that
minor-party candidates may win elective office or have a substantial impact on the outcome of an
election.[41]
In view of these considerations, we conclude that the impact of the Act's $1,000 contribution limitation
on major-party challengers and on minor-party candidates does not render the provision unconstitutional
on its face.
2. The $5,000 Limitation on Contributions by Political Committees
Section 608 (b) (2) permits certain committees, designated as "political committees," to contribute up to
$5,000 to any candidate with respect to any election for federal office. In order to qualify for the higher
contribution ceiling, a group must have been registered with the Commission as a political committee
under 2 U.S.C. 433 (1970 ed., Supp. IV) for not less than six months, have received contributions from
more than 50 persons, and, except for state political party organizations, have contributed to five or more
candidates for federal office. Appellants argue that these qualifications unconstitutionally discriminate
against ad hoc organizations in favor of established interest groups and impermissibly burden free
association. The argument is without merit. Rather than undermining freedom of association, the basic
provision enhances the opportunity of bona fide groups to participate in the election process, and the
registration, contribution, and candidate conditions serve the permissible purpose of preventing
individuals [424 U.S. 1, 36] from evading the applicable contribution limitations by labeling themselves
committees.
3. Limitations on Volunteers' Incidental Expenses
The Act excludes from the definition of contribution "the value of services provided without
compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or
political committee." 591 (e) (5) (A). Certain expenses incurred by persons in providing volunteer
services to a candidate are exempt from the $1,000 ceiling only to the extent that they do not exceed
$500. These expenses are expressly limited to (1) "the use of real or personal property and the cost of
invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering
voluntary personal services on the individual's residential premises for candidate-related activities." 591

(e) (5) (B); (2) "the sale of any food or beverage by a vendor for use in a candidate's campaign at a
charge [at least equal to cost but] less than the normal comparable charge," 591 (e) (5) (C); and (3) "any
unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his
personal services to a candidate," 591 (e) (5) (D).
If, as we have held, the basic contribution limitations are constitutionally valid, then surely these
provisions are a constitutionally acceptable accommodation of Congress' valid interest in encouraging
citizen participation in political campaigns while continuing to guard against the corrupting potential of
large financial contributions to candidates. The expenditure of resources at the candidate's direction for a
fundraising event at a volunteer's residence or the provision of in-kind assistance in the form of food or
beverages to be resold to raise funds or consumed by the participants in such an event provides material
financial assistance to a candidate. The ultimate [424 U.S. 1, 37] effect is the same as if the person had
contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for
the fundraising event or the food. Similarly, travel undertaken as a volunteer at the direction of the
candidate or his staff is an expense of the campaign and may properly be viewed as a contribution if the
volunteer absorbs the fare. Treating these expenses as contributions when made to the candidate's
campaign or at the direction of the candidate or his staff forecloses an avenue of abuse [42] without
limiting actions voluntarily undertaken by citizens independently of a candidate's campaign. [43] [424 U.S.
1, 38]
4. The $25,000 Limitation on Total Contributions During any Calendar Year

In addition to the $1,000 limitation on the nonexempt contributions that an individual may make to a
particular candidate for any single election, the Act contains an overall $25,000 limitation on total
contributions by an individual during any calendar year. 608 (b) (3). A contribution made in connection
with an election is considered, for purposes of this subsection, to be made in the year the election is held.
Although the constitutionality of this provision was drawn into question by appellants, it has not been
separately addressed at length by the parties. The overall $25,000 ceiling does impose an ultimate
restriction upon the number of candidates and committees with which an individual may associate
himself by means of financial support. But this quite modest restraint upon protected political activity
serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise
contribute massive amounts of money to a particular candidate through the use of unearmarked
contributions to political committees likely to contribute to that candidate, or huge contributions to the
candidate's political party. The limited, additional restriction on associational freedom imposed by the
overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we
have found to be constitutionally valid. [424 U.S. 1, 39]
● C. Expenditure Limitations
The Act's expenditure ceilings impose direct and substantial restraints on the quantity of political speech.
The most drastic of the limitations restricts individuals and groups, including political parties that fail to
place a candidate on the ballot,[44] to an expenditure of $1,000 "relative to a clearly identified candidate
during a calendar year." 608 (e) (1). Other expenditure ceilings limit spending by candidates, 608 (a),
their campaigns, 608 (c), and political parties in connection with election campaigns, 608 (f). It is clear
that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by
individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit
political expression "at the core of our electoral process and of the First Amendment freedoms."

Williams v. Rhodes, 393 U.S. 23, 32 (1968).
1. The $1,000 Limitation on Expenditures "Relative to a Clearly Identified Candidate"

Section 608 (e) (1) provides that "[n]o person may make any expenditure ... relative to a clearly
identified candidate during a calendar year which, when added to all other expenditures made by such
person during the year advocating the election or defeat of such candidate, exceeds $1,000." [45] The
plain effect of 608 (e) (1) is to [424 U.S. 1, 40] prohibit all individuals, who are neither candidates nor
owners of institutional press facilities, and all groups, except political parties and campaign
organizations, from voicing their views "relative to a clearly identified candidate" through means that
entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example,
would make it a federal criminal offense for a person or association to place a single one-quarter page
advertisement "relative to a clearly identified candidate" in a major metropolitan newspaper.[46 ]
Before examining the interests advanced in support of 608 (e) (1)'s expenditure ceiling, consideration
must be given to appellants' contention that the provision is unconstitutionally vague.[47] Close
examination of the [424 U.S. 1, 41] specificity of the statutory limitation is required where, as here, the
legislation imposes criminal penalties in an area permeated by First Amendment interests. See Smith v.
Goguen, 415 U.S. 566, 573 (1974); Cramp v. Board of Public Instruction, 368 U.S. 278, 287 -288
(1961); Smith v. California, 361 U.S. 147, 151 (1959).[48] The test is whether the language of 608 (e) (1)
affords the "[p]recision of regulation [that] must be the touchstone in an area so closely touching our
most precious freedoms." NAACP v. Button, 371 U.S., at 438 .
The key operative language of the provision limits "any expenditure . . . relative to a clearly identified
candidate." Although "expenditure," "clearly identified," and "candidate" are defined in the Act, there is
no definition clarifying what expenditures are "relative to" a candidate. The use of so indefinite a phrase
as "relative to" a candidate fails to clearly mark the boundary between permissible and impermissible
speech, unless other portions of 608 (e) (1) make sufficiently explicit the range of expenditures [424 U.S.
1, 42] covered by the limitation. The section prohibits "any expenditure ... relative to a clearly identified
candidate during a calendar year which, when added to all other expenditures ... advocating the election
or defeat of such candidate, exceeds $1,000." (Emphasis added.) This context clearly permits, if indeed it
does not require, the phrase "relative to" a candidate to be read to mean "advocating the election or defeat
of" a candidate. [49]
But while such a construction of 608 (e) (1) refocuses the vagueness question, the Court of Appeals was
mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness
altogether. 171 U.S. App. D.C., at 204, 519 F.2d, at 853. For the distinction between discussion of issues
and candidates and advocacy of election or defeat of candidates may often dissolve in practical
application. Candidates, especially incumbents, are intimately tied to public issues involving legislative
proposals and governmental actions. Not only do candidates campaign on the basis of their positions on
various public issues, but campaigns themselves generate issues of public interest.[50] In an analogous
[424 U.S. 1, 43] context, this Court in Thomas v. Collins, 323 U.S. 516 (1945), observed:
● "[W]hether words intended and designed to fall short of invitation would miss that mark is a
question both of intent and of effect. No speaker, in such circumstances, safely could assume that
anything he might say upon the general subject would not be understood by some as an invitation.
In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and

solicitation puts the speaker in these circumstances wholly at the mercy of the varied
understanding of his hearers and consequently of whatever inference may be drawn as to his intent
and meaning.
● "Such a distinction offers no security for free discussion. In these conditions it blankets with
uncertainty whatever may be said. It compels the speaker to hedge and trim." Id., at 535.
See also United States v. Auto. Workers, 352 U.S. 567, 595 -596 (1957) (Douglas, J., dissenting); Gitlow
v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting).
The constitutional deficiencies described in Thomas v. Collins can be avoided only by reading 608 (e)
(1) as limited to communications that include explicit words of advocacy of election or defeat of a
candidate, much as the definition of "clearly identified" in 608 (e) (2) requires that an explicit and
unambiguous reference to the candidate appear as part of the communication.[51] This [424 U.S. 1, 44] is
the reading of the provision suggested by the non-governmental appellees in arguing that "[f]unds spent
to propagate one's views on issues without expressly calling for a candidate's election or defeat are thus
not covered." We agree that in order to preserve the provision against invalidation on vagueness grounds,
608 (e) (1) must be construed to apply only to expenditures for communications that in express terms
advocate the election or defeat of a clearly identified candidate for federal office.[52]
We turn then to the basic First Amendment question -- whether 608 (e) (1), even as thus narrowly and
explicitly construed, impermissibly burdens the constitutional right of free expression. The Court of
Appeals summarily held the provision constitutionally valid on the ground that "section 608 (e) is a
loophole-closing provision only" that is necessary to prevent circumvention of the contribution
limitations. 171 U.S. App. D.C., at 204, 519 F.2d, at 853. We cannot agree.
The discussion in Part I-A, supra, explains why the Act's expenditure limitations impose far greater
restraints on the freedom of speech and association than do its contribution limitations. The markedly
greater burden on basic freedoms caused by 608 (e) (1) thus cannot be sustained simply by invoking the
interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the
constitutionality of 608 (e) (1) turns on whether the governmental interests advanced in its support satisfy
the exacting scrutiny applicable to limitations [424 U.S. 1, 45] on core First Amendment rights of political
expression.
We find that the governmental interest in preventing corruption and the appearance of corruption is
inadequate to justify 608 (e) (1)'s ceiling on independent expenditures. First, assuming, arguendo, that
large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements
as do large contributions, 608 (e) (1) does not provide an answer that sufficiently relates to the
elimination of those dangers. Unlike the contribution limitations' total ban on the giving of large amounts
of money to candidates, 608 (e) (1) prevents only some large expenditures. So long as persons and
groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified
candidate, they are free to spend as much as they want to promote the candidate and his views. The
exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus
undermines the limitation's effectiveness as a loophole-closing provision by facilitating circumvention by
those seeking to exert improper influence upon a candidate or office-holder. It would naively
underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to
believe that they would have much difficulty devising expenditures that skirted the restriction on express
advocacy of election or defeat but nevertheless benefited the candidate's campaign. Yet no substantial

societal interest would be served by a loophole-closing provision designed to check corruption that
permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain
improper influence over candidates for elective office. Cf. Mills v. Alabama, 384 U.S., at 220 .
Second, quite apart from the shortcomings of 608 (e) [424 U.S. 1, 46] (1) in preventing any abuses
generated by large independent expenditures, the independent advocacy restricted by the provision does
not presently appear to pose dangers of real or apparent corruption comparable to those identified with
large campaign contributions. The parties defending 608 (e) (1) contend that it is necessary to prevent
would-be contributors from avoiding the contribution limitations by the simple expedient of paying
directly for media advertisements or for other portions of the candidate's campaign activities. They argue
that expenditures controlled by or coordinated with the candidate and his campaign might well have
virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet
such controlled or coordinated expenditures are treated as contributions rather than expenditures under
the Act. [53] Section 608 (b)'s [424 U.S. 1, 47] contribution ceilings rather than 608 (e) (1)'s independent
expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated
expenditures amounting to disguised contributions. By contrast, 608 (e) (1) limits expenditures for
express advocacy of candidates made totally independently of the candidate and his campaign. Unlike
contributions, such independent expenditures may well provide little assistance to the candidate's
campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of
an expenditure with the candidate or his agent not only undermines the value of the expenditure to the
candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper
commitments from the candidate. Rather than preventing circumvention of the contribution limitations,
608 (e) (1) severely restricts all independent advocacy despite its substantially diminished potential for
abuse.
While the independent expenditure ceiling thus fails to serve any substantial governmental interest in
stemming [424 U.S. 1, 48] the reality or appearance of corruption in the electoral process, it heavily
burdens core First Amendment expression. For the First Amendment right to "`speak one's mind ... on all
public institutions'" includes the right to engage in "`vigorous advocacy' no less than àbstract
discussion.'" New York Times Co. v. Sullivan, 376 U.S., at 269 , quoting Bridges v. California, 314 U.S.
252, 270 (1941), and NAACP v. Button, 371 U.S., at 429. Advocacy of the election or defeat of
candidates for federal office is no less entitled to protection under the First Amendment than the
discussion of political policy generally or advocacy of the passage or defeat of legislation.[54]
It is argued, however, that the ancillary governmental interest in equalizing the relative ability of
individuals and groups to influence the outcome of elections serves to justify the limitation on express
advocacy of the election or defeat of candidates imposed by 608 (e) (1)'s expenditure ceiling. But the
concept that government may restrict the speech of some elements of our society in [424 U.S. 1, 49] order
to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed "to
secure `the widest possible dissemination of information from diverse and antagonistic sources,'" and "`to
assure unfettered interchange of ideas for the bringing about of political and social changes desired by
the people.'" New York Times Co. v. Sullivan, supra, at 266, 269, quoting Associated Press v. United
States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S., at 484 . The First Amendment's
protection against governmental abridgment of free expression cannot properly be made to depend on a
person's financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U.S.
127, 139 (1961).[55] [424 U.S. 1, 50]

The Court's decisions in Mills v. Alabama, 384 U.S. 214 (1966), and Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241 (1974), held that legislative restrictions on advocacy of the election or defeat of
political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court
addressed the question whether "a State, consistently with the United States Constitution, can make it a
crime for the editor of a daily newspaper to write and publish an editorial on election day urging people
to vote a certain way on issues submitted to them." 384 U.S., at 215 (emphasis in original). We held that
"no test of reasonableness can save [such] a state law from invalidation as a violation of the First
Amendment." Id., at 220. Yet the prohibition of election-day editorials invalidated in Mills is clearly a
lesser intrusion on constitutional freedom than a $1,000 limitation on the amount of money any person or
association can spend during an entire election year in advocating the election or defeat of a candidate for
public office. More recently in Tornillo, the Court held that Florida could not constitutionally require a
newspaper [424 U.S. 1, 51] to make space available for a political candidate to reply to its criticism. Yet
under the Florida statute, every newspaper was free to criticize any candidate as much as it pleased so
long as it undertook the modest burden of printing his reply. See 418 U.S., at 256-257. The legislative
restraint involved in Tornillo thus also pales in comparison to the limitations imposed by 608 (e) (1). [56]
For the reasons stated, we conclude that 608 (e) (1)'s independent expenditure limitation is
unconstitutional under the First Amendment.
2. Limitation on Expenditures by Candidates from Personal or Family Resources
The Act also sets limits on expenditures by a candidate "from his personal funds, or the personal funds of
his immediate family, in connection with his campaigns during any calendar year." 608 (a) (1). These
ceilings vary from $50,000 for Presidential or Vice Presidential candidates to $35,000 for senatorial
candidates, and $25,000 for most candidates for the House of Representatives.[57] [424 U.S. 1, 52]
The ceiling on personal expenditures by candidates on their own behalf, like the limitations on
independent expenditures contained in 608 (e) (1), imposes a substantial restraint on the ability of
persons to engage in protected First Amendment expression.[58] The candidate, no less than any other
person, has a First Amendment right to engage in the discussion of public issues and vigorously and
tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular
importance that candidates have the unfettered [424 U.S. 1, 53] opportunity to make their views known so
that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital
public issues before choosing among them on election day. Mr. Justice Brandeis' observation that in our
country "public discussion is a political duty," Whitney v. California, 274 U.S. 357, 375 (1927)
(concurring opinion), applies with special force to candidates for public office. Section 608 (a)'s ceiling
on personal expenditures by a candidate in furtherance of his own candidacy thus clearly and directly
interferes with constitutionally protected freedoms.
The primary governmental interest served by the Act -- the prevention of actual and apparent corruption
of the political process -- does not support the limitation on the candidate's expenditure of his own
personal funds. As the Court of Appeals concluded: "Manifestly, the core problem of avoiding
undisclosed and undue influence on candidates from outside interests has lesser application when the
monies involved come from the candidate himself or from his immediate family." 171 U.S. App. D.C., at
206, 519 F.2d, at 855. Indeed, the use of personal funds reduces the candidate's dependence on outside
contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the

Act's contribution limitations are directed. [59] [424 U.S. 1, 54]

The ancillary interest in equalizing the relative financial resources of candidates competing for elective
office, therefore, provides the sole relevant rationale for 608 (a)'s expenditure ceiling. That interest is
clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights.
First, the limitation may fail to promote financial equality among candidates. A candidate who spends
less of his personal resources on his campaign may nonetheless outspend his rival as a result of more
successful fundraising efforts. Indeed, a candidate's personal wealth may impede his efforts to persuade
others that he needs their financial contributions or volunteer efforts to conduct an effective campaign.
Second, and more fundamentally, the First Amendment simply cannot tolerate 608 (a)'s restriction upon
the freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We
therefore hold that 608 (a)'s restriction on a candidate's personal expenditures is unconstitutional.
3. Limitations on Campaign Expenditures
Section 608 (c) places limitations on overall campaign expenditures by candidates seeking nomination
for election and election to federal office. [60] Presidential candidates may spend $10,000,000 in seeking
nomination for office and an additional $20,000,000 in the general election campaign. 608 (c) (1) (A),
(B).[61 ] [424 U.S. 1, 55] The ceiling on senatorial campaigns is pegged to the size of the voting-age
population of the State with minimum dollar amounts applicable to campaigns in States with small
populations. In senatorial primary elections, the limit is the greater of eight cents multiplied by the
voting-age population or $100,000, and in the general election the limit is increased to 12 cents
multiplied by the voting-age population or $150,000. 608 (c) (1) (C), (D). The Act imposes blanket
$70,000 limitations on both primary campaigns and general election campaigns for the House of
Representatives with the exception that the senatorial ceiling applies to campaigns in States entitled to
only one Representative. 608 (c) (1) (C)-(E). These ceilings are to be adjusted upwards at the beginning
of each calendar year by the average percentage rise in the consumer price index for the 12 preceding
months. 608 (d). [62]
No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of
political expression imposed by 608 (c)'s campaign expenditure limitations. The major evil associated
with rapidly increasing campaign expenditures is the danger of candidate dependence on large
contributions. The interest in alleviating the corrupting influence of large contributions is served by the
Act's contribution limitations and disclosure provisions rather than by 608 (c)'s campaign expenditure
ceilings. The Court of Appeals' assertion that the expenditure restrictions are necessary to reduce the
incentive to circumvent direct contribution limits is not persuasive. See 171 U.S. [424 U.S. 1, 56] App.
D.C., at 210, 519 F.2d, at 859. There is no indication that the substantial criminal penalties for violating
the contribution ceilings combined with the political repercussion of such violations will be insufficient
to police the contribution provisions. Extensive reporting, auditing, and disclosure requirements
applicable to both contributions and expenditures by political campaigns are designed to facilitate the
detection of illegal contributions. Moreover, as the Court of Appeals noted, the Act permits an
officeholder or successful candidate to retain contributions in excess of the expenditure ceiling and to use
these funds for "any other lawful purpose." 2 U.S.C. 439a (1970 ed., Supp. IV). This provision undercuts
whatever marginal role the expenditure limitations might otherwise play in enforcing the contribution
ceilings.
The interest in equalizing the financial resources of candidates competing for federal office is no more

convincing a justification for restricting the scope of federal election campaigns. Given the limitation on
the size of outside contributions, the financial resources available to a candidate's campaign, like the
number of volunteers recruited, will normally vary with the size and intensity of the candidate's
support.[63] There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to
carry the candidate's message to the electorate. [64] Moreover, the equalization of permissible campaign
expenditures [424 U.S. 1, 57] might serve not to equalize the opportunities of all candidates, but to
handicap a candidate who lacked substantial name recognition or exposure of his views before the start
of the campaign.
The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in
reducing the allegedly skyrocketing costs of political campaigns. Appellees and the Court of Appeals
stressed statistics indicating that spending for federal election campaigns increased almost 300% between
1952 and 1972 in comparison with a 57.6% rise in the consumer price index during the same period.
Appellants respond that during these years the rise in campaign spending lagged behind the percentage
increase in total expenditures for commercial advertising and the size of the gross national product. In
any event, the mere growth in the cost of federal election campaigns in and of itself provides no basis for
governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope
of federal campaigns. The First Amendment denies government the power to determine that spending to
promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our
Constitution it is not the government, but the people -- individually as citizens and candidates and
collectively as associations and political committees -- who must retain control over the quantity and
range of debate on public issues in a political campaign. [65] [424 U.S. 1, 58]
For these reasons we hold that 608 (c) is constitutionally invalid.[66]
In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate,
608 (b) (1), a $5,000 limitation on contributions by a political committee to a single candidate, 608 (b)
(2), and a $25,000 limitation on total contributions by an individual during any calendar year, 608 (b) (3),
are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act's
primary weapons against the reality or appearance of improper influence stemming from the dependence
of candidates on large campaign contributions. The contribution ceilings thus serve the basic
governmental interest in safeguarding the integrity of the electoral process without directly impinging
upon the rights of individual citizens and candidates to engage in political debate and discussion. By
contrast, the First Amendment requires the invalidation of the Act's independent expenditure ceiling, 608
(e) (1), its limitation on a candidate's expenditures from his own personal funds, 608 (a), and its ceilings
on overall campaign expenditures, 608 (c). These provisions place substantial and direct restrictions [424
U.S. 1, 59] on the ability of candidates, citizens, and associations to engage in protected political
expression, restrictions that the First Amendment cannot tolerate.[67] [424 U.S. 1, 60]
● II. REPORTING AND DISCLOSURE REQUIREMENTS
Unlike the limitations on contributions and expenditures imposed by 18 U.S.C. 608 (1970 ed., Supp. IV),
the disclosure requirements of the Act, 2 U.S.C. 431 et seq. (1970 ed., Supp. IV),[68] are not challenged
by appellants as per se unconstitutional restrictions on the exercise of First Amendment freedoms of
speech and association. [69] Indeed, appellants argue that "narrowly drawn disclosure requirements are
the proper solution to virtually all of the evils Congress sought to remedy." Brief for Appellants 171. The
particular requirements [424 U.S. 1, 61] embodied in the Act are attacked as overbroad -- both in their

application to minor-party and independent candidates and in their extension to contributions as small as
$11 or $101. Appellants also challenge the provision for disclosure by those who make independent
contributions and expenditures, 434 (e). The Court of Appeals found no constitutional infirmities in the
provisions challenged here.[70] We affirm the determination on overbreadth and hold that 434 (e), if
narrowly construed, also is within constitutional bounds.
The first federal disclosure law was enacted in 1910. Act of June 25, 1910, c. 392, 36 Stat. 822. It
required political committees, defined as national committees and national congressional campaign
committees of parties, and organizations operating to influence congressional elections in two or more
States, to disclose names of all contributors of $100 or more; identification of recipients of expenditures
of $10 or more was also required. 1, 5-6, 36 Stat. 822 824. Annual expenditures of $50 or more "for the
purpose of influencing or controlling, in two or more States, the result of" a congressional election had to
be reported independently if they were not made through a political committee. 7, 36 Stat. 824. In 1911
the Act was revised to include prenomination transactions such as those involved in conventions and
primary campaigns. Act of Aug. 19, 1911, 2, 37 Stat. 26. See United States v. Auto. Workers, 352 U.S.,
at 575-576.
Disclosure requirements were broadened in the Federal Corrupt Practices Act of 1925 (Title III of the
Act of Feb. 28, 1925), 43 Stat. 1070. That Act required political committees, defined as organizations
that accept contributions or make expenditures "for the purpose of [424 U.S. 1, 62] influencing or
attempting to influence" the Presidential or Vice Presidential elections (a) in two or more States or (b) as
a subsidiary of a national committee, 302 (c), 43 Stat. 1070, to report total contributions and
expenditures, including the names and addresses of contributors of $100 or more and recipients of $10 or
more in a calendar year. 305 (a), 43 Stat. 1071. The Act was upheld against a challenge that it infringed
upon the prerogatives of the States in Burroughs v. United States, 290 U.S. 534 (1934). The Court held
that it was within the power of Congress "to pass appropriate legislation to safeguard [a Presidential]
election from the improper use of money to influence the result." Id., at 545. Although the disclosure
requirements were widely circumvented, [71] no further attempts were made to tighten them until 1960,
when the Senate passed a bill that would have closed some existing loopholes. S. 2436, 106 Cong. Rec.
1193. The attempt aborted because no similar effort was made in the House.
The Act presently under review replaced all prior disclosure laws. Its primary disclosure provisions
impose reporting obligations on "political committees" and candidates. "Political committee" is defined
in 431 (d) as a group of persons that receives "contributions" or makes "expenditures" of over $1,000 in a
calendar year. "Contributions" and "expenditures" are defined in lengthy parallel provisions similar to
those in Title 18, discussed [424 U.S. 1, 63] above.[72] Both definitions focus on the use of money or other
objects of value "for the purpose of ... influencing" the nomination or election of any person to federal
office. 431 (e) (1), (f) (1).
Each political committee is required to register with the Commission, 433, and to keep detailed records
of both contributions and expenditures, 432 (c), (d). These records must include the name and address of
everyone making a contribution in excess of $10, along with the date and amount of the contribution. If a
person's contributions aggregate more than $100, his occupation and principal place of business are also
to be included. 432 (c) (2). These files are subject to periodic audits and field investigations by the
Commission. 438 (a) (8).
Each committee and each candidate also is required to file quarterly reports. 434 (a). The reports are to

contain detailed financial information, including the full name, mailing address, occupation, and
principal place of business of each person who has contributed over $100 in a calendar year, as well as
the amount and date of the contributions. 434 (b). They are to be made available by the Commission "for
public inspection and copying." 438 (a) (4). Every candidate for federal office is required to designate a
"principal campaign committee," which is to receive reports of contributions and expenditures made on
the candidate's behalf from other political committees and to compile and file these reports, together with
its own statements, with the Commission. 432 (f).
Every individual or group, other than a political committee or candidate, who makes "contributions" or
"expenditures" of over $100 in a calendar year "other than [424 U.S. 1, 64] by contribution to a political
committee or candidate" is required to file a statement with the Commission. 434 (e). Any violation of
these recordkeeping and reporting provisions is punishable by a fine of not more than $1,000 or a prison
term of not more than a year, or both. 441 (a).
● A. General Principles
Unlike the overall limitations on contributions and expenditures, the disclosure requirements impose no
ceiling on campaign-related activities. But we have repeatedly found that compelled disclosure, in itself,
can seriously infringe on privacy of association and belief guaranteed by the First Amendment. E. g.,
Gibson v. Florida Legislative Comm., 372 U.S. 539 (1963); NAACP v. Button, 371 U.S. 415 (1963);
Shelton v. Tucker, 364 U.S. 479 (1960); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama,
357 U.S. 449 (1958).
We long have recognized that significant encroachments on First Amendment rights of the sort that
compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental
interest. Since NAACP v. Alabama we have required that the subordinating interests of the State must
survive exacting scrutiny.[73] We also have insisted that there be a "relevant correlation"[74] or
"substantial relation"[75] between the governmental interest and the information required to be disclosed.
See Pollard v. Roberts, 283 F. Supp. 248, 257 (ED Ark.) (three-judge court), aff'd, 393 U.S. 14 (1968)
[424 U.S. 1, 65] (per curiam). This type of scrutiny is necessary even if any deterrent effect on the exercise
of First Amendment rights arises, not through direct government action, but indirectly as an unintended
but inevitable result of the government's conduct in requiring disclosure. NAACP v. Alabama, supra, at
461. Cf. Kusper v. Pontikes, 414 U.S., at 57-58.
Appellees argue that the disclosure requirements of the Act differ significantly from those at issue in
NAACP v. Alabama and its progeny because the Act only requires disclosure of the names of
contributors and does not compel political organizations to submit the names of their members. [76]
As we have seen, group association is protected because it enhances "[e]ffective advocacy." NAACP v.
Alabama, supra, at 460. The right to join together "for the advancement of beliefs and ideas," ibid., is
diluted if it does not include the right to pool money through contributions, for funds are often essential if
"advocacy" is [424 U.S. 1, 66] to be truly or optimally "effective." Moreover, the invasion of privacy of
belief may be as great when the information sought concerns the giving and spending of money as when
it concerns the joining of organizations, for "[f]inancial transactions can reveal much about a person's
activities, associations, and beliefs." California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79 (1974)
(POWELL, J., concurring). Our past decisions have not drawn fine lines between contributors and
members but have treated them interchangeably. In Bates, for example, we applied the principles of

NAACP v. Alabama and reversed convictions for failure to comply with a city ordinance that required
the disclosure of "dues, assessments, and contributions paid, by whom and when paid." 361 U.S., at 518 .
See also United States v. Rumely, 345 U.S. 41 (1953) (setting aside a contempt conviction of an
organization official who refused to disclose names of those who made bulk purchases of books sold by
the organization).
The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the
potential for substantially infringing the exercise of First Amendment rights. But we have acknowledged
that there are governmental interests sufficiently important to outweigh the possibility of infringement,
particularly when the "free functioning of our national institutions" is involved. Communist Party v.
Subversive Activities Control Bd., 367 U.S. 1, 97 (1961).
The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude.
They fall into three categories. First, disclosure provides the electorate with information "as to where
political campaign money comes from and how it is spent by the candidate" [77] in order to aid the voters
in evaluating those [424 U.S. 1, 67] who seek federal office. It allows voters to place each candidate in the
political spectrum more precisely than is often possible solely on the basis of party labels and campaign
speeches. The sources of a candidate's financial support also alert the voter to the interests to which a
candidate is most likely to be responsive and thus facilitate predictions of future performance in office.
Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by
exposing large contributions and expenditures to the light of publicity.[78] This exposure may discourage
those who would use money for improper purposes either before or after the election. A public armed
with information about a candidate's most generous supporters is better able to detect any post-election
special favors that may be given in return.[79] And, as we recognized in Burroughs v. United States, 290
U.S., at 548, Congress could reasonably conclude that full disclosure during an election campaign tends
"to prevent the corrupt use of money to affect elections." In enacting these requirements it may have been
mindful of Mr. Justice Brandeis' advice:
"Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is
said to be the best of disinfectants; electric light the most efficient policeman."[80]
Third, and not least significant, recordkeeping, reporting, [424 U.S. 1, 68] and disclosure requirements are
an essential means of gathering the data necessary to detect violations of the contribution limitations
described above.
The disclosure requirements, as a general matter, directly serve substantial governmental interests. In
determining whether these interests are sufficient to justify the requirements we must look to the extent
of the burden that they place on individual rights.
It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter
some individuals who otherwise might contribute. In some instances, disclosure may even expose
contributors to harassment or retaliation. These are not insignificant burdens on individual rights, and
they must be weighed carefully against the interests which Congress has sought to promote by this
legislation. In this process, we note and agree with appellants' concession[81] that disclosure requirements
-- certainly in most applications -- appear to be the least restrictive means of curbing the evils of
campaign ignorance and corruption that Congress found to exist.[82] Appellants argue, however, that the

balance tips against disclosure when it is required of contributors to certain parties and candidates. We
turn now to this contention.
B. Application to Minor Parties and Independents
Appellants contend that the Act's requirements are overbroad insofar as they apply to contributions to
minor [424 U.S. 1, 69] parties and independent candidates because the governmental interest in this
information is minimal and the danger of significant infringement on First Amendment rights is greatly
increased.
1. Requisite Factual Showing
In NAACP v. Alabama the organization had "made an uncontroverted showing that on past occasions
revelation of the identity of its rank-and-file members [had] exposed these members to economic
reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility,"
357 U.S., at 462 , and the State was unable to show that the disclosure it sought had a "substantial
bearing" on the issues it sought to clarify, id., at 464. Under those circumstances, the Court held that
"whatever interest the State may have in [disclosure] has not been shown to be sufficient to overcome
petitioner's constitutional objections." Id., at 465.
The Court of Appeals rejected appellants' suggestion that this case fits into the NAACP v. Alabama
mold. It concluded that substantial governmental interests in "informing the electorate and preventing the
corruption of the political process" were furthered by requiring disclosure of minor parties and
independent candidates, 171 U.S. App. D.C., at 218, 519 F.2d, at 867, and therefore found no "tenable
rationale for assuming that the public interest in minority party disclosure of contributions above a
reasonable cutoff point is uniformly outweighed by potential contributors' associational rights," id., at
219, 519 F.2d, at 868. The court left open the question of the application of the disclosure requirements
to candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v. Alabama. No
record of harassment on a similar scale was found in this case. [83] We agree with [424 U.S. 1, 70] the
Court of Appeals' conclusion that NAACP v. Alabama is inapposite where, as here, any serious
infringement on First Amendment rights brought about by the compelled disclosure of contributors is
highly speculative.
It is true that the governmental interest in disclosure is diminished when the contribution in question is
made to a minor party with little chance of winning an election. As minor parties usually represent
definite and publicized viewpoints, there may be less need to inform the voters of the interests that
specific candidates represent. Major parties encompass candidates of greater diversity. In many situations
the label "Republican" or "Democrat" tells a voter little. The candidate who bears it may be supported by
funds from the far right, the far left, or any place in between on the political spectrum. It is less likely that
a candidate of, say, the Socialist Labor Party will represent interests that cannot be discerned from the
party's ideological position.
The Government's interest in deterring the "buying" of elections and the undue influence of large
contributors on officeholders also may be reduced where contributions to a minor party or an
independent candidate are concerned, for it is less likely that the candidate will be victorious. But a
minor party sometimes can play a significant role in an election. Even when a minor-party candidate has
little or no chance of winning, he may be encouraged by major-party interests in order to divert votes
from other major-party contenders.[84] [424 U.S. 1, 71]

We are not unmindful that the damage done by disclosure to the associational interests of the minor
parties and their members and to supporters of independents could be significant. These movements are
less likely to have a sound financial base and thus are more vulnerable to falloffs in contributions. In
some instances fears of reprisal may deter contributions to the point where the movement cannot survive.
The public interest also suffers if that result comes to pass, for there is a consequent reduction in the free
circulation of ideas both within[85] and without [86] the political arena.
There could well be a case, similar to those before the Court in NAACP v. Alabama and Bates, where the
threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure
so insubstantial that the Act's requirements cannot be constitutionally applied. [87] But no appellant in
this case has tendered record evidence of the sort proffered in NAACP v. Alabama. Instead, appellants
primarily rely on "the clearly articulated fears of individuals, well experienced in the political process."
Brief for Appellants 173. At [424 U.S. 1, 72] best they offer the testimony of several minor-party officials
that one or two persons refused to make contributions because of the possibility of disclosure. [88] On this
record, the substantial public interest in disclosure identified by the legislative history of this Act
outweighs the harm generally alleged.
2. Blanket Exemption
Appellants agree that "the record here does not reflect the kind of focused and insistent harassment of
contributors and members that existed in the NAACP cases." Ibid. They argue, however, that a blanket
exemption for minor parties is necessary lest irreparable injury be done before the required evidence can
be gathered.
Those parties that would be sufficiently "minor" to be exempted from the requirements of 434 could be
defined, appellants suggest, along the lines used for public-financing purposes, see Part III-A, infra, as
those who received less than 25% of the vote in past elections. Appellants do not argue that this line is
constitutionally required. They suggest as an alternative defining "minor parties" as those that do not
qualify for automatic ballot access under state law. Presumably, other criteria, such as current political
strength (measured by polls or petition), age, or degree of organization, could also be used.[89]
The difficulty with these suggestions is that they reflect only a party's past or present political strength
and [424 U.S. 1, 73] that is only one of the factors that must be considered. Some of the criteria are not
precisely indicative of even that factor. Age,[90] or past political success, for instance, may typically be
associated with parties that have a high probability of success. But not all long-established parties are
winners -- some are consistent losers -- and a new party may garner a great deal of support if it can
associate itself with an issue that has captured the public's imagination. None of the criteria suggested is
precisely related to the other critical factor that must be considered, the possibility that disclosure will
impinge upon protected associational activity.
An opinion dissenting in part from the Court of Appeals' decision concedes that no one line is
"constitutionally required." [91] It argues, however, that a flat exemption for minor parties must be carved
out, even along arbitrary lines, if groups that would suffer impermissibly from disclosure are to be given
any real protection. An approach that requires minor parties to submit evidence that the disclosure
requirements cannot constitutionally be applied to them offers only an illusory safeguard, the argument
goes, because the "evils" of "chill and harassment ... are largely incapable of formal proof." [92] This
dissent expressed its concern that a minor party, particularly a [424 U.S. 1, 74] new party, may never be

able to prove a substantial threat of harassment, however real that threat may be, because it would be
required to come forward with witnesses who are too fearful to contribute but not too fearful to testify
about their fear. A strict requirement that chill and harassment be directly attributable to the specific
disclosure from which the exemption is sought would make the task even more difficult.
We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not
follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient
flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need
show only a reasonable probability that the compelled disclosure of a party's contributors' names will
subject them to threats, harassment, or reprisals from either Government officials or private parties. The
proof may include, for example, specific evidence of past or present harassment of members due to their
associational ties, or of harassment directed against the organization itself. A pattern of threats or specific
manifestations of public hostility may be sufficient. New parties that have no history upon which to draw
may be able to offer evidence of reprisals and threats directed against individuals or organizations
holding similar views.
Where it exists the type of chill and harassment identified in NAACP v. Alabama can be shown. We
cannot assume that courts will be insensitive to similar showings when made in future cases. We
therefore conclude that a blanket exemption is not required.
● C. Section 434 (e)
Section 434 (e) requires "[e]very person (other than a political committee or candidate) who makes
contributions [424 U.S. 1, 75] or expenditures" aggregating over $100 in a calendar year "other than by
contribution to a political committee or candidate" to file a statement with the Commission.[93] Unlike
the other disclosure provisions, this section does not seek the contribution list of any association. Instead,
it requires direct disclosure of what an individual or group contributes or spends.
In considering this provision we must apply the same strict standard of scrutiny, for the right of
associational privacy developed in NAACP v. Alabama derives from the rights of the organization's
members to advocate their personal points of view in the most effective way. 357 U.S., at 458, 460. See
also NAACP v. Button, 371 U.S., at 429-431; Sweezy v. New Hampshire, 354 U.S., at 250.
Appellants attack 434 (e) as a direct intrusion on privacy of belief, in violation of Talley v. California,
362 U.S. 60 (1960), and as imposing "very real, practical burdens ... certain to deter individuals from
making expenditures for their independent political speech" analogous to those held to be impermissible
in Thomas v. Collins, 323 U.S. 516 (1945).
1. The Role of 434 (e)

The Court of Appeals upheld 434 (e) as necessary to enforce the independent-expenditure ceiling
imposed by 18 U.S.C. 608 (e) (1) (1970 ed., Supp. IV). It said:
● "If ... Congress has both the authority and a compelling interest to regulate independent
expenditures under section 608 (e), surely it can require that there be disclosure to prevent misuse
of the spending channel." 171 U.S. App. D.C., at 220 519 F.2d, at 869.
We have found that 608 (e) (1) unconstitutionally infringes [424 U.S. 1, 76] upon First Amendment rights.
[94] If the sole function of 434 (e) were to aid in the enforcement of that provision, it would no longer

serve any governmental purpose.

But the two provisions are not so intimately tied. The legislative history on the function of 434 (e) is
bare, but it was clearly intended to stand independently of 608 (e) (1). It was enacted with the general
disclosure provisions in 1971 as part of the original Act,[95 ] while 608 (e) (1) was part of the 1974
amendments. [96] Like the other disclosure provisions, 434 (e) could play a role in the enforcement of the
expanded contribution and expenditure limitations included in the 1974 amendments, but it also has
independent functions. Section 434 (e) is part of Congress' effort to achieve "total disclosure" by
reaching "every kind of political activity"[97] in order to insure that the voters are fully informed and to
achieve through publicity the maximum deterrence to corruption and undue influence possible. The
provision is responsive to the legitimate fear that efforts would be made, as they had been in the past,[98]
to avoid the disclosure requirements by routing financial support of candidates through avenues not
explicitly covered by the general provisions of the Act.
2. Vagueness Problems
In its effort to be all-inclusive, however, the provision raises serious problems of vagueness, particularly
treacherous where, as here, the violation of its terms carries criminal penalties[99] and fear of incurring
these sanctions [424 U.S. 1, 77] may deter those who seek to exercise protected First Amendment rights.
Section 434 (e) applies to "[e]very person ... who makes contributions or expenditures." "Contributions"
and "expenditures" are defined in parallel provisions in terms of the use of money or other valuable
assets "for the purpose of ... influencing" the nomination or election of candidates for federal office.[100]
It is the ambiguity of this phrase that poses constitutional problems.
Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence
that his contemplated conduct is illegal, for "no man shall be held criminally responsible for conduct
which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617
(1954). See also Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). Where First Amendment
rights are involved, an even "greater degree of specificity" is required. Smith v. Goguen, 415 U.S., at
573. See Grayned v. City of Rockford, 408 U.S. 104, 109 (1972); Kunz v. New York, 340 U.S. 290
(1951).
There is no legislative history to guide us in determining the scope of the critical phrase "for the purpose
of ... influencing." It appears to have been adopted without comment from earlier disclosure Acts. [101]
Congress "has voiced its wishes in [most] muted strains," leaving us to draw upon "those common-sense
assumptions that must be made in determining direction without a compass." Rosado v. Wyman, 397
U.S. 397, 412 (1970). Where the constitutional requirement of definiteness is at stake, we have the
further obligation to construe the statute, [424 U.S. 1, 78] if that can be done consistent with the
legislature's purpose, to avoid the shoals of vagueness. United States v. Harriss, supra, at 618; United
States v. Rumely, 345 U.S., at 45.
In enacting the legislation under review Congress addressed broadly the problem of political campaign
financing. It wished to promote full disclosure of campaign-oriented spending to insure both the reality
and the appearance of the purity and openness of the federal election process. [102] Our task is to construe
"for the purpose of ... influencing," incorporated in 434 (e) through the definitions of "contributions" and
"expenditures," in a manner that precisely furthers this goal.

In Part I we discussed what constituted a "contribution" for purposes of the contribution limitations set
forth in 18 U.S.C. 608 (b) (1970 ed., Supp. IV).[103] We construed that term to include not only
contributions made directly or indirectly to a candidate, political party, or campaign committee, and
contributions made to other organizations or individuals but earmarked for political purposes, but also all
expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized
committee of the candidate. The definition of "contribution" in 431 (e) for disclosure purposes parallels
the definition in Title 18 almost word for word, and we construe the former provision as we have the
latter. So defined, "contributions" have a sufficiently close relationship to the goals of the Act, for they
are connected with a candidate or his campaign.
When we attempt to define "expenditure" in a similarly narrow way we encounter line-drawing problems
[424 U.S. 1, 79] of the sort we faced in 18 U.S.C. 608 (e) (1) (1970 ed., Supp. IV). Although the phrase,
"for the purpose of ... influencing" an election or nomination, differs from the language used in 608 (e)
(1), it shares the same potential for encompassing both issue discussion and advocacy of a political
result.[104] The general requirement that "political committees" and candidates disclose their
expenditures could raise similar vagueness problems, for "political committee" is defined only in terms
of amount of annual "contributions" and "expenditures," [105] and could be interpreted to reach groups
engaged purely in issue discussion. The lower courts have construed the words "political committee"
more narrowly.[106 ] To fulfill the purposes of the Act they need only encompass organizations that are
under the control of a candidate or the major purpose of which is the nomination or election of a
candidate. Expenditures of candidates and of "political committees" so construed can be assumed to fall
within the core area sought to be addressed by Congress. They are, by definition, campaign related.
But when the maker of the expenditure is not within these categories -- when it is an individual other
than a candidate or a group other than a "political committee"[107] [424 U.S. 1, 80] -- the relation of the
information sought to the purposes of the Act may be too remote. To insure that the reach of 434 (e) is
not impermissibly broad, we construe "expenditure" for purposes of that section in the same way we
construed the terms of 608 (e) -- to reach only funds used for communications that expressly
advocate[108] the election or defeat of a clearly identified candidate. This reading is directed precisely to
that spending that is unambiguously related to the campaign of a particular federal candidate.
In summary, 434 (e), as construed, imposes independent reporting requirements on individuals and
groups that are not candidates or political committees only in the following circumstances: (1) when they
make contributions earmarked for political purposes or authorized or requested by a candidate or his
agent, to some person other than a candidate or political committee, and (2) when they make
expenditures for communications that expressly advocate the election or defeat of a clearly identified
candidate.
Unlike 18 U.S.C. 608 (e) (1) (1970 ed., Supp. IV), 434 (e), as construed, bears a sufficient relationship to
a substantial governmental interest. As narrowed, 434 (e), like 608 (e) (1), does not reach all partisan
discussion for it only requires disclosure of those expenditures that expressly advocate a particular
election result. This might have been fatal if the only purpose of 434 (e) [424 U.S. 1, 81] were to stem
corruption or its appearance by closing a loophole in the general disclosure requirements. But the
disclosure provisions, including 434 (e), serve another, informational interest, and even as construed 434
(e) increases the fund of information concerning those who support the candidates. It goes beyond the
general disclosure requirements to shed the light of publicity on spending that is unambiguously

campaign related but would not otherwise be reported because it takes the form of independent
expenditures or of contributions to an individual or group not itself required to report the names of its
contributors. By the same token, it is not fatal that 434 (e) encompasses purely independent expenditures
uncoordinated with a particular candidate or his agent. The corruption potential of these expenditures
may be significantly different, but the informational interest can be as strong as it is in coordinated
spending, for disclosure helps voters to define more of the candidates' constituencies.
Section 434 (e), as we have construed it, does not contain the infirmities of the provisions before the
Court in Talley v. California, 362 U.S. 60 (1960), and Thomas v. Collins, 323 U.S. 516 (1945). The
ordinance found wanting in Talley forbade all distribution of handbills that did not contain the name of
the printer, author, or manufacturer, and the name of the distributor. The city urged that the ordinance
was aimed at identifying those responsible for fraud, false advertising, and libel, but the Court found that
it was "in no manner so limited." 362 U.S., at 64 . Here, as we have seen, the disclosure requirement is
narrowly limited to those situations where the information sought has a substantial connection with the
governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form
of a registration requirement for labor organizers. [424 U.S. 1, 82] The Court found the State's interest
insufficient to justify the restrictive effect of the statute. The burden imposed by 434 (e) is no prior
restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by
opening the basic processes of our federal election system to public view.[109]
● D. Thresholds
Appellants' third contention, based on alleged overbreadth, is that the monetary thresholds in the
recordkeeping and reporting provisions lack a substantial nexus with the claimed governmental interests,
for the amounts involved are too low even to attract the attention of the candidate, much less have a
corrupting influence.
The provisions contain two thresholds. Records are to be kept by political committees of the names and
addresses of those who make contributions in excess of $10, 432 (c) (2), and these records are subject to
Commission audit, 438 (a) (8). If a person's contributions to a committee or candidate aggregate more
than $100, his name and address, as well as his occupation and principal place of business, are to be
included in reports filed by committees and candidates with the Commission, 434 (b) (2), and made
available for public inspection, 438 (a) (4).
The Court of Appeals rejected appellants' contention that these thresholds are unconstitutional. It found
the challenge on First Amendment grounds to the $10 threshold to be premature, for it could "discern no
basis in the statute for authorizing disclosure outside the Commission [424 U.S. 1, 83] ..., and hence no
substantial ìnhibitory effect' operating upon" appellants. 171 U.S. App. D.C., at 216, 519 F.2d, at 865.
The $100 threshold was found to be within the "reasonable latitude" given the legislature "as to where to
draw the line." Ibid. We agree.
The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be
especially sensitive to recording or disclosure of their political preferences. These strict requirements
may well discourage participation by some citizens in the political process, a result that Congress hardly
could have intended. Indeed, there is little in the legislative history to indicate that Congress focused
carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to
have adopted the thresholds existing in similar disclosure laws since 1910. [110] But we cannot require
Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a

judgmental decision, best left in the context of this complex legislation to congressional discretion. We
cannot say, on this bare record, that the limits designated are wholly without rationality.[111]
We are mindful that disclosure serves informational functions, as well as the prevention of corruption
and the enforcement of the contribution limitations. Congress is not required to set a threshold that is
tailored only to the latter goals. In addition, the enforcement [424 U.S. 1, 84] goal can never be well served
if the threshold is so high that disclosure becomes equivalent to admitting violation of the contribution
limitations.
The $10 recordkeeping threshold, in a somewhat similar fashion, facilitates the enforcement of the
disclosure provisions by making it relatively difficult to aggregate secret contributions in amounts that
surpass the $100 limit. We agree with the Court of Appeals that there is no warrant for assuming that
public disclosure of contributions between $10 and $100 is authorized by the Act. Accordingly, we do
not reach the question whether information concerning gifts of this size can be made available to the
public without trespassing impermissibly on First Amendment rights. Cf. California Bankers Assn. v.
Shultz, 416 U.S., at 56-57.[112]
In summary, we find no constitutional infirmities in the recordkeeping, reporting, and disclosure

provisions of the Act.[113] [424 U.S. 1, 85]
● III. PUBLIC FINANCING OF PRESIDENTIAL ELECTION CAMPAIGNS
A series of statutes[114] for the public financing of Presidential election campaigns produced the scheme
now found in 6096 and Subtitle H of the Internal Revenue [424 U.S. 1, 86] Code of 1954, 26 U.S.C. 6096,
9001-9012, 9031-9042 (1970 ed., Supp. IV).[115] Both the District Court, 401 F. Supp. 1235, and the
Court of Appeals, 171 U.S. App. D.C., at 229-238, 519 F.2d, at 878-887, sustained Subtitle H against a
constitutional attack.[116] Appellants renew their challenge here, contending that the legislation violates
the First and Fifth Amendments. We find no merit in their claims and affirm.
● A. Summary of Subtitle H
Section 9006 establishes a Presidential Election Campaign Fund (Fund), financed from general revenues
in the aggregate amount designated by individual taxpayers, under 6096, who on their income tax returns
may authorize payment to the Fund of one dollar of their tax liability in the case of an individual return
or two dollars in the case of a joint return. The Fund consists of three separate accounts to finance (1)
party nominating conventions, 9008 (a), (2) general election campaigns, 9006 (a), and (3) primary
campaigns, 9037 (a). [117] [424 U.S. 1, 87]
Chapter 95 of Title 26, which concerns financing of party nominating conventions and general election
campaigns, distinguishes among "major," "minor," and "new" parties. A major party is defined as a party
whose candidate for President in the most recent election received 25% or more of the popular vote. 9002
(6). A minor party is defined as a party whose candidate received at least 5% but less than 25% of the
vote at the most recent election. 9002 (7). All other parties are new parties, 9002 (8), including both
newly created parties and those receiving less than 5% of the vote in the last election.[118 ]
Major parties are entitled to $2,000,000 to defray their national committee Presidential nominating
convention expenses, must limit total expenditures to that amount, 9008 (d),[119] and may not use any of
this money to benefit a particular candidate or delegate, 9008 (c). [424 U.S. 1, 88] A minor party receives a
portion of the major-party entitlement determined by the ratio of the votes received by the party's

candidate in the last election to the average of the votes received by the major parties' candidates. 9008
(b) (2). The amounts given to the parties and the expenditure limit are adjusted for inflation, using 1974
as the base year. 9008 (b) (5). No financing is provided for new parties, nor is there any express
provision for financing independent candidates or parties not holding a convention.
For expenses in the general election campaign, 9004 (a) (1) entitles each major-party candidate to
$20,000,000.[120] This amount is also adjusted for inflation. See 9004 (a) (1). To be eligible for funds the
candidate[121] must pledge not to incur expenses in excess of the entitlement under 9004 (a) (1) and not
to accept private contributions except to the extent that the fund is insufficient to provide the full
entitlement. 9003 (b) Minor-party candidates are also entitled to funding, again based on the ratio of the
vote received by the party's candidate in the preceding election to the average of the major-party
candidates. 9004 (a) (2) (A). Minor-party candidates must certify that they will not incur campaign
expenses in excess of the major-party entitlement and [424 U.S. 1, 89] that they will accept private
contributions only to the extent needed to make up the difference between that amount and the public
funding grant. 9003 (c). New-party candidates receive no money prior to the general election, but any
candidate receiving 5% or more of the popular vote in the election is entitled to post-election payments
according to the formula applicable to minor-party candidates. 9004 (a) (3). Similarly, minor-party
candidates are entitled to post-election funds if they receive a greater percentage of the average
major-party vote than their party's candidate did in the preceding election; the amount of such payments
is the difference between the entitlement based on the preceding election and that based on the actual
vote in the current election. 9004 (a) (3). A further eligibility requirement for minor- and new-party
candidates is that the candidate's name must appear on the ballot, or electors pledged to the candidate
must be on the ballot, in at least 10 States. 9002 (2) (B).
Chapter 96 establishes a third account in the Fund, the Presidential Primary Matching Payment Account.
9037 (a). This funding is intended to aid campaigns by candidates seeking Presidential nomination "by a
political party," 9033 (b) (2), in "primary elections," 9032 (7). [122] The threshold eligibility requirement
is that the candidate raise at least $5,000 in each of 20 States, counting only the first $250 from each
person contributing to the candidate. 9033 (b) (3), (4). In addition, the candidate must agree to abide by
the spending limits in 9035. See 9033 (b) (1).[123] Funding is [424 U.S. 1, 90] provided according to a
matching formula: each qualified candidate is entitled to a sum equal to the total private contributions
received, disregarding contributions from any person to the extent that total contributions to the
candidate by that person exceed $250. 9034 (a). Payments to any candidate under Chapter 96 may not
exceed 50% of the overall expenditure ceiling accepted by the candidate. 9034 (b).
● B. Constitutionality of Subtitle H
Appellants argue that Subtitle H is invalid (1) as "contrary to the `general welfare,'" Art. I, 8, (2) because
any scheme of public financing of election campaigns is inconsistent with the First Amendment, and (3)
because Subtitle H invidiously discriminates against certain interests in violation of the Due Process
Clause of the Fifth Amendment. We find no merit in these contentions.
Appellants'"general welfare" contention erroneously treats the General Welfare Clause as a limitation
upon congressional power. It is rather a grant of power, the scope of which is quite expansive,
particularly in view of the enlargement of power by the Necessary and Proper Clause. M`Culloch v.
Maryland, 4 Wheat. 316, 420 (1819). Congress has power to regulate Presidential elections and
primaries, United States v. Classic, 313 U.S. 299 (1941); Burroughs v. United States, 290 U.S. 534

(1934); and public financing of Presidential elections as a means to reform the electoral process was
clearly a choice within the granted power. It is for Congress to decide which expenditures will promote
the general welfare: "[T]he power of Congress to authorize expenditure of public moneys for public
purposes is not [424 U.S. 1, 91] limited by the direct grants of legislative power found in the Constitution."
United States v. Butler, 297 U.S. 1, 66 (1936). See Helvering v. Davis, 301 U.S. 619, 640-641 (1937).
Any limitations upon the exercise of that granted power must be found elsewhere in the Constitution. In
this case, Congress was legislating for the "general welfare" -- to reduce the deleterious influence of large
contributions on our political process, to facilitate communication by candidates with the electorate, and
to free candidates from the rigors of fundraising. See S. Rep. No. 93-689, Pp. 1-10 (1974). Whether the
chosen means appear "bad," "unwise," or "unworkable" to us is irrelevant; Congress has concluded that
the means are "necessary and proper" to promote the general welfare, and we thus decline to find this
legislation without the grant of power in Art. I, 8.
Appellants' challenge to the dollar check-off provision ( 6096) fails for the same reason. They maintain
that Congress is required to permit taxpayers to designate particular candidates or parties as recipients of
their money. But the appropriation to the Fund in 9006 is like any other appropriation from the general
revenue except that its amount is determined by reference to the aggregate of the one-and two-dollar
authorization on taxpayers' income tax returns. This detail does not constitute the appropriation any less
an appropriation by Congress.[124] The fallacy of appellants' argument is therefore apparent; [424 U.S. 1,
92] every appropriation made by Congress uses public money in a manner to which some taxpayers
object.[125]
Appellants next argue that "by analogy" to the Religion Clauses of the First Amendment public financing
of election campaigns, however meritorious, violates the First Amendment. We have, of course, held that
the Religion Clauses -- "Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof" -- require Congress, and the States through the Fourteenth
Amendment, to remain neutral in matters of religion. E. g., Abington School Dist. v. Schempp, 374 U.S.
203, 222-226 (1963). The government may not aid one religion to the detriment of others or impose a
burden on one religion that is not imposed on others, and may not even aid all religions. E. g., Everson v.
Board of Education, 330 U.S. 1, 15-16 (1947). See Kurland, Of Church and State and the Supreme Court,
29 U. Chi. L. Rev. 1, 96 (1961). But the analogy is patently inapplicable to our issue here. Although
"Congress shall make no law ... abridging the freedom of speech, or the press," Subtitle H is a
congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate
and enlarge public [424 U.S. 1, 93] discussion and participation in the electoral process, goals vital to a
self-governing people. [126] Thus, Subtitle H furthers, not abridges, pertinent First Amendment
values.[127] Appellants argue, however, that as constructed public financing invidiously discriminates in
violation of the Fifth Amendment. We turn therefore to that argument.
Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth
Amendment. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2 (1975), and cases cited. In several
situations concerning the electoral process, the principle has been [424 U.S. 1, 94] developed that
restrictions on access to the electoral process must survive exacting scrutiny. The restriction can be
sustained only if it furthers a "vital" governmental interest, American Party of Texas v. White, 415 U.S.
767, 780-781 (1974), that is "achieved by a means that does not unfairly or unnecessarily burden either a
minority party's or an individual candidate's equally important interest in the continued availability of

political opportunity." Lubin v. Panish, 415 U.S. 709, 716 (1974). See American Party of Texas v. White,
supra, at 780; Storer v. Brown, 415 U.S. 724, 729-730 (1974). These cases, however, dealt primarily with
state laws requiring a candidate to satisfy certain requirements in order to have his name appear on the
ballot. These were, of course, direct burdens not only on the candidate's ability to run for office but also
on the voter's ability to voice preferences regarding representative government and contemporary issues.
In contrast, the denial of public financing to some Presidential candidates is not restrictive of voters'
rights and less restrictive of candidates'. [128] Subtitle H does not prevent any candidate from getting on
the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of
minor-party candidates to wage effective campaigns will derive not from lack of public funding but from
their inability to [424 U.S. 1, 95] raise private contributions. Any disadvantage suffered by operation of the
eligibility formulae under Subtitle H is thus limited to the claimed denial of the enhancement of
opportunity to communicate with the electorate that the formulae afford eligible candidates. But eligible
candidates suffer a countervailing denial. As we more fully develop later, acceptance of public financing
entails voluntary acceptance of an expenditure ceiling. Non-eligible candidates are not subject to that
limitation.[129] Accordingly, we conclude that public financing is generally less restrictive of access to
the electoral process than the ballot-access regulations dealt with in prior cases.[130] In any event,
Congress enacted Subtitle H in furtherance of sufficiently important governmental interests and has [424
U.S. 1, 96] not unfairly or unnecessarily burdened the political opportunity of any party or candidate.
It cannot be gainsaid that public financing as a means of eliminating the improper influence of large
private contributions furthers a significant governmental interest. S. Rep. No. 93-689, pp. 4-5 (1974). In
addition, the limits on contributions necessarily increase the burden of fundraising, and Congress
properly regarded public financing as an appropriate means of relieving major-party Presidential
candidates from the rigors of soliciting private contributions. See id., at 5. The States have also been held
to have important interests in limiting places on the ballot to those candidates who demonstrate
substantial popular support. E. g., Storer v. Brown, supra, at 736; Lubin v. Panish, supra, at 718-719;
Jenness v. Fortson, 403 U.S. 431, 442 (1971); Williams v. Rhodes, 393 U.S., at 31-33. Congress' interest
in not funding hopeless candidacies with large sums of public money, S. Rep. No. 93-689, supra, at 7,
necessarily justifies the withholding of public assistance from candidates without significant public
support. Thus, Congress may legitimately require "some preliminary showing of a significant modicum
of support," Jenness v. Fortson, supra, at 442, as an eligibility requirement for public funds. This
requirement also serves the important public interest against providing artificial incentives to "splintered
parties and unrestrained factionalism." Storer v. Brown, supra, at 736; S. Rep. No. 93-689, supra, at 8; H.
R. Rep. No. 93-1239, p. 13 (1974). Cf. Bullock v. Carter, 405 U.S. 134, 145 (1972).
At the same time Congress recognized the constitutional restraints against inhibition of the present
opportunity of minor parties to become major political entities if they obtain widespread support. S. Rep.
No. 93-689, supra, at 8-10; H. R. Rep. No. 93-1239, supra, at 13. As [424 U.S. 1, 97] the Court of Appeals
said, "provisions for public funding of Presidential campaigns ... could operate to give an unfair
advantage to established parties, thus reducing, to the nation's detriment... . the `potential fluidity of
American political life.'" 171 U.S. App. D.C., at 231, 519 F.2d, at 880, quoting from Jenness v. Fortson,
supra, at 439.
1. General Election Campaign Financing
Appellants insist that Chapter 95 falls short of the constitutional requirement in that its provisions supply

larger, and equal, sums to candidates of major parties, use prior vote levels as the sole criterion for
pre-election funding, limit new-party candidates to post-election funds, and deny any funds to candidates
of parties receiving less than 5% of the vote. These provisions, it is argued, are fatal to the validity of the
scheme, because they work invidious discrimination against minor and new parties in violation of the
Fifth Amendment. We disagree.[131]
As conceded by appellants, the Constitution does not require Congress to treat all declared candidates the
same for public financing purposes. As we said in Jenness v. Fortson, "there are obvious differences in
kind between the needs and potentials of a political party with historically established broad support, on
the one hand, and a new or small political organization on the other... . Sometimes the grossest
discrimination can lie in treating [424 U.S. 1, 98] things that are different as though they were exactly
alike, a truism well illustrated in Williams v. Rhodes, supra." 403 U.S., at 441-442. Since the Presidential
elections of 1856 and 1860, when the Whigs were replaced as a major party by the Republicans, no third
party has posed a credible threat to the two major parties in Presidential elections. [132] Third parties have
been completely incapable of matching the major parties' ability to raise money and win elections.
Congress was, of course, aware of this fact of American life, and thus was justified in providing both
major parties full funding and all other parties only a percentage of the major-party entitlement. [133]
Identical treatment of all parties, on the other hand, "would not only make it easy to raid the United
States Treasury, it would also artificially foster the proliferation of splinter parties." 171 U.S. App. D.C.,
at 231, 519 F.2d, at 881. The Constitution does not require the Government to "finance the efforts of
every nascent political group," American Party of Texas v. White, 415 U.S., at 794, merely because
Congress chose to finance the efforts of the major parties.
Furthermore, appellants have made no showing that [424 U.S. 1, 99] the election funding plan
disadvantages nonmajor parties by operating to reduce their strength below that attained without any
public financing. First, such parties are free to raise money from private sources,[134] and by our holding
today new parties are freed from any expenditure limits, although admittedly those limits may be a
largely academic matter to them. But since any major-party candidate accepting public financing of a
campaign voluntarily assents to a spending ceiling, other candidates will be able to spend more in
relation to the major-party candidates. The relative position of minor parties that do qualify to receive
some public funds because they received 5% of the vote in the previous Presidential election is also
enhanced. Public funding for candidates of major parties is intended as a substitute for private
contributions; but for minor-party candidates[135] such assistance may be viewed as a supplement to
private contributions since these candidates may continue to solicit private funds up to the applicable
spending limit. Thus, we conclude that the general election funding system does not work an invidious
discrimination against candidates of nonmajor parties.
Appellants challenge reliance on the vote in past elections as the basis for determining eligibility. That
challenge is foreclosed, however, by our holding in Jenness v. Fortson, 403 U.S., at 439-440, that popular
vote totals in the last election are a proper measure of public support. [424 U.S. 1, 100] And Congress was
not obliged to select instead from among appellants' suggested alternatives. Congress could properly
regard the means chosen as preferable, since the alternative of petition drives presents cost and
administrative problems in validating signatures, and the alternative of opinion polls might be thought
inappropriate since it would involve a Government agency in the business of certifying polls or
conducting its own investigation of support for various candidates, in addition to serious problems with
reliability.[136]

Appellants next argue, relying on the ballot-access decisions of this Court, that the absence of any
alternative means of obtaining pre-election funding renders the scheme unjustifiably restrictive of
minority political interests. Appellants' reliance on the ballot-access decisions is misplaced. To be sure,
the regulation sustained in Jenness v. Fortson, for example, incorporated alternative means of qualifying
for the ballot, 403 U.S., at 440 , and the lack of an alternative was a defect in the scheme struck down in
Lubin v. Panish, 415 U.S., at 718. To [424 U.S. 1, 101] suggest, however, that the constitutionality of
Subtitle H therefore hinges solely on whether some alternative is afforded overlooks the rationale of the
operative constitutional principles. Our decisions finding a need for an alternative means turn on the
nature and extent of the burden imposed in the absence of available alternatives. We have earlier stated
our view that Chapter 95 is far less burdensome upon and restrictive of constitutional rights than the
regulations involved in the ballot-access cases. See supra, at 94-95. Moreover, expenditure limits for
major parties and candidates may well improve the chances of nonmajor parties and their candidates to
receive funds and increase their spending. Any risk of harm to minority interests is speculative due to our
present lack of knowledge of the practical effects of public financing and cannot overcome the force of
the governmental interests against use of public money to foster frivolous candidacies, create a system of
splintered parties, and encourage unrestrained factionalism.
Appellants' reliance on the alternative-means analyses of the ballot-access cases generally fails to
recognize a significant distinction from the instant case. The primary goal of all candidates is to carry on
a successful campaign by communicating to the voters persuasive reasons for electing them. In some of
the ballot-access cases the States afforded candidates alternative means for qualifying for the ballot, a
step in any campaign that, with rare exceptions, is essential to successful effort. Chapter 95 concededly
provides only one method of obtaining pre-election financing; such funding is, however, not as necessary
as being on the ballot. See n. 128, supra. Plainly, campaigns can be successfully carried out by means
other than public financing; they have been up to this date, and this avenue is still open to all candidates.
And, after all, the important achievements of minority [424 U.S. 1, 102] political groups in furthering the
development of American democracy[137] were accomplished without the help of public funds. Thus, the
limited participation or nonparticipation of nonmajor parties or candidates in public funding does not
unconstitutionally disadvantage them.
Of course, nonmajor parties and their candidates may qualify for post-election participation in public
funding and in that sense the claimed discrimination is not total. Appellants contend, however, that the
benefit of any such participation is illusory due to 9004 (c), which bars the use of the money for any
purpose other than paying campaign expenses or repaying loans that had been used to defray such
expenses. The only meaningful use for post-election funds is thus to repay loans; but loans, except from
national banks, are "contributions" subject to the general limitations on contributions, 18 U.S.C. 591 (e)
(1970 ed., Supp. IV). Further, they argue, loans are not readily available to nonmajor parties or
candidates before elections to finance their campaigns. Availability of post-election funds therefore
assertedly gives them nothing. But in the nature of things the willingness of lenders to make loans will
depend upon the pre-election probability that the candidate and his party will attract 5% or more of the
voters. When a reasonable prospect of such support appears, the party and candidate may be an
acceptable loan risk since the prospect of post-election participation in public funding will be good.[138]
[424 U.S. 1, 103]
Finally, appellants challenge the validity of the 5% threshold requirement for general election funding.
They argue that, since most state regulations governing ballot access have threshold requirements well

below 5%, and because in their view the 5% requirement here is actually stricter than that upheld in
Jenness v. Fortson, 403 U.S. 431 (1971),[139] the requirement is unreasonable. We have already
concluded that the restriction under Chapter 95 is generally less burdensome than ballot-access
regulations. Supra, at 94-95. Further, the Georgia provision sustained in Jenness required the candidate to
obtain the signatures of 5% of all eligible voters, without regard to party. To be sure, the public funding
formula does not permit anyone who voted for another party in the last election to be part of a candidate's
5%. But under Chapter 95 a Presidential candidate needs only 5% or more of the actual vote, not the
larger universe of eligible voters. As a result, we cannot say that Chapter 95 is numerically more, or less,
restrictive than the regulation in Jenness. In any event, the choice of the percentage requirement that best
accommodates the competing interests involved was for Congress to make. See Louisville Gas Co. v.
Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting); n. 111, supra. Without any doubt a range of
formulations would sufficiently protect the public fisc and not foster factionalism, and would also
recognize the public interest in the fluidity of our political [424 U.S. 1, 104] affairs. We cannot say that
Congress' choice falls without the permissible range.[140]
2. Nominating Convention Financing
The foregoing analysis and reasoning sustaining general election funding apply in large part to
convention funding under Chapter 95 and suffice to support our rejection of appellants' challenge to these
provisions. Funding of party conventions has increasingly been derived from large private contributions,
see H. R. Rep. No. 93-1239, p. 14 (1974), and the governmental interest in eliminating this reliance is as
vital as in the case of private contributions to individual candidates. The expenditure limitations on major
parties participating in public financing enhance the ability of nonmajor parties to increase their spending
relative to the major parties; further, in soliciting private contributions to finance conventions, parties are
not subject to the $1,000 contribution limit pertaining to candidates. [141] We therefore conclude that
appellants' constitutional challenge to the [424 U.S. 1, 105] provisions for funding nominating conventions
must also be rejected.
3. Primary Election Campaign Financing
Appellants' final challenge is to the constitutionality of Chapter 96, which provides funding of primary
campaigns. They contend that these provisions are constitutionally invalid (1) because they do not
provide funds for candidates not running in party primaries[142] and (2) because the eligibility formula
actually increases the influence of money on the electoral process. In not providing assistance to
candidates who do not enter party primaries, Congress has merely chosen to limit at this time the reach of
the reforms encompassed in Chapter 96. This Congress could do without constituting the reforms a
constitutionally invidious discrimination. The governing principle was stated in Katzenbach v. Morgan,
384 U.S. 641, 657 (1966):
"[I]n deciding the constitutional propriety of the limitations in such a reform measure we are
guided by the familiar principles that a `statute is not invalid under the Constitution because
it might have gone farther than it did,' Roschen v. Ward, 279 U.S. 337, 339, that a
legislature need not `strike at all evils at the same time,' Semler v. Dental Examiners, 294
U.S. 608, 610, and that `reform may take one step at a time, addressing itself to the phase of
the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical Co.,
348 U.S. 483, 489."[143] [424 U.S. 1, 106]

The choice to limit matching funds to candidates running in primaries may reflect that concern about
large private contributions to candidates centered on primary races and that there is no historical
evidence of similar abuses involving contributions to candidates who engage in petition drives to qualify
for state ballots. Moreover, assistance to candidates and nonmajor parties forced to resort to petition
drives to gain ballot access implicates the policies against fostering frivolous candidacies, creating a
system of splintered parties, and encouraging unrestrained factionalism.
The eligibility requirements in Chapter 96 are surely not an unreasonable way to measure popular
support for a candidate, accomplishing the objective of limiting subsidization to those candidates with a
substantial chance of being nominated. Counting only the first $250 of each contribution for eligibility
purposes requires candidates to solicit smaller contributions from numerous people. Requiring the money
to come from citizens of a minimum number of States eliminates candidates whose appeal is limited
geographically; a President is elected not by popular vote, but by winning the popular vote in enough
States to have a majority in the Electoral College.[144] [424 U.S. 1, 107]
We also reject as without merit appellants' argument that the matching formula favors wealthy voters and
candidates. The thrust of the legislation is to reduce financial barriers[145] and to enhance the importance
of smaller contributions.[146] Some candidates undoubtedly could raise large sums of money and thus
have little need for public funds, but candidates with lesser fundraising capabilities will gain substantial
benefits from matching funds. In addition, one eligibility requirement for [424 U.S. 1, 108] matching funds
is acceptance of an expenditure ceiling, and candidates with little fundraising ability will be able to
increase their spending relative to candidates capable of raising large amounts in private funds.
For the reasons stated, we reject appellants' claims that Subtitle H is facially unconstitutional.[147]
● C. Severability
The only remaining issue is whether our holdings invalidating 18 U.S.C. 608 (a), (c), and (e) (1) (1970
ed., Supp. IV) require the conclusion that Subtitle H is unconstitutional. There is, of course, a
relationship between the spending limits in 608 (c) and the public financing provisions; the expenditure
limits accepted by a candidate to be eligible for public funding are identical to the limits in 608 (c). But
we have no difficulty in concluding that Subtitle H is severable. "Unless it is evident that the Legislature
would not have enacted those provisions which are within its power, independently of that which is not,
the invalid part may be dropped if what is left is fully operative as a law." Champlin [424 U.S. 1, 109]
Refining Co. v. Corporation Commission, 286 U.S. 210, 234 (1932). Our discussion of "what is left"
leaves no doubt that the value of public financing is not dependent on the existence of a generally
applicable expenditure limit. We therefore hold Subtitle H severable from those portions of the
legislation today held constitutionally infirm.
● IV. THE FEDERAL ELECTION COMMISSION
The 1974 amendments to the Act create an eight-member Federal Election Commission (Commission)
and vest in it primary and substantial responsibility for administering and enforcing the Act. The question
that we address in this portion of the opinion is whether, in view of the manner in which a majority of its
members are appointed, the Commission may under the Constitution exercise the powers conferred upon
it. We find it unnecessary to parse the complex statutory provisions in order to sketch the full sweep of
the Commission's authority. It will suffice for present purposes to describe what appear to be
representative examples of its various powers.

Chapter 14 of Title 2[148] makes the Commission the principal repository of the numerous reports and
statements which are required by that chapter to be filed by those engaging in the regulated political
activities. Its duties under 438 (a) with respect to these reports and statements include filing and
indexing, making them available for public inspection, preservation, and auditing and field
investigations. It is directed to "serve as a national clearinghouse for information in respect to the
administration of elections." 438 (b). [424 U.S. 1, 110]
Beyond these recordkeeping, disclosure, and investigative functions, however, the Commission is given
extensive rulemaking and adjudicative powers. Its duty under 438 (a) (10) is "to prescribe suitable rules
and regulations to carry out the provisions of ... chapter 14.." Under 437d (a) (8) the Commission is
empowered to make such rules "as are necessary to carry out the provisions of this Act."[149] Section
437d (a) (9) authorizes it to "formulate general policy with respect to the administration of this Act" and
enumerated sections of Title 18's Criminal Code,[150] as to all of which provisions the Commission "has
primary jurisdiction with respect to [their] civil enforcement." 437c (b).[151] The Commission is
authorized under 437f (a) to render advisory opinions with respect to activities possibly violating the Act,
the Title 18 sections, or the campaign funding provisions of Title 26,[152] the effect of which is that
"[n]otwithstanding [424 U.S. 1, 111] any other provision of law, any person with respect to whom an
advisory opinion is rendered ... who acts in good faith in accordance with the provisions and findings
[thereof] shall be presumed to be in compliance with the [statutory provision] with respect to which such
advisory opinion is rendered." 437f (b). In the course of administering the provisions for Presidential
campaign financing, the Commission may authorize convention expenditures which exceed the statutory
limits. 26 U.S.C. 9008 (d) (3) (1970 ed., Supp. IV).
The Commission's enforcement power is both direct and wide ranging. It may institute a civil action for
(i) injunctive or other relief against "any acts or practices which constitute or will constitute a violation of
this Act," 437g (a) (5); (ii) declaratory or injunctive relief "as may be appropriate to implement or
con[s]true any provisions" of Chapter 95 of Title 26, governing administration of funds for Presidential
election campaigns and national party conventions, 26 U.S.C. 9011 (b) (1) (1970 ed., Supp. IV); and (iii)
"such injunctive relief as is appropriate to implement any provision" of Chapter 96 of Title 26, governing
the payment of matching funds for Presidential primary campaigns, 26 U.S.C. 9040 (c) (1970 ed., Supp.
IV). If after the Commission's post-disbursement audit of candidates receiving payments under Chapter
95 or 96 it finds an overpayment, it is empowered to seek repayment of all funds due the Secretary of the
Treasury. 26 U.S.C. 9010 (b), 9040 (b) (1970 ed., Supp. IV). In no respect do the foregoing civil actions
require the concurrence of or participation by the Attorney General; conversely, the decision not to seek
judicial relief in the above respects would appear to rest solely with the Commission.[153] With respect to
the [424 U.S. 1, 112] referenced Title 18 sections, 437g (a) (7) provides that if, after notice and opportunity
for a hearing before it, the Commission finds an actual or threatened criminal violation, the Attorney
General "upon request by the Commission ... shall institute a civil action for relief." Finally, as
"[a]dditional enforcement authority," 456 (a) authorizes the Commission, after notice and opportunity for
hearing, to make "a finding that a person ... while a candidate for Federal office, failed to file" a required
report of contributions or expenditures. If that finding is made within the applicable limitations period
[424 U.S. 1, 113] for prosecutions, the candidate is thereby "disqualified from becoming a candidate in any
future election for Federal office for a period of time beginning on the date of such finding and ending
one year after the expiration of the term of the Federal office for which such person was a
candidate."[154]

The body in which this authority is reposed consists of eight members. [155] The Secretary of the Senate
and the Clerk of the House of Representatives are ex officio members of the Commission without the
right to vote. Two members are appointed by the President pro tempore of the Senate "upon the
recommendations of the majority leader of the Senate and the minority leader of the Senate." [156] Two
more are to be appointed by the Speaker of the House of Representatives, likewise upon the
recommendations of its respective majority and minority leaders. The remaining two members are
appointed by the President. Each of the six voting members of the Commission must be confirmed by the
majority of both Houses of Congress, and each of the three appointing authorities is forbidden to choose
both of their appointees from the same political party.
● A. Ripeness
Appellants argue that given the Commission's extensive powers the method of choosing its members
under 437c (a) (1) runs afoul of the separation of powers embedded in the Constitution, and urge that as
presently constituted the Commission's "existence be held unconstitutional by this Court." Before
embarking on this or any [424 U.S. 1, 114] related inquiry, however, we must decide whether these issues
are properly before us. Because of the Court of Appeals' emphasis on lack of "ripeness" of the issue
relating to the method of appointment of the members of the Commission, we find it necessary to focus
particularly on that consideration in this section of our opinion.
We have recently recognized the distinction between jurisdictional limitations imposed by Art. III and
"[p]roblems of prematurity and abstractness" that may prevent adjudication in all but the exceptional
case. Socialist Labor Party v. Gilligan, 406 U.S. 583, 588 (1972). In Regional Rail Reorganization Act
Cases, 419 U.S. 102, 140 (1974), we stated that "ripeness is peculiarly a question of timing," and
therefore the passage of months between the time of the decision of the Court of Appeals and our present
ruling is of itself significant. We likewise observed in the Reorganization Act Cases:
"Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no
way hypothetical or speculative. Where the inevitability of the operation of a statute against
certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that
there will be a time delay before the disputed provisions will come into effect." Id., at 143.
The Court of Appeals held that of the five specific certified questions directed at the Commission's
authority, only its powers to render advisory opinions and to authorize excessive convention expenditures
were ripe for adjudication. The court held that the remaining aspects of the Commission's authority could
not be adjudicated because "[in] its present stance, this litigation does not present the court with the
concrete facts that are necessary [424 U.S. 1, 115] to an informed decision."[157] 171 U.S. App. D.C., at
244, 519 F.2d, at 893.
Since the entry of judgment by the Court of Appeals, [424 U.S. 1, 116] the Commission has undertaken to
issue rules and regulations under the authority of 438 (a) (10). While many of its other functions remain
as yet unexercised, the date of their all but certain exercise is now closer [424 U.S. 1, 117] by several
months than it was at the time the Court of Appeals ruled. Congress was understandably most concerned
with obtaining a final adjudication of as many issues as possible litigated pursuant to the provisions of
437h. Thus, in order to decide the basic question whether the Act's provision for appointment of the
members of the Commission violates the Constitution, we believe we are warranted in considering all of
those aspects of the Commission's authority which have been presented by the certified questions.[158]

Party litigants with sufficient concrete interests at stake may have standing to raise constitutional
questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore
v. United States, 411 U.S. 389 (1973); Glidden Co. v. Zdanok, 370 U.S. 530 (1962); Coleman v. Miller,
307 U.S. 433 (1939). In Glidden, of course, the challenged adjudication had already taken place, whereas
in this case appellants' claim is of impending future rulings and determinations by the Commission. But
this is a question of ripeness, rather than lack of case or controversy under Art. III, and for the reasons to
which we have previously [424 U.S. 1, 118] adverted we hold that appellants' claims as they bear upon the
method of appointment of the Commission's members may be presently adjudicated.
● B. The Merits
Appellants urge that since Congress has given the Commission wide-ranging rulemaking and
enforcement powers with respect to the substantive provisions of the Act, Congress is precluded under
the principle of separation of powers from vesting in itself the authority to appoint those who will
exercise such authority. Their argument is based on the language of Art. II, 2, cl. 2, of the Constitution,
which provides in pertinent part as follows:
"[The President] shall nominate, and by and with the Advice and Consent of the Senate,
shall appoint ... all other Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law: but the Congress may by
Law vest the Appointment of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments."
Appellants' argument is that this provision is the exclusive method by which those charged with
executing the laws of the United States may be chosen. Congress, they assert, cannot have it both ways.
If the Legislature wishes the Commission to exercise all of the conferred powers, then its members are in
fact "Officers of the United States" and must be appointed under the Appointments Clause. But if
Congress insists upon retaining the power to appoint, then the members of the Commission may not
discharge those many functions of the Commission which can be performed only by "Officers of [424
U.S. 1, 119] the United States," as that term must be construed within the doctrine of separation of powers.
Appellee Commission and amici in support of the Commission urge that the Framers of the Constitution,
while mindful of the need for checks and balances among the three branches of the National
Government, had no intention of denying to the Legislative Branch authority to appoint its own officers.
Congress, either under the Appointments Clause or under its grants of substantive legislative authority
and the Necessary and Proper Clause in Art. I, is in their view empowered to provide for the appointment
to the Commission in the manner which it did because the Commission is performing "appropriate
legislative functions."
The majority of the Court of Appeals recognized the importance of the doctrine of separation of powers
which is at the heart of our Constitution, and also recognized the principle enunciated in Springer v.
Philippine Islands, 277 U.S. 189 (1928), that the Legislative Branch may not exercise executive authority
by retaining the power to appoint those who will execute its laws. But it described appellants' argument
based upon Art. II, 2, cl. 2, as "strikingly syllogistic," and concluded that Congress had sufficient
authority under the Necessary and Proper Clause of Art. I of the Constitution not only to establish the
Commission but to appoint the Commission's members. As we have earlier noted, it upheld the
constitutional validity of congressional vesting of certain authority in the Commission, and concluded
that the question of the constitutional validity of the vesting of its remaining functions was not yet ripe

for review. The three dissenting judges in the Court of Appeals concluded that the method of
appointment for the Commission did violate the doctrine of separation of powers. [424 U.S. 1, 120]
1. Separation of Powers
We do not think appellants' arguments based upon Art. II, 2, cl. 2, of the Constitution may be so easily
dismissed as did the majority of the Court of Appeals. Our inquiry of necessity touches upon the
fundamental principles of the Government established by the Framers of the Constitution, and all
litigants and all of the courts which have addressed themselves to the matter start on common ground in
the recognition of the intent of the Framers that the powers of the three great branches of the National
Government be largely separate from one another.
James Madison, writing in the Federalist No. 47,[159] defended the work of the Framers against the
charge that these three governmental powers were not entirely separate from one another in the proposed
Constitution. He asserted that while there was some admixture, the Constitution was nonetheless true to
Montesquieu's well-known maxim that the legislative, executive, and judicial departments ought to be
separate and distinct:
"The reasons on which Montesquieu grounds his maxim are a further demonstration of his
meaning. `When the legislative and executive powers are united in the same person or body,'
says he, `there can be no liberty, because apprehensions may arise lest the same monarch or
senate should enact tyrannical laws to execute them in a tyrannical manner.' Again: `Were
the power of judging joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the
executive power, the judge might behave with all the violence of an oppressor.' Some of
these reasons [424 U.S. 1, 121] are more fully explained in other passages; but briefly stated
as they are here, they sufficiently establish the meaning which we have put on this
celebrated maxim of this celebrated author." [160]
Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the
Constitution by no means contemplates total separation of each of these three essential branches of
Government. The President is a participant in the lawmaking process by virtue of his authority to veto
bills enacted by Congress. The Senate is a participant in the appointive process by virtue of its authority
to refuse to confirm persons nominated to office by the President. The men who met in Philadelphia in
the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of
separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of
the three branches of Government from one another would preclude the establishment of a Nation
capable of governing itself effectively.
Mr. Chief Justice Taft, writing for the Court in Hampton & Co. v. United States, 276 U.S. 394 (1928),
after stating the general principle of separation of powers found in the United States Constitution, went
on to observe:
"[T]he rule is that in the actual administration of the government Congress or the Legislature
should exercise the legislative power, the President or the State executive, the Governor, the
executive power, and the Courts or the judiciary the judicial power, and in carrying out that
constitutional division into three branches it is a breach of the National fundamental law if
Congress gives up its legislative power [424 U.S. 1, 122] and transfers it to the President, or to

the Judicial branch, or if by law it attempts to invest itself or its members with either
executive power or judicial power. This is not to say that the three branches are not
co-ordinate parts of one government and that each in the field of its duties may not invoke
the action of the two other branches in so far as the action invoked shall not be an
assumption of the constitutional field of action of another branch. In determining what it
may do in seeking assistance from another branch, the extent and character of that assistance
must be fixed according to common sense and the inherent necessities of the governmental
co-ordination." Id., at 406.
More recently, Mr. Justice Jackson, concurring in the opinion and the judgment of the Court in
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), succinctly characterized this
understanding:
● "While the Constitution diffuses power the better to secure liberty, it also contemplates that
practice will integrate the dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but reciprocity."
The Framers regarded the checks and balances that they had built into the tripartite Federal Government
as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense
of the other. As Madison put it in Federalist No. 51:
● "This policy of supplying, by opposite and rival interests, the defect of better motives, might be
traced through the whole system of human affairs, private as well as public. We see it particularly
displayed in all the subordinate distributions of power, where the constant aim is to divide and
arrange the [424 U.S. 1, 123] several offices in such a manner as that each may be a check on the
other - that the private interest of every individual may be a sentinel over the public rights. These
inventions of prudence cannot be less requisite in the distribution of the supreme powers of the
State." [161]
This Court has not hesitated to enforce the principle of separation of powers embodied in the
Constitution when its application has proved necessary for the decisions of cases or controversies
properly before it. The Court has held that executive or administrative duties of a nonjudicial nature may
not be imposed on judges holding office under Art. III of the Constitution. United States v. Ferreira, 13
How. 40 (1852); Hayburn's Case, 2 Dall. 409 (1792). The Court has held that the President may not
execute and exercise legislative authority belonging only to Congress. Youngstown Sheet & Tube Co. v.
Sawyer, supra. In the course of its opinion in that case, the Court said:
● "In the framework of our Constitution, the President's power to see that the laws are faithfully
executed refutes the idea that he is to be a law-maker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks
bad. And the Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that Àll legislative Powers herein
granted shall be vested in a Congress of the United States ... .'" 343 U.S., at 587-588. [424 U.S. 1,
124]
More closely in point to the facts of the present case is this Court's decision in Springer v. Philippine
Islands, 277 U.S. 189 (1928), where the Court held that the legislature of the Philippine Islands could not
provide for legislative appointment to executive agencies.

2. The Appointments Clause

The principle of separation of powers was not simply an abstract generalization in the minds of the
Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787. Article
I, 1, declares: "All legislative Powers herein granted shall be vested in a Congress of the United States."
Article II, 1, vests the executive power "in a President of the United States of America," and Art. III, 1,
declares that "The judicial Power of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish." The further concern of the
Framers of the Constitution with maintenance of the separation of powers is found in the so-called
"Ineligibility" and "Incompatibility" Clauses contained in Art. I, 6:
● "No Senator or Representative shall, during the Time for which he was elected, be appointed to
any civil Office under the Authority of the United States, which shall have been created, or the
Emoluments whereof shall have been encreased during such time; and no Person holding any
Office under the United States, shall be a Member of either House during his Continuance in
Office."
It is in the context of these cognate provisions of the document that we must examine the language of
Art. II. 2, cl. 2, which appellants contend provides the only authorization for appointment of those to
whom substantial executive or administrative authority is given [424 U.S. 1, 125] by statute. Because of
the importance of its language, we again set out the provision:
● "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments."
The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in
describing "Officers of the United States," but the drafters had a less frivolous purpose in mind. This
conclusion is supported by language from United States v. Germaine, 99 U.S. 508, 509-510 (1879):
● "The Constitution for purposes of appointment very clearly divides all its officers into two classes.
The primary class requires a nomination by the President and confirmation by the Senate. But
foreseeing that when offices became numerous, and sudden removals necessary, this mode might
be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned,
Congress might by law vest their appointment in the President alone, in the courts of law, or in the
heads of departments. That all persons who can be said to hold an office under the government
about to be established under the Constitution were intended to be included within one or the other
of these modes of appointment there can be but little doubt." (Emphasis supplied.)
We think that the term "Officers of the United States" [424 U.S. 1, 126] as used in Art. II, defined to
include "all persons who can be said to hold an office under the government" in United States v.
Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any
appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the
United States," and must, therefore, be appointed in the manner prescribed by 2, cl. 2, of that Article.
If "all persons who can be said to hold an office under the government about to be established under the
Constitution were intended to be included within one or the other of these modes of appointment,"

United States v. Germaine, supra, it is difficult to see how the members of the Commission may escape
inclusion. If a postmaster first class, Myers v. United States, 272 U.S. 52 (1926), and the clerk of a
district court, Ex parte Hennen, 13 Pet. 230 (1839), are inferior officers of the United States within the
meaning of the Appointments Clause, as they are, surely the Commissioners before us are at the very
least such "inferior Officers" within the meaning of that Clause.[162]
Although two members of the Commission are initially selected by the President, his nominations are
subject to confirmation not merely by the Senate, but by the House of Representatives as well. The
remaining four voting members of the Commission are appointed by the President pro tempore of the
Senate and by the Speaker of the House. While the second part of the Clause [424 U.S. 1, 127] authorizes
Congress to vest the appointment of the officers described in that part in "the Courts of Law, or in the
Heads of Departments," neither the Speaker of the House nor the President pro tempore of the Senate
comes within this language.
The phrase "Heads of Departments," used as it is in conjunction with the phrase "Courts of Law,"
suggests that the Departments referred to are themselves in the Executive Branch or at least have some
connection with that branch. While the Clause expressly authorizes Congress to vest the appointment of
certain officers in the "Courts of Law," the absence of similar language to include Congress must mean
that neither Congress nor its officers were included within the language "Heads of Departments" in this
part of cl. 2.
Thus with respect to four of the six voting members of the Commission, neither the President, the head of
any department, nor the Judiciary has any voice in their selection.
The Appointments Clause specifies the method of appointment only for "Officers of the United States"
whose appointment is not "otherwise provided for" in the Constitution. But there is no provision of the
Constitution remotely providing any alternative means for the selection of the members of the
Commission or for anybody like them. Appellee Commission has argued, and the Court of Appeals
agreed, that the Appointments Clause of Art. II should not be read to exclude the "inherent power of
Congress" to appoint its own officers to perform functions necessary to that body as an institution. But
there is no need to read the Appointments Clause contrary to its plain language in order to reach the
result sought by the Court of Appeals. Article I, 3, cl. 5, expressly authorizes the selection of the
President pro tempore of the Senate, and 2, cl. 5, of that Article provides [424 U.S. 1, 128] for the selection
of the Speaker of the House. Ranking nonmembers, such as the Clerk of the House of Representatives,
are elected under the internal rules of each House[163] and are designated by statute as "officers of the
Congress."[164] There is no occasion for us to decide whether any of these member officers are "Officers
of the United States" whose "appointment" is otherwise provided for within the meaning of the
Appointments Clause, since even if they were such officers their appointees would not be. Contrary to
the fears expressed by the majority of the Court of Appeals, nothing in our holding with respect to Art. II,
2, cl. 2, will deny to Congress "all power to appoint its own inferior officers to carry out appropriate
legislative functions."[165]
Appellee Commission and amici contend somewhat obliquely that because the Framers had no intention
of relegating Congress to a position below that of the co-equal Judicial and Executive Branches of the
National Government, the Appointments Clause must somehow be read to include Congress or its
officers as among those [424 U.S. 1, 129] in whom the appointment power may be vested. But the debates
of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the

Legislative Branch of the National Government will aggrandize itself at the expense of the other two
branches. [166] The debates during the Convention, and the evolution of the draft version of the
Constitution, seem to us to lend considerable support to our reading of the language of the Appointments
Clause itself.
An interim version of the draft Constitution had vested in the Senate the authority to appoint
Ambassadors, public Ministers, and Judges of the Supreme Court, and the language of Art. II as finally
adopted is a distinct change in this regard. We believe that it was a deliberate change made by the
Framers with the intent to deny Congress any authority itself to appoint those who were "Officers of the
United States." The debates on the floor of the Convention reflect at least in part the way the change
came about.
On Monday, August 6, 1787, the Committee on Detail to which had been referred the entire draft of the
Constitution reported its draft to the Convention, including the following two articles that bear on the
question before us:[167]
● Article IX, 1: "The Senate of the United States shall have power ... to appoint Ambassadors, and
Judges of the Supreme Court."
● Article X, 2: "[The President] shall commission all [424 U.S. 1, 130] the officers of the United
States; and shall appoint officers in all cases not otherwise provided for by this Constitution."
It will be seen from a comparison of these two articles that the appointment of Ambassadors and Judges
of the Supreme Court was confided to the Senate, and that the authority to appoint -- not merely
nominate, but to actually appoint - all other officers was reposed in the President.
During a discussion of a provision in the same draft from the Committee on Detail which provided that
the "Treasurer" of the United States should be chosen by both Houses of Congress, Mr. Read moved to
strike out that clause, "leaving the appointment of the Treasurer as of other officers to the
Executive."[168] Opposition to Read's motion was based, not on objection to the principle of executive
appointment, but on the particular nature of the office of the "Treasurer." [169]
On Thursday, August 23, the Convention voted to insert after the word "Ambassadors" in the text of draft
Art. IX the words "and other public Ministers." Immediately afterwards, the section as amended was
referred to the "Committee of Five."[170] The following day the Convention took up Art. X. Roger
Sherman objected to the draft language of 2 because it conferred too much power on the President, and
proposed to insert after the words "not otherwise provided for by this Constitution" the words "or by
law." This motion was defeated by a vote of nine States to one.[171] On September [424 U.S. 1, 131] 3 the
Convention debated the Ineligibility and Incompatibility Clauses which now appear in Art. I, and made
the Ineligibility Clause somewhat less stringent. [172]
Meanwhile, on Friday, August 31, a motion had been carried without opposition to refer such parts of the
Constitution as had been postponed or not acted upon to a Committee of Eleven. Such reference carried
with it both Arts. IX and X. The following week the Committee of Eleven made its report to the
Convention, in which the present language of Art. II, 2, cl. 2, dealing with the authority of the President
to nominate is found, virtually word for word, as 4 of Art. X.[173] The same Committee also reported a
revised article concerning the Legislative Branch to the Convention. The changes are obvious. In the
final version, the Senate is shorn of its power to appoint Ambassadors and Judges of the Supreme Court.
The President is given, not the power to appoint public officers of the United States, but only the right to

nominate them, and a provision is inserted by virtue of which Congress may require Senate confirmation
of his nominees.
It would seem a fair surmise that a compromise had been made. But no change was made in the concept
of the term "Officers of the United States," which since it had first appeared in Art. X had been taken by
all concerned to embrace all appointed officials exercising responsibility under the public laws of the
Nation.
Appellee Commission and amici urge that because of what they conceive to be the extraordinary
authority reposed in Congress to regulate elections, this case stands on a different footing than if
Congress had exercised its legislative authority in another field. There is, of course, no doubt that
Congress has express authority to regulate [424 U.S. 1, 132] congressional elections, by virtue of the power
conferred in Art. I, 4.[174] This Court has also held that it has very broad authority to prevent corruption
in national Presidential elections. Burroughs v. United States, 290 U.S. 534 (1934). But Congress has
plenary authority in all areas in which it has substantive legislative jurisdiction, M`Culloch v. Maryland,
4 Wheat. 316 (1819), so long as the exercise of that authority does not offend some other constitutional
restriction. We see no reason to believe that the authority of Congress over federal election practices is of
such a wholly different nature from the other grants of authority to Congress that it may be employed in
such a manner as to offend well-established constitutional restrictions stemming from the separation of
powers.
The position that because Congress has been given explicit and plenary authority to regulate a field of
activity, it must therefore have the power to appoint those who are to administer the regulatory statute is
both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere
provided for, all officers of the United States are to be appointed in accordance with the Clause. Principal
officers are selected by the President with the advice and consent of the Senate. Inferior officers
Congress may allow to be appointed by the President alone, by the heads of departments, or by the
Judiciary. No class or type of officer is excluded because of its special functions. The President appoints
judicial as well as executive officers. Neither has it been disputed -- and apparently [424 U.S. 1, 133] it is
not now disputed -- that the Clause controls the appointment of the members of a typical administrative
agency even though its functions, as this Court recognized in Humphrey's Executor v. United States, 295
U.S. 602, 624 (1935), may be "predominantly quasi-judicial and quasi-legislative" rather than executive.
The Court in that case carefully emphasized that although the members of such agencies were to be
independent of the Executive in their day-to-day operations, the Executive was not excluded from
selecting them. Id., at 625-626.
Appellees argue that the legislative authority conferred upon the Congress in Art. I, 4, to regulate "the
Times, places and Manner of holding Elections for Senators and Representatives" is augmented by the
provision in 5 that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own
Members." Section 5 confers, however, not a general legislative power upon the Congress, but rather a
power "judicial in character" upon each House of the Congress. Barry v. United States ex rel.
Cunningham, 279 U.S. 597, 613 (1929). The power of each House to judge whether one claiming
election as Senator or Representative has met the requisite qualifications, Powell v. McCormack, 395
U.S. 486 (1969), cannot reasonably be translated into a power granted to the Congress itself to impose
substantive qualifications on the right to so hold such office. Whatever power Congress may have to
legislate, such qualifications must derive from 4, rather than 5, of Art. I.

Appellees also rely on the Twelfth Amendment to the Constitution insofar as the authority of the
Commission to regulate practices in connection with the Presidential election is concerned. This
Amendment provides that certificates of the votes of the electors be "sealed [and] [424 U.S. 1, 134]
directed to the President of the Senate," and that the "President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates and the votes shall then be counted." The
method by which Congress resolved the celebrated disputed Hayes-Tilden election of 1876, reflected in
19 Stat. 227, supports the conclusion that Congress viewed this Amendment as conferring upon its two
Houses the same sort of power "judicial in character," Barry v. United States ex rel. Cunningham, supra,
at 613, as was conferred upon each House by Art. I, 5, with respect to elections of its own members.
We are also told by appellees and amici that Congress had good reason for not vesting in a Commission
composed wholly of Presidential appointees the authority to administer the Act, since the administration
of the Act would undoubtedly have a bearing on any incumbent President's campaign for re-election.
While one cannot dispute the basis for this sentiment as a practical matter, it would seem that those who
sought to challenge incumbent Congressmen might have equally good reason to fear a Commission
which was unduly responsive to members of Congress whom they were seeking to unseat. But such
fears, however rational, do not by themselves warrant a distortion of the Framers' work.
Appellee Commission and amici finally contend, and the majority of the Court of Appeals agreed with
them, that whatever shortcomings the provisions for the appointment of members of the Commission
might have under Art. II, Congress had ample authority under the Necessary and Proper Clause of Art. I
to effectuate this result. We do not agree. The proper inquiry when considering the Necessary and Proper
Clause is not the authority of Congress to create an office or a commission, which is broad indeed, but
rather its authority to provide [424 U.S. 1, 135] that its own officers may make appointments to such office
or commission.
So framed, the claim that Congress may provide for this manner of appointment under the Necessary and
Proper Clause of Art. I stands on no better footing than the claim that it may provide for such manner of
appointment because of its substantive authority to regulate federal elections. Congress could not, merely
because it concluded that such a measure was "necessary and proper" to the discharge of its substantive
legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in
9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United
States when the Appointments Clause by clear implication prohibits it from doing so.
The trilogy of cases from this Court dealing with the constitutional authority of Congress to circumscribe
the President's power to remove officers of the United States is entirely consistent with this conclusion.
In Myers v. United States, 272 U.S. 52 (1926), the Court held that Congress could not by statute divest
the President of the power to remove an officer in the Executive Branch whom he was initially
authorized to appoint. In explaining its reasoning in that case, the Court said:
● "The vesting of the executive power in the President was essentially a grant of the power to
execute the laws. But the President alone and unaided could not execute the laws. He must execute
them by the assistance of subordinates... . As he is charged specifically to take care that they be
faithfully executed, the reasonable implication, even in the absence of express words, was that as
part of his executive power he should select those who were [424 U.S. 1, 136] to act for him under
his direction in the execution of the laws.
● ... . .

● "Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to
the President the executive power of the Government, i. e., the general administrative control of
those executing the laws, including the power of appointment and removal of executive officers --
a conclusion confirmed by his obligation to take care that the laws be faithfully executed ... ." Id.,
at 117, 163-164.
In the later case of Humphrey's Executor, where it was held that Congress could circumscribe the
President's power to remove members of independent regulatory agencies, the Court was careful to note
that it was dealing with an agency intended to be independent of executive authority "except in its
selection." 295 U.S. at 625 (emphasis in original). Wiener v. United States, 357 U.S. 349 (1958), which
applied the holding in Humphrey's Executor to a member of the War Claims Commission, did not
question in any respect that members of independent agencies are not independent of the Executive with
respect to their appointments.
This conclusion is buttressed by the fact that Mr. Justice Sutherland, the author of the Court's opinion in
Humphrey's Executor, likewise wrote the opinion for the Court in Springer v. Philippine Islands, 277
U.S. 189 (1928), in which it was said:
● "Not having the power of appointment, unless expressly granted or incidental to its powers, the
legislature cannot engraft executive duties upon a legislative office, since that would be to usurp
the power of appointment by indirection; though the case might be different if the additional duties
[424 U.S. 1, 137] were devolved upon an appointee of the executive." Id., at 202.
3. The Commission's Powers

Thus, on the assumption that all of the powers granted in the statute may be exercised by an agency
whose members have been appointed in accordance with the Appointments Clause,[175] the ultimate
question is which, if any, of those powers may be exercised by the present voting Commissioners, none
of whom was appointed as provided by that Clause. Our previous description of the statutory provisions,
see supra, at 109-113, disclosed that the Commission's powers fall generally into three categories:
functions relating to the flow of necessary information -- receipt, dissemination, and investigation;
functions with respect to the Commission's task of fleshing out the statute -- rulemaking and advisory
opinions; and functions necessary to ensure compliance with the statute and rules -- informal procedures,
administrative determinations and hearings, and civil suits.
Insofar as the powers confided in the Commission are essentially of an investigative and informative
nature, falling in the same general category as those powers which Congress might delegate to one of its
own committees, there can be no question that the Commission as presently constituted may exercise
them. Kilbourn v. Thompson, 103 U.S. 168 (1881); McGrain v. Daugherty, [424 U.S. 1, 138] 273 U.S. 135
(1927); Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). As this Court stated in
McGrain, supra, at 175:
● "A legislative body cannot legislate wisely or effectively in the absence of information respecting
the conditions which the legislation is intended to affect or change; and where the legislative body
does not itself possess the requisite information -- which not infrequently is true -- recourse must
be had to others who do possess it. Experience has taught that mere requests for such information
often are unavailing, and also that information which is volunteered is not always accurate or
complete; so some means of compulsion are essential to obtain what is needed. All this was true

before and when the Constitution was framed and adopted. In that period the power of inquiry --
with enforcing process -- was regarded and employed as a necessary and appropriate attribute of
the power to legislate -- indeed, was treated as inhering in it."
But when we go beyond this type of authority to the more substantial powers exercised by the
Commission, we reach a different result. The Commission's enforcement power, exemplified by its
discretionary power to seek judicial relief, is authority that cannot possibly be regarded as merely in aid
of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of the law, and it is
to the President, and not to the Congress, that the Constitution entrusts the responsibility to "take Care
that the Laws be faithfully executed." Art. II, 3.
Congress may undoubtedly under the Necessary and Proper Clause create "offices" in the generic sense
and provide such method of appointment to those "offices" as it chooses. But Congress' power under that
Clause [424 U.S. 1, 139] is inevitably bounded by the express language of Art. II, 2, cl. 2, and unless the
method it provides comports with the latter, the holders of those offices will not be "Officers of the
United States." They may, therefore, properly perform duties only in aid of those functions that Congress
may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the
public law as to permit their being performed by persons not "Officers of the United States."
This Court observed more than a century ago with respect to litigation conducted in the courts of the
United States:
● "Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the
government, or by the decisions of this court, it is clear that all such suits, so far as the interests of
the United States are concerned, are subject to the direction, and within the control of, the
Attorney-General." Confiscation Cases, 7 Wall. 454, 458-459 (1869).
The Court echoed similar sentiments 59 years later in Springer v. Philippine Islands, 277 U.S., at 202,
saying:
● "Legislative power, as distinguished from executive power, is the authority to make laws, but not
to enforce them or appoint the agents charged with the duty of such enforcement. The latter are
executive functions. It is unnecessary to enlarge further upon the general subject, since it has so
recently received the full consideration of this Court. Myers v. United States, 272 U.S. 52.
● "Not having the power of appointment, unless expressly granted or incidental to its powers, the
legislature cannot engraft executive duties upon a legislative office, since that would be to usurp
the power of appointment by indirection; though the [424 U.S. 1, 140] case might be different if the
additional duties were devolved upon an appointee of the executive."
We hold that these provisions of the Act, vesting in the Commission primary responsibility for
conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II,
2, cl. 2, of the Constitution. Such functions may be discharged only by persons who are "Officers of the
United States" within the language of that section.
All aspects of the Act are brought within the Commission's broad administrative powers: rulemaking,
advisory opinions, and determinations of eligibility for funds and even for federal elective office itself.
These functions, exercised free from day-to-day supervision of either Congress [176] or the Executive
Branch, are more legislative and judicial in nature than are the Commission's [424 U.S. 1, 141]
enforcement powers, and are of kinds usually performed by independent regulatory agencies or by some

department in the Executive Branch under the direction of an Act of Congress. Congress viewed these
broad powers as essential to effective and impartial administration of the entire substantive framework of
the Act. Yet each of these functions also represents the performance of a significant governmental duty
exercised pursuant to a public law. While the President may not insist that such functions be delegated to
an appointee of his removable at will, Humphrey's Executor v. United States, 295 U.S. 602 (1935), none
of them operates merely in aid of congressional authority to legislate or is sufficiently removed from the
administration and enforcement of public law to allow it to be performed by the present Commission.
These administrative functions may therefore be exercised only by persons who are "Officers of the
United States." [177] [424 U.S. 1, 142]
It is also our view that the Commission's inability to exercise certain powers because of the method by
which its members have been selected should not affect the validity of the Commission's administrative
actions and determinations to this date, including its administration of those provisions, upheld today,
authorizing the public financing of federal elections. The past acts of the Commission are therefore
accorded de facto validity, just as we have recognized should be the case with respect to legislative acts
performed by legislators held to have been elected in accordance with an unconstitutional apportionment
plan. Connor v. Williams, 404 U.S. 549, 550-551 (1972). See Ryan v. Tinsley, 316 F.2d 430, 431-432
(CA10 1963); Schaefer v. Thomson, 251 F. Supp. 450, 453 (Wyo. 1965), aff'd sub nom. Harrison v.
Schaeffer, 383 U.S. 269 (1966). Cf. City of Richmond v. United States, 422 U.S. 358, 379 (1975)
(BRENNAN, J., dissenting). We also draw on the Court's practice in [424 U.S. 1, 143] the apportionment
and voting rights cases and stay, for a period not to exceed 30 days, the Court's judgment insofar as it
affects the authority of the Commission to exercise the duties and powers granted it under the Act. This
limited stay will afford Congress an opportunity to reconstitute the Commission by law or to adopt other
valid enforcement mechanisms without interrupting enforcement of the provisions the Court sustains,
allowing the present Commission in the interim to function de facto in accordance with the substantive
provisions of the Act. Cf. Georgia v. United States, 411 U.S. 526, 541(1973); Fortson v. Morris, 385 U.S.
231, 235 (1966); Maryland Comm. v. Tawes, 377 U.S. 656, 675-676 (1964).
● CONCLUSION
In summary,[178] we sustain the individual contribution limits, the disclosure and reporting provisions,
and the public financing scheme. We conclude, however, that the limitations on campaign expenditures,
on independent expenditures by individuals and groups, and on expenditures by a candidate from his
personal funds are constitutionally infirm. Finally, we hold that most of the powers conferred by the Act
upon the Federal Election Commission can be exercised only by "Officers of the United States,"
appointed in conformity with Art. II, 2, cl. 2, of the Constitution, and therefore cannot be exercised by
the Commission as presently constituted.
In No. 75-436, the judgment of the Court of Appeals [424 U.S. 1, 144] is affirmed in part and reversed in
part. The judgment of the District Court in No. 75-437 is affirmed. The mandate shall issue forthwith,
except that our judgment is stayed, for a period not to exceed 30 days, insofar as it affects the authority of
the Commission to exercise the duties and powers granted it under the Act.
● So ordered.
MR. JUSTICE STEVENS took no part in the consideration or decision of these cases.
● APPENDIX TO PER CURIAM OPINION*

● TITLE 2. THE CONGRESS

● CHAPTER 14 -- FEDERAL ELECTION CAMPAIGNS
● SUBCHAPTER I. -- DISCLOSURE OF FEDERAL CAMPAIGN
FUNDS
431. Definitions.
When used in this subchapter and subchapter II of this chapter -
(a) "election" means -
● (1) a general, special, primary, or runoff election;
● (2) a convention or caucus of a political party held to nominate a candidate;
● (3) a primary election held for the selection of delegates to a national nominating convention of a
political party; and
● (4) a primary election held for the expression of a preference for the nomination of persons for
election to the office of President; [424 U.S. 1, 145]
(b) "candidate" means an individual who seeks nomination for election, or election, to Federal office,
whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be
deemed to seek nomination for election, or election, if he has -
● (1) taken the action necessary under the law of a State to qualify himself for nomination for
election, or election, to Federal office; or
● (2) received contributions or made expenditures, or has given his consent for any other person to
receive contributions or make expenditures, with a view to bringing about his nomination for
election, or election, to such office;
(c) "Federal office" means the office of President or Vice President of the United States; or of Senator or
Representative in, or Delegate or Resident Commissioner to, the Congress of the United States;
(d) "political committee" means any committee, club, association, or other group of persons which
receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding
$1,000;
(e) "contribution" -
● (1) means a gift, subscription, loan, advance, or deposit of money or anything of value made for
the purpose of -
● (A) influencing the nomination for election, or election, of any person to Federal office or for the
purpose of influencing the results of a primary held for the selection of delegates to a national
nominating convention of a political party; or
● (B) influencing the result of an election held for the expression of a preference for the nomination
of persons for election to the office of President of the United States; [424 U.S. 1, 146]
● (2) means a contract, promise, or agreement, expressed or implied, whether or not legally
enforceable, to make a contribution for such purposes;
● (3) means funds received by a political committee which are transferred to such committee from

another political committee or other source;

● (4) means the payment, by any person other than a candidate or a political committee, of
compensation for the personal services of another person which are rendered to such candidate or
political committee without charge for any such purpose; but
● (5) does not include -
● (A) the value of services provided without compensation by individuals who volunteer a portion or
all of their time on behalf of a candidate or political committee;
● (B) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily
provided by an individual to a candidate in rendering voluntary personal services on the
individual's residential premises for candidate-related activities;
● (C) the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge less
than the normal comparable charge, if such charge for use in a candidate's campaign is at least
equal to the cost of such food or beverage to the vendor;
● (D) any unreimbursed payment for travel expenses made by an individual who on his own behalf
volunteers his personal services to a candidate;
● (E) the payment by a State or local committee of a political party of the costs of preparation, [424
U.S. 1, 147] display, or mailing or other distribution incurred by such committee with respect to a
printed slate card or sample ballot, or other printed listing, of three or more candidates for any
public office for which an election is held in the State in which such committee is organized,
except that this clause shall not apply in the case of costs incurred by such committee with respect
to a display of any such listing made on broadcasting stations, or in newspapers, magazines, or
other similar types of general public political advertising; or
● (F) any payment made or obligation incurred by a corporation or a labor organization which, under
the provisions of the last paragraph of section 610 of Title 18, would not constitute an expenditure
by such corporation or labor organization;
● to the extent that the cumulative value of activities by any individual on behalf of any candidate
under each of clauses (B), (C), and (D) does not exceed $500 with respect to any election;
(f) "expenditure" -
● (1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything
of value, made for the purpose of -
● (A) influencing the nomination for election, or the election, of any person to Federal office, or to
the office of presidential and vice presidential elector; or
● (B) influencing the results of a primary election held for the selection of delegates to a national
nominating convention of a political party or for the expression of a preference for [424 U.S. 1, 148]
the nomination of persons for election to the office of President of the United States;
● (2) means a contract, promise, or agreement, express or implied, whether or not legally
enforceable, to make any expenditure;
● (3) means the transfer of funds by a political committee to another political committee; but
● (A) any news story, commentary, or editorial distributed through the facilities of any broadcasting
station, newspaper, magazine, or other periodical publication, unless such facilities are owned or

controlled by any political party, political committee, or candidate;

● (B) nonpartisan activity designed to encourage individuals to register to vote or to vote;
● (C) any communication by any membership organization or corporation to its members or
stockholders, if such membership organization or corporation is not organized primarily for the
purpose of influencing the nomination for election, or election, of any person to Federal office;
● (D) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily
individual's residential premises for candidate-related activities if the cumulative value of such
activities by such individual on behalf of any candidate do [sic] not exceed $500 with respect to
any election;
● (E) any unreimbursed payment for travel expenses made by an individual who on his own behalf
volunteers his personal services to a candidate if the cumulative amount for such individual
incurred with respect to such candidate [424 U.S. 1, 149] does not exceed $500 with respect to any
election;
● (F) any communication by any person which is not made for the purpose of influencing the
nomination for election, or election, of any person to Federal office; or
● (G) the payment by a State or local committee of a political party of the costs of preparation,
display, or mailing or other distribution incurred by such committee with respect to a printed slate
card or sample ballot, or other printed listing, of three or more candidates for any public office for
which an election is held in the State in which such committee is organized, except that this clause
shall not apply in the case of costs incurred by such committee with respect to a display of any
such listing made on broadcasting stations, or in newspapers, magazines or other similar types of
general public political advertising; or
● (H) any payment made or obligation incurred by a corporation or a labor organization which,
under the provisions of the last paragraph of section 610 of Title 18, would not constitute an
expenditure by such corporation or labor organization;
(g) "Commission" means the Federal Election Commission;
(h) "person" means an individual, partnership, committee, association, corporation, labor organization,
and any other organization or group of persons;
(i) "State" means each State of the United States, the District of Columbia, the Commonwealth of Puerto
Rico, and any territory or possession of the United States; [424 U.S. 1, 150]
(j) "identification" means -
● (1) in the case of an individual, his full name and the full address of his principal place of
residence; and
● (2) in the case of any other person, the full name and address of such person;
(k) "national committee" means the organization which, by virtue of the bylaws of a political party, is
responsible for the day-to-day operation of such political party at the national level, as determined by the
Commission;
(l) "State committee" means the organization which, by virtue of the bylaws of a political party, is
responsible for the day-to-day operation of such political party at the State level, as determined by the

Commission;
(m) "political party" means an association, committee, or organization which nominates a candidate for
election to any Federal office, whose name appears on the election ballot as the candidate of such
association, committee, or organization; and
(n) "principal campaign committee" means the principal campaign committee designated by a candidate
under section 432 (f) (1) of this title.
432. Organization of political committees.
(a) Chairman; treasurer; vacancies; official authorizations. Every political committee shall have a
chairman and a treasurer. No contribution and no expenditure shall be accepted or made by or on behalf
of a political committee at a time when there is a vacancy in the office of chairman or treasurer thereof.
No expenditure shall be made for or on behalf of a political committee without the authorization of its
chairman or treasurer, or their designated agents.
(b) Account of contributions; segregated funds. [424 U.S. 1, 151] Every person who receives a contribution
in excess of $10 for a political committee shall, on demand of the treasurer, and in any event within 5
days after receipt of such contribution, render to the treasurer a detailed account thereof, including the
amount of the contribution and the identification of the person making such contribution, and the date on
which received. All funds of a political committee shall be segregated from, and may not be commingled
with, any personal funds of officers, members, or associates of such committee.
(c) Recordkeeping. It shall be the duty of the treasurer of a political committee to keep a detailed and
exact account of -
● (1) all contributions made to or for such committee;
● (2) the identification of every person making a contribution in excess of $10, and the date and
amount thereof and, if a person's contributions aggregate more than $100, the account shall include
occupation, and the principal place of business (if any);
● (3) all expenditures made by or on behalf of such committee; and
● (4) the identification of every person to whom any expenditure is made, the date and amount
thereof and the name and address of, and office sought by, each candidate on whose behalf such
expenditure was made.
(d) Receipts; preservation. It shall be the duty of the treasurer to obtain and keep a receipted bill, stating
the particulars, for every expenditure made by or on behalf of a political committee in excess of $100 in
amount, and for any such expenditure in a lesser amount, if the aggregate amount of such expenditures to
the same person during a calendar year exceeds $100. The treasurer [424 U.S. 1, 152] shall preserve all
receipted bills and accounts required to be kept by this section for periods of time to be determined by
the Commission.
(e) Unauthorized activities; notice. Any political committee which solicits or receives contributions or
makes expenditures on behalf of any candidate that is not authorized in writing by such candidate to do
so shall include a notice on the face or front page of all literature and advertisements published in
connection with such candidate's campaign by such committee or on its behalf stating that the committee
is not authorized by such candidate and that such candidate is not responsible for the activities of such
committee.

(f) Principal campaign committees; one candidate limitation; office of President: national committee for
candidate; duties. (1) Each individual who is a candidate for Federal office (other than the office of Vice
President of the United States) shall designate a political committee to serve as his principal campaign
committee. No political committee may be designated as the principal campaign committee of more than
one candidate, except that the candidate for the office of President of the United States nominated by a
political party may designate the national committee of such political party as his principal campaign
committee. Except as provided in the preceding sentence, no political committee which supports more
than one candidate may be designated as a principal campaign committee.
(2) Notwithstanding any other provision of this subchapter, each report or statement of contributions
received or expenditures made by a political committee (other than a principal campaign committee)
which is required to be filed with the Commission under this subchapter shall be filed instead with the
principal campaign [424 U.S. 1, 153] committee for the candidate on whose behalf such contributions are
accepted or such expenditures are made.
(3) It shall be the duty of each principal campaign committee to receive all reports and statements
required to be filed with it under paragraph (2) of this subsection and to compile and file such reports and
statements, together with its own reports and statements, with the Commission in accordance with the
provisions of this subchapter.
433. Registration of political committees.
(a) Statements of organization. Each political committee which anticipates receiving contributions or
making expenditures during the calendar year in an aggregate amount exceeding $1,000 shall file with
the Commission a statement of organization, within 10 days after its organization or, if later, 10 days
after the date on which it has information which causes the committee to anticipate it will receive
contributions or make expenditures in excess of $1,000. Each such committee in existence at the date of
enactment of this Act shall file a statement of organization with the Commission at such time as it
prescribes.
(b) Contents of statements. The statement of organization shall include --
● (1) the name and address of the committee;
● (2) the names, addresses, and relationships of affiliated or connected organizations;
● (3) the area, scope, or jurisdiction of the committee;
● (4) the name, address, and position of the custodian of books and accounts;
● (5) the name, address, and position of other principal officers, including officers and members of
the finance committee, if any; [424 U.S. 1, 154]
● (6) the name, address, office sought, and party affiliation of -
● (A) each candidate whom the committee is supporting; and
● (B) any other individual, if any, whom the committee is supporting for nomination for election, or
election, to any public office whatever; or, if the committee is supporting the entire ticket of any
party, the name of the party;
● (7) a statement whether the committee is a continuing one;
● (8) the disposition of residual funds which will be made in the event of dissolution;
● (9) a listing of all banks, safety deposit boxes, or other repositories used;

● (10) a statement of the reports required to be filed by the committee with State or local officers,
and, if so, the names, addresses, and positions of such persons; and
● (11) such other information as shall be required by the Commission.
(c) Information changes; report. Any change in information previously submitted in a statement of
organization shall be reported to the Commission within a 10-day period following the change.
(d) Disbanding of political committees or contributions and expenditures below prescribed ceiling;
notice. Any committee which, after having filed one or more statements of organization, disbands or
determines it will no longer receive contributions or make expenditures during the calendar year in an
aggregate amount exceeding $1,000 shall so notify the Commission.
(e) Filing reports and notifications with appropriate principal campaign committees. In the case of a
political [424 U.S. 1, 155] committee which is not a principal campaign committee, reports and
notifications required under this section to be filed with the Commission shall be filed instead with the
appropriate principal campaign committee.
434. Reports by political committees and candidates.
(a) Receipts and expenditures; completion date, exception.
(1) Except as provided by paragraph (2), each treasurer of a political committee supporting a candidate or
candidates for election to Federal office, and each candidate for election to such office, shall file with the
Commission reports of receipts and expenditures on forms to be prescribed or approved by it. The reports
referred to in the preceding sentence shall be filed as follows:
● (A) (i) In any calendar year in which an individual is a candidate for Federal office and an election
for such Federal office is held in such year, such reports shall be filed not later than the 10th day
before the date on which such election is held and shall be complete as of the 15th day before the
date of such election; except that any such report filed by registered or certified mail must be
postmarked not later than the close of the 12th day before the date of such election.
● (ii) such reports shall be filed not later than the 30th day after the day of such election and shall be
complete as of the 20th day after the date of such election.
● (B) In any other calendar year in which an individual is a candidate for Federal office, such reports
shall be filed after December 31 of such calendar year, but not later than January 31 of the
following calendar year and shall be complete as of the close of the calendar year with respect to
which the report is filed. [424 U.S. 1, 156]
● (C) Such reports shall be filed not later than the 10th day following the close of any calendar
quarter in which the candidate or political committee concerned received contributions in excess of
$1,000, or made expenditures in excess of $1,000, and shall be complete as of the close of such
calendar quarter; except that any such report required to be filed after December 31 of any
calendar year with respect to which a report is required to be filed under subparagraph (B) shall be
filed as provided in such subparagraph.
● (D) When the last day for filing any quarterly report required by subparagraph (C) occurs within
10 days of an election, the filing of such quarterly report shall be waived and superseded by the
report required by subparagraph (A) (i).
Any contribution of $1,000 or more received after the 15th day, but more than 48 hours, before any

election shall be reported within 48 hours after its receipt.

(2) Each treasurer of a political committee which is not a principal campaign committee shall file the
reports required under this section with the appropriate principal campaign committee.
(3) Upon a request made by a presidential candidate or a political committee which operates in more than
one State, or upon its own motion, the Commission may waive the reporting dates set forth in paragraph
(1) (other than the reporting date set forth in paragraph (1) (B)), and require instead that such candidate
or political committee file reports not less frequently than monthly. The Commission may not require a
presidential candidate or a political committee operating in more than one State to file more than 12
reports (not counting any report referred to in paragraph (1) (B)) during any calendar year. If the
Commission acts on its own motion [424 U.S. 1, 157] under this paragraph with respect to a candidate or a
political committee, such candidate or committee may obtain judicial review in accordance with the
provisions of chapter 7 of Title 5.
(b) Contents of reports. Each report under this section shall disclose --
● (1) the amount of cash on hand at the beginning of the reporting period;
● (2) the full name and mailing address (occupation and the principal place of business, if any) of
each person who has made one or more contributions to or for such committee or candidate
(including the purchase of tickets for events such as dinners, luncheons, rallies, and similar
fundraising events) within the calendar year in an aggregate amount or value in excess of $100,
together with the amount and date of such contributions;
● (3) the total sum of individual contributions made to or for such committee or candidate during the
reporting period and not reported under paragraph (2);
● (4) the name and address of each political committee or candidate from which the reporting
committee or the candidate received, or to which that committee or candidate made, any transfer of
funds, together with the amounts and dates of all transfers;
● (5) each loan to or from any person within the calendar year in an aggregate amount or value in
excess of $100, together with the full names and mailing addresses (occupations and the principal
places of business, if any) of the lender, endorsers, and guarantors, if any, and the date and amount
of such loans;
● (6) the total amount of proceeds from -- [424 U.S. 1, 158]
● (A) the sale of tickets to each dinner, luncheon, rally, and other fundraising event;
● (B) mass collections made at such events; and
● (C) sales of items such as political campaign pins, buttons, badges, flags, emblems, hats, banners,
literature, and similar materials;
● (7) each contribution, rebate, refund, or other receipt in excess of $100 not otherwise listed under
paragraphs (2) through (6);
● (8) the total sum of all receipts by or for such committee or candidate during the reporting period,
together with total expenditures less transfers between political committees which support the
same candidate and which do not support more than one candidate;
● (9) the identification of each person to whom expenditures have been made by such committee or
on behalf of such committee or candidate within the calendar year in an aggregate amount or value
in excess of $100, the amount, date, and purpose of each such expenditure and the name and

address of, and office sought by, each candidate on whose behalf such expenditure was made;
● (10) the identification of each person to whom an expenditure for personal services, salaries, and
reimbursed expenses in excess of $100 has been made, and which is not otherwise reported,
including the amount, date, and purpose of such expenditure;
● (11) the total sum of expenditures made by such committee or candidate during the calendar year,
together with total receipts less transfers between political committees which support the same
candidate and which do not support more than one candidate; [424 U.S. 1, 159]
● (12) the amount and nature of debts and obligations owed by or to the committee, in such form as
the supervisory officer may prescribe and a continuous reporting of their debts and obligations
after the election at such periods as the Commission may require until such debts and obligations
are extinguished, together with a statement as to the circumstances and conditions under which any
such debt or obligation is extinguished and the consideration therefor; and
● (13) such other information as shall be required by the Commission.
(c) Cumulative reports for calendar year; amounts for unchanged items carried forward; statement of
inactive status. The reports required to be filed by subsection (a) of this section shall be cumulative
during the calendar year to which they relate, but where there has been no change in an item reported in a
previous report during such year, only the amount need be carried forward. If no contributions or
expenditures have been accepted or expended during a calendar year, the treasurer of the political
committee or candidate shall file a statement to that effect.
(d) Members of Congress; reporting exemption. This section does not require a Member of the Congress
to report, as contributions received or as expenditures made, the value of photographic, matting, or
recording services furnished to him by the Senate Recording Studio, the House Recording Studio, or by
an individual whose pay is disbursed by the Secretary of the Senate or the Clerk of the House of
Representatives and who furnishes such services as his primary duty as an employee of the Senate or
House of Representatives, or if such services were paid for by the Republican or Democratic Senatorial
Campaign Committee, the Democratic National Congressional [424 U.S. 1, 160] Committee, or the
National Republican Congressional Committee. This subsection does not apply to such recording
services furnished during the calendar year before the year in which the Member's term expires.
(e) Reports by other than political committees. Every person (other than a political committee or
candidate) who makes contributions or expenditures, other than by contribution to a political committee
or candidate, in an aggregate amount in excess of $100 within a calendar year shall file with the
Commission a statement containing the information required by this section. Statements required by this
subsection shall be filed on the dates on which reports by political committees are filed but need not be
cumulative.
437a. Reports by certain persons; exemptions.
Any person (other than an individual) who expends any funds or commits any act directed to the public
for the purpose of influencing the outcome of an election, or who publishes or broadcasts to the public
any material referring to a candidate (by name, description, or other reference) advocating the election or
defeat of such candidate, setting forth the candidate's position on any public issue, his voting record, or
other official acts (in the case of a candidate who holds or has held Federal office), or otherwise designed
to influence individuals to cast their votes for or against such candidate or to withhold their votes from

such candidate shall file reports with the Commission as if such person were a political committee. The
reports filed by such person shall set forth the source of the funds used in carrying out any activity
described in the preceding sentence in the same detail as if the funds were contributions within the
meaning of section 431 (e) of this title, and payments of such funds in the same detail as if they were
expenditures within the meaning of section 431 (f) of this title. The provisions [424 U.S. 1, 161] of this
section do not apply to any publication or broadcast of the United States Government or to any news
story, commentary, or editorial distributed through the facilities of a broadcasting station or a bona fide
newspaper, magazine, or other periodical publication. A news story, commentary, or editorial is not
considered to be distributed through a bona fide newspaper, magazine, or other periodical publication if -
● (1) such publication is primarily for distribution to individuals affiliated by membership or stock
ownership with the person (other than an individual) distributing it or causing it to be distributed,
and not primarily for purchase by the public at newsstands or paid by subscription; or
● (2) the news story, commentary, or editorial is distributed by a person (other than an individual)
who devotes a substantial part of his activities to attempting to influence the outcome of elections,
or to influence public opinion with respect to matters of national or State policy or concern.
437c. Federal Election Commission.
(a) Establishment; membership; term of office; vacancies; qualifications; compensation; chairman and
vice chairman.
● (1) There is established a commission to be known as the Federal Election Commission. The
Commission is composed of the Secretary of the Senate and the Clerk of the House of
Representatives, ex officio and without the right to vote, and six members appointed as follows:
● (A) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by
the President pro tempore of the Senate upon the recommendations of the majority leader of the
Senate and the minority leader of the Senate; [424 U.S. 1, 162]
● (B) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by
the Speaker of the House of Representatives, upon the recommendations of the majority leader of
the House and the minority leader of the House; and
● (C) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by
the President of the United States.
A member appointed under subparagraph (A), (B), or (C) shall not be affiliated with the same political
party as the other member appointed under such paragraph.
● (2) Members of the Commission shall serve for terms of 6 years, except that of the members first
appointed -
● (A) one of the members appointed under paragraph (1) (A) shall be appointed for a term ending on
the April 30 first occurring more than 6 months after the date on which he is appointed;
● (B) one of the members appointed under paragraph (1) (B) shall be appointed for a term ending 1
year after the April 30 on which the term of the member referred to in subparagraph (A) of this
paragraph ends;
● (C) one of the members appointed under paragraph (1) (C) shall be appointed for a term ending 2
years thereafter;
● (D) one of the members appointed under paragraph (1) (A) shall be appointed for a term ending 3

years thereafter;
● (E) one of the members appointed under paragraph (1) (B) shall be appointed for a term ending 4
years thereafter; and
● (F) one of the members appointed under paragraph [424 U.S. 1, 163] (1) (C) shall be appointed for a
term ending 5 years thereafter.
An individual appointed to fill a vacancy occurring other than by the expiration of a term of office shall
be appointed only for the unexpired term of the member he succeeds. Any vacancy occurring in the
membership of the Commission shall be filled in the same manner as in the case of the original
appointment.
● (3) Members shall be chosen on the basis of their maturity, experience, integrity, impartiality, and
good judgment and shall be chosen from among individuals who, at the time of their appointment,
are not elected or appointed officers or employees in the executive, legislative, or judicial branch
of the Government of the United States.
● (4) Members of the Commission (other than the Secretary of the Senate and the Clerk of the House
of Representatives) shall receive compensation equivalent to the compensation paid at level IV of
the Executive Schedule (5 U.S.C. 5315).
● (5) The Commission shall elect a chairman and a vice chairman from among its members (other
than the Secretary of the Senate and the Clerk of the House of Representatives) for a term of one
year. No member may serve as chairman more often than once during any term of office to which
he is appointed. The chairman and the vice chairman shall not be affiliated with the same political
party. The vice chairman shall act as chairman in the absence or disability of the chairman, or in
the event of a vacancy in such office.
(b) Administration, enforcement, and formulation of policy; primary jurisdiction of civil enforcement.
The Commission shall administer, seek to obtain compliance with, and formulate policy with respect to
this Act and sections 608, 610, 611, 613, 614, 615, 616, [424 U.S. 1, 164] and 617 of Title 18. The
Commission has primary jurisdiction with respect to the civil enforcement of such provisions.
(c) Voting requirement; nondelegation of function.
All decisions of the Commission with respect to the exercise of its duties and powers under the
provisions of this subchapter shall be made by a majority vote of the members of the Commission. A
member of the Commission may not delegate to any person his vote or any decisionmaking authority or
duty vested in the Commission by the provisions of this subchapter.
(d) Meetings.
The Commission shall meet at least once each month and also at the call of any member.
(e) Rules for conduct of activities; seal, judicial notice; principal office.
The Commission shall prepare written rules for the conduct of its activities, shall have an official seal
which shall be judicially noticed, and shall have its principal office in or near the District of Columbia
(but it may meet or exercise any of its powers anywhere in the United States).
(f) Staff director and general counsel: appointment and compensation; appointment and compensation of

personnel and procurement of intermittent services by staff director; use of assistance, personnel, and
facilities of Federal agencies and departments.
(1) The Commission shall have a staff director and a general counsel who shall be appointed by the
Commission. The staff director shall be paid at a rate not to exceed the rate of basic pay in effect for level
IV of the Executive Schedule (5 U.S.C. 5315). The general counsel shall be paid at a rate not to exceed
the rate of basic pay in effect for level V of the Executive Schedule (5 U.S.C. 5316). With the approval
of the [424 U.S. 1, 165] Commission, the staff director may appoint and fix the pay of such additional
personnel as he considers desirable.
● (2) With the approval of the Commission, the staff director may procure temporary and
intermittent services to the same extent as is authorized by section 3109 (b) of Title 5, but at rates
for individuals not to exceed the daily equivalent of the annual rate of basic pay in effect for grade
GS-15 of the general schedule (5 U.S.C. 5332).
● (3) In carrying out its responsibilities under this Act, the Commission shall, to the fullest extent
practicable, avail itself of the assistance, including personnel and facilities, of other agencies and
departments of the United States Government. The heads of such agencies and departments may
make available to the Commission such personnel, facilities, and other assistance, with or without
reimbursement, as the Commission may request.
437d. Powers of Commission.
(a) Specific enumeration.
The Commission has the power -
● (1) to require, by special or general orders, any person to submit in writing such reports and
answers to questions as the Commission may prescribe; and such submission shall be made within
such a reasonable period of time and under oath or otherwise as the Commission may determine;
● (2) to administer oaths or affirmations;
● (3) to require by subpena, signed by the chairman or the vice chairman, the attendance and
testimony of witnesses and the production of all documentary evidence relating to the execution of
its duties;
● (4) in any proceeding or investigation, to order testimony to be taken by deposition before any
person who is designated by the Commission and has [424 U.S. 1, 166] the power to administer
oaths and, in such instances, to compel testimony and the production of evidence in the same
manner as authorized under paragraph (3) of this subsection;
● (5) to pay witnesses the same fees and mileage as are paid in like circumstances in the courts of the
United States;
● (6) to initiate (through civil proceedings for injunctive, declaratory, or other appropriate relief),
defend, or appeal any civil action in the name of the Commission for the purpose of enforcing the
provisions of this Act, through its general counsel;
● (7) to render advisory opinions under section 437 of this title;
● (8) to make, amend, and repeal such rules, pursuant to the provisions of chapter 5 of Title 5, as are
necessary to carry out the provisions of this Act;
● (9) to formulate general policy with respect to the administration of this Act and sections 608, 610,

611, 613, 614, 615, 616, and 617 of Title 18;

● (10) to develop prescribed forms under subsection (a) (1) of this section; and
● (11) to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and
to report apparent violations to the appropriate law enforcement authorities.
(b) Judicial orders for compliance with subpenas and orders of Commission; contempt of court.
Any United States district court within the jurisdiction of which any inquiry is carried on, may, upon
petition by the Commission, in case of refusal to obey a subpena or order of the Commission issued
under subsection (a) of this section, issue an order requiring compliance therewith. Any failure to obey
the order of the [424 U.S. 1, 167] court may be punished by the court as a contempt thereof.
(c) Civil liability for disclosure of information.
No person shall be subject to civil liability to any person (other than the Commission or the United
States) for disclosing information at the request of the Commission.
(d) Transmittal to Congress: Budget estimates or requests and legislative recommendations; prior
transmittal to Congress: legislative recommendations.
(1) Whenever the Commission submits any budget estimate or request to the President of the United
States or the Office of Management and Budget, it shall concurrently transmit a copy of such estimate or
request to the Congress.
● (2) Whenever the Commission submits any legislative recommendations, or testimony, or
comments on legislation, requested by the Congress or by any Member of the Congress, to the
President of the United States or the Office of Management and Budget, it shall concurrently
transmit a copy thereof to the Congress or to the Member requesting the same. No officer or
agency of the United States shall have any authority to require the Commission to submit its
legislative recommendations, testimony, or comments on legislation, to any office or agency of the
United States for approval, comments, or review, prior to the submission of such
recommendations, testimony, or comments to the Congress.
437e. Reports to President and Congress.
The Commission shall transmit reports to the President of the United States and to each House of the
Congress no later than March 31 of each year. Each such report shall contain a detailed statement with
respect to the activities of the Commission in carrying out its duties under this subchapter, together with
recommendations [424 U.S. 1, 168] for such legislative or other action as the Commission considers
appropriate.
437f. Advisory opinions.
(a) Written requests; written opinions within reasonable time; specific transactions or activities
constituting violations of provisions.
Upon written request to the Commission by any individual holding Federal office, any candidate for
Federal office, or any political committee, the Commission shall render an advisory opinion, in writing,
within a reasonable time with respect to whether any specific transaction or activity by such individual,
candidate, or political committee would constitute a violation of this Act, of chapter 95 or chapter 96 of

Title 26 or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18.
(b) Presumption of compliance with provisions based on good faith actions.
Notwithstanding any other provision of law, any person with respect to whom an advisory opinion is
rendered under subsection (a) of this section who acts in good faith in accordance with the provisions and
findings of such advisory opinion shall be presumed to be in compliance with the provision of this Act,
of chapter 95 or chapter 96 of Title 26, or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title
18, with respect to which such advisory opinion is rendered.
(c) Requests made public; transmittal to Commission of comments of interested parties with respect to
such requests.
Any request made under subsection (a) shall be made public by the Commission. The Commission shall
before rendering an advisory opinion with respect to such request, provide any interested party with an
opportunity to transmit written comments to the Commission with respect to such request. [424 U.S. 1,
169]
437g. Enforcement.
(a) Violations; complaints and referrals; notification and investigation by Commission: venue, judicial
orders; referral to law enforcement authorities: civil actions by Attorney General: venue, judicial orders,
bond; subpenas; review by courts of appeals: time for petition, finality of judgment; review by Supreme
Court; docket: advancement and priorities.
(1) (A) Any person who believes a violation of this Act or of section 608, 610, 611, 613, 614, 615, 616,
or 617 of Title 18 has occurred may file a complaint with the Commission.
(B) In any case in which the Clerk of the House of Representatives or the Secretary of the Senate (who
receive reports and statements as custodian for the Commission) has reason to believe a violation of this
act or section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 has occurred he shall refer such
apparent violation to the Commission.
(2) The Commission upon receiving any complaint under paragraph (1) (A), or a referral under paragraph
(1) (B), or if it has reason to believe that any person has committed a violation of any such provision,
shall notify the person involved of such apparent violation and shall -
● (A) report such apparent violation to the Attorney General; or
● (B) make an investigation of such apparent violation.
(3) Any investigation under paragraph (2) (B) shall be conducted expeditiously and shall include an
investigation of reports and statements filed by any complainant under this subchapter, if such
complainant is a candidate. Any notification or investigation made under paragraph (2) shall not be made
public by the Commission or by [424 U.S. 1, 170] any other person without the written consent of the
person receiving such notification or the person with respect to whom such investigation is made.
(4) The Commission shall, at the request of any person who receives notice of an apparent violation
under paragraph (2), conduct a hearing with respect to such apparent violation.
(5) If the Commission determines, after investigation, that there is reason to believe that any person has
engaged, or is about to engage in any acts or practices which constitute or will constitute a violation of

this Act, it may endeavor to correct such violation by informal methods of conference, conciliation, and
persuasion. If the Commission fails to correct the violation through informal methods, it may institute a
civil action for relief, including a permanent or temporary injunction, restraining order, or any other
appropriate order in the district court of the United States for the district in which the person against
whom such action is brought is found, resides, or transacts business. Upon a proper showing that such
person has engaged or is about to engage in such acts or practices, the court shall grant a permanent or
temporary injunction, restraining order, or other order.
(6) The Commission shall refer apparent violations to the appropriate law enforcement authorities to the
extent that violations of provisions of chapter 29 of Title 18 are involved, or if the Commission is unable
to correct apparent violations of this Act under the authority given it by paragraph (5), or if the
Commission determines that any such referral is appropriate.
(7) Whenever in the judgment of the Commission, after affording due notice and an opportunity for a
hearing, any person has engaged or is about to engage in any acts or practices which constitute or will
constitute a violation of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617
of Title 18, [424 U.S. 1, 171] upon request by the Commission the Attorney General on behalf of the
United States shall institute a civil action for relief, including a permanent or temporary injunction,
restraining order, or any other appropriate order in the district court of the United States for the district in
which the person is found, resides, or transacts business. Upon a proper showing that such person has
engaged or is about to engage in such acts or practices, a permanent or temporary injunction, restraining
order, or other order shall be granted without bond by such court.
(8) In any action brought under paragraph (5) or (7) of this subsection, subpenas for witnesses who are
required to attend a United States district court may run into any other district.
(9) Any party aggrieved by an order granted under paragraph (5) or (7) of this subsection may, at any
time within 60 days after the date of entry thereof, file a petition with the United States court of appeals
for the circuit in which such order was issued for judicial review of such order.
(10) The judgment of the court of appeals affirming or setting aside, in whole or in part, any such order
of the district Court shall be final, subject to review by the Supreme Court of the United States upon
certiorari or certification as provided in section 1254 of Title 28.
(11) Any action brought under this subsection shall be advanced on the docket of the court in which
filed, and put ahead of all other actions (other than other actions brought under this subsection or under
section 437h of this title).
(b) Reports of Attorney General to Commission respecting action taken; reports of Commission
respecting status of referrals.
In any case in which the Commission refers an apparent violation to the Attorney General, the Attorney
[424 U.S. 1, 172] General shall respond by report to the Commission with respect to any action taken by
the Attorney General regarding such apparent violation. Each report shall be transmitted no later than 60
days after the date the Commission refers any apparent violation, and at the close of every 30-day period
thereafter until there is final disposition of such apparent violation. The Commission may from time to
time prepare and publish reports on the status of such referrals.
437h. Judicial review.

(a) Actions, including declaratory judgments, for construction of constitutional questions; eligible
plaintiffs; certification of such questions to courts of appeals sitting en banc.
The Commission, the national committee of any political party, or any individual eligible to vote in any
election for the office of President of the United States may institute such actions in the appropriate
district court of the United States, including actions for declaratory judgment, as may be appropriate to
construe the constitutionality of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616,
or 617 of Title 18. The district court immediately shall certify all questions of constitutionality of this Act
or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, to the United States court of appeals
for the circuit involved, which shall hear the matter sitting en banc.
(b) Appeal to Supreme Court; time for appeal.
Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of
this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal
shall be brought no later than 20 days after the decision of the court of appeals.
(c) Advancement on appellate docket and expedited deposition of certified questions. [424 U.S. 1, 173]
It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on
the docket and to expedite to the greatest possible extent the disposition of any matter certified under
subsection (a) of this section.
438. Administrative and judicial provisions.
(a) Federal Election Commission; duties.
It shall be the duty of the Commission -
● (1) Forms. To develop and furnish to the person required by the provisions of this Act prescribed
forms for the making of the reports and statements required to be filed with it under this
subchapter;
● (2) Manual for uniform bookkeeping and reporting methods. To prepare, publish, and furnish to
the person required to file such reports and statements a manual setting forth recommended
uniform methods of bookkeeping and reporting;
● (3) Filing, coding, and cross-indexing system. To develop a filing, coding, and cross-indexing
system consonant with the purposes of this subchapter;
● (4) Public inspection; copies; sale or use restrictions. To make the reports and statements filed with
it available for public inspection and copying, commencing as soon as practicable but not later
than the end of the second day following the day during which it was received, and to permit
copying of any such report or statement by hand or by duplicating machine, as requested by any
person, at the expense of such person: Provided, That any information copied from such reports
and statements shall not be sold or utilized by any person for the purpose of soliciting
contributions or for any commercial purpose;
● (5) Preservation of reports and statements. To preserve such reports and statements for a period of
[424 U.S. 1, 174] 10 years from date of receipt, except that reports and statements relating solely to
candidates for the House of Representatives shall be preserved for only 5 years from the date of
receipt;

● (6) Index of reports and statements; publication in Federal Register. To compile and maintain a
cumulative index of reports and statements filed with it, which shall be published in the Federal
Register at regular intervals and which shall be available for purchase directly or by mail for a
reasonable price;
● (7) Special reports; publication. To prepare and publish from time to time special reports listing
those candidates for whom reports were filed as required by this subchapter and those candidates
for whom such reports were not filed as so required;
● (8) Audits; investigations. To make from time to time audits and field investigations with respect
to reports and statements filed under the provisions of this subchapter, and with respect to alleged
failures to file any report or statement required under the provisions of this subchapter;
● (9) Enforcement authorities; reports of violations. To report apparent violations of law to the
appropriate law enforcement authorities; and
● (10) Rules and regulations. To prescribe suitable rules and regulations to carry out the provisions
of this subchapter, in accordance with the provisions of subsection (c) of this section.
(b) Commission; duties: national clearinghouse for information; studies, scope, publication, copies to
general public at cost. It shall be the duty of the Commission to serve as a national clearinghouse for
information in respect to the administration of elections. In carrying out its duties under this subsection,
the Commission shall enter into contracts for the purpose of conducting independent [424 U.S. 1, 175]
studies of the administration of elections. Such studies shall include, but shall not be limited to, studies of
-
● (1) the method of selection of, and the type of duties assigned to, officials and personnel working
on boards of elections;
● (2) practices relating to the registration of voters; and
● (3) voting and counting methods.
Studies made under this subsection shall be published by the Commission and copies thereof shall be
made available to the general public upon the payment of the cost thereof.
(c) Proposed rules or regulations; statement, transmittal to Congress; Presidential elections and
Congressional elections; "legislative days" defined.
● (1) The Commission, before prescribing any rule or regulation under this section, shall transmit a
statement with respect to such rule or regulation to the Senate or the House of Representatives, as
the case may be, in accordance with the provisions of this subsection. Such statement shall set
forth the proposed rule or regulation and shall contain a detailed explanation and justification of
such rule or regulation.
● (2) If the appropriate body of the Congress which receives a statement from the Commission under
this subsection does not, through appropriate action, disapprove the proposed rule or regulation set
forth in such statement no later than 30 legislative days after receipt of such statement, then the
Commission may prescribe such rule or regulation. In the case of any rule or regulation proposed
to deal with reports or statements required to be filed under this subchapter by a candidate for the
office of President [424 U.S. 1, 176] of the United States, and by political committees supporting
such a candidate both the Senate and the House of Representatives shall have the power to
disapprove such proposed rule or regulation. The Commission may not prescribe any rule or

regulation which is disapproved under this paragraph.

● (3) If the Commission proposes to prescribe any rule or regulation dealing with reports or
statements required to be filed under this subchapter by a candidate for the office of Senator, and
by political committees supporting such candidate, it shall transmit such statement to the Senate. If
the Commission proposes to prescribe any rule or regulation dealing with reports or statements
required to be filed under this subchapter by a candidate for the office of Representative, Delegate,
or Resident Commissioner, and by political committees supporting such candidate, it shall transmit
such statement to the House of Representatives. If the Commission proposes to prescribe any rule
or regulation dealing with reports or statements required to be filed under this subchapter by a
candidate for the office of President of the United States, and by political committees supporting
such candidate it shall transmit such statement to the House of Representatives and the Senate.
● (4) For purposes of this subsection, the term "legislative days" does not include, with respect to
statements transmitted to the Senate, any calendar day on which the Senate is not in session, and
with respect to statements transmitted to the House of Representatives, any calendar day on which
the House of Representatives is not in session, and with respect to statements transmitted to both
such bodies, any calendar day on which both Houses of the Congress are not in session. [424 U.S. 1,
177]
(d) Rules and regulations; issuance; custody of reports and statements; Congressional cooperation.
● (1) The Commission shall prescribe suitable rules and regulations to carry out the provisions of
this subchapter, including such rules and regulations as may be necessary to require that -
● (A) reports and statements required to be filed under this subchapter by a candidate for the office
of Representative in, or Delegate or Resident Commissioner to, the Congress of the United States,
and by political committees supporting such candidate, shall be received by the Clerk of the House
of Representatives as custodian for the Commission;
● (B) reports and statements required to be filed under this subchapter by a candidate for the office
of Senator, and by political committees supporting such candidate, shall be received by the
Secretary of the Senate as custodian for the Commission; and
● (C) the Clerk of the House of Representatives and the Secretary of the Senate, as custodians for the
Commission, each shall make the reports and statements received by him available for public
inspection and copying in accordance with paragraph (4) of subsection (a) of this section, and
preserve such reports and statements in accordance with paragraph (5) of subsection (a) of this
section.
● (2) It shall be the duty of the Clerk of the House of Representatives and the Secretary of the Senate
to cooperate with the Commission in carrying out its duties under this Act and to furnish such
services and facilities as may be required in accordance with this section. [424 U.S. 1, 178]
439. Statements filed with State officers.
(a) "Appropriate State" defined. A copy of each statement required to be filed with the Commission by
this subchapter shall be filed with the Secretary of State (or, if there is no office of Secretary of State, the
equivalent State officer) of the appropriate State. For purposes of this subsection, the term "appropriate
State" means -
● (1) for reports relating to expenditures and contributions in connection with the campaign for
nomination for election, or election, of a candidate to the office of President or Vice President of

the United States, each State in which an expenditure is made by him or on his behalf, and
● (2) for reports relating to expenditures and contributions in connection with the campaign for
nomination for election, or election, of a candidate to the office of Senator or Representative in, or
Delegate or Resident Commissioner to, the Congress of the United States, the State in which he
seeks election.
(b) Duties of State officers. It shall be the duty of the Secretary of State, or the equivalent State officer,
under subsection (a) of this section --
● (1) to receive and maintain in an orderly manner all reports and statements required by this
subchapter to be filed with him;
● (2) to preserve such reports and statements for a period of 10 years from date of receipt, except
that reports and statements relating solely to candidates for the House of Representatives shall be
preserved for only 5 years from the date of receipt;
● (3) to make the reports and statements filed with him available for public inspection and copying
during regular office hours, commencing as soon [424 U.S. 1, 179] as practicable but not later than
the end of the day during which it was received, and to permit copying of any such report or
statement by hand or by duplicating machine, requested by any person, at the expense of such
person; and
● (4) to compile and maintain a current list of all statements or parts of statements pertaining to each
candidate.
439a. Use of contributed amounts for certain purposes; rules of Commission.
Amounts received by a candidate as contributions that are in excess of any amount necessary to defray
his expenditures, and any other amounts contributed to an individual for the purpose of supporting his
activities as a holder of Federal office, may be used by such candidate or individual, as the case may be,
to defray any ordinary and necessary expenses incurred by him in connection with his duties as a holder
of Federal office, may be contributed by him to any organization described in section 170 (c) of Title 26,
or may be used for any other lawful purpose. To the extent any such contribution, amount contributed, or
expenditure thereof is not otherwise required to be disclosed under the provisions of this subchapter, such
contribution, amount contributed, or expenditure shall be fully disclosed in accordance with rules
promulgated by the Commission. The Commission is authorized to prescribe such rules as may be
necessary to carry out the provisions of this section.
441. Penalties for violations.
(a) Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000
or imprisoned not more than 1 year, or both. [424 U.S. 1, 180]
(b) In case of any conviction under this subchapter, where the punishment inflicted does not include
imprisonment, such conviction shall be deemed a misdemeanor conviction only.
● SUBCHAPTER II. -- GENERAL PROVISIONS
454. Partial invalidity.

If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the
validity of the remainder of the Act and the application of such provision to other persons and

circumstances shall not be affected thereby.

456. Additional enforcement authority.
(a) Findings, after notice and hearing, or failure to file timely reports; disqualification for prescribed
period from candidacy in future Federal elections.
In any case in which the Commission, after notice and opportunity for a hearing on the record in
accordance with section 554 of Title 5, makes a finding that a person who, while a candidate for Federal
office, failed to file a report required by subchapter I of this chapter, and such finding is made before the
expiration of the time within which the failure to file such report may be prosecuted as a violation of
such subchapter I, such person shall be disqualified from becoming a candidate in any future election for
Federal office for a period of time beginning on the date of such finding and ending one year after the
expiration of the term of the Federal office for which such person was a candidate.
(b) Judicial review of findings.
Any finding by the Commission under subsection (a) of this section shall be subject to judicial review in
accordance with the provisions of chapter 7 of Title 5. [424 U.S. 1, 181]
● TITLE 18. CRIMES AND CRIMINAL
PROCEDURE
● CHAPTER 29 -- ELECTIONS AND POLITICAL ACTIVITIES
591. Definitions.
Except as otherwise specifically provided, when used in this section and in sections 597, 599, 600, 602,
608, 610, 611, 614, 615, and 617 of this title --
● (a) "election" means -
● (1) a general, special, primary, or runoff election,
● (2) a convention or caucus of a political party held to nominate a candidate,
● (3) a primary election held for the selection of delegates to a national nominating convention of a
political party, or
● (4) a primary election held for the expression of a preference for the nomination of persons for
election to the office of President;
● (b) a "candidate" means an individual who seeks nomination for election, or election, to Federal
office, whether or not such individual is elected, and, for purposes of this paragraph, an individual
shall be deemed to seek nomination for election, or election, to Federal office, if he has --
● (1) taken the action necessary under the law of a State to qualify himself for nomination for
election, or election, or
● (2) received contributions or made expenditures, or has given his consent for any other person to
receive contributions or make expenditures, with a view to bringing about his nomination for
● (c) "Federal office" means the office of President or Vice President of the United States, or Senator
[424 U.S. 1, 182] or Representative in, or Delegate or Resident Commissioner to, the Congress of

the United States;

● (d) "political committee" means any committee, club, association, or other group of persons which
receives contributions or makes expenditures during a calendar year in an aggregate amount
exceeding $1,000;
● (e) "contribution" -
● (1) means a gift, subscription, loan, advance, or deposit of money or anything of value (except a
loan of money by a national or State bank made in accordance with the applicable banking laws
and regulations and in the ordinary course of business, which shall be considered a loan by each
endorser or guarantor, in that proportion of the unpaid balance thereof that each endorser or
guarantor bears to the total number of endorsers or guarantors), made for the purpose of
influencing the nomination for election, or election, of any person to Federal office or for the
purpose of influencing the results of a primary held for the selection of delegates to a national
nominating convention of a political party or for the expression of a preference for the nomination
of persons for election to the office of President of the United States;
enforceable, to make a contribution for such purposes;
● (3) means funds received by a political committee which are transferred to such committee from
another political committee or other source; [424 U.S. 1, 183]
● (4) means the payment, by any person other than a candidate or a political committee, of
compensation for the personal services of another person which are rendered to such candidate or
political committee without charge for any such purpose; but
● (A) the value of services provided without compensation by individuals who volunteer a portion or
all of their time on behalf of a candidate or political committee;
● (B) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily
● (C) the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge less
than the normal comparable charge, if such charge for use in a candidate's campaign is at least
● (D) any unreimbursed payment for travel expenses made by an individual who on his own behalf
volunteers his personal services to a candidate; or
● (E) the payment by a State or local committee of a political party of the costs of preparation,
display, or mailing or other distribution incurred by such committee with respect to a printed slate
card or sample [424 U.S. 1, 184] ballot, or other printed listing, of three or more candidates for any
to a display of any such listing made on broadcasting stations, or in newspapers, magazines or
other similar types of general public political advertising; to the extent that the cumulative value of
activities by any person on behalf of any candidate under each of clauses (B), (C), and (D) does
not exceed $500 with respect to any election;
(f) "expenditure" -

● (1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything
of value (except a loan of money by a national or State bank made in accordance with the
applicable banking laws and regulations and in the ordinary course of business), made for the
purpose of influencing the nomination for election, or election, of any person to Federal office or
for the purpose of influencing the results of a primary held for the selection of delegates to a
national nominating convention of a political party or for the expression of a preference for the
nomination of persons for election to the office of President of the United States;
enforceable, to make any expenditure; and
● (3) means the transfer of funds by a political committee to another political committee; but [424
U.S. 1, 185]
● (A) any news story, commentary, or editorial distributed through the facilities of any broadcasting
station, newspaper, magazine, or other periodical publication, unless such facilities are owned or
● (B) nonpartisan activity designed to encourage individuals to register to vote or to vote;
● (C) any communication by any membership organization or corporation to its members or
stockholders, if such membership organization or corporation is not organized primarily for the
purpose of influencing the nomination for election, or election, of any person to Federal office;
● (D) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily
● (E) any unreimbursed payment for travel expenses made by an individual who on his own behalf
volunteers his personal services to a candidate;
● (F) any communication by any person which is not made for the purpose of influencing the
nomination for election, or election, of any person to Federal office;
● (G) the payment by a State or local committee of a political party of the costs of [424 U.S. 1, 186]
preparation, display, or mailing or other distribution incurred by such committee with respect to a
printed slate card or sample ballot, or other printed listing, of three or more candidates for any
to a display of any such listing made on broadcasting stations, or in newspapers, magazines or
other similar types of general public political advertising;
● (H) any costs incurred by a candidate in connection with the solicitation of contributions by such
candidate, except that this clause shall not apply with respect to costs incurred by a candidate in
excess of an amount equal to 20 percent of the expenditure limitation applicable to such candidate
under section 608 (c) of this title; or
● (I) any costs incurred by a political committee (as such term is defined by section 608 (b) (2) of
this title) with respect to the solicitation of contributions to such political committee or to any
general political fund controlled by such political committee, except that this clause shall not apply
to exempt costs incurred with respect to the solicitation of contributions to any such political
committee made through broadcasting stations, newspapers, magazines, outdoor advertising
facilities, and [424 U.S. 1, 187] other similar types of general public political advertising;

● to the extent that the cumulative value of activities by any individual on behalf of any candidate
under each of clauses (D) or (E) does not exceed $500 with respect to any election;
● (g) "person" and "whoever" mean an individual, partnership, committee, association, corporation,
or any other organization or group of persons;
● (h) "State" means each State of the United States, the District of Columbia, the Commonwealth of
Puerto Rico, and any territory or possession of the United States;
● (i) "political party" means any association, committee, or organization which nominates a
candidate for election to any Federal office whose name appears on the election ballot as the
candidate of such association, committee, or organization;
● (j) "State committee" means the organization which, by virtue of the bylaws of a political party, is
responsible for the day-to-day operation of such political party at the State level, as determined by
the Federal Election Commission;
● (k) "national committee" means the organization which, by virtue of the bylaws of the political
party, is responsible for the day-to-day operation of such political party at the national level, as
determined by the Federal Election Commission established under section 437c (a) of Title 2; and
● (l) "principal campaign committee" means the principal campaign committee designated by a
candidate under section 432 (f) (1) of Title 2.
608. Limitations on contributions and expenditures.
(a) Personal funds of candidate and family.
● (1) No candidate may make expenditures from [424 U.S. 1, 188] his personal funds, or the personal
funds of his immediate family, in connection with his campaigns during any calendar year for
nomination for election, or for election, to Federal office in excess of, in the aggregate -
● (A) $50,000, in the case of a candidate for the office of President or Vice President of the United
States;
● (B) $35,000, in the case of a candidate for the office of Senator or for the office of Representative
from a State which is entitled to only one Representative; or
● (C) $25,000, in the case of a candidate for the office of Representative, or Delegate or Resident
Commissioner, in any other State.
● For purposes of this paragraph, any expenditure made in a year other than the calendar year in
which the election is held with respect to which such expenditure was made, is considered to be
made during the calendar year in which such election is held.
● (2) For purposes of this subsection, "immediate family" means a candidate's spouse, and any child,
parent, grandparent, brother, or sister of the candidate, and the spouses of such persons.
● (3) No candidate or his immediate family may make loans or advances from their personal funds
in connection with his campaign for nomination for election, or for election, to Federal office
unless such loan or advance is evidenced by a written instrument fully disclosing the terms and
conditions of such loan or advance.
● (4) For purposes of this subsection, any such loan or advance shall be included in computing the
total amount of such expenditures only to the extent [424 U.S. 1, 189] of the balance of such loan or
advance outstanding and unpaid.

(b) Contributions by persons and committees.

● (1) Except as otherwise provided by paragraphs (2) and (3), no person shall make contributions to
any candidate with respect to any election for Federal office which, in the aggregate, exceed
$1,000.
● (2) No political committee (other than a principal campaign committee) shall make contributions
to any candidate with respect to any election for Federal office which, in the aggregate, exceed
$5,000. Contributions by the national committee of a political party serving as the principal
campaign committee of a candidate for the office of President of the United States shall not exceed
the limitation imposed by the preceding sentence with respect to any other candidate for Federal
office. For purposes of this paragraph, the term "political committee" means an organization
registered as a political committee under section 433, Title 2, United States Code, for a period of
not less than 6 months which has received contributions from more than 50 persons and, except for
any State political party organization, has made contributions to 5 or more candidates for Federal
office.
● (3) No individual shall make contributions aggregating more than $25,000 in any calendar year.
For purposes of this paragraph, any contribution made in a year other than the calendar year in
which the election is held with respect to which such contribution was made, is considered to be
● (4) For purposes of this subsection -
● (A) contributions to a named candidate made [424 U.S. 1, 190] to any political committee authorized
by such candidate, in writing, to accept contributions on his behalf shall be considered to be
contributions made to such candidate; and
● (B) contributions made to or for the benefit of any candidate nominated by a political party for
election to the office of Vice President of the United States shall be considered to be contributions
made to or for the benefit of the candidate of such party for election to the office of President of
the United States.
● (5) The limitations imposed by paragraphs (1) and (2) of this subsection shall apply separately
with respect to each election, except that all elections held in any calendar year for the office of
President of the United States (except a general election for such office) shall be considered to be
one election.
● (6) For purposes of the limitations imposed by this section, all contributions made by a person,
either directly or indirectly, on behalf of a particular candidate, including contributions which are
in any way earmarked or otherwise directed through an intermediary or conduit to such candidate,
shall be treated as contributions from such person to such candidate. The intermediary or conduit
shall report the original source and the intended recipient of such contribution to the Commission
and to the intended recipient.
(c) Limitations on expenditures.
● (1) No candidate shall make expenditures in excess of -
● (A) $10,000,000, in the case of a candidate for nomination for election to the office of President of
the United States, except that [424 U.S. 1, 191] the aggregate of expenditures under this
subparagraph in any one State shall not exceed twice the expenditure limitation applicable in such
State to a candidate for nomination for election to the office of Senator, Delegate, or Resident

Commissioner, as the case may be;

● (B) $20,000,000, in the case of a candidate for election to the office of President of the United
States;
● (C) in the case of any campaign for nomination for election by a candidate for the office of Senator
or by a candidate for the office of Representative from a State which is entitled to only one
Representative, the greater of --
● (i) 8 cents multiplied by the voting age population of the State (as certified under subsection (g));
or
● (ii) $100,000;
● (D) in the case of any campaign for election by a candidate for the office of Senator or by a
candidate for the office of Representative from a State which is entitled to only one
Representative, the greater of -
or
● (ii) $150,000;
● (E) $70,000, in the case of any campaign for nomination for election, or for election, by a
candidate for the office of Representative in any other State, Delegate from the District of
Columbia, or Resident Commissioner; or
● (F) $15,000, in the case of any campaign for nomination for election, or for election, by [424 U.S. 1,
192] a candidate for the office of Delegate from Guam or the Virgin Islands.
(2) For purposes of this subsection -

● (A) expenditures made by or on behalf of any candidate nominated by a political party for election
to the office of Vice President of the United States shall be considered to be expenditures made by
or on behalf of the candidate of such party for election to the office of President of the United
States; and
● (B) an expenditure is made on behalf of a candidate, including a vice presidential candidate, if it is
made by -
● (i) an authorized committee or any other agent of the candidate for the purposes of making any
expenditure; or
● (ii) any person authorized or requested by the candidate, an authorized committee of the candidate,
or an agent of the candidate, to make the expenditure.
● (3) The limitations imposed by subparagraphs (C), (D), (E), and (F) of paragraph (1) of this
subsection shall apply separately with respect to each election.
● (4) The Commission shall prescribe rules under which any expenditure by a candidate for
presidential nomination for use in 2 or more States shall be attributed to such candidate's
expenditure limitation in each such State, based on the voting age population in such State which
can reasonably be expected to be influenced by such expenditure.
(d) Adjustment of limitations based on price index.
● (1) At the beginning of each calendar year (commencing in 1976), as there become available
necessary [424 U.S. 1, 193] data from the Bureau of Labor Statistics of the Department of Labor,

the Secretary of Labor shall certify to the Commission and publish in the Federal Register the per
centum difference between the price index for the 12 months preceding the beginning of such
calendar year and the price index for the base period. Each limitation established by subsection (c)
and subsection (f) shall be increased by such per centum difference. Each amount so increased
shall be the amount in effect for such calendar year.
● (2) For purposes of paragraph (1) -
● (A) the term "price index" means the average over a calendar year of the Consumer Price Index
(all items -- United States city average) published monthly by the Bureau of Labor Statistics; and
● (B) the term "base period" means the calendar year 1974.
(e) Expenditure relative to clearly identified candidate.
● (1) No person may make any expenditure (other than an expenditure made by or on behalf of a
candidate within the meaning of subsection (c) (2) (B)) relative to a clearly identified candidate
during a calendar year which, when added to all other expenditures made by such person during
the year advocating the election or defeat of such candidate, exceeds $1,000.
● (2) For purposes of paragraph (1) -
● (A) "clearly identified" means -
● (i) the candidate's name appears;
● (ii) a photograph or drawing of the candidate appears; or [424 U.S. 1, 194]
● (iii) the identity of the candidate is apparent by unambiguous reference; and
● (B) "expenditure" does not include any payment made or incurred by a corporation or a labor
organization which, under the provisions of the last paragraph of section 610, would not constitute
an expenditure by such corporation or labor organization.
(f) Exceptions for national and State committees.
● (1) Notwithstanding any other provision of law with respect to limitations on expenditures or
limitations on contributions, the national committee of a political party and a State committee of a
political party, including any subordinate committee of a State committee, may make expenditures
in connection with the general election campaign of candidates for Federal office, subject to the
limitations contained in paragraphs (2) and (3) of this subsection.
● (2) The national committee of a political party may not make any expenditure in connection with
the general election campaign of any candidate for President of the United States who is affiliated
with such party which exceeds an amount equal to 2 cents multiplied by the voting age population
of the United States (as certified under subsection (g)). Any expenditure under this paragraph shall
be in addition to any expenditure by a national committee of a political party serving as the
principal campaign committee of a candidate for the office of President of the United States.
● (3) The national committee of a political party, or a State committee of a political party, including
any subordinate committee of a State committee, may not make any expenditure in connection
with the general election campaign of a candidate for [424 U.S. 1, 195] Federal office in a State who
is affiliated with such party which exceeds -
● (A) in the case of a candidate for election to the office of Senator, or of Representative from a
State which is entitled to only one Representative, the greater of -

or
● (ii) $20,000; and
● (B) in the case of a candidate for election to the office of Representative, Delegate, or Resident
Commissioner in any other State, $10,000.
(g) Voting age population estimates. During the first week of January 1975, and every subsequent year,
the Secretary of Commerce shall certify to the Commission and publish in the Federal Register an
estimate of the voting age population of the United States, of each State, and of each congressional
district as of the first day of July next preceding the date of certification. The term "voting age
population" means resident population, 18 years of age or older.
(h) Knowing violations. No candidate or political committee shall knowingly accept any contribution or
make any expenditure in violation of the provisions of this section. No officer or employee of a political
committee shall knowingly accept a contribution made for the benefit or use of a candidate, or knowingly
make any expenditure on behalf of a candidate, in violation of any limitation imposed on contributions
and expenditures under this section.
(i) Penalties. Any person who violates any provision of this section shall be fined not more than $25,000
or imprisoned not more than 1 year, or both. [424 U.S. 1, 196]
610. Contributions or expenditures by national banks, corporations or labor organizations.
It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to
make a contribution or expenditure in connection with any election to any political office, or in
connection with any primary election or political convention or caucus held to select candidates for any
political office, or for any corporation whatever, or any labor organization to make a contribution or
expenditure in connection with any election at which presidential and vice presidential electors or a
Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or
in connection with any primary election or political convention or caucus held to select candidates for
any of the foregoing offices, or for any candidate, political committee, or other person to accept or
receive any contribution prohibited by this section.
Every corporation or labor organization which makes any contribution or expenditure in violation of this
section shall be fined not more than $25,000; and every officer or director of any corporation, or officer
of any labor organization, who consents to any contribution or expenditure by the corporation or labor
organization, as the case may be, and any person who accepts or receives any contribution, in violation of
this section, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both; and if the
violation was willful, shall be fined not more than $50,000 or imprisoned not more than 2 years or both.
For the purposes of this section "labor organization" means any organization of any kind, or any agency
or employee representation committee or plan, in which employees participate and which exist for the
purpose, [424 U.S. 1, 197] in whole or in part, of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions of work.
As used in this section, the phrase "contribution or expenditure" shall include any direct or indirect
payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value
(except a loan of money by a national or State bank made in accordance with the applicable banking laws
and regulations and in the ordinary course of business) to any candidate, campaign committee, or

political party or organization, in connection with any election to any of the offices referred to in this
section; but shall not include communications by a corporation to its stockholders and their families or by
a labor organization to its members and their families on any subject; nonpartisan registration and
get-out-the-vote campaigns by a corporation aimed at its stockholders and their families, or by a labor
organization aimed at its members and their families; the establishment, administration, and solicitation
of contributions to a separate segregated fund to be utilized for political purposes by a corporation or
labor organization: Provided, That it shall be unlawful for such a fund to make a contribution or
expenditure by utilizing money or anything of value secured by physical force, job discrimination,
financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or
other monies required as a condition of membership in a labor organization or as a condition of
employment, or by monies obtained in any commercial transaction.
611. Contributions by Government contractors.
Whoever -
● (a) entering into any contract with the United States or any department or agency thereof either
[424 U.S. 1, 198] for the rendition of personal services or furnishing any material, supplies, or
equipment to the United States or any department or agency thereof or for selling any land or
building to the United States or any department or agency thereof, if payment for the performance
of such contract or payment for such material, supplies, equipment, land, or building is to be made
in whole or in part from funds appropriated by the Congress, at any time between the
commencement of negotiations for and the later of -
● (1) the completion of performance under, or
● (2) the termination of negotiations for, such contract or furnishing of material, supplies,
equipment, land or buildings,
● directly or indirectly makes any contribution of money or other thing of value, or promises
expressly or impliedly to make any such contribution, to any political party, committee, or
candidate for public office or to any person for any political purpose or use; or
● (b) knowingly solicits any such contribution from any such person for any such purpose during
any such period;
shall be fined not more than $25,000 or imprisoned not more than 5 years, or both.
This section does not prohibit or make unlawful the establishment or administration of, or the solicitation
of contributions to, any separate segregated fund by any corporation or labor organization for the purpose
of influencing the nomination for election, or election, of any person to Federal office, unless the
provisions of section 610 of this title prohibit or make unlawful the establishment or administration of, or
the solicitation of contributions to, such fund.
For purposes of this section, the term "labor organization" [424 U.S. 1, 199] has the meaning given it by
section 610 of this title.
● TITLE 26. INTERNAL REVENUE CODE
6096. Designation by individuals.

(a) In general. Every individual (other than a non-resident alien) whose income tax liability for the
taxable year is $1 or more may designate that $1 shall be paid over to the Presidential Election Campaign

Fund in accordance with the provisions of section 9006 (a). In the case of a joint return of husband and
wife having an income tax liability of $2 or more, each spouse may designate that $1 shall be paid to the
fund.
(b) Income tax liability. For purposes of subsection (a), the income tax liability for an individual for any
taxable year is the amount of the tax imposed by chapter 1 on such individual for such taxable year (as
shown on his return), reduced by the sum of the credits (as shown in his return) allowable under sections
33, 37, 38, 40, and 41.
(c) Manner and time of designation. A designation under subsection (a) may be made with respect to any
taxable year -
● (1) at the time of filing the return of the tax imposed by chapter 1 for such taxable year, or
● (2) at any other time (after the time of filing the return of the tax imposed by chapter 1 for such
taxable year) specified in regulations prescribed by the Secretary or his delegate.
Such designation shall be made in such manner as the Secretary or his delegate prescribes by regulations
except that, if such designation is made at the time of filing the return of the tax imposed by chapter 1 for
such taxable year, such designation shall be made either on the [424 U.S. 1, 200] first page of the return or
on the page bearing the taxpayer's signature.
CHAPTER 95 -- PRESIDENTIAL ELECTION CAMPAIGN FUND
9001. Short title.
This chapter may be cited as the "Presidential Election Campaign Fund Act."
9002. Definitions.
For purposes of this chapter -
(1) The term "authorized committee" means, with respect to the candidates of a political party for
President and Vice President of the United States, any political committee which is authorized in writing
by such candidates to incur expenses to further the election of such candidates. Such authorization shall
be addressed to the chairman of such political committee, and a copy of such authorization shall be filed
by such candidates with the Commission. Any withdrawal of any authorization shall also be in writing
and shall be addressed and filed in the same manner as the authorization.
(2) The term "candidate" means, with respect to any presidential election, an individual who -
● (A) has been nominated for election to the office of President of the United States or the office of
Vice President of the United States by a major party, or
● (B) has qualified to have his name on the election ballot (or to have the names of electors pledged
to him on the election ballot) as the candidate of a political party for election to either such office
in 10 or more States.
For purposes of paragraphs (6) and (7) of this section and purposes of section 9004 (a) (2), the term
"candidate" means, with respect to any preceding presidential [424 U.S. 1, 201] election, an individual
who received popular votes for the office of President in such election.
(3) The term "Commission" means the Federal Election Commission established by section 437c (a) (1)

of Title 2, United States Code.

(4) The term "eligible candidates" means the candidates of a political party for President and Vice
President of the United States who have met all applicable conditions for eligibility to receive payments
under this chapter set forth in section 9003.
(5) The term "fund" means the Presidential Election Campaign Fund established by section 9006 (a).
(6) The term "major party" means, with respect to any presidential election, a political party whose
candidate for the office of President in the preceding presidential election received, as the candidate of
such party, 25 percent or more of the total number of popular votes received by all candidates for such
office.
(7) The term "minor party" means, with respect to any presidential election, a political party whose
candidate for the office of President in the preceding presidential election received, as the candidate of
such party, 5 percent or more but less than 25 percent of the total number of popular votes received by all
candidates for such office.
(8) The term "new party" means, with respect to any presidential election, a political party which is
neither a major party nor a minor party.
(9) The term "political committee" means any committee, association, or organization (whether or not
incorporated) which accepts contributions or makes expenditures for the purpose of influencing, or
attempting to influence, the nomination or election of one or more individuals to Federal, State, or local
elective public office. [424 U.S. 1, 202]
(10) The term "presidential election" means the election of presidential and vice-presidential electors.
(11) The term "qualified campaign expense" means an expense -
● (A) incurred -
● (i) by the candidate of a political party for the office of President to further his election to such
office or to further the election of the candidate of such political party for the office of Vice
President, or both,
● (ii) by the candidate of a political party for the office of Vice President to further his election to
such office or to further the election of the candidate of such political party for the office of
President, or both, or
● (iii) by an authorized committee of the candidates of a political party for the offices of President
and Vice President to further the election of either or both of such candidates to such offices;
● (B) incurred within the expenditure report period (as defined in paragraph (12)), or incurred before
the beginning of such period to the extent such expense is for property, services, or facilities used
during such period; and
● (C) neither the incurring nor payment of which constitutes a violation of any law of the United
States or of the State in which such expense is incurred or paid.
An expense shall be considered as incurred by a candidate or an authorized committee if it is incurred by
a person authorized by such candidate or such committee, as the case may be, to incur such expense on
behalf of such candidate or such committee. If an authorized committee of the candidates of a political

party for [424 U.S. 1, 203] President and vice President of the United States also incurs expenses to further
the election of one or more other individuals to Federal, State, or local elective public office, expenses
incurred by such committee which are not specifically to further the election of such other individual or
individuals shall be considered as incurred to further the election of such candidates for President and
Vice President in such proportion as the Commission prescribes by rules or regulations.
(12) The term "expenditure report period" with respect to any presidential election means -
● (A) in the case of a major party, the period beginning with the first day of September before the
election, or, if earlier, with the date on which such major party at its national convention
nominated its candidate for election to the office of President of the United States, and ending 30
days after the date of the presidential election; and
● (B) in the case of a party which is not a major party, the same period as the expenditure report
period of the major party which has the shortest expenditure report period for such presidential
election under subparagraph (A).
9003. Condition for eligibility for payments.
(a) In general. In order to be eligible to receive any payments under section 9006, the candidates of a
political party in a presidential election shall, in writing -
● (1) agree to obtain and furnish to the Commission such evidence as it may request of the qualified
campaign expenses of such candidates;
● (2) agree to keep and furnish to the Commission such records, books, and other information as it
may request; and
● (3) agree to an audit and examination by the [424 U.S. 1, 204] Commission under section 9007 and
to pay any amounts required to be paid under such section.
(b) Major parties. In order to be eligible to receive any payments under section 9006, the candidates of a
major party in a presidential election shall certify to the Commission, under penalty of perjury, that -
● (1) such candidates and their authorized committees will not incur qualified campaign expenses in
excess of the aggregate payments to which they will be entitled under section 9004; and
● (2) no contributions to defray qualified campaign expenses have been or will be accepted by such
candidates or any of their authorized committees except to the extent necessary to make up any
deficiency in payments received out of the fund on account of the application of section 9006 (d),
and no contributions to defray expenses which would be qualified campaign expenses but for
subparagraph (C) of section 9002 (11) have been or will be accepted by such candidates or any of
their authorized committees.
Such certification shall be made within such time prior to the day of the presidential election as the
Commission shall prescribe by rules or regulations.
(c) Minor and new parties. In order to be eligible to receive any payments under section 9006, the
candidates of a minor or new party in a presidential election shall certify to the Commission, under
penalty of perjury, that -
● (1) such candidates and their authorized committees will not incur qualified campaign expenses in
excess of the aggregate payments to which the eligible candidates of a major party are entitled
under section 9004; and [424 U.S. 1, 205]

● (2) such candidates and their authorized committees will accept and expend or retain contributions
to defray qualified campaign expenses only to the extent that the qualified campaign expenses
incurred by such candidates and their authorized committees certified to under paragraph (1)
exceed the aggregate payments received by such candidates out of the fund pursuant to section
9006.
Such certification shall be made within such time prior to the day of the presidential election as the
Commission shall prescribe by rules or regulations.
9004. Entitlement of eligible candidates to payments.
(a) In general. Subject to the provisions of this chapter -
● (1) The eligible candidates of each major party in a presidential election shall be entitled to equal
payments under section 9006 in an amount which, in the aggregate, shall not exceed the
expenditure limitations applicable to such candidates under section 608 (c) (1) (B) of Title 18,
United States Code.
● (2) (A) The eligible candidates of a minor party in a presidential election shall be entitled to
payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the
amount allowed under paragraph (1) for a major party as number of popular votes received by the
candidate for President of the minor party, as such candidate, in the preceding presidential election
bears to the average number of popular votes received by the candidates for President of the major
parties in the preceding presidential election.
● (B) If the candidate of one or more political parties (not including a major party) for the office of
President was a candidate for such office in the preceding presidential election and received 5
percent [424 U.S. 1, 206] or more but less than 25 percent of the total number of popular votes
received by all candidates for such office, such candidate and his running mate for the office of
Vice President, upon compliance with the provisions of section 9003 (a) and (c), shall be treated as
eligible candidates entitled to payments under section 9006 in an amount computed as provided in
subparagraph (A) by taking into account all the popular votes received by such candidate for the
office of President in the preceding presidential election. If eligible candidates of a minor party are
entitled to payments under this subparagraph, such entitlement shall be reduced by the amount of
the entitlement allowed under subparagraph (A).
● (3) The eligible candidates of a minor party or a new party in a presidential election whose
candidate for President in such election receives, as such candidate, 5 percent or more of the total
number of popular votes cast for the office of President in such election shall be entitled to
payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the
amount allowed under paragraph (1) for a major party as the number of popular votes received by
such candidate in such election bears to the average number of popular votes received in such
election by the candidates for President of the major parties. In the case of eligible candidates
entitled to payments under paragraph (2), the amount allowable under this paragraph shall be
limited to the amount, if any, by which the entitlement under the preceding sentence exceeds the
amount of the entitlement under paragraph (2).
(b) Limitations. The aggregate payments to which the eligible candidates of a political party shall be
entitled [424 U.S. 1, 207] under subsections (a) (2) and (3) with respect to a presidential election shall not
exceed an amount equal to the lower of -

● (1) the amount of qualified campaign expenses incurred by such eligible candidates and their
authorized committees, reduced by the amount of contributions to defray qualified campaign
expenses received and expended or retained by such eligible candidates and such committees; or
● (2) the aggregate payments to which the eligible candidates of a major party are entitled under
subsection (a) (1), reduced by the amount of contributions described in paragraph (1) of this
subsection.
(c) Restrictions. The eligible candidates of a political party shall be entitled to payments under subsection
(a) only -
● (1) to defray qualified campaign expenses incurred by such eligible candidates or their authorized
committees; or
● (2) to repay loans the proceeds of which were used to defray such qualified campaign expenses, or
otherwise to restore funds (other than contributions to defray qualified campaign expenses
received and expended by such candidates or such committees) used to defray such qualified
campaign expenses.
9005. Certification by Commission.
(a) Initial certifications. Not later than 10 days after the candidates of a political party for President and
Vice President of the United States have met all applicable conditions for eligibility to receive payments
under this chapter set forth in section 9003, the Commission shall certify to the Secretary for payment to
such eligible candidates under section 9006 payment in full of amounts to which such candidates are
entitled under section 9004. [424 U.S. 1, 208]
(b) Finality of certifications and determinations. Initial certifications by the Commission under
subsection (a), and all determinations made by it under this chapter shall be final and conclusive, except
to the extent that they are subject to examination and audit by the Commission under section 9007 and
judicial review under section 9011.
9006. Payments to eligible candidates.
(a) Establishment of campaign fund. There is hereby established on the books of the Treasury of the
United States a special fund to be known as the "Presidential Election Campaign Fund." The Secretary
shall, from time to time, transfer to the fund an amount not in excess of the sum of the amounts
designated (subsequent to the previous Presidential election) to the fund by individuals under section
6096. There is appropriated to the fund for each fiscal year, out of amounts in the general fund of the
Treasury not otherwise appropriated, an amount equal to the amounts so designated during each fiscal
year, which shall remain available to the fund without fiscal year limitation.
(b) Transfer to the general fund. If, after a Presidential election and after all eligible candidates have been
paid the amount which they are entitled to receive under this chapter, there are moneys remaining in the
fund, the Secretary shall transfer the moneys so remaining to the general fund of the Treasury.
(c) Payments from the fund. Upon receipt of a certification from the Commission under section 9005 for
payment to the eligible candidates of a political party, the Secretary shall pay to such candidates out of
the fund the amount certified by the Commission. Amounts paid to any such candidates shall be under
the control of such candidates.

(d) Insufficient amounts in fund. If at the time of a [424 U.S. 1, 209] certification by the Commission under
section 9005 for payment to the eligible candidates of a political party, the Secretary or his delegate
determines that the moneys in the fund are not, or may not be, sufficient to satisfy the full entitlements of
the eligible candidates of all political parties, he shall withhold from such payment such amount as he
determines to be necessary to assure that the eligible candidates of each political party will receive their
pro rata share of their full entitlement. Amounts withheld by reason of the preceding sentence shall be
paid when the Secretary or his delegate determines that there are sufficient moneys in the fund to pay
such amounts, or portions thereof, to all eligible candidates from whom amounts have been withheld,
but, if there are not sufficient moneys in the fund to satisfy the full entitlement of the eligible candidates
of all political parties, the amounts so withheld shall be paid in such manner that the eligible candidates
of each political party receive their pro rata share of their full entitlement.
9007. Examinations and audits; repayments.
(a) Examinations and audits. After each presidential election, the Commission shall conduct a thorough
examination and audit of the qualified campaign expenses of the candidates of each political party for
President and Vice President.
(b) Repayments.
● (1) If the Commission determines that any portion of the payments made to the eligible candidates
of a political party under section 9006 was in excess of the aggregate payments to which
candidates were entitled under section 9004, it shall so notify such candidates, and such candidates
shall pay to the Secretary an amount equal to such portion.
● (2) If the Commission determines that the eligible candidates of a political party and their
authorized [424 U.S. 1, 210] committees incurred qualified campaign expenses in excess of the
aggregate payments to which the eligible candidates of a major party were entitled under section
9004, it shall notify such candidates of the amount of such excess and such candidates shall pay to
the Secretary an amount equal to such amount.
● (3) If the Commission determines that the eligible candidates of a major party or any authorized
committee of such candidates accepted contributions (other than contributions to make up
deficiencies in payments out of the fund on account of the application of section 9006 (d)) to
defray qualified campaign expenses (other than qualified campaign expenses with respect to which
payment is required under paragraph (2)), it shall notify such candidates of the amount of the
contributions so accepted, and such candidates shall pay to the Secretary an amount equal to such
amount.
● (4) If the Commission determines that any amount of any payment made to the eligible candidates
of a political party under section 9006 was used for any purpose other than -
● (A) to defray the qualified campaign expenses with respect to which such payment was made; or
● (B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than
contributions to defray qualified campaign expenses which were received and expended) which
were used to defray such qualified campaign expenses,
● it shall notify such candidates of the amount so used, and such candidates shall pay to the
Secretary an amount equal to such amount.
● (5) No payment shall be required from the eligible [424 U.S. 1, 211] candidates of a political party
under this subsection to the extent that such payment, when added to other payments required from

such candidates under this subsection, exceeds the amount of payments received by such
candidates under section 9006.
(c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a
presidential election more than 3 years after the day of such election.
(d) Deposit of repayments. All payments received by the Secretary under subsection (b) shall be
deposited by him in the general fund of the Treasury.
9008. Payments for presidential nominating conventions.
(a) Establishment of accounts. The Secretary shall maintain in the fund, in addition to any account which
he maintains under section 9006 (a), a separate account for the national committee of each major party
and minor party. The Secretary shall deposit in each such account an amount equal to the amount which
each such committee may receive under subsection (b). Such deposits shall be drawn from amounts
designated by individuals under section 6096 and shall be made before any transfer is made to any
account for any eligible candidate under section 9006 (a).
(b) Entitlement to payments from the fund.
● (1) Major parties. Subject to the provisions of this section, the national committee of a major party
shall be entitled to payments under paragraph (3), with respect to any presidential nominating
convention, in amounts which, in the aggregate, shall not exceed $2 million.
● (2) Minor parties. Subject to the provisions of this section, the national committee of a minor party
[424 U.S. 1, 212] shall be entitled to payments under paragraph (3), with respect to any presidential
nominating convention, in amounts which, in the aggregate, shall not exceed an amount which
bears the same ratio to the amount the national committee of a major party is entitled to receive
under paragraph (1) as the number of popular votes received by the candidate for President of the
minor party, as such candidate, in the preceding presidential election bears to the average number
of popular votes received by the candidates for President of the United States of the major parties
in the preceding presidential election.
● (3) Payments. Upon receipt of certification from the Commission under subsection (g), the
Secretary shall make payments from the appropriate account maintained under subsection (a) to
the national committee of a major party or minor party which elects to receive its entitlement
under this subsection. Such payments shall be available for use by such committee in accordance
with the provisions of subsection (c).
● (4) Limitation. Payments to the national committee of a major party or minor party under this
subsection from the account designated for such committee shall be limited to the amounts in such
account at the time of payment.
● (5) Adjustment of entitlements. The entitlements established by this subsection shall be adjusted in
the same manner as expenditure limitations established by section 608 (c) and section 608 (f) of
Title 18, United States Code, are adjusted pursuant to the provisions of section 608 (d) of such
title.
(c) Use of funds. No part of any payment made under subsection (b) shall be used to defray the expenses
[424 U.S. 1, 213] of any candidate or delegate who is participating in any presidential nominating
convention. Such payments shall be used only -

● (1) to defray expenses incurred with respect to a presidential nominating convention (including the
payment of deposits) by or on behalf of the national committee receiving such payments; or
● (2) to repay loans the proceeds of which were used to defray such expenses, or otherwise to restore
funds (other than contributions to defray such expenses received by such committee) used to
defray such expenses.
(d) Limitation of expenditures.
● (1) Major parties. Except as provided by paragraph (3), the national committee of a major party
may not make expenditures with respect to a presidential nominating convention which, in the
aggregate, exceed the amount of payments to which such committee is entitled under subsection
(b) (1).
● (2) Minor parties. Except as provided by paragraph (3), the national committee of a minor party
may not make expenditures with respect to a presidential nominating convention which, in the
aggregate, exceed the amount of the entitlement of the national committee of a major party under
subsection (b) (1).
● (3) Exception. The Commission may authorize the national committee of a major party or minor
party to make expenditures which, in the aggregate, exceed the limitation established by paragraph
(1) or paragraph (2) of this subsection. Such authorization shall be based upon a determination by
the Commission that, due to extraordinary and unforeseen circumstances, such expenditures are
necessary [424 U.S. 1, 214] to assure the effective operation of the presidential nominating
convention by such committee.
(e) Availability of payments. The national committee of a major party or minor party may receive
payments under subsection (b) (3) beginning on July 1 of the calendar year immediately preceding the
calendar year in which a presidential nominating convention of the political party involved is held.
(f) Transfer to the fund. If, after the close of a presidential nominating convention and after the national
committee of the political party involved has been paid the amount which it is entitled to receive under
this section, there are moneys remaining in the account of such national committee, the Secretary shall
transfer the moneys so remaining to the fund.
(g) Certification by Commission. Any major party or minor party may file a statement with the
Commission in such form and manner and at such times as it may require, designating the national
committee of such party. Such statement shall include the information required by section 433 (b) of
Title 2, United States Code, together with such additional information as the Commission may require.
Upon receipt of a statement filed under the preceding sentences, the Commission promptly shall verify
such statement according to such procedures and criteria as it may establish and shall certify to the
Secretary for payment in full to any such committee of amounts to which such committee may be entitled
under subsection (b). Such certifications shall be subject to an examination and audit which the
Commission shall conduct no later than December 31 of the calendar year in which the presidential
nominating convention involved is held.
(h) Repayments. The Commission shall have the same authority to require repayments from the national
[424 U.S. 1, 215] committee of a major party or a minor party as it has with respect to repayments from
any eligible candidate under section 9007 (b). The provisions of section 9007 (c) and section 9007 (d)
shall apply with respect to any repayment required by the Commission under this subsection.

9009. Reports to Congress; regulations.

(a) Reports. The Commission shall, as soon as practicable after each presidential election, submit a full
report to the Senate and House of Representatives setting forth -
● (1) the qualified campaign expenses (shown in such detail as the Commission determines
necessary) incurred by the candidates of each political party and their authorized committees;
● (2) the amounts certified by it under section 9005 for payment to eligible candidates of each
political party;
● (3) the amount of payments, if any, required from such candidates under section 9007, and the
reasons for each payment required;
● (4) the expenses incurred by the national committee of a major party or minor party with respect to
a presidential nominating convention;
● (5) the amounts certified by it under section 9008 (g) for payment to each such committee; and
● (6) the amount of payments, if any, required from such committees under section 9008 (h), and the
reasons for each such payment.
Each report submitted pursuant to this section shall be printed as a Senate document.
(b) Regulations, etc. The Commission is authorized to prescribe such rules and regulations in accordance
with the provisions of subsection (c), to conduct such [424 U.S. 1, 216] examinations and audits (in
addition to the examinations and audits required by section 9007 (a)), to conduct such investigations, and
to require the keeping and submission of such books, records, and information, as it deems necessary to
carry out the functions and duties imposed on it by this chapter.
(c) Review of regulations.
● (1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit
a statement with respect to such rule or regulation to the Senate and to the House of
Representatives, in accordance with the provisions of this subsection. Such statement shall set
forth the proposed rule or regulation and shall contain a detailed explanation and justification of
such rule or regulation.
● (2) If either such House does not, through appropriate action, disapprove the proposed rule or
regulation set forth in such statement no later than 30 legislative days after receipt of such
statement, then the Commission may prescribe such rule or regulation. The Commission may not
prescribe any rule or regulation which is disapproved by either such House under this paragraph.
● (3) For purposes of this subsection, the term "legislative days" does not include any calendar day
on which both Houses of the Congress are not in session.
9010. Participation by Commission in judicial proceedings.
(a) Appearance by counsel. The Commission is authorized to appear in and defend against any action
filed under section 9011, either by attorneys employed in its office or by counsel whom it may appoint
without regard to the provisions of Title 5, United States Code, governing appointments in the
competitive service, and [424 U.S. 1, 217] whose compensation it may fix without regard to the provisions
of chapter 51 and subchapter III of chapter 53 of such title.
(b) Recovery of certain payments. The Commission is authorized through attorneys and counsel

described in subsection (a) to appear in the district courts of the United States to seek recovery of any
amounts determined to be payable to the Secretary as a result of examination and audit made pursuant to
section 9007.
(c) Declaratory and injunctive relief. The Commission is authorized through attorneys and counsel
described in subsection (a) to petition the courts of the United States for declaratory or injunctive relief
concerning any civil matter covered by the provisions of this subtitle or section 6096. Upon application
of the Commission an action brought pursuant to this subsection shall be heard and determined by a court
of three judges in accordance with the provisions of section 2284 of Title 28, United States Code, and
any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to
assign the case for hearing at the earliest practicable date, to participate in the hearing and determination
thereof, and to cause the case to be in every way expedited.
(d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition
the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which
it appears pursuant to the authority provided in this section.
9011. Judicial review.
(a) Review of certification, determination, or other action by the Commission. Any certification,
determination, or other action by the Commission made or taken pursuant to the provisions of this
chapter shall be subject to review by the United States Court of Appeals for [424 U.S. 1, 218] the District
of Columbia upon petition filed in such Court by any interested person. Any petition filed pursuant to
this section shall be filed within 30 days after the certification, determination, or other action by the
Commission for which review is sought.
(b) Suits to implement chapter.
● (1) The Commission, the national committee of any political party, and individuals eligible to vote
for President are authorized to institute such actions, including actions for declaratory judgment or
injunctive relief, as may be appropriate to implement or construe1a any provisions of this chapter.
● (2) The district courts of the United States shall have jurisdiction of proceedings instituted
pursuant to this subsection and shall exercise the same without regard to whether a person
asserting rights under provisions of this subsection shall have exhausted any administrative or
other remedies that may be provided at law. Such proceedings shall be heard and determined by a
court of three judges in accordance with the provisions of section 2284 of Title 28, United States
Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated
to hear the case to assign the case for hearing at the earliest practicable date, to participate in the
hearing and determination thereof, and to cause the case to be in every way expedited.
9012. Criminal penalties.
(a) Excess expenses.
● (1) It shall be unlawful for an eligible candidate of a political party for President and Vice
President in a presidential election or any of his authorized committees knowingly and willfully to
incur qualified [424 U.S. 1, 219] campaign expenses in excess of the aggregate payments to which
the eligible candidates of a major party are entitled under section 9004 with respect to such
election. It shall be unlawful for the national committee of a major party or minor party knowingly

and willfully to incur expenses with respect to a presidential nominating convention in excess of
the expenditure limitation applicable with respect to such committee under section 9008 (d), unless
the incurring of such expenses is authorized by the Commission under section 9008 (d) (3).
● (2) Any person who violates paragraph (1) shall be fined not more than $5,000, or imprisoned not
more than 1 year or both. In the case of a violation by an authorized committee, any officer or
member of such committee who knowingly and willfully consents to such violation shall be fined
not more than $5,000, or imprisoned not more than 1 year, or both.
(b) Contributions.
● (1) It shall be unlawful for an eligible candidate of a major party in a presidential election or any of
his authorized committees knowingly and willfully to accept any contribution to defray qualified
campaign expenses, except to the extent necessary to make up any deficiency in payments
received out of the fund on account of the application of section 9006 (d), or to defray expenses
which would be qualified campaign expenses but for subparagraph (C) of section 9002 (11).
● (2) It shall be unlawful for an eligible candidate of a political party (other than a major party) in a
presidential election or any of his authorized committees knowingly and willfully to accept and
expend or retain contributions to defray qualified [424 U.S. 1, 220] campaign expenses in an amount
which exceeds the qualified campaign expenses incurred with respect to such election by such
eligible candidate and his authorized committees.
● (3) Any person who violates paragraph (1) or (2) shall be fined not more than $5,000, or
imprisoned not more than 1 year, or both. In the case of a violation by an authorized committee,
any officer or member of such committee who knowingly and willfully consents to such violation
shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.
(c) Unlawful use of payments.
● (1) It shall be unlawful for any person who receives any payment under section 9006, or to whom
any portion of any payment received under such section is transferred, knowingly and willfully to
use, or authorize the use of, such payment or such portion for any purpose other than -
were used, to defray such qualified campaign expenses.
● (2) It shall be unlawful for the national committee of a major party or minor party which receives
any payment under section 9008 (b) (3) to use, or authorize the use of, such payment for any
purpose other than a purpose authorized by section 9008 (c).
● (3) Any person who violates paragraph (1) shall [424 U.S. 1, 221] be fined not more than $10,000,
or imprisoned not more than 5 years, or both.
(d) False statements, etc.
● (1) It shall be unlawful for any person knowingly and willfully -
● (A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the
Commission under this subtitle, or to include in any evidence, books, or information so furnished
any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or
information relevant to a certification by the Commission or an examination and audit by the

Commission under this chapter; or

● (B) to fail to furnish to the Commission any records, books, or information requested by it for
purposes of this chapter.
more than 5 years, or both.
(e) Kickbacks and illegal payments.
● (1) It shall be unlawful for any person knowingly and willfully to give or accept any kickback or
any illegal payment in connection with any qualified campaign expense of eligible candidates or
their authorized committees. It shall be unlawful for the national committee of a major party or
minor party knowingly and willfully to give or accept any kickback or any illegal payment in
connection with any expense incurred by such committee with respect to a presidential nominating
convention.
more than 5 years, or both. [424 U.S. 1, 222]
● (3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or
illegal payment in connection with any qualified campaign expense of eligible candidates or their
authorized committees, or in connection with any expense incurred by the national committee of a
major party or minor party with respect to a presidential nominating convention, shall pay to the
Secretary, for deposit in the general fund of the Treasury, an amount equal to 125 percent of the
kickback or payment received.
(f) Unauthorized expenditures and contributions.
● (1) Except as provided in paragraph (2), it shall be unlawful for any political committee which is
not an authorized committee with respect to the eligible candidates of a political party for
President and Vice President in a presidential election knowingly and willfully to incur
expenditures to further the election of such candidates, which would constitute qualified campaign
expenses if incurred by an authorized committee of such candidates, in an aggregate amount
exceeding $1,000.
● (2) This subsection shall not apply to -
● (A) expenditures by a broadcaster regulated by the Federal Communications Commission, or by a

periodical publication, in reporting the news or in taking editorial positions; or
● (B) expenditures by any organization described in section 501 (c) which is exempt from tax under
section 501 (a) in communicating to its members the views of that organization.
● (3) Any political committee which violates paragraph (1) shall be fined not more than $5,000, and
any officer or member of such committee who knowingly and willfully consents to such violation
and [424 U.S. 1, 223] any other individual who knowingly and willfully violates paragraph (1) shall
be fined not more than $5,000, or imprisoned not more than 1 year, or both.
(g) Unauthorized disclosure of information.
● (1) It shall be unlawful for any individual to disclose any information obtained under the
provisions of this chapter except as may be required by law.
more than 1 year, or both.

● CHAPTER 96 -- PRESIDENTIAL PRIMARY MATCHING PAYMENT ACCOUNT

9031. Short title.
This chapter may be cited as the "Presidential Primary Matching Payment Account Act."
9032. Definitions.
For the purposes of this chapter -
● (1) The term "authorized committee" means, with respect to the candidates of a political party for
President and Vice President of the United States, any political committee which is authorized in
writing by such candidates to incur expenses to further the election of such candidates. Such
authorization shall be addressed to the chairman of such political committee, and a copy of such
authorization shall be filed by such candidates with the Commission. Any withdrawal of any
authorization shall also be in writing and shall be addressed and filed in the same manner as the
authorization.
● (2) The term "candidate" means an individual who seeks nomination for election to be President of
the United States. For purposes of this paragraph, [424 U.S. 1, 224] an individual shall be considered
to seek nomination for election if he --
● (A) takes the action necessary under the law of a State to qualify himself for nomination for
election;
● (B) receives contributions or incurs qualified campaign expenses; or
● (C) gives his consent for any other person to receive contributions or to incur qualified campaign
expenses on his behalf.
● (3) The term "Commission" means the Federal Election Commission established by section 437c
(a) (1) of Title 2, United States Code.
● (4) Except as provided by section 9034 (a), the term "contribution" -
● (A) means a gift, subscription, loan, advance, or deposit of money, or anything of value, the
payment of which was made on or after the beginning of the calendar year immediately preceding
the calendar year of the presidential election with respect to which such gift, subscription, loan,
advance, or deposit of money, or anything of value, is made for the purpose of influencing the
result of a primary election;
● (B) means a contract, promise, or agreement, whether or not legally enforceable, to make a
contribution for any such purpose;
● (C) means funds received by a political committee which are transferred to that committee from
another committee; and
● (D) means the payment by any person other than a candidate, or his authorized committee, of
compensation for the personal services of another person which are rendered to the candidate or
committee without charge; but [424 U.S. 1, 225]
● (E) does not include -
● (i) except as provided in subparagraph (D), the value of personal services rendered to or for the
benefit of a candidate by an individual who receives no compensation for rendering such service to
or for the benefit of the candidate; or
● (ii) payments under section 9037.

● (5) The term "matching payment account" means the Presidential Primary Matching Payment
Account established under section 9037 (a).
● (6) The term "matching payment period" means the period beginning with the beginning of the
calendar year in which a general election for the office of President of the United States will be
held and ending on the date on which the national convention of the party whose nomination a
candidate seeks nominates its candidate for the office of President of the United States, or, in the
case of a party which does not make such nomination by national convention, ending on the earlier
of -
● (A) the date such party nominates its candidate for the office of President of the United States; or
● (B) the last day of the last national convention held by a major party during such calendar year.
● (7) The term "primary election" means an election, including a runoff election or a nominating
convention or caucus held by a political party, for the selection of delegates to a national
nominating convention of a political party, or for the expression of a preference for the nomination
of persons for election to the office of President of the United States. [424 U.S. 1, 226]
● (8) The term "political committee" means any individual, committee, association, or organization
(whether or not incorporated) which accepts contributions or incurs qualified campaign expenses
for the purpose of influencing, or attempting to influence, the nomination of any person for
election to the office of President of the United States.
● (9) The term "qualified campaign expense" means a purchase, payment, distribution, loan,
advance, deposit, or gift of money or of anything of value -
● (A) incurred by a candidate, or by his authorized committee, in connection with his campaign for
nomination for election; and
● (B) neither the incurring nor payment of which constitutes a violation of any law of the United
States or of the State in which the expense is incurred or paid.
● For purposes of this paragraph, an expense is incurred by a candidate or by an authorized
committee if it is incurred by a person specifically authorized in writing by the candidate or
committee, as the case may be, to incur such expense on behalf of the candidate or the committee.
● (10) The term "State" means each State of the United States and the District of Columbia.
9033. Eligibility for payments.
(a) Conditions. To be eligible to receive payments under section 9037, a candidate shall, in writing -
● (1) agree to obtain and furnish to the Commission any evidence it may request of qualified
campaign expenses;
● (2) agree to keep and furnish to the Commission any records, books, and other information it may
request; and
● (3) agree to an audit and examination by the [424 U.S. 1, 227] Commission under section 9038 and
to pay any amounts required to be paid under such section.
(b) Expense limitation; declaration of intent; minimum contributions. To be eligible to receive payments
under section 9037, a candidate shall certify to the Commission that -
● (1) the candidate and his authorized committees will not incur qualified campaign expenses in
excess of the limitation on such expenses under section 9035;

● (2) the candidate is seeking nomination by a political party for election to the office of President of
the United States;
● (3) the candidate has received matching contributions which in the aggregate, exceed $5,000 in
contributions from residents of each of at least 20 States; and
● (4) the aggregate of contributions certified with respect to any person under paragraph (3) does not
exceed $250.
(a) In general. Every candidate who is eligible to receive payments under section 9033 is entitled to
payments under section 9037 in an amount equal to the amount of each contribution received by such
candidate on or after the beginning of the calendar year immediately preceding the calendar year of the
presidential election with respect to which such candidate is seeking nomination, or by his authorized
committees, disregarding any amount of contributions from any person to the extent that the total of the
amounts contributed by such person on or after the beginning of such preceding calendar year exceeds
$250. For purposes of this subsection and section 9033 (b), the term "contribution" means a gift of
money made by a written instrument which identifies [424 U.S. 1, 228] the person making the contribution
by full name and mailing address, but does not include a subscription, loan, advance, or deposit of
money, or anything of value or anything described in subparagraph (B), (C), or (D) of section 9032 (4).
(b) Limitations. The total amount of payments to which a candidate is entitled under subsection (a) shall
not exceed 50 percent of the expenditure limitation applicable under section 608 (c) (1) (A) of Title 18,
United States Code.
9035. Qualified campaign expense limitation.
No candidate shall knowingly incur qualified campaign expenses in excess of the expenditure limitation
applicable under section 608 (c) (1) (A) of Title 18, United States Code.
(a) Initial certifications. Not later than 10 days after a candidate establishes his eligibility under section
9033 to receive payments under section 9037, the Commission shall certify to the Secretary for payment
to such candidate under section 9037 payment in full of amounts to which such candidate is entitled
under section 9034. The Commission shall make such additional certifications as may be necessary to
permit candidates to receive payments for contributions under section 9037.
(b) Finality of determinations. Initial certifications by the Commission under subsection (a), and all
determinations made by it under this chapter, are final and conclusive, except to the extent that they are
subject to examination and audit by the Commission under section 9038 and judicial review under
section 9041.
(a) Establishment of account. The Secretary shall maintain in the Presidential Election Campaign Fund
[424 U.S. 1, 229] established by section 9006 (a), in addition to any account which he maintains under
such section, a separate account to be known as the Presidential Primary Matching Payment Account.
The Secretary shall deposit into the matching payment account, for use by the candidate of any political
party who is eligible to receive payments under section 9033, the amount available after the Secretary

determines that amounts for payments under section 9006 (c) and for payments under section 9008 (b)
(3) are available for such payments.
(b) Payments from the matching payment account. Upon receipt of a certification from the Commission
under section 9036, but not before the beginning of the matching payment period, the Secretary or his
delegate shall promptly transfer the amount certified by the Commission from the matching payment
account to the candidate. In making such transfers to candidates of the same political party, the Secretary
or his delegate shall seek to achieve an equitable distribution of funds available under subsection (a), and
the Secretary or his delegate shall take into account, in seeking to achieve an equitable distribution, the
sequence in which such certifications are received.
(a) Examinations and audits. After each matching payment period, the Commission shall conduct a
thorough examination and audit of the qualified campaign expenses of every candidate and his
authorized committees who received payments under section 9037.
(b) Repayments.
● (1) If the Commission determines that any portion of the payments made to a candidate from the
matching payment account was in excess of the aggregate amount of payments to which such
candidate was entitled under section 9034, it shall [424 U.S. 1, 230] notify the candidate, and the
candidate shall pay to the Secretary or his delegate an amount equal to the amount of excess
payments.
● (2) If the Commission determines that any amount of any payment made to a candidate from the
matching payment account was used for any purpose other than -
were used, to defray qualified campaign expenses;
it shall notify such candidate of the amount so used, and the candidate shall pay to the Secretary or his
delegate an amount equal to such amount.
● (3) Amounts received by a candidate from the matching payment account may be retained for the
liquidation of all obligations to pay qualified campaign expenses incurred for a period not
exceeding 6 months after the end of the matching payment period. After all obligations have been
liquidated, that portion of any unexpended balance remaining in the candidate's accounts which
bears the same ratio to the total unexpended balance as the total amount received from the
matching payment account bears to the total of all deposits made into the candidate's accounts
shall be promptly repaid to the matching payment account.
(c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a
matching payment period more than 3 years after the end of such period. [424 U.S. 1, 231]
(d) Deposit of repayments. All payments received by the Secretary or his delegate under subsection (b)
shall be deposited by him in the matching payment account.

(a) Reports. The Commission shall, as soon as practicable after each matching payment period, submit a
full report to the Senate and House of Representatives setting forth -
● (1) the qualified campaign expenses (shown in such detail as the Commission determines
necessary) incurred by the candidates of each political party and their authorized committees;
● (2) the amounts certified by it under section 9036 for payment to each eligible candidate; and
● (3) the amount of payments, if any, required from candidates under section 9038, and the reasons
for each payment required.
Each report submitted pursuant to this section shall be printed as a Senate document.
(b) Regulations, etc. The Commission is authorized to prescribe rules and regulations in accordance with
the provisions of subsection (c), to conduct examinations and audits (in addition to the examinations and
audits required by section 9038 (a)), to conduct investigations, and to require the keeping and submission
of any books, records, and information, which it determines to be necessary to carry out its
responsibilities under this chapter.
● (1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit
a statement with respect to such rule or regulation to the Senate and to the House of
Representatives, [424 U.S. 1, 232] in accordance with the provisions of this subsection. Such
statement shall set forth the proposed rule or regulation and shall contain a detailed explanation
and justification of such rule or regulation.
● (2) If either such House does not, through appropriate action, disapprove the proposed rule or
regulation set forth in such statement no later than 30 legislative days after receipt of such
statement, then the Commission may prescribe such rule or regulation. The Commission may not
prescribe any rule or regulation which is disapproved by either such House under this paragraph.
● (3) For purposes of this subsection, the term "legislative days" does not include any calendar day
on which both Houses of the Congress are not in session.
(a) Appearance by counsel. The Commission is authorized to appear in and defend against any action
instituted under this section, either by attorneys employed in its office or by counsel whom it may
appoint without regard to the provisions of Title 5, United States Code, governing appointments in the
competitive service, and whose compensation it may fix without regard to the provisions of chapter 51
and subchapter III of chapter 53 of such title.
(b) Recovery of certain payments. The Commission is authorized, through attorneys and counsel
described in subsection (a), to institute actions in the district courts of the United States to seek recovery
of any amounts determined to be payable to the Secretary or his delegate as a result of an examination
and audit made pursuant to section 9038. [424 U.S. 1, 233]
(c) Injunctive relief. The Commission is authorized, through attorneys and counsel described in
subsection (a), to petition the courts of the United States for such injunctive relief as is appropriate to
implement any provision of this chapter.
(d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition

the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which
it appears pursuant to the authority provided in this section.
(a) Review of agency action by the Commission. Any agency action by the Commission made under the
provisions of this chapter shall be subject to review by the United States Court of Appeals for the District
of Columbia Circuit upon petition filed in such court within 30 days after the agency action by the
Commission for which review is sought.
(b) Review procedures. The provisions of chapter 7 of Title 5, United States Code, apply to judicial
review of any agency action, as defined in section 551 (13) of Title 5, United States Code, by the
Commission.
(a) Excess campaign expenses. Any person who violates the provisions of section 9035 shall be fined not
more than $25,000, or imprisoned not more than 5 years, or both. Any officer or member of any political
committee who knowingly consents to any expenditure in violation of the provisions of section 9035
shall be fined not more than $25,000, or imprisoned not more than 5 years, or both.
(b) Unlawful use of payments.
● (1) It is unlawful for any person who receives any payment under section 9037, or to whom any
portion [424 U.S. 1, 234] of any such payment is transferred, knowingly and willfully to use, or
authorize the use of, such payment or such portion for any purpose other than -
● (A) to defray qualified campaign expenses; or
were used, to defray qualified campaign expenses.
● (2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000,
(c) False statements, etc.
● (1) It is unlawful for any person knowingly and willfully -
● (A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the
Commission under this chapter, or to include in any evidence, books, or information so furnished
any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or
information relevant to a certification by the Commission or an examination and audit by the
Commission under this chapter; or
● (B) to fail to furnish to the Commission any records, books, or information requested by it for
purposes of this chapter.
(d) Kickbacks and illegal payments.
● (1) It is unlawful for any person knowingly and willfully to give or accept any kickback or any

illegal [424 U.S. 1, 235] payment in connection with any qualified campaign expense of a
candidate, or his authorized committees, who receives payments under section 9037.
● (3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or
illegal payment in connection with any qualified campaign expense of a candidate or his
authorized committees shall pay to the Secretary for deposit in the matching payment account, an
amount equal to 125 percent of the kickback or payment received.
Footnotes
[ Footnote 1 ] Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election
Campaign Act Amendments of 1974, 88 Stat. 1263. The pertinent portions of the legislation are set forth
in the Appendix to this opinion.
[ Footnote 2 ] 171 U.S. App. D.C. 172, 519 F.2d 821 (1975).
[ Footnote 3 ] The Revenue Act of 1971, Title VIII, 85 Stat. 562, as amended, 87 Stat. 138, and further
amended by the Federal Election Campaign Act Amendments of 1974, 403 et seq., 88 Stat. 1291. This
subtitle consists of two parts: Chapter 95 deals with funding national party conventions and general
election campaigns for president, and Chapter 96 deals with matching funds for Presidential primary
campaigns.
[ Footnote 4 ] " 437h. Judicial review.
● "(a) ...
● "The Commission, the national committee of any political party, or any individual eligible to vote
in any election for the office of President of the United States may institute such actions in the
appropriate district court of the United States, including actions for declaratory judgment, as may
be appropriate to construe the constitutionality of any provision of this Act or of section 608, 610,
611, 613, 614, 615, 616, or 617 of Title 18. The district court immediately shall certify all
questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of
Title 18, to the United States court of appeals for the circuit involved, which shall hear the matter
sitting en banc.
● "(b) ...
● "Notwithstanding any other provision of law, any decision on a matter certified under subsection
(a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States.
Such appeal shall be brought no later than 20 days after the decision of the court of appeals.
● "(c) ...
● "It shall be the duty of the court of appeals and of the Supreme Court of the United States to
advance on the docket and to expedite [424 U.S. 1, 9] to the greatest possible extent the disposition
of any matter certified under subsection (a) of this section."
[ Footnote 5 ] Center for Public Financing of Elections, Common Cause, the League of Women Voters of
the United States, Chellis O'Neal Gregory, Norman F. Jacknis, Louise D. Wides, Daniel R. Noyes, Mrs.

Edgar B. Stern, Charles P. Taft, John W. Gardner, and Ruth Clusen.

[ Footnote 6 ] The Court of Appeals also suggested in its en banc order that the issues arising under
Subtitle H (relating to the public financing of Presidential campaigns) might require, under 26 U.S.C.
9011 (b) (1970 ed., Supp. IV), a different mode of review from the other issues raised in the case. The
court suggested that a three-judge District Court should consider the constitutionality of these provisions
in order to protect against the contingency that this Court might eventually hold these issues to be subject
to determination by a three-judge court, either under 9011 (b), or 28 U.S.C. 2282, [424 U.S. 1, 10] 2284.
171 U.S. App. D.C. 168, 170, 519 F.2d 817, 819 (1975). The case was argued simultaneously to both the
Court of Appeals, sitting en banc, and a three-judge District Court. The three-judge court limited its
consideration to issues under Subtitle H. The three-judge court adopted the Court of Appeals' opinion on
these questions in toto and simply entered an order with respect to those matters. 401 F. Supp. 1235.
Thus, two judgments are before us -- one from each court -- upholding the constitutionality of Subtitle H,
though the two cases before the Court will generally be referred to hereinafter in the singular. Since the
jurisdiction of this Court to hear at least one of the appeals is clear, we need not resolve the jurisdictional
ambiguities that occasioned the joint sitting of the Court of Appeals and the three-judge court.
[ Footnote 7 ] The court held one provision, 437a, unconstitutionally vague and overbroad on the ground
that the provision is "`susceptible to a reading necessitating reporting by groups whose only connection
with the elective process arises from completely nonpartisan public discussion of issues of public
importance.'" 171 U.S. App. D.C., at 183, 519 F.2d, at 832. No appeal has been taken from that holding.
[ Footnote 8 ] The court recognized that some of the powers delegated to the [424 U.S. 1, 11]
Commission, when exercised in a concrete context, may be predominantly executive or judicial or
unrelated to the Commission's legislative function; however, since the Commission had not yet exercised
most of these challenged powers, consideration of the constitutionality of those grants of authority was
postponed. See n. 157, infra.
[ Footnote 9 ] See n. 4, supra.
[ Footnote 10 ] This Court has held, for instance, that an organization "may assert, on behalf of its
members, a right personal to them to be protected from compelled disclosure ... of their affiliation."
NAACP v. Alabama, 357 U.S. 449, 458(1958). See also Bates v. Little Rock, 361 U.S. 516, 523 n. 9
(1960). Similarly, parties with sufficient concrete interests at stake have been held to have standing to
raise constitutional questions of separation of powers with respect to an agency designated to adjudicate
their rights. Palmore v. United States, 411 U.S. 389 (1973); Glidden Co. v. Zdanok, 370 U.S. 530 (1962);
Coleman v. Miller, 307 U.S. 433 (1939).
[ Footnote 11 ] Accordingly, the two relevant certified questions are answered as follows:
1. Does the first sentence of 315 (a) of the Federal Election Campaign Act, as amended, 2 U.S.C. 437h
(a) (1970 ed., Supp. IV), in the context of this action, require courts of the United States to render
advisory opinions in violation of the "case or controversy" requirement of Article III, 2, of the
Constitution of the United States? NO.
2. Has each of the plaintiffs alleged sufficient injury to his constitutional rights enumerated in the
following questions to create a constitutional "case or controversy" within the judicial power under

Article III? YES.

[ Footnote 12 ] See 18 U.S.C. 608 (b) (1), (3) (1970 ed., Supp. IV). set forth in the Appendix, infra, at
189. An organization registered as a political committee for not less than six months which has received
contributions from at least 50 persons and made contributions to at least five candidates may give up to
$5,000 to any candidate for any election. 18 U.S.C. 608 (b) (2) (1970 ed., Supp. IV), set forth in the
Appendix, infra, at 189. Other groups are limited to making contributions of $1,000 per candidate per
election.
[ Footnote 13 ] See 18 U.S.C. 608 (e) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 193-194.
[ Footnote 14 ] See 18 U.S.C. 608 (a) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 187-189.
[ Footnote 15 ] See 18 U.S.C. 608 (c) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 190-192.
[ Footnote 16 ] Article I, 4, of the Constitution grants Congress the power to regulate elections of
members of the Senate and House of Representatives. See Smiley v. Holm, 285 U.S. 355 (1932); Ex
parte Yarbrough, 110 U.S. 651 (1884). Although the Court at one time indicated that party primary
contests were not "elections" within the meaning of Art. I, 4, Newberry v. United States, 256 U.S. 232
(1921), it later held that primary elections were within the Constitution's grant of authority to Congress.
United States v. [424 U.S. 1, 14] Classic, 313 U.S. 299 (1941). The Court has also recognized broad
congressional power to legislate in connection with the elections of the president and Vice President.
Burroughs v. United States, 290 U.S. 534 (1934). See Part III, infra.
[ Footnote 17 ] The nongovernmental appellees argue that just as the decibels emitted by a sound truck
can be regulated consistently with the First Amendment, Kovacs v. Cooper, 336 U.S. 77 (1949), the Act
may restrict the volume of dollars in political campaigns without impermissibly restricting freedom of
speech. See Freund, Commentary in A. Rosenthal, Federal Regulation of Campaign Finance: Some
Constitutional Questions 72 (1971). This comparison underscores a fundamental misconception. The
decibel restriction upheld in Kovacs limited the manner of operating a soundtruck, but not the extent of
its proper use. By contrast, the Act's dollar ceilings restrict the extent of the reasonable use of virtually
every means of communicating information. As the Kovacs Court emphasized, the nuisance ordinance
only barred soundtrucks from broadcasting "in a loud and raucous manner on the streets," 336 U.S., at 89
, and imposed "no restriction upon the communication of ideas or discussion of issues by the human
voice, by newspapers, by pamphlets, by dodgers," or by soundtrucks operating at a reasonable volume.
Ibid. See Saia v. New York, 334 U.S. 558, 561 -562 (1948).
[ Footnote 18 ] Being free to engage in unlimited political expression subject to a ceiling on expenditures
is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.
[ Footnote 19 ] Political parties that fail to qualify a candidate for a position on the ballot are classified as
"persons" and are subject to the $1,000 independent expenditure ceiling. See 18 U.S.C. 591 (g), (i), 608
(e) (1), (f) (1970 ed., Supp. IV). Institutional press facilities owned or controlled by candidates or
political parties are also subject to expenditure limits under the Act. See 18 U.S.C. 591 (f) (4) (A), 608
(c) (2) (B), (e) (1) (1970 ed., Supp. IV).
Unless otherwise indicated all subsequent statutory citations in Part I of this opinion are to Title 18 of the

United States Code, 1970 edition, Supplement IV.

[ Footnote 20 ] The record indicates that, as of January 1, 1975, one full-page advertisement in a daily
edition of a certain metropolitan newspaper cost $6,971.04 -- almost seven times the annual limit on
expenditures "relative to" a particular candidate imposed on the vast majority of individual citizens and
associations by 608 (e) (1)
[ Footnote 21 ] The statistical findings of fact agreed to by the parties in the District Court indicate that
17 of 65 major-party senatorial candidates in 1974 spent more than the combined primary-election,
general-election, and fundraising limitations imposed by the Act. 591 (f) (4) (H), 608 (c) (1) (C), (D).
The 1972 senatorial figures showed that 18 of 66 major-party candidates exceeded the Act's limitations.
This figure may substantially underestimate the number of candidates who exceeded the limits provided
in the Act, since the Act imposes separate ceilings for the primary election, the general election, and
fundraising, and does not permit the limits to be aggregated. 608 (c) (3). The data for House of
Representatives elections are also skewed, since statistics reflect a combined $168,000 limit instead of
separate $70,000 ceilings for primary and general elections with up to an additional 20% permitted for
fundraising. 591 (f) (4) (H), 608 (c) (1) (E). Only 22 of the 810 major-party House candidates in 1974
and 20 of the 816 major-party candidates in 1972 exceeded the $168,000 figure. Both Presidential
candidates in 1972 spent in excess of the combined Presidential expenditure ceilings. 608 (c) (1) (A),
(B).
[ Footnote 22 ] Other factors relevant to an assessment of the "intensity" of the support indicated by a
contribution include the contributor's financial ability and his past contribution history.
[ Footnote 23 ] Statistical findings agreed to by the parties reveal that approximately 5.1% of the
$73,483,613 raised by the 1,161 candidates for Congress in 1974 was obtained in amounts in excess of
$1,000. In 1974, two major-party senatorial candidates, Ramsey Clark and [424 U.S. 1, 22] Senator
Charles Mathias, Jr., operated large-scale campaigns on contributions raised under a voluntarily imposed
$100 contribution limitation.
[ Footnote 24 ] The Act exempts from the contribution ceiling the value of all volunteer services
provided by individuals to a candidate or a political committee and excludes the first $500 spent by
volunteers on certain categories of campaign-related activities. 591 (e) (5) (A)-(D). See infra, at 36-37.
The Act does not define the phrase -- "for the purpose of influencing" an election -- that determines when
a gift, loan, or advance constitutes a contribution. Other courts have given that phrase a narrow meaning
to alleviate various problems in other contexts. See United States v. National Comm. for Impeachment,
469 F.2d 1135, 1139-1142 (CA2 1972); American Civil Liberties Union v. [424 U.S. 1, 24] Jennings, 366
F. Supp. 1041, 1055-1057 (DC 1973) (three-judge court), vacated as moot sub nom. Staats v. American
Civil Liberties Union, 422 U.S. 1030 (1975). The use of the phrase presents fewer problems in
connection with the definition of a contribution because of the limiting connotation created by the
general understanding of what constitutes a political contribution. Funds provided to a candidate or
political party or campaign committee either directly or indirectly through an intermediary constitute a
contribution. In addition, dollars given to another person or organization that are earmarked for political
purposes are contributions under the Act.
[ Footnote 25 ] Expenditures by persons and associations that are "authorized or requested" by the

candidate or his agents are treated as contributions under the Act. See n. 53, infra.
[ Footnote 26 ] Contribution limitations alone would not reduce the greater potential voice of affluent
persons and well-financed groups, who would remain free to spend unlimited sums directly to promote
candidates and policies they favor in an effort to persuade voters.
[ Footnote 27 ] Yet, a ceiling on the size of contributions would affect only indirectly the costs of
political campaigns by making it relatively more difficult for candidates to raise large amounts of money.
In 1974, for example, 94.9% of the funds raised by candidates for Congress came from contributions of
$1,000 or less, see n. 23, supra. Presumably, some or all of the contributions in excess of $1,000 could
have been replaced through efforts to raise additional contributions from persons giving less than $1,000.
It is the Act's campaign expenditure limitations, 608 (c), not the contribution limits, that directly address
the overall scope of federal election spending.
[ Footnote 28 ] The Court of Appeals' opinion in this case discussed a number of the abuses uncovered
after the 1972 elections. See 171 U.S. App. D.C., at 190-191, and nn. 36-38, 519 F.2d, at 839-840, and
nn. 36-38.
[ Footnote 29 ] Although the Court in Letter Carriers found that this interest was constitutionally
sufficient to justify legislation prohibiting federal employees from engaging in certain partisan political
activities, it was careful to emphasize that the limitations did not restrict an employee's right to express
his views on political issues and candidates. 413 U.S., at 561 , 568, 575-576, 579. See n. 54, infra.
[ Footnote 30 ] The Act's disclosure provisions are discussed in Part II, infra.
[ Footnote 31 ] While providing significant limitations on the ability of all individuals and groups to
contribute large amounts of money to candidates, the Act's contribution ceilings do not foreclose the
making of substantial contributions to candidates by some major special-interest groups through the
combined effect of individual contributions from adherents or the proliferation of political funds each
authorized under the Act to contribute to candidates. As a prime example, 610 permits corporations and
labor unions to establish segregated funds to solicit voluntary contributions to be utilized for political
purposes. Corporate and union resources without limitation may be employed to administer these funds
and to solicit contributions from employees, stockholders, and union members. Each separate fund may
contribute up to $5,000 per candidate per election so long as the fund qualifies as a political committee
under 608 (b) (2). See S. Rep. No. 93-1237, pp. 50-52 [424 U.S. 1, 29] (1974); Federal Election
Commission, Advisory Opinion 1975-23, 40 Fed. Reg. 56584 (1975).
The Act places no limit on the number of funds that may be formed through the use of subsidiaries or
divisions of corporations, or of local and regional units of a national labor union. The potential for
proliferation of these sources of contributions is not insignificant. In 1972, approximately 1,824,000
active corporations filed federal income tax returns. Internal Revenue Service, Preliminary Statistics of
Income 1972, Corporation Income Tax Returns, p. 1 (pub. 159 (11-74)). (It is not clear whether this total
includes subsidiary corporations where the parent filed a consolidated return.) In the same year, 71,409
local unions were chartered by national unions. Department of Labor, Bureau of Labor Statistics,
Directory of National Unions and Employee Associations 1973, p. 87 (1974).
The Act allows the maximum contribution to be made by each unit's fund provided the decision or
judgment to contribute to particular candidates is made by the fund independently of control or direction

by the parent corporation or the national or regional union. See S. Rep. No. 93-1237, pp. 51-52 (1974).
[ Footnote 32 ] The Act's limitations applicable to both campaign expenditures and a candidate's personal
expenditures on his own behalf are scaled to take account of the differences in the amounts of money
required for congressional and Presidential campaigns. See 608 (a) (1), (c) (1) (A)-(E).
[ Footnote 33 ] In this discussion, we address only the argument that the contribution limitations alone
impressibly discriminate against non-incumbents. We do not address the more serious argument that
these limitations, in combination with the limitation on expenditures by individuals and groups, the
limitation on a candidate's use of his own personal and family resources, and the overall ceiling on
campaign expenditures invidiously discriminate against major-party challengers and minor-party
candidates.
Since an incumbent is subject to these limitations to the same degree as his opponent, the Act, on its face,
appears to be even-handed. The appearance of fairness, however, may not reflect political reality.
Although some incumbents are defeated in every congressional election, it is axiomatic that an
incumbent usually begins the race with significant advantages. In addition to the factors of voter
recognition and the status accruing to holding federal office, the incumbent has access to substantial
resources provided by the Government. These include local and Washington offices, staff support, and
the franking privilege. Where the incumbent has the support of major special-interest groups which have
the flexibility described in n. 31, supra, and is further supported by the media, the overall effect of the
contribution and expenditure limitations enacted by Congress could foreclose any fair opportunity of a
successful challenge.
However, since we decide in Part I-C, infra, that the ceilings on independent expenditures, on the
candidate's expenditures from his personal funds, and on overall campaign expenditures are
unconstitutional under the First Amendment, we need not express any opinion with regard to the alleged
invidious discrimination resulting from the full sweep of the legislation as enacted.
[ Footnote 34 ] In 1974, for example, 40 major-party challengers defeated incumbent members of the
House of Representatives in the general election. Four incumbent Senators were defeated by major-party
challengers in the 1974 primary and general election campaigns.
[ Footnote 35 ] In the 1974 races for the House of Representatives, three of the 22 major-party candidates
exceeding the combined expenditure limits contained in the Act were challengers to incumbents and nine
were candidates in races not involving incumbents. The comparable 1972 statistics indicate that 14 of the
20 major-party candidates exceeding the combined limits were nonincumbents.
[ Footnote 36 ] In 1974, major-party challengers outspent House incumbents in 22% of the races, and 22
of the 40 challengers who defeated House incumbents outspent their opponents. In 1972, 24% of the
major-party challengers in senatorial elections outspent their incumbent opponents. The 1974 statistics
for senatorial contests reveal substantially greater financial dominance by incumbents.
[ Footnote 37 ] Of the $3,781,254 in contributions raised in 1974 by congressional candidates over and
above a $1,000-per-contributor limit, almost twice as much money went to incumbents as to major-party
challengers.
[ Footnote 38 ] Appellants contend that the Act discriminates against challengers, because, while it limits

contributions to all candidates, the Government makes available other material resources to incumbents.
See n. 33, supra. Yet, taking cognizance of the advantages and disadvantages of incumbency, there is
little indication that the $1,000 contribution ceiling will consistently harm the prospects of challengers
relative to incumbents.
[ Footnote 39 ] Between September 1, 1973, and December 31, 1974, major-party candidates for the
House and Senate raised over $3,725,000 in contributions over and above $1,000 compared to $55,000
raised by minor-party candidates in amounts exceeding the $1,000 contribution limit.
[ Footnote 40 ] Appellant Libertarian Party, according to estimates of its national chairman, has received
only 10 contributions in excess of $1,000 out of a total of 4,000 contributions. Even these 10
contributions would have been permissible under the Act if the donor did not earmark the funds for a
particular candidate and did not exceed the overall $25,000 contribution ceiling for the calendar year. See
608 (b). Similarly, appellants Conservative Victory Fund and American Conservative Union have
received only an insignificant portion of their funding through contributions in excess of $1,000. The
affidavit of the executive director of the Conservative Victory Fund indicates that in 1974, a typical
fundraising year, the Fund received approximately $152,000 through over 9,500 individual contributions.
Only one of the 9,500 contributions, an $8,000 contribution earmarked for a particular candidate,
exceeded $1,000. In 1972, the Fund received only three contributions in excess of $1,000, all of which
might have been legal under the Act if not earmarked. And between April 7, 1972, and February 28,
1975, the American Conservative Union did not receive any aggregate contributions exceeding $1,000.
Moreover, the Committee for a Constitutional Presidency -- McCarthy '76, another appellant, engaged in
a concerted effort to raise contributions in excess of $1,000 before the effective date of the Act but
obtained only five contributions in excess of $1,000.
Although appellants claim that the $1,000 ceiling governing contributions to candidates will prevent the
acquisition of seed money necessary to launch campaigns, the absence of experience under the Act
prevents us from evaluating this assertion. As appellees note, it is difficult to assess the effect of the
contribution ceiling on the acquisition of seed money since candidates have not previously had to make a
concerted effort to raise start-up funds in small amounts.
[ Footnote 41 ] Appellant Buckley was a minor-party candidate in 1970 when he was elected to the
United States Senate from the State of New York.
[ Footnote 42 ] Although expenditures incidental to volunteer services would appear self-limiting, it is
possible for a worker in a candidate's campaign to generate substantial travel expenses. An affidavit
submitted by Stewart Mott, an appellant, indicates that he "expended some $50,000 for personal
expenses" in connection with Senator McGovern's 1972 Presidential campaign.
[ Footnote 43 ] The Act contains identical, parallel provisions pertaining to incidental volunteer expenses
under the definitions of contribution and expenditure. Compare 591 (e) (5) (B)-(D) with 591 (f) (4) (D),
(E). The definitions have two effects. First, volunteer expenses that are counted as contributions by the
volunteer would also constitute expenditures by the candidate's campaign. Second, some volunteer
expenses would qualify as contributions whereas others would constitute independent expenditures. The
statute distinguishes between independent expenditures by individuals and campaign expenditures on the
basis of whether the candidate, an authorized committee of the candidate, or an agent of the candidate
"authorized or requested" the expenditure. See 608 (c) (2) (B) (ii), (e) (1); S. Rep. No. 93-689, p. 18

(1974); H. R. Rep. No. 93-1239, p. 6 (1974). As a result, only travel that is "authorized or requested" by
the candidate or his agents would involve incidental expenses chargeable against the volunteer's
contribution limit and the candidate's expenditure ceiling. See n. 53, infra. Should a person independently
travel across the country to participate in a campaign, any unreimbursed travel expenses would not be
treated as a contribution. This interpretation is not only consistent with the statute [424 U.S. 1, 38] and the
legislative history but is also necessary to avoid the administrative chaos that would be produced if each
volunteer and candidate had to keep track of amounts spent on unsolicited travel in order to comply with
the Act's contribution and expenditure ceilings and the reporting and disclosure provisions. The
distinction between contributions and expenditures is also discussed at n. 53, infra, and in Part II-C-2,
infra.
[ Footnote 45 ] The same broad definition of "person" applicable to the contribution limitations governs
the meaning of "person" in 608 (e) (1). The statute provides some limited exceptions through various
exclusions from the otherwise comprehensive definition of "expenditure." See 591 (f). The most
important exclusions are: (1) "any news story, commentary, or editorial distributed through the facilities
of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities
are owned or controlled by any political party, political committee, or candidate," 591 (f)(4) [424 U.S. 1,
40] (A), and (2) "any communication by any membership organization or corporation to its members or
stockholders, if such membership organization or corporation is not organized primarily for the purpose
of influencing the nomination for election, or election, of any person to Federal office," 591 (f)(4)(C). In
addition, the Act sets substantially higher limits for personal expenditures by a candidate in connection
with his own campaign, 608 (a), expenditures by national and state committees of political parties that
succeed in placing a candidate on the ballot, 591 (i), 608 (f), and total campaign expenditures by
candidates, 608 (c).
[ Footnote 46 ] Section 608 (i) provides that any person convicted of exceeding any of the contribution or
expenditure limitations "shall be fined not more than $25,000 or imprisoned not more than one year, or
both."
[ Footnote 47 ] Several of the parties have suggested that problems of ambiguity regarding the
application of 608 (e) (1) to specific campaign speech could be handled by requesting advisory opinions
from the Commission. While a comprehensive series of advisory opinions or a rule delineating what
expenditures are "relative to a clearly identified candidate" might alleviate the provision's vagueness
problems, reliance on the Commission is unacceptable because the vast majority of individuals and
groups subject to criminal sanctions for violating 608 (e) (1) do not have a right to obtain an advisory
opinion from the Commission. See 2 U.S.C. 437f (1970 ed., Supp. IV). Section 437f (a) of Title 2
accords only candidates, federal [424 U.S. 1, 41] officeholders, and political committees the right to
request advisory opinions and directs that the Commission "shall render an advisory opinion, in writing,
within a reasonable time" concerning specific planned activities or transactions of any such individual or
committee. The powers delegated to the Commission thus do not assure that the vagueness concerns will
be remedied prior to the chilling of political discussion by individuals and groups in this or future
election years.
[ Footnote 48 ] In such circumstances, vague laws may not only "trap the innocent by not providing fair
warning" or foster "arbitrary and discriminatory application" but also operate to inhibit protected

expression by inducing "citizens to `steer far wider of the unlawful zone' ... than if the boundaries of the
forbidden areas were clearly marked.'" Grayned v. City of Rockford, 408 U.S. 104, 108 -109 (1972),
quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964), quoting Speiser v. Randall, 357 U.S. 513, 526
(1958). "Because First Amendment freedoms need breathing space to survive, government may regulate
in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433 (1963).
[ Footnote 49 ] This interpretation of "relative to" a clearly identified candidate is supported by the
discussion of 608 (e) (1) in the Senate Report, S. Rep. No. 93-689, p. 19 (1974), the House Report, H. R.
Rep. No. 93-1239, p. 7 (1974), the Conference Report, S. Conf. Rep. No. 93-1237, pp. 56-57 (1974), and
the opinion of the Court of Appeals, 171 U.S. App. D.C., at 203-204, 519 F.2d, at 852-853.
[ Footnote 50 ] In connection with another provision containing the same advocacy language appearing
in 608 (e) (1), the Court of Appeals concluded:
● "Public discussion of public issues which also are campaign issues readily and often unavoidably
draws in candidates and their positions, their voting records and other official conduct. Discussions
of those issues, and as well more positive efforts to influence public opinion on them, tend
naturally and inexorably to exert some influence on voting at elections." 171 U.S. App. D.C., at
226, 519 F.2d, at 875.
[ Footnote 51 ] Section 608 (e) (2) defines "clearly identified" to require that the candidate's name,
photograph or drawing, or other unambiguous reference to his identity appear as part of the
communication. Such other unambiguous reference would include use of the candidate's initials (e. g.,
FDR), the candidate's nickname (e. g., Ike), his office (e. g., the President or the Governor of Iowa), or
his status as a [424 U.S. 1, 44] candidate (e. g., the Democratic Presidential nominee, the senatorial
candidate of the Republican Party of Georgia).
[ Footnote 52 ] This construction would restrict the application of 608 (e) (1) to communications
containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast
your ballot for," "Smith for Congress," "vote against," "defeat," "reject."
[ Footnote 53 ] Section 608 (e) (1) does not apply to expenditures "on behalf of a candidate" within the
meaning of 608 (c) (2) (B). The latter subsection provides that expenditures "authorized or requested by
the candidate, an authorized committee of the candidate, or an agent of the candidate" are to be treated as
expenditures of the candidate and contributions by the person or group making the expenditure. The
House and Senate Reports provide guidance in differentiating individual expenditures that are
contributions and candidate expenditures under 608 (c) (2) (B) from those treated as independent
expenditures subject to the 608 (e) (1) ceiling. The House Report speaks of independent expenditures as
costs "incurred without the request or consent of a candidate or his agent." H. R. Rep. No. 93-1239, p. 6
(1974). The Senate Report addresses the issue in greater detail. It provides an example illustrating the
distinction between "authorized or requested" expenditures excluded from 608 (e) (1) and independent
expenditures governed by 608 (e) (1):
● "[A] person might purchase billboard advertisements endorsing a candidate. If he does so
completely on his own, and not at the request or suggestion of the candidate or his agent's [sic] that
would constitute an ìndependent expenditure on behalf of a candidate' [424 U.S. 1, 47] under
section 614 (c) of the bill. The person making the expenditure would have to report it as such.
● "However, if the advertisement was placed in cooperation with the candidate's campaign

organization, then the amount would constitute a gift by the supporter and an expenditure by the
candidate -- just as if there had been a direct contribution enabling the candidate to place the
advertisement, himself. It would be so reported by both." S. Rep. No. 93-689, p. 18 (1974).
The Conference substitute adopted the provision of the Senate bill dealing with expenditures by any
person "authorized or requested" to make an expenditure by the candidate or his agents. S. Conf. Rep.
No. 93-1237, p. 55 (1974). In view of this legislative history and the purposes of the Act, we find that the
"authorized or requested" standard of the Act operates to treat all expenditures placed in cooperation with
or with the consent of a candidate, his agents, or an authorized committee of the candidate as
contributions subject to the limitations set forth in 608 (b).
[ Footnote 54 ] Appellees mistakenly rely on this Court's decision in CSC v. Letter Carriers, as
supporting 608 (e) (1)'s restriction on the spending of money to advocate the election or defeat of a
particular candidate. In upholding the Hatch Act's broad restrictions on the associational freedoms of
federal employees, the Court repeatedly emphasized the statutory provision and corresponding regulation
permitting an employee to "`[e]xpress his opinion as an individual privately and publicly on political
subjects and candidates.'" 413 U.S., at 579 , quoting 5 CFR 733.111 (a) (2). See 413 U.S., at 561 568,
575-576. Although the Court "unhesitatingly" found that a statute prohibiting federal employees from
engaging in a wide variety of "partisan political conduct" would "unquestionably be valid," it carefully
declined to endorse provisions threatening political expression. See id., at 556, 579-581. The Court did
not rule on the constitutional questions presented by the regulations forbidding partisan campaign
endorsements through the media and speechmaking to political gatherings because it found that these
restrictions did not "make the statute substantially overbroad and so invalid on its face." Id., at 581.
[ Footnote 55 ] Neither the voting rights cases nor the Court's decision upholding the Federal
Communications Commission's fairness doctrine lends support to appellees' position that the First
Amendment permits Congress to abridge the rights of some persons to engage in political expression in
order to enhance the relative voice of other segments of our society.
Cases invalidating governmentally imposed wealth restrictions on the right to vote or file as a candidate
for public office rest on the conclusion that wealth "is not germane to one's ability to participate
intelligently in the electoral process" and is therefore an insufficient basis on which to restrict a citizen's
fundamental right to vote. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668 (1966). See Lubin v.
Panish, 415 U.S. 709 (1974); Bullock v. Carter, 405 U.S. 134 (1972); Phoenix v. Kolodziejski, 399 U.S.
204 (1970). These voting cases and the reapportionment decisions serve to assure that citizens are
accorded an equal right to vote for their representatives regardless of factors of wealth or geography. But
the principles that underlie invalidation of governmentally imposed restrictions on the franchise do not
justify governmentally imposed restrictions on political expression. Democracy depends on a
well-informed electorate, not a citizenry legislatively limited in its ability to discuss and debate
candidates and issues.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the Court upheld the political-editorial and
personal-attack portions of [424 U.S. 1, 50] the Federal Communications Commission's fairness doctrine.
That doctrine requires broadcast licensees to devote programing time to the discussion of controversial
issues of public importance and to present both sides of such issues. Red Lion "makes clear that the
broadcast media pose unique and special problems not present in the traditional free speech case," by
demonstrating that "ìt is idle to posit an unbridgeable First Amendment right to broadcast comparable to

the right of every individual to speak, write, or publish.'" Columbia Broadcasting v. Democratic Comm.,
412 U.S. 94, 101 (1973), quoting Red Lion Broadcasting Co., supra, at 388. Red Lion therefore
undercuts appellees' claim that 608 (e) (1)'s limitations may permissibly restrict the First Amendment
rights of individuals in this "traditional free speech case." Moreover, in contrast to the undeniable effect
of 608 (e) (1), the presumed effect of the fairness doctrine is one of "enhancing the volume and quality of
coverage" of public issues. 395 U.S., at 393 .
[ Footnote 56 ] The Act exempts most elements of the institutional press, limiting only expenditures by
institutional press facilities that are owned or controlled by candidates and political parties. See 591 (f)
(4) (A). But, whatever differences there may be between the constitutional guarantees of a free press and
of free speech, it is difficult to conceive of any principled basis upon which to distinguish 608 (e) (1)'s
limitations upon the public at large and similar limitations imposed upon the press specifically.
[ Footnote 57 ] The $35,000 ceiling on expenditures by candidates for the Senate also applies to
candidates for the House of Representatives from States entitled to only one Representative. 608 (a) (1)
(B).
The Court of Appeals treated 608 (a) as relaxing the $1,000-per-candidate contribution limitation
imposed by 608 (b) (1) so as to permit any member of the candidate's immediate family -- spouse, child,
grandparent, brother, sister, or spouse of such persons -- to [424 U.S. 1, 52] contribute up to the $25,000
overall annual contribution ceiling to the candidate. See 171 U.S. App. D.C., at 205, 519 F.2d, at 854.
The Commission has recently adopted a similar interpretation of the provision. See Federal Election
Commission, Advisory Opinion 1975-65 (Dec. 5, 1975), 40 Fed. Reg. 58393. However, both the Court
of Appeals and the Commission apparently overlooked the Conference Report accompanying the final
version of the Act which expressly provides for a contrary interpretation of 608 (a):
● "It is the intent of the conferees that members of the immediate family of any candidate shall be
subject to the contribution limitations established by this legislation. If a candidate for the office of
Senator, for example, already is in a position to exercise control over funds of a member of his
immediate family before he becomes a candidate, then he could draw upon these funds up to the
limit of $35,000. If, however, the candidate did not have access to or control over such funds at the
time he became a candidate, the immediate family member would not be permitted to grant access
or control to the candidate in amounts up to $35,000, if the immediate family member intends that
such amounts are to be used in the campaign of the candidate. The immediate family member
would be permitted merely to make contributions to the candidate in amounts not greater than
$1,000 for each election involved." S. Conf. Rep. No. 93-1237, p. 58 (1974).
[ Footnote 58 ] The Court of Appeals evidently considered the personal funds expended by the candidate
on his own behalf as a contribution rather than an expenditure. See 171 U.S. App. D.C., at 205, 519 F.2d,
at 854. However, unlike a person's contribution to a candidate, a candidate's expenditure of his personal
funds directly facilitates his own political speech.
[ Footnote 59 ] The legislative history of the Act clearly indicates that 608 (a) was not intended to
suspend the application of the $1,000 contribution limitation of 608 (b) (1) for members of the
candidate's immediate family. See n. 57, supra. Although the risk of improper influence is somewhat
diminished in the case of large contributions from immediate family members, we cannot say that the
danger is sufficiently reduced to bar Congress from subjecting family members to the same limitations as

nonfamily contributors.
The limitation on a candidate's expenditure of his own funds differs markedly from a limitation on family
contributions both in the absence of any threat of corruption and the presence of a legislative [424 U.S. 1,
54] restriction on the candidate's ability to fund his own communication with the voters.
[ Footnote 60 ] Expenditures made by an authorized committee of the candidate or any other agent of the
candidate as well as any expenditure by any other person that is "authorized or requested" by the
candidate or his agent are charged against the candidate's spending ceiling. 608 (c) (2) (B).
[ Footnote 61 ] Expenditures made by or on behalf of a Vice Presidential candidate of a political party
are considered to have been made by or on behalf of the party's Presidential candidate. 608 (c) (2) (A).
[ Footnote 62 ] The campaign ceilings contained in 608 (c) would have required a reduction in the scope
of a number of previous congressional campaigns and substantially limited the overall expenditures of
the two major-party Presidential candidates in 1972. See n. 21, supra.
[ Footnote 63 ] This normal relationship may not apply where the candidate devotes a large amount of his
personal resources to his campaign.
[ Footnote 64 ] As an opinion dissenting in part from the decision below noted: "If a senatorial candidate
can raise $1 from each voter, what evil is exacerbated by allowing that candidate to use all that money
for political communication? I know of none." 171 U.S. App. D.C., at 268, 519 F.2d, at 917 (Tamm, J.).
[ Footnote 65 ] For the reasons discussed in Part III, infra, Congress may engage in public financing of
election campaigns and may condition acceptance of public funds on an agreement by the candidate to
abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size of the
contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding.
[ Footnote 66 ] Subtitle H of the Internal Revenue Code also established separate limitations for general
election expenditures by national and state committees of political parties, 608 (f), and for national
political party conventions for the nomination of Presidential candidates. 26 U.S.C. 9008 (d) (1970 ed.,
Supp. IV). Appellants do not challenge these ceilings on First Amendment grounds. Instead, they
contend that the provisions discriminate against independent candidates and regional political parties
without national committees because they permit additional spending by political parties with national
committees. Our decision today holding 608 (e) (1)'s independent expenditure limitation unconstitutional
and 608 (c)'s campaign expenditure ceilings unconstitutional removes the predicate for appellants'
discrimination claim by eliminating any alleged advantage to political parties with national committees.
[ Footnote 67 ] Accordingly, the answers to the certified constitutional questions pertaining to the Act's
contribution and expenditure limitations are as follows:
3. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts
that individuals or organizations may contribute or expend in connection with elections for federal office
violate the rights of one or more of the plaintiffs under the First, Fifth, or Ninth Amendment or the Due
Process Clause of the Fifth Amendment of the Constitution of the United States?
(a) Does 18 U.S.C. 608 (a) (1970 ed., Supp. IV) violate such rights, in that it forbids a candidate or the
members of his immediate family from expending personal funds in excess of the amounts specified in

18 U.S.C. 608 (a) (1) (1970 ed., Supp. IV)?

Answer: YES.
(b) Does 18 U.S.C. 608 (b) (1970 ed., Supp. IV) violate such rights, in that it forbids the solicitation,
receipt or making of contributions on behalf of political candidates in excess of the amounts specified in
18 U.S.C. 608 (b) (1970 ed., Supp. IV)?
Answer: NO.
(c) Do 18 U.S.C. 591 (e) and 608 (b) (1970 ed., Supp. IV) violate such rights, in that they limit the
incidental expenses which volunteers working on behalf of political candidates may incur to the amounts
specified in 18 U.S.C. 591 (e) and 608 (b) (1970 ed., Supp. IV)?
Answer: NO.
(d) Does 18 U.S.C. 608 (e) (1970 ed., Supp. IV) violate such rights, in that it limits to $1,000 the
independent (not on behalf of a candidate) expenditures of any person relative to an identified candidate?
Answer: YES.
(e) Does 18 U.S.C. 608 (f) (1970 ed., Supp. IV) violate such rights, in that it limits the expenditures of
national or state committees of political parties in connection with general election campaigns for federal
office?
Answer: NO, as to the Fifth Amendment challenge advanced by appellants.
(f) Does 9008 of the Internal Revenue Code of 1954 violate [424 U.S. 1, 60] such rights, in that it limits
the expenditures of the national committee of a party with respect to presidential nominating
conventions?
Answer: NO, as to the Fifth Amendment challenge advanced by appellants.
(h) Does 18 U.S.C. 608 (b) (2) (1970 ed., Supp. IV) violate such rights, in that it excludes from the
definition of "political committee" committees registered for less than the period of time prescribed in the
statute?
Answer: NO.
4. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts
that candidates for elected federal office may expend in their campaigns violate the rights of one or more
of the plaintiffs under the First or Ninth Amendment or the Due Process Clause of the Fifth Amendment?
(a) Does 18 U.S.C. 608 (c) (1970 ed., Supp. IV) violate such rights, in that it forbids expenditures by
candidates for federal office in excess of the amounts specified in 18 U.S.C. 608 (c) (1970 ed., Supp.
IV)?
Answer: YES.
[ Footnote 68 ] Unless otherwise indicated, all statutory citations in Part II of this opinion are to Title 2 of
the United States Code, 1970 edition, Supplement IV.

[ Footnote 69 ] Appellants do contend that there should be a blanket exemption from the disclosure
provisions for minor parties. See Part II-B-2, infra.
[ Footnote 70 ] The Court of Appeals' ruling that 437a is unconstitutional was not appealed. See n. 7,
supra.
[ Footnote 71 ] Past disclosure laws were relatively easy to circumvent because candidates were required
to report only contributions that they had received themselves or that were received by others for them
with their knowledge or consent. 307, 43 Stat. 1072. The data that were reported were virtually
impossible to use because there were no uniform rules for the compiling of reports or provisions for
requiring corrections and additions. See Redish, Campaign Spending Laws and the First Amendment, 46
N. Y. U. L. Rev. 900, 905 (1971).
[ Footnote 72 ] See Part I, supra. The relevant provisions of Title 2 are set forth in the Appendix to this
opinion, infra, at 144 et seq.
[ Footnote 73 ] NAACP v. Alabama, 357 U.S., at 463 . See also Gibson v. Florida Legislative Comm.,
372 U.S. 539, 546 (1963); NAACP v. Button, 371 U.S., at 438 ; Bates v. Little Rock, 361 U.S., at 524 .
[ Footnote 74 ] Id., at 525.
[ Footnote 75 ] Gibson v. Florida Legislative Comm., supra, at 546.
[ Footnote 76 ] The Court of Appeals held that the applicable test for evaluating the Act's disclosure
requirements is that adopted in United States v. O'Brien, 391 U.S. 367 (1968), in which "`speech' and
`non-speech' elements [were] combined in the same course of conduct." Id., at 376. O'Brien is
appropriate, the Court of Appeals found, because the Act is directed toward the spending of money, and
money introduces a nonspeech element. As the discussion in Part I-A, supra, indicates, O'Brien is
inapposite, for money is a neutral element not always associated with speech but a necessary and integral
part of many, perhaps most, forms of communication. Moreover, the O'Brien test would not be met, even
if it were applicable. O'Brien requires that "the governmental interest [be] unrelated to the suppression of
free expression." Id., at 377. The governmental interest furthered by the disclosure requirements is not
unrelated to the "suppression" of speech insofar as the requirements are designed to facilitate the
detection of violations of the contribution and expenditure limitations set out in 18 U.S.C. 608 (1970 ed.,
Supp. IV).
[ Footnote 77 ] H. R. Rep. No. 92-564, p. 4 (1971).
[ Footnote 78 ] Ibid.; S. Rep. No. 93-689, p. 2 (1974).
[ Footnote 79 ] We have said elsewhere that "informed public opinion is the most potent of all restraints
upon misgovernment." Grosjean v. American Press Co., 297 U.S. 233, 250 (1936). Cf. United States v.
Harriss, 347 U.S. 612, 625 (1954) (upholding disclosure requirements imposed on lobbyists by the
Federal Regulation of Lobbying Act, Title III of the Legislative Reorganization Act of 1946, 60 Stat.
839).
[ Footnote 80 ] L. Brandeis, Other People's Money 62 (National Home Library Foundation ed. 1933).

[ Footnote 81 ] See supra, at 60.
[ Footnote 82 ] Post-election disclosure by successful candidates is suggested as a less restrictive way of

preventing corrupt pressures on office-holders. Delayed disclosure of this sort would not serve the
equally important informational function played by pre-election reporting. Moreover, the public interest
in sources of campaign funds is likely to be at its peak during the campaign period; that is the time when
improper influences are most likely to be brought to light.
[ Footnote 83 ] Nor is this a case comparable to Pollard v. Roberts, 283 F. [424 U.S. 1, 70] Supp. 248 (ED
Ark.) (three-judge court), aff'd, 393 U.S. 14 (1968), in which an Arkansas prosecuting attorney sought to
obtain, by a subpoena duces tecum, the records of a checking account (including names of individual
contributors) established by a specific party, the Republican Party of Arkansas.
[ Footnote 84 ] See Developments in the Law - Elections, 88 Harv. L. Rev. 1111, 1247 n. 75 (1975).
[ Footnote 85 ] See Williams v. Rhodes, 393 U.S. 23, 32 (1968) ("There is, of course, no reason why two
parties should retain a permanent monopoly on the right to have people vote for or against them.
Competition in ideas and governmental policies is at the core of our electoral process and of the First
Amendment freedoms"); Sweezy v. New Hampshire, 354 U.S. 234, 250 -251 (1957) (plurality opinion).
[ Footnote 86 ] Cf. Talley v. California, 362 U.S. 60, 64 -65 (1960).
[ Footnote 87 ] Allegations made by a branch of the Socialist Workers Party in a civil action seeking to
declare the District of Columbia disclosure and filing requirements unconstitutional as applied to its
records were held to be sufficient to withstand a motion to dismiss in Doe v. Martin, 404 F. Supp. 753
(1975) (three-judge court). The District of Columbia provisions require every political committee to keep
records of contributions of $10 or more and to report contributors of $50 or more.
[ Footnote 88 ] For example, a campaign worker who had solicited campaign funds for the Libertarian
Party in New York testified that two persons solicited in a Party campaign "refused to contribute because
they were unwilling for their names to be disclosed or published." None of the appellants offers stronger
evidence of threats or harassment.
[ Footnote 89 ] These criteria were suggested in an opinion concurring in part and dissenting in part from
the decision below. 171 U.S. App. D.C., at 258 n. 1, 519 F.2d, at 907 n. 1 (Bazelon, C. J.).
[ Footnote 90 ] Age is also underinclusive in that it would presumably leave long-established but
unpopular parties subject to the disclosure requirements. The Socialist Labor Party, which is not a party
to this litigation but which has filed an amicus brief in support of appellants, claims to be able to offer
evidence of "direct suppression, intimidation, harassment, physical abuse, and loss of economic
sustenance" relating to its contributors. Brief for Socialist Labor Party as Amicus Curiae 6. The Party has
been in existence since 1877.
[ Footnote 91 ] 171 U.S. App. D.C., at 258, 519 F.2d, at 907 n. 1 (Bazelon C. J.).
[ Footnote 92 ] Id., at 260, 519 F.2d, at 909. See also Developments in the Law -- Elections, 88 Harv. L.
Rev. 1111, 1247-1249 (1975).

[ Footnote 93 ] See Appendix to this opinion, infra, at 160.
[ Footnote 94 ] See Part I-C-1, supra.
[ Footnote 95 ] 305, 86 Stat. 16.
[ Footnote 96 ] 88 Stat. 1265.
[ Footnote 97 ] S. Rep. No. 92-229, p. 57 (1971).
[ Footnote 99 ] Section 441 (a) provides: "Any person who violates any of [424 U.S. 1, 77] the provisions
of this subchapter shall be fined not more than $1,000 or imprisoned not more than one year, or both."
[ Footnote 100 ] 431 (e), (f). See Appendix to this opinion, infra, at 145-149.
[ Footnote 101 ] See supra, at 61-63.
[ Footnote 102 ] S. Rep. No. 92-96, p. 33 (1971); S. Rep. No. 93-689, pp. 1-2 (1974).
[ Footnote 105 ] Section 431 (d) defines "political committee" as "any committee, club, association, or
other group of persons which receives contributions or makes expenditures during a calendar year in an
aggregate amount exceeding $1,000."
[ Footnote 106 ] At least two lower courts, seeking to avoid questions of unconstitutionality, have
construed the disclosure requirements imposed on "political committees" by 434 (a) to be nonapplicable
to non-partisan organizations. United States v. National Comm. for Impeachment, 469 F.2d, at
1139-1142; American Civil Liberties Union v. Jennings, 366 F. Supp., at 1055-1057. See also 171 U.S.
App. D.C., at 214 n. 112, 519 F.2d, at 863 n. 112.
[ Footnote 107 ] Some partisan committees - groups within the control of the candidate or primarily
organized for political activities -- will fall within 434 (e) because their contributions and expenditures
fall in the $100-to-$1,000 range. Groups of this sort that do not have contributions and expenditures over
$1,000 are not "political committees" within the definition in 431 (d); those whose transactions are not as
great as $100 are not required to file statements under 434 (e).
[ Footnote 109 ] Of course, independent contributions and expenditures made in support of the
campaigns of candidates of parties that have been found to be exempt from the general disclosure
requirements because of the possibility of consequent chill and harassment would be exempt from the
requirements of 434 (e).

[ Footnote 111 ] "Looked at by itself without regard to the necessity behind it the line or point seems
arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen
that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely,
the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable
mark." Louisville Gas Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting).
[ Footnote 112 ] Appellants' final argument is directed against 434 (d), which exempts from the reporting
requirements certain "photographic, matting, or recording services" furnished to Congressmen in
nonelection years. See Appendix to this opinion, infra, at 159. Although we are troubled by the
considerable advantages that this exemption appears to give to incumbents, we agree with the Court of
Appeals that, in the absence of record evidence of misuse or undue discriminatory impact, this provision
represents a reasonable accommodation between the legitimate and necessary efforts of legislators to
communicate with their constituents and activities designed to win elections by legislators in their other
role as politicians.
[ Footnote 113 ] Accordingly, we respond to the certified questions, as follows:
7. Do the particular requirements in the challenged statutes that persons disclose the amounts that they
contribute or expend in connection with elections for federal office or that candidates for such office
disclose the amounts that they expend in their campaigns violate the rights of one or more of the
plaintiffs under the First, [424 U.S. 1, 85] Fourth, or Ninth Amendment or the Due Process Clause of the
Fifth Amendment?
(a) Do 2 U.S.C. 432 (b), (c), and (d) and 438 (a) (8) (1970 ed., Supp. IV) violate such rights, in that they
provide, through auditing procedures, for the Federal Election Commission to inspect lists and records
required to be kept by political committees of individuals who contribute more than $10?
Answer: NO.
(b) Does 2 U.S.C. 434 (b) (1)-(8) (1970 ed., Supp. IV) violate such rights, in that it requires political
committees to register and disclose the names, occupations, and principal places of business (if any) of
those of their contributors who contribute in excess of $100?
Answer: NO.
(c) Does 2 U.S.C. 434 (d) (1970 ed., Supp. IV) violate such rights, in that it neither requires disclosure of
nor treats as contribution to or expenditure by incumbent officeholders the resources enumerated in 2
U.S.C. 434 (d) (1970 ed., Supp. IV)?
Answer: NO.
(d) Does 2 U.S.C. 434 (e) (1970 ed., Supp. IV) violate such rights, in that it provides that every person
contributing or expending more than $100 other than by contribution to a political committee or
candidate (including volunteers with incidental expenses in excess of $600) must make disclosure to the
Federal Election Commission?
Answer: NO.
[ Footnote 114 ] The Presidential Election Campaign Fund Act of 1966, Title IV of Pub. L. 89-909,

301-305, 80 Stat. 1587, was the first such provision. This Act also initiated the dollar check-off provision
now contained in 26 U.S.C. 6096 (1970 ed., Supp. IV). The Act was suspended, however, by a 1967
provision barring any appropriations until Congress adopted guidelines for the distribution of money
from the Fund. Pub. L. 90-26, 5, 81 Stat. 58. In 1971 Congress added Subtitle H to the Internal Revenue
Code. Pub. L. 92-178, 801, [424 U.S. 1, 86] 85 Stat. 562. Chapter 95 thereof provided public financing of
general election campaigns for President; this legislation was to become effective for the 1976 election
and is substantially the same as the present scheme. Congress later amended the dollar check-off
provision, deleting the taxpayers' option to designate specific parties as recipients of their money. Pub. L.
93-53, 6, 87 Stat. 138. Finally, the 1974 amendments added to Chapter 95 provisions for financing
nominating conventions and enacted a new Chapter 96 providing matching funds for campaigns in
Presidential primaries. Pub. L. 93-443, 403-408, 88 Stat. 1291.
[ Footnote 115 ] Unless otherwise indicated all statutory citations in this Part III are to the Internal
Revenue Code of 1954, Title 26 of the United States Code, 1970 edition, Supplement IV.
[ Footnote 117 ] Priorities are established when the Fund is insufficient to satisfy all entitlements in any
election year: the amount in the Fund is first allocated to convention funding, then to financing the
general election, [424 U.S. 1, 87] and finally to primary matching assistance. See 9008 (a), 9037 (a). But
the law does not specify how funds are to be allocated among recipients within these categories. Cf. 9006
(d).
[ Footnote 118 ] Independent candidates might be excluded from general election funding by Chapter 95.
See 9002 (2) (B), 9003 (a), (c), 9004 (a) (2), (c), 9005 (a), 9006 (c). Serious questions might arise as to
the constitutionality of excluding from free annual assistance candidates not affiliated with a "political
party" solely because they lack such affiliation. Storer v. Brown, 415 U.S. 724, 745 -746 (1974). But we
have no occasion to address that question in this case. The possibility of construing Chapter 95 as
affording financial assistance to independent candidates was remarked by the Court of Appeals. 171 U.S.
App. D.C., at 238, 519 F.2d, at 887. The only announced independent candidate for President before the
Court -- former Senator McCarthy -- has publicly announced that he will refuse any public assistance.
Moreover, he is affiliated with the Committee for a Constitutional Presidency -- McCarthy '76, and there
is open the question whether it would qualify as a "political party" under Subtitle H.
[ Footnote 119 ] No party to this case has challenged the constitutionality of this expenditure limit.
[ Footnote 120 ] This amount is the same as the expenditure limit provided in 18 U.S.C. 608 (c) (1) (B)
(1970 ed., Supp. IV). The Court of Appeals viewed the provisions as "complementary stratagems." 171
U.S. App. D.C., at 201, 519 F.2d, at 850. Since the Court today hold 608 (c) (1) to be unconstitutional,
the question of the severability of general election funding as now constituted arises. We hold that the
provisions are severable for the reasons stated in Part III-C, infra.
[ Footnote 121 ] No separate pledge is required from the candidate's party, but if the party organization is
an "authorized committee" or "agent," expenditures by the party may be attributed to the candidate. 18
U.S.C. 608 (c) (2) (B) (1970 ed., Supp. IV). See 608 (b) (4) (A).
[ Footnote 122 ] As with Chapter 95, any constitutional question that may arise from the exclusion of

independent candidates from any assistance, such as funds to defray expenses of getting on state ballots
by petition drives, need not be addressed in this case. See n. 118, supra.
[ Footnote 123 ] As with general election funding, this limit is the same as [424 U.S. 1, 90] the candidate
expenditure limit of 18 U.S.C. 608 (c) (1) (1970 ed., Supp. IV). See n. 120, supra, and Part III-C, infra.
[ Footnote 124 ] The scheme involves no compulsion upon individuals to finance the dissemination of
ideas with which they disagree, Lathrop v. Donohue, 367 U.S. 820, 871 (1961) (Black, J., dissenting);
id., at 882 (Douglas, J., dissenting); Machinists v. Street, 367 U.S. 740, 778 (1961) (Douglas, J.,
concurring); id., at 788-792 (Black, J., dissenting). The 6096 check-off is simply the means by which
Congress determines the amount of its appropriation.
[ Footnote 125 ] Some proposals for public financing would give taxpayers the opportunity to designate
the candidate or party to receive the dollar, and 6096 initially offered this choice. See n. 114, supra. The
voucher system proposed by Senator Metcalf, as amicus curiae here, also allows taxpayers this option.
But Congress need not provide a mechanism for allowing taxpayers to designate the means in which their
particular tax dollars are spent. See n. 124, supra. Further, insofar as these proposals are offered as less
restrictive means, Congress had legitimate reasons for rejecting both. The designation option was
criticized on privacy grounds, 119 Cong. Rec. 22598, 22396 (1973), and also because the identity of all
candidates would not be known by April 15, the filing day for annual individual and joint tax returns.
Senator Metcalf's proposal has also been criticized as possibly leading to black markets and to coercion
to obtain vouchers and as administratively impractical.
[ Footnote 126 ] Appellants voice concern that public funding will lead to governmental control of the
internal affairs of political parties, and thus to a significant loss of political freedom. The concern is
necessarily wholly speculative and hardly a basis for invalidation of the public financing scheme on its
face. Congress has expressed its determination to avoid the possibility. S. Rep. No. 93-689, pp. 9-10
(1974).
[ Footnote 127 ] The historical bases of the Religion and Speech Clauses are markedly different.
Intolerable persecutions throughout history led to the Framers' firm determination that religious worship
-- both in method and belief -- must be strictly protected from government intervention. "Another
purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally
established religions and religious persecutions go hand in hand." Engel v. Vitale, 370 U.S. 421, 432
(1962) (footnote omitted). See Everson v. Board of Education, 330 U.S. 1, 8 -15 (1947). But the central
purpose of the Speech and Press Clauses was to assure a society in which "uninhibited, robust, and
wide-open" public debate concerning matters of public interest would thrive, for only in such a society
can a healthy representative democracy flourish. New York Times Co. v. Sullivan, 376 U.S. 254, 270
(1964). Legislation to enhance these First Amendment values is the rule, not the exception. Our statute
books are replete with laws providing financial assistance to the exercise of free speech, such as aid to
public broadcasting and other forms of educational media, 47 U.S.C. 390-399, and preferential postal
rates and antitrust exemptions for newspapers, 39 CFR 132.2 (1975); 15 U.S.C. 1801-1804.
[ Footnote 128 ] Appellants maintain that denial of funding is a more severe restriction than denial of
access to the ballot, because write-in candidates can win elections, but candidates without funds cannot.
New parties will be unfinanced, however, only if they are unable to get private financial support, which

presumably reflects a general lack of public support for the party. Public financing of some candidates
does not make private fundraising for others any more difficult; indeed, the elimination of private
contributions to major-party Presidential candidates might make more private money available to
minority candidates.
[ Footnote 129 ] Appellants dispute the relevance of this answer to their argument on the ground that they
will not be able to raise money to equal major-party spending. As a practical matter, however, Subtitle H
does not enhance the major parties' ability to campaign; it substitutes public funding for what the parties
would raise privately and additionally imposes an expenditure limit. If a party cannot raise funds
privately, there are legitimate reasons not to provide public funding, which would effectively facilitate
hopeless candidacies.
[ Footnote 130 ] Our only prior decision dealing with a system of public financing, American Party of
Texas v. White, 415 U.S. 767 (1974), also recognized that such provisions are less restrictive than
regulation of ballot access. Texas required major parties -- there called "political parties" -- to nominate
candidates by primaries, and the State reimbursed the parties for some of the expenses incurred in
holding the primaries. But Texas did not subsidize other parties for the expenses involved in qualifying
for the ballot, and this denial was claimed to be a denial of equal protection of the laws. We said that we
were "unconvinced ... that this financing law is an èxclusionary mechanism' which `tends to deny some
voters the opportunity to vote for a candidate of their choosing' or that it has à real and appreciable
impact on the exercise of the franchise.'" Id., at 794, quoting from Bullock v. Carter, 405 U.S., at 144 .
That the aid in American Party was provided to parties and not to candidates, as is most of the Subtitle H
funding, is immaterial.
[ Footnote 131 ] The allegations of invidious discrimination are based on the claim that Subtitle H is
facially invalid; since the public financing provisions have never been in operation, appellants are unable
to offer factual proof that the scheme is discriminatory in its effect. In rejecting appellants' arguments, we
of course do not rule out the possibility of concluding in some future case, upon an appropriate factual
demonstration, that the public financing system invidiously discriminates against nonmajor parties.
[ Footnote 132 ] In 1912 Theodore Roosevelt ran as the candidate of the Progressive Party, which had
split off from the Republican Party, and he received more votes than William H. Taft, the Republican
candidate. But this third-party "threat" was short-lived; in 1916 the Progressive came back into the
Republican Party when the party nominated Charles Evans Hughes as its candidate for the Presidency.
With the exception of 1912, the major-party candidates have outpolled all others in every Presidential
election since 1856.
[ Footnote 133 ] Appellants suggest that a less discriminatory formula would be to grant full funding to
the candidate of the party getting the most votes in the last election and then give money to candidates of
other parties based on their showing in the last election relative to the "leading" party. That formula,
however, might unfairly favor incumbents, since their major-party challengers would receive less
financial assistance. See S. Rep. No. 93-689, p. 10 (1974).
[ Footnote 134 ] Appellants argue that this effort to "catch up" is hindered by the contribution limits in 18
U.S.C. 608 (b) (1970 ed., Supp. IV) and that therefore the public financing provisions are
unconstitutional. Whatever merit the point may have, which is questionable on the basis of the record
before the Court, it is answered in our treatment of the contribution limits. See Part I-B, supra.

[ Footnote 135 ] There will, however, be no minor-party candidates in the 1976 Presidential election,
since no 1972 candidate other than those of the major parties received 5% of the popular vote.
[ Footnote 136 ] Another suggested alternative is Senator Metcalf's voucher scheme, but we have
previously mentioned problems presented by that device. See n. 125, supra. The United States suggests
that a matching formula could be used for general election funding, as it is for funding primary
campaigns, in order to relate current funding to current support more closely. Congress could readily
have concluded, however, that the matching formula was inappropriate for the general election. The
problems in determining the relative strength of candidates at the primaries stage of the campaign are far
greater than after a candidate has obtained the nomination of a major party. See S. Rep. No. 93-689, p. 6
(1974). It might be eminently reasonable, therefore, to employ a matching formula for primary elections
related to popular support evidenced by numerous smaller contributions, yet inappropriate for general
election financing as inconsistent with the congressional effort to remove the influence of private
contributions and to relieve candidates of the burden of fundraising. Ibid.
[ Footnote 137 ] Williams v. Rhodes, 393 U.S. 23, 31 -32 (1968); Sweezy v. New Hampshire, 354 U.S.
234, 250 -251 (1957) (plurality opinion). Cf. Talley v. California, 362 U.S. 60, 64 (1960).
[ Footnote 138 ] Apart from the adjustment for inflation, and assuming a major-party entitlement of
$20,000,000, a candidate getting 5% of the popular vote, when the balance is divided between two major
parties, would be entitled to a post-election payment of more than $2,100,000 if that sum remains after
priority allocations from the fund.
[ Footnote 139 ] It is also argued that Storer v. Brown, 415 U.S. 724 (1974), is a better analogy than
Jenness. In Storer a candidate could qualify for the ballot by obtaining the signatures of 5% of the voters,
but the signatures could not include any voters who voted for another candidate at the primary election.
415 U.S., at 739 . The analogy, however, is no better than Jenness. The Chapter 95 formula is not more
restrictive than that sustained in the two cases, since for the reasons stated earlier, supra, at 94-95, it
burdens minority interests less than ballot-access regulations.
[ Footnote 140 ] On similar grounds we sustain the 10-state requirement in 9002 (2). Success in
Presidential elections depends on winning electoral votes in States, not solely popular votes, and the
requirement is plainly not unreasonable in light of that fact.
[ Footnote 141 ] As with primary campaigns, Congress could reasonably determine that there was no
need for reforms as to minor-party conventions. See infra, at 105-106. This contribution limit applies to
"contributions to any candidate," 18 U.S.C. 608 (b) (1) (1970 ed., Supp. IV), and thus would not govern
gifts to a party for general purposes, such as convention funding. Although "contributions to a named
candidate made to any political committee" are within 608 (b) (1) if the committee is authorized in
writing by a candidate to accept contributions, 608 (b) (4) (A), contributions to a party not for the benefit
of any specific candidate would apparently not be subject to the $1,000 ceiling. Moreover, 608 (b) (4)
(A) governs only party organizations authorized by a candidate in writing to accept contributions.
[ Footnote 142 ] With respect to the denial of funds to candidates who may not be affiliated with a
"political party" for the purposes of public financing, see n. 118, supra.
[ Footnote 143 ] Appellants argue that this reasoning from Katzenbach v. Morgan, is inapplicable to this

case involving First Amendment guarantees. But the argument as to the denial of funds to certain [424
U.S. 1, 106] candidates primarily claims invidious discrimination and hence presents Fifth Amendment
questions, though with First Amendment overtones, as in Katzenbach v. Morgan.
[ Footnote 144 ] Appellants contend that the 20-state requirement directly conflicts with Moore v.
Ogilvie, 394 U.S. 814 (1969), but that case is distinguishable. Only 7% of the Illinois voters could have
blocked a candidate from qualifying for the ballot, even though the statewide elections were decided by
straight majority vote. The clear purpose was to keep any person from being nominated without support
in downstate counties making up only 7% of the vote, but those same voters could not come close to
defeating a candidate in the general election. There is no similar restriction here on the opportunity to
vote for any candidate, and the 20-state requirement is not an [424 U.S. 1, 107] unreasonable method of
measuring a candidate's breadth of support. See supra, at 103-105.
[ Footnote 145 ] The fear that barriers would be reduced too much was one reason for rejecting a
matching formula for the general election financing system. See n. 136, supra.
[ Footnote 146 ] By offering a single hypothetical situation, appellants try to prove that the matching
formula gives wealthy contributors an advantage. Taxpayers are entitled to a deduction from ordinary
income for political contributions up to $100, or $200 on a joint return. 218. Appellants note that a
married couple in the 70% tax bracket could give $500 to a candidate and claim the full deduction
allowed by 218, thus reducing their tax liability by $140. The matching funds increase the effective
contribution to $1,000, and the total cost to the contributors is $360. But the appellants have disregarded
a myriad of other possibilities. For example, taxpayers also have the option of claiming a tax credit up to
$25, or $50 on a joint return, for one-half of their political contributions. 41. Any married couple could
give $100 to a candidate, claim the full $50 credit, and matching thus allows a contribution of $200 at a
cost of only $50 to the contributors. Because this example and others involve greater subsidization --
75% against 64% - of smaller contributions than is involved in appellants' hypothesis, one cannot say that
the matching formula unfairly favors wealthy interests or large contributors. Moreover, the effect noted
by appellants diminishes as the size of individual contributions approaches $1,000.
Finally, these examples clearly reveal that 41 and 218 afford public subsidies for candidates, but
appellants have raised no constitutional challenge to the provisions, either on First or Fifth Amendment
grounds.
[ Footnote 147 ] Our responses to the certified constitutional questions pertaining to public financing of
Presidential election campaigns are:
5. Does any statutory provision for the public financing of political conventions or campaigns for
nomination or election to the Presidency or Vice Presidency violate the rights of one or more of the
plaintiffs under the First or Ninth Amendment, the Due Process Clause of the Fifth Amendment, or
Article I, Section 8, Clause 1, of the Constitution of the United States?
Answer: NO.
6. Do the particular provisions of Subtitle H and 6096 of the Internal Revenue Code of 1954 deprive one
or more of the plaintiffs of such rights under the First or Ninth Amendment or Article 1, Section 8,
Clause 1, in that they provide federal tax money to support certain political candidates, parties,
movements, and organizations or in the manner that they so provide such federal tax money?

Answer: NO.
[ Footnote 148 ] Unless otherwise indicated, all statutory citations in Part IV are to Title 2 of the United
States Code, 1970 edition, Supplement IV, the relevant provisions of which are set forth in the Appendix
to this opinion, infra, at 144-180.
[ Footnote 149 ] In administering Chapters 95 and 96 of Title 26, which provide for funding of
Presidential election and primary campaigns, respectively, the Commission is empowered, inter alia, "to
prescribe such rules and regulations ... as it deems necessary to carry out the functions and duties
imposed on it" by each chapter. 26 U.S.C. 9009 (b) (1970 ed., Supp. IV). See also 26 U.S.C. 9039 (b)
(1970 ed., Supp. IV).
[ Footnote 150 ] The sections from Title 18, incorporated by reference into several of the provisions
relating to the Commission's powers, were either enacted or amended by the 1971 Act or the 1974
amendments. They are codified at 18 U.S.C. 608, 610, 611, 613, 614, 615, 616, and 617 (1970 ed., Supp.
IV) (hereinafter referred to as Title 18 sections).
[ Footnote 151 ] Section 437c (b) also provides, somewhat redundantly, that the Commission "shall
administer, seek to obtain compliance with, and formulate policy with respect to this Act" and the Title
18 sections.
[ Footnote 152 ] The Commission is charged with the duty under each Act to receive and pass upon
requests by eligible candidates for campaign money and certify them to the Secretary of the Treasury for
the latter's disbursement from the Fund. See 26 U.S.C. 9003-9007, 9033-9038 (1970 ed., Supp. IV).
[ Footnote 153 ] This conclusion seems to follow from the manner in which the subsections of 437g
interrelate. Any person may file, and the [424 U.S. 1, 112] Clerk of the House or the Secretary of the
Senate shall refer, believed or apparent civil or criminal violations to the Commission. Upon receipt of a
complaint or referral, as the case may be, the Commission is directed to notify the person involved and to
report the violation to the Attorney General or to make an investigation. 437g (a) (2). The Commission
shall conduct a hearing at that person's request. 437g (a) (4). If after its investigation the Commission
"determines ... that there is reason to believe" that a "violation of this Act," i. e., a civil violation, has
occurred or is about to occur, it "may endeavor to correct such violation by informal methods," failing
which, the Commission "may institute a civil action for relief." 437g (a) (5). Finally, paragraph (6)
provides as follows:
● "The Commission shall refer apparent violations to the appropriate law enforcement authorities to
the extent that violations of provisions of chapter 29 of Title 18 are involved, or if the Commission
is unable to correct apparent violations of this Act under the authority given it by paragraph (5), or
if the Commission determines that any such referral is appropriate." 437g (a) (6) (emphasis added).
While it is clear that the Commission has a duty to refer apparent criminal violations either upon
their initial receipt or after an investigation, it would appear at the very least that the Commission,
which has "primary jurisdiction" with respect to civil enforcement, 437c (b), has the sole
discretionary power "to determine" whether or not a civil violation has occurred or is about to
occur, and consequently whether or not informal or judicial remedies will be pursued.
[ Footnote 154 ] Such a finding is subject to judicial review under the Administrative Procedure Act, 5
U.S.C. 701 et seq.

[ Footnote 155 ] 437c (a) (1), set forth in the Appendix to this opinion, infra, at 161-162.
[ Footnote 156 ] 437c (a) (1) (A).
[ Footnote 157 ] The Court of Appeals, following the sequence of the certified questions, adopted a
piecemeal approach to the six questions, reproduced below, concerning the method of appointment and
powers of the Commission. Its basic holding, in answer to question 8 (a), was that "Congress has the
constitutional authority to establish and appoint [the Commission] to carry out appropriate legislative
functions." 171 U.S. App. D.C., at 244[î], 519 F.2d, at 890. Appellants' claim, embodied in questions 8
(b) through 8 (f), that the Commission's powers go well beyond "legislative functions" and are facially
invalid was in an overarching sense not ripe, since "[w]hether particular powers are predominantly
executive or judicial, or insufficiently related to the exercise of appropriate legislative power is an
abstract question ... better decided in the context of a particular factual controversy." Id., at 243, 519
F.2d, at 892. While some of the statutory grants such as civil enforcement and candidate disqualification
powers (questions 8 (c) and 8 (e)) raised, in the court's view, "very serious constitutional questions," only
the power of the Commission to issue advisory opinions under 437f (a) was ripe in the context of an
attack on Congress' method of appointment. Even then, beyond the Commission's power to inform the
public of its interpretations, the question whether Congress under 437f (b) could validly give substantive
effect to the Commission's opinions in later civil and criminal enforcement proceedings should, the Court
of Appeals held, await a case in which a defense based on 437f (b) was asserted. Finally, the question of
the Commission's power under 26 U.S.C. 9008 (d) (3) (1970 ed., Supp. IV) to authorize nominating
convention expenditures in excess of the statutory limits (question 8 (f)) was found ripe because
appellants had not challenged it in relation to the method of appointment but had asserted only that 26
U.S.C. 9008 (d) (3) (1970 ed., Supp. IV) vested excessive discretion in the Commission. The Court of
Appeals found that Congress had provided sufficient guidelines to withstand that attack.
The Court of Appeals accordingly answered the six certified questions as follows:
● "8. Do the provisions in the challenged statutes concerning the powers and method of appointment
of the Federal Election Commission [424 U.S. 1, 116] violate the rights of one or more of the
plaintiffs under the constitutional separation of powers, the First, Fourth, Fifth, Sixth, or Ninth
Amendment, Article I, Section 2, Clause 6, Article I, Section 5, Clause 1, or Article III?
● "(a) Does 2 U.S.C. 437c (a) violate such rights by the method of appointment of the Federal
Election Commission? ...
● "Answer: NO
● "(b) Do 2 U.S.C. 437d and 437g violate such rights, in that they entrust administration and
enforcement of the FECA to the Federal Election Commission? ...
● "Answer: NO as to the power to issue advisory opinions; UNRIPE as to all else.
● "(c) Does 2 U.S.C. 437g (a) violate such rights, in that it empowers the Federal Election
Commission and the Attorney General to bring civil actions (including proceedings for
injunctions) against any person who has engaged or who may engage in acts or practices which
violate the Federal Election Campaign Act, as amended, or 608, 610, 611, 613, 614, 615, 616, or
617 of Title 18? . . .
● "Answer: UNRIPE FOR RESOLUTION
● "(d) Does 2 U.S.C. 438 (c) violate such rights, in that it empowers the Federal Election

Commission to make rules under the FECA in the manner specified therein? ...
● "(e) Does 2 U.S.C. 456 violate such rights, in that it imposes a temporary disqualification on any
candidate for election to federal office who is found by the Federal Election Commission to have
failed to file a report required by Title III of the Federal Election Campaign Act, as amended? ...
● "(f) Does 9008 of the Internal Revenue Code of 1954 violate such rights, in that it empowers the
Federal Election Commission to authorize expenditures of the national committee of a party with
respect to presidential nominating conventions in excess of the limits enumerated therein? ...
● "Answer: NO"
[î] ERRATA: "244" should be "241".
[ Footnote 158 ] With respect to the Commission's power under 26 U.S.C. 9008 (d) (3) (1970 ed., Supp.
IV) to authorize excessive convention expenditures (question 8 (f)), the fact that appellants in the Court
of Appeals may have focused their attack primarily or even exclusively upon the asserted lack of
standards attendant to that power, see n. 157, supra, does not foreclose them from challenging that power
in relation to Congress' method of appointment of the Commission's members. Question 8 (f) asks
whether vesting the Commission with this power under 26 U.S.C. 9008 (1970 ed., Supp. IV) violates
"such rights," which by reference to question 8 includes "the rights of [appellants] under the
constitutional separation of powers." Since the certified questions themselves provide our jurisdictional
framework, 437h (b), the separation-of-powers aspect of appellants' attack on 26 U.S.C. 9008 (d) (3)
(1970 ed., Supp. IV) is properly before this Court.
[ Footnote 159 ] The Federalist No. 47, p. 299 (G. P. Putnam's Sons ed. 1908).
[ Footnote 160 ] Id., at 302-303 (emphasis in original).
[ Footnote 161 ] The Federalist No. 51, pp. 323-324 (G. P. Putnam's Sons ed. 1908).
[ Footnote 162 ] "Officers of the United States" does not include all employees of the United States, but
there is no claim made that the Commissioners are employees of the United States rather than officers.
Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. Hedden,
137 U.S. 310, 327 (1890); United States v. Germaine, 99 U.S. 508 (1879), whereas the Commissioners,
appointed for a statutory term, are not subject to the control or direction of any other executive, judicial,
or legislative authority.
[ Footnote 163 ] Rule II of the Rules of the House of Representatives, the earliest form of which was
adopted in 1789, provides for the election by the House, at the commencement of each Congress, of a
Clerk, Sergeant at Arms, Doorkeeper, Postmaster, and Chaplain, each of whom in turn is given
appointment power over the employees of his department. Jefferson's Manual and Rules of the House of
Representatives 635-636. While there is apparently no equivalent rule on the Senate side, one of the first
orders of business at the first session of the Senate, April 1789, was to elect a Secretary and a
Doorkeeper. Senate Journal 10 (1st & 2d Congress 1789-1793).
[ Footnote 164 ] 2 U.S.C. 60-1 (b).

[ Footnote 165 ] Appellee Commission has relied for analogous support on the existence of the
Comptroller General, who as a "legislative officer" had significant duties under the 1971 Act. 308, 86
Stat. 16. But irrespective of Congress' designation, cf. 31 U.S.C. 65 (d), the Comptroller General is
appointed by the President in conformity with the Appointments Clause. 31 U.S.C. 42.
[ Footnote 166 ] 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 74, 76 (1911); The
Federalist No. 48, pp. 308-310 (G. P. Putnam's Sons ed. 1908) (J. Madison); The Federalist No. 71, pp.
447-448 (G. P. Putnam's Sons ed. 1908) (A. Hamilton). See generally Watson, Congress Steps Out: A
Look at Congressional Control of the Executive, 63 Calif. L. Rev. 983, 1029-1048 (1975).
[ Footnote 167 ] J. Madison, Notes of Debates in the Federal Convention of 1787, p. 385 (Ohio Univ.
Press ed. 1966).
[ Footnote 168 ] Id., at 472 (emphasis added).
[ Footnote 169 ] "Col. Mason in opposition to Mr. Read's motion desired it might be considered to whom
the money would belong; if to the people, the legislature representing the people ought to appoint the
keepers of it." Ibid.
[ Footnote 172 ] Id., at 571-573.
[ Footnote 174 ] "The Times, Places and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of chusing Senators."
[ Footnote 175 ] Since in future legislation that may be enacted in response to today's decision Congress
might choose not to confer one or more of the powers under discussion to a properly appointed agency,
our assumption is arguendo only. Considerations of ripeness prevent us from deciding, for example,
whether such an agency could under 456 disqualify a candidate for federal election consistently with Art.
I, 5, cl. 1. With respect to this and other powers discussed infra, this page and 138-141, we need pass
only upon their nature in relation to the Appointments Clause, and not upon their validity vel non.
[ Footnote 176 ] Before a rule or regulation promulgated by the Commission under 438 (a) (10) may go
into effect, it must be transmitted either to the Senate or House of Representatives together with "a
detailed explanation and justification of such rule or regulation." 438 (c) (1). If the House of Congress to
which the rule is required to be transmitted disapproves the proposed regulation within the specified
period of time, it may not be promulgated by the Commission. Appellants make a separate attack on this
qualification of the Commission's rulemaking authority, which is but the most recent episode in a long
tug of war between the Executive and Legislative Branches of the Federal Government respecting the
permissible extent of legislative involvement in rulemaking under statutes which have already been
enacted. The history of these episodes is described in Ginnane, The Control of Federal Administration by
Congressional Resolutions and Committees, 66 Harv. L. Rev. 569 (1953); in Newman & Keaton,

Congress and the Faithful Execution of Laws -- Should Legislators Supervise Administrators?, 41 Calif.
L. Rev. 565 (1953); and in Watson, supra, n. 166. Because of our holding that the manner of appointment
of the members of the Commission precludes them from exercising the rulemaking powers in question,
we have no occasion to address this separate challenge of appellants.
[ Footnote 177 ] The subsidiary questions certified by the District Court relating to the composition of
the Federal Election Commission, together with our answers thereto, are as follows:
Question 8 (a). Does 2 U.S.C. 437c (a) (1970 ed., Supp. IV) violate [the rights of one or more of the
plaintiffs under the constitutional separation of powers, the First, Fourth, Fifth, Sixth, or Ninth
Amendment, Art. I, 2, cl. 6, Art. I, 5, cl. 1, or Art. III] by the method of appointment of the Federal
Election Commission?
With respect to the powers referred to in Questions 8 (b)-8 (f), the method of appointment violates Art.
II, 2, cl. 2, of the Constitution.
Question 8 (b). Do 2 U.S.C. 437d and 437g (1970 ed., Supp. IV) violate such rights, in that they entrust
administration and enforcement of the FECA to the Federal Election Commission?
Question 8 (c). Does 2 U.S.C. 437g (a) (1970 ed., Supp. IV) violate such rights, in that it empowers the
Federal Election Commission and the Attorney General to bring civil action (including proceedings for
injunctions) against any person who has engaged or [424 U.S. 1, 142] who may engage in acts or practices
which violate the Federal Election Campaign Act, as amended, or 608, 610, 611, 613, 614, 615, 616, or
617 of Title 18 (1970 ed., Supp. IV)?
Question 8 (d). Does 2 U.S.C. 438 (c) (1970 ed., Supp. IV) violate such rights in that it empowers the
Federal Election Commission to make rules under the FECA in the manner specified therein?
Question 8 (e). Does 2 U.S.C. 456 (1970 ed., Supp. IV) violate such rights, in that it imposes a temporary
disqualification on any candidate for election to federal office who is found by the Federal Election
Commission to have failed to file a report required by Title III of the Federal Election Campaign Act, as
amended?
Question 8 (f). Does 9008 of the Internal Revenue Code of 1954 violate such rights, in that it empowers
the Federal Election Commission to authorize expenditures of the national committee of a party with
respect to Presidential nominating conventions in excess of the limits enumerated therein?
The Federal Election Commission as presently constituted may not under Art. II, 2, cl. 2, of the
Constitution exercise the powers referred to in Questions 8 (b)-8 (f).
[ Footnote 178 ] We have not set forth specific answers to some of the certified questions. Question 9,
dealing with alleged vagueness in several provisions, 171 U.S. App. D.C., at 252, 519 F.2d, at 901
(Appendix A), is resolved in the opinion to the extent urged by the parties. We need not respond to
questions 3 (g), 3 (i), 4 (b), and 7 (f), id., at 250-251, 519 F.2d, at 899-900 (Appendix A), to resolve the
issues presented.
[ Footnote * ] Based upon Federal Election Campaign Laws, compiled by the Senate Library for the
Subcommittee on Privileges and Elections of the Senate Committee on Rules and Administration (1975).
[ Footnote 1a ] [424 U.S. 1, 218] So in original.

MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in part.

For reasons set forth more fully later, I dissent from those parts of the Court's holding sustaining the
statutory provisions (a) for disclosure of small contributions, (b) for limitations on contributions, and (c)
for public financing of Presidential campaigns. In my view, the Act's disclosure scheme is impermissibly
broad and violative of the First Amendment as it relates to reporting contributions in excess of $10 and
$100. The contribution limitations infringe on First Amendment liberties and suffer from the same
infirmities that the Court correctly sees in the expenditure ceilings. The system for public financing of
Presidential campaigns is, in my judgment, an impermissible intrusion by the Government into the
traditionally private political process.
More broadly, the Court's result does violence to the intent of Congress in this comprehensive scheme of
campaign finance. By dissecting the Act bit by bit, and casting off vital parts, the Court fails to recognize
that the whole of this Act is greater than the sum of its parts. [424 U.S. 1, 236] Congress intended to
regulate all aspects of federal campaign finances, but what remains after today's holding leaves no more
than a shadow of what Congress contemplated. I question whether the residue leaves a workable
program.
(1)
● DISCLOSURE PROVISIONS
Disclosure is, in principle, the salutary and constitutional remedy for most of the ills Congress was
seeking to alleviate. I therefore agree fully with the broad proposition that public disclosure of
contributions by individuals and by entities -- particularly corporations and labor unions -- is an effective
means of revealing the type of political support that is sometimes coupled with expectations of special
favors or rewards. That disclosure impinges on First Amendment rights is conceded by the Court, ante, at
64-66, but given the objectives to which disclosure is directed, I agree that the need for disclosure
outweighs individual constitutional claims.
Disclosure is, however, subject to First Amendment limitations which are to be defined by looking to the
relevant public interests. The legitimate public interest is the elimination of the appearance and reality of
corrupting influences. Serious dangers to the very processes of government justify disclosure of
contributions of such dimensions reasonably thought likely to purchase special favors. These fears have
been at the root of the Court's prior decisions upholding disclosure requirements, and I therefore have no
disagreement, for example, with Burroughs v. United States, 290 U.S. 534 (1934).
The Court's theory, however, goes beyond permissible limits. Under the Court's view, disclosure serves
broad informational purposes, enabling the public to be fully informed on matters of acute public
interest. Forced disclosure of one aspect of a citizen's political activity, [424 U.S. 1, 237] under this
analysis, serves the public right to know. This open-ended approach is the only plausible justification for
the otherwise irrationally low ceilings of $10 and $100 for anonymous contributions. The burdens of
these low ceilings seem to me obvious, and the Court does not try to question this. With commendable
candor, the Court acknowledges:
● "It is undoubtedly true that public disclosure of contributions to candidates and political parties
will deter some individuals who otherwise might contribute." Ante, at 68.

Examples come readily to mind. Rank-and-file union members or rising junior executives may now think
twice before making even modest contributions to a candidate who is disfavored by the union or
management hierarchy. Similarly, potential contributors may well decline to take the obvious risks
entailed in making a reportable contribution to the opponent of a well-entrenched incumbent. This fact of
political life did not go unnoticed by the Congress:
● "The disclosure provisions really have in fact made it difficult for challengers to challenge
incumbents." 120 Cong. Rec. 34392 (1974) (remarks of Sen. Long).
See Pollard v. Roberts, 283 F. Supp. 248 (ED Ark.), aff'd per curiam, 393 U.S. 14 (1968).
The public right to know ought not be absolute when its exercise reveals private political convictions.
Secrecy, like privacy, is not per se criminal. On the contrary, secrecy and privacy as to political
preferences and convictions are fundamental in a free society. For example, one of the great political
reforms was the advent of the secret ballot as a universal practice. Similarly, the enlightened labor
legislation of our time has enshrined the secrecy of choice of a bargaining representative for [424 U.S. 1,
238] workers. In other contexts, this Court has seen to it that governmental power cannot be used to force
a citizen to disclose his private affiliations, NAACP v. Button, 371 U.S. 415 (1963), even without a
record reflecting any systematic harassment or retaliation, as in Shelton v. Tucker, 364 U.S. 479 (1960).
For me it is far too late in the day to recognize an ill-defined "public interest" to breach the historic
safeguards guaranteed by the First Amendment.
We all seem to agree that whatever the legitimate public interest in this area, proper analysis requires us
to scrutinize the precise means employed to implement that interest. The balancing test used by the Court
requires that fair recognition be given to competing interests. With respect, I suggest the Court has failed
to give the traditional standing to some of the First Amendment values at stake here. Specifically, it has
failed to confine the particular exercise of governmental power within limits reasonably required.
● "In every case the power to regulate must be so exercised as not, in attaining a permissible end,
unduly to infringe the protected freedom." Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).
● "Unduly" must mean not more than necessary, and until today, the Court has recognized this
criterion in First Amendment cases:
❍ "In the area of First Amendment freedoms, government has the duty to confine itself to the
least intrusive regulations which are adequate for the purpose." Lamont v. Postmaster
General, 381 U.S. 301, 310 (1965) (BRENNAN, J., concurring). (Emphasis added.)
Similarly, the Court has said:

● "[E]ven though the governmental purpose be legitimate [424 U.S. 1, 239] and substantial, that
purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the
end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the
light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, supra, at 488.
In light of these views,1 it seems to me that the threshold limits fixed at $10 and $100 for anonymous
contributions are constitutionally impermissible on their face. As the Court's opinion notes, ante, at 83,
Congress gave little or no thought, one way or the other, to these limits, but rather lifted figures out of a
65-year-old statute. 2 As we are all painfully aware, the 1976 dollar is not what it used to be and is surely
not the dollar of 1910. Ten dollars in 1976 will, for example, purchase only what $1.68 would buy in

1910. United States Dept. of Labor, Handbook of Labor Statistics 1975, p. 313 (Dec. 1975). To argue
that a 1976 contribution of $10 or $100 entails a risk of corruption or its appearance is simply too
extravagant to be maintained. No public right to know justifies the compelled disclosure of such
contributions, at the risk of discouraging them. There is, in short, no relation whatever between the
means used and the legitimate goal of ventilating possible undue influence. Congress has used a shotgun
to kill wrens as well as hawks. [424 U.S. 1, 240]
In saying that the lines drawn by Congress are "not wholly without rationality," the Court plainly fails to
apply the traditional test:
● "Precision of regulation must be the touchstone in an area so closely touching on our most
precious freedoms." NAACP v. Button, 371 U.S. 415, 438 (1938).
See, e. g., Aptheker v. Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389 U.S. 258
(1967); Lamont v. Postmaster General, supra. The Court's abrupt departure3 from traditional standards is
wrong; surely a greater burden rests on Congress than merely to avoid "irrationality" when regulating in
the core area of the First Amendment. Even taking the Court at its word, the particular dollar amounts
fixed by Congress that must be reported to the Commission fall short of meeting the test of rationality
when measured by the goals sought to be achieved.
Finally, no legitimate public interest has been shown in forcing the disclosure of modest contributions
that are the prime support of new, unpopular, or unfashionable political causes. There is no realistic
possibility that such modest donations will have a corrupting influence especially on parties that enjoy
only "minor" status. Major parties would not notice them; minor parties need them. Furthermore, as the
Court candidly recognizes, ante, at 70, minor parties and new parties tend to be sharply ideological in
character, and the public can readily discern where such parties stand, without resorting to the indirect
device of recording the names of financial supporters. To hold, as the Court has, that privacy must
sometimes yield to congressional investigations of alleged subversion, is quite different from making
domestic political [424 U.S. 1, 241] partisans give up privacy. Cf. Eastland v. United States Servicemen's
Fund, 421 U.S. 491 (1975). In any event, the dangers to First Amendment rights here are too great.
Flushing out the names of supporters of minority parties will plainly have a deterrent effect on potential
contributors, a consequence readily admitted by the Court, ante, at 71, 83, and supported by the record. 4
I would therefore hold unconstitutional the provisions requiring reporting of contributions of more than
$10 and to make a public record of the name, address, and occupation of a contributor of more than $100.
(2)
● CONTRIBUTION AND EXPENDITURE LIMITS
I agree fully with that part of the Court's opinion that holds unconstitutional the limitations the Act puts
on campaign expenditures which "place substantial and direct restrictions on the ability of candidates,
citizens, and associations to engage in protected political expression, restrictions that the First
Amendment cannot tolerate." Ante, at 58-59. Yet when it approves similarly stringent limitations on
contributions, the Court ignores the reasons it finds so persuasive in the context of expenditures. For me
contributions and expenditures are two sides of the same First Amendment coin.
By limiting campaign contributions, the Act restricts the amount of money that will be spent on political

activity [424 U.S. 1, 242] -- and does so directly. Appellees argue, as the Court notes, that these limits will
"act as a brake on the skyrocketing cost of political campaigns," ante, at 26. In treating campaign
expenditure limitations, the Court says that the "First Amendment denies government the power to
determine that spending to promote one's political views is wasteful, excessive, or unwise." Ante, at 57.
Limiting contributions, as a practical matter, will limit expenditures and will put an effective ceiling on
the amount of political activity and debate that the Government will permit to take place. The argument
that the ceiling is not, after all, very low as matters now stand gives little comfort for the future, since the
Court elsewhere notes the rapid inflation in the cost of political campaigning.5 Ante, at 57.
The Court attempts to separate the two communicative aspects of political contributions -- the "moral"
support that the gift itself conveys, which the Court suggests is the same whether the gift is $10 or
$10,000, 6 and the [424 U.S. 1, 243] fact that money translates into communication. The Court dismisses
the effect of the limitations on the second aspect of contributions: "[T]he transformation of contributions
into political debate involves speech by someone other than the contributor." Ante, at 21. On this premise
-- that contribution limitations restrict only the speech of "someone other than the contributor" - rests the
Court's justification for treating contributions differently from expenditures. The premise is demonstrably
flawed; the contribution limitations will, in specific instances, limit exactly the same political activity
that the expenditure ceilings limit,7 and at least one of the "expenditure" [424 U.S. 1, 244] limitations the
Court finds objectionable operates precisely like the "contribution" limitations.8
The Court's attempt to distinguish the communication inherent in political contributions from the speech
aspects of political expenditures simply "will not wash." We do little but engage in word games unless
we recognize that people -- candidates and contributors -- spend money on political activity because they
wish to communicate ideas, and their constitutional interest in doing so is precisely the same whether
they or someone else utters the words.
The Court attempts to make the Act seem less restrictive by casting the problem as one that goes to
freedom of association rather than freedom of speech. I have long thought freedom of association and
freedom of expression were two peas from the same pod. The contribution limitations of the Act impose
a restriction on certain forms of associational activity that are for the most part, as the Court recognizes,
ante, at 29, harmless in fact. And the restrictions are hardly incidental in their effect upon particular
campaigns. Judges are ill-equipped to gauge the precise impact of legislation, but a law that impinges
upon First Amendment rights requires us to make the attempt. It is not simply speculation to think that
the limitations on contributions will foreclose some candidacies.9 The limitations will also alter the
nature of some electoral contests drastically. 10 [424 U.S. 1, 245]
At any rate, the contribution limits are a far more severe restriction on First Amendment activity than the
sort of "chilling" legislation for which the Court has shown such extraordinary concern in the past. See,
e. g., Cohen v. California, 403 U.S. 15 (1971); see also cases reviewed in Miller v. California, 413 U.S.
15 (1973); Redrup v. New York, 386 U.S. 767 (1967); Memoirs v. Massachusetts, 383 U.S. 413 (1966).
If such restraints can be justified at all, they must be justified by the very strongest of state interests. With
this much the Court clearly agrees; the Court even goes so far as to note that legislation cutting into these
important interests must employ "means closely drawn to avoid unnecessary abridgment of associational
freedoms." Ante, at 25.
After a bow to the "weighty interests" Congress meant to serve, the Court then forsakes this analysis in
one sentence: "Congress was surely entitled to conclude that disclosure was only a partial measure, and

that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance
of corruption ... ." Ante, at 28. In striking down the limitations on campaign expenditures, the Court
relies in part on its conclusion that other means -- namely, disclosure and contribution ceilings -- will
adequately serve the statute's aim. It is not clear why the same analysis is not also appropriate in
weighing the need for contribution ceilings in addition to disclosure requirements. Congress may well be
[424 U.S. 1, 246] entitled to conclude that disclosure was a "partial measure," but I had not thought until
today that Congress could enact its conclusions in the First Amendment area into laws immune from the
most searching review by this Court.
Finally, it seems clear to me that in approving these limitations on contributions the Court must rest upon
the proposition that "pooling" money is fundamentally different from other forms of associational or joint
activity. But see ante, at 66. I see only two possible ways in which money differs from volunteer work,
endorsements, and the like. Money can be used to buy favors, because an unscrupulous politician can put
it to personal use; second, giving money is a less visible form of associational activity. With respect to
the first problem, the Act does not attempt to do any more than the bribery laws to combat this sort of
corruption. In fact, the Act does not reach at all, and certainly the contribution limits do not reach, forms
of "association" that can be fully as corrupt as a contribution intended as a quid pro quo -- such as the
eleventh-hour endorsement by a former rival, obtained for the promise of a federal appointment. This
underinclusiveness is not a constitutional flaw, but it demonstrates that the contribution limits do not
clearly focus on this first distinction. To the extent Congress thought that the second problem, the lesser
visibility of contributions, required that money be treated differently from other forms of associational
activity, disclosure laws are the simple and wholly efficacious answer; they make the invisible apparent.
(3)
● PUBLIC FINANCING
I dissent from Part III sustaining the constitutionality of the public financing provisions of Subtitle H.
Since the turn of this century when the idea of Government [424 U.S. 1, 247] subsidies for political
campaigns first was broached, there has been no lack of realization that the use of funds from the public
treasury to subsidize political activity of private individuals would produce substantial and profound
questions about the nature of our democratic society. The Majority Leader of the Senate, although
supporting such legislation in 1967, said that "the implications of these questions ... go to the very heart
and structure of the Government of the Republic."11 The Solicitor General in his amicus curiae brief
states that "the issues involved here are of indisputable moment."12 He goes on to express his view that
public financing will have "profound effects in the way candidates approach issues and each other." 13
Public financing, he notes, "affects the role of the party in campaigns for office, changes the role of the
incumbent government vis-a-vis all parties, and affects the relative strengths and strategies of candidates
vis-a-vis each other and their party's leaders."14
The Court chooses to treat this novel public financing of political activity as simply another
congressional appropriation whose validity is "necessary and proper" to Congress' power to regulate and
reform elections and primaries, relying on United States v. Classic, 313 U.S. 299 (1941), and Burroughs
v. United States, 290 U.S. 534 (1934). No holding of this Court is directly in point, because no federal
scheme allocating public funds in a comparable manner has ever been before us. The uniqueness of the

plan is not relevant, of course, to whether Congress has power to enact it. Indeed, I do not question the
power of Congress to regulate elections; nor do I [424 U.S. 1, 248] challenge the broad proposition that the
General Welfare Clause is a grant, not a limitation, of power. M'Culloch v. Maryland, 4 Wheat. 316, 420
(1819); United States v. Butler, 297 U.S. 1, 66 (1936).
I would, however, fault the Court for not adequately analyzing and meeting head on the issue whether
public financial assistance to the private political activity of individual citizens and parties is a legitimate
expenditure of public funds. The public monies at issue here are not being employed simply to police the
integrity of the electoral process or to provide a forum for the use of all participants in the political
dialogue, as would, for example, be the case if free broadcast time were granted. Rather, we are
confronted with the Government's actual financing, out of general revenues, a segment of the political
debate itself. As Senator Howard Baker remarked during the debate on this legislation:
● "I think there is something politically incestuous about the Government financing and, I believe,
inevitably then regulating, the day-to-day procedures by which the Government is selected ... .
● "I think it is extraordinarily important that the Government not control the machinery by which the
public expresses the range of its desires, demands, and dissent." 120 Cong. Rec. 8202 (1974).
If this "incest" affected only the issue of the wisdom of the plan, it would be none of the concern of
judges. But, in my view, the inappropriateness of subsidizing, from general revenues, the actual political
dialogue of the people -- the process which begets the Government itself -- is as basic to our national
tradition as the separation of church and state also deriving from the First Amendment, see Lemon v.
Kurtzman, 403 U.S. 602, 612 (1971); Walz v. Tax Comm'n, 397 U.S. 664, 668 -669 (1970), [424 U.S. 1,
249] or the separation of civilian and military authority, see Orloff v. Willoughby, 345 U.S. 83, 93 -94
(1953), neither of which is explicit in the Constitution but both of which have developed through
case-by-case adjudication of express provisions of the Constitution.
Recent history shows dangerous examples of systems with a close, "incestuous" relationship between
"government" and "politics"; the Court's opinion simply dismisses possible dangers by noting that:
● "Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use
public money to facilitate and enlarge public discussion and participation in the electoral process,
goals vital to a self-governing people." Ante, at 92-93.
Congress, it reassuringly adds by way of a footnote, has expressed its determination to avoid such a
possibility.15 Ante, at 93 n. 126. But the Court points to no basis for predicting that the historical pattern
of "varying measures of control and surveillance," Lemon v. Kurtzman, supra, at 621, which usually
accompany grants from Government will not also follow in this case. 16 Up to now, the Court has always
been extraordinarily sensitive, when dealing with First Amendment rights, to the risk that the "flag tends
to follow the dollars." Yet, here, where Subtitle H specifically requires the auditing of records of political
parties and candidates by Government inspectors,17 the Court shows [424 U.S. 1, 250] little sensitivity to
the danger it has so strongly condemned in other contexts. See, e. g., Everson v. Board of Education, 330
U.S. 1 (1947). Up to now, this Court has scrupulously refrained, absent claims of invidious
discrimination,18 from entering the arena of intraparty disputes concerning the seating of convention
delegates. Graham v. Fong Eu, 403 F. Supp. 37 (ND Cal. 1975), summarily aff'd, 423 U.S. 1067 (1976);
Cousins v. Wigoda, 419 U.S. 477 (1975); O'Brien v. Brown, 409 U.S. 1 (1972). An obvious underlying
basis for this reluctance is that delegate selection and the management of political conventions have been

considered a strictly private political matter, not the business of Government inspectors. But once the
Government finances these national conventions by the expenditure of millions of dollars from the public
treasury, we may be providing a springboard for later attempts to impose a whole range of requirements
on delegate selection and convention activities. Does this foreshadow judicial decisions allowing the
federal courts to "monitor" these conventions to assure compliance with court orders or regulations?
Assuming, arguendo, that Congress could validly appropriate public money to subsidize private political
activity, it has gone about the task in Subtitle H in a manner which is not, in my view, free of
constitutional infirmity.19 I do not question that Congress has "wide discretion in the manner of
prescribing details of expenditures" in some contexts, Cincinnati Soap Co. v. United States, 301 U.S.
308, 321 (1937). Here, however, Congress has not itself appropriated a specific sum to attain the ends of
the Act but has delegated to a limited group [424 U.S. 1, 251] of citizens - those who file tax returns -- the
power to allocate general revenue for the Act's purposes -- and of course only a small percentage of that
limited group has exercised the power. There is nothing to assure that the "fund" will actually be
adequate for the Act's objectives. Thus, I find it difficult to see a rational basis for concluding that this
scheme would, in fact, attain the stated purposes of the Act when its own funding scheme affords no real
idea of the amount of the available funding.
I agree with MR. JUSTICE REHNQUIST that the scheme approved by the Court today invidiously
discriminates against minor parties. Assuming, arguendo, the constitutionality of the overall scheme,
there is a legitimate governmental interest in requiring a group to make a "preliminary showing of a
significant modicum of support." Jenness v. Fortson, 403 U.S. 431, 442 (1971). But the present system
could preclude or severely hamper access to funds before a given election by a group or an individual
who might, at the time of the election, reflect the views of a major segment or even a majority of the
electorate. The fact that there have been few drastic realignments in our basic two-party structure in 200
years is no constitutional justification for freezing the status quo of the present major parties at the
expense of such future political movements. Cf. discussion, ante, at 73. When and if some minority party
achieves majority status, Congress can readily deal with any problems that arise. In short, I see grave
risks in legislation, enacted by incumbents of the major political parties, which distinctly disadvantages
minor parties or independent candidates. This Court has, until today, been particularly cautious when
dealing with enactments that tend to perpetuate those who control legislative power. See Reynolds v.
Sims, 377 U.S. 533, 570 (1964).
I would also find unconstitutional the system of [424 U.S. 1, 252] matching grants which makes a
candidate's ability to amass private funds the sole criterion for eligibility for public funds. Such an
arrangement can put at serious disadvantage a candidate with a potentially large, widely diffused -- but
poor -- constituency. The ability of a candidate's supporters to help pay for his campaign cannot be
equated with their willingness to cast a ballot for him. See Lubin v. Panish, 415 U.S. 709 (1974); Bullock
v. Carter, 405 U.S. 134 (1972).
(4)
I cannot join in the attempt to determine which parts of the Act can survive review here. The statute as it
now stands is unworkable and inequitable.
I agree with the Court's holding that the Act's restrictions on expenditures made "relative to a clearly

identified candidate," independent of any candidate or his committee, are unconstitutional. Ante, at
39-51. Paradoxically the Court upholds the limitations on individual contributions, which embrace
precisely the same sort of expenditures "relative to a clearly identified candidate" if those expenditures
are "authorized or requested" by the "candidate or his agents." Ante, at 24 n. 25. The Act as cut back by
the Court thus places intolerable pressure on the distinction between "authorized" and "unauthorized"
expenditures on behalf of a candidate; even those with the most sanguine hopes for the Act might well
concede that the distinction cannot be maintained. As the Senate Report on the bill said:
● "Whether campaigns are funded privately or publicly ... controls are imperative if Congress is to
enact meaningful limits on direct contributions. Otherwise, wealthy individuals limited to a $3,000
direct contribution [$1,000 in the bill as finally enacted] could also purchase one hundred thousand
[424 U.S. 1, 253] dollars' worth of advertisements for a favored candidate. Such a loophole would
render direct contribution limits virtually meaningless." S. Rep. No. 93-689, p. 18 (1974).
Given the unfortunate record of past attempts to draw distinctions of this kind, see ante, at 61-62, it is not
too much to predict that the Court's holding will invite avoidance, if not evasion, of the intent of the Act,
with "independent" committees undertaking "unauthorized" activities in order to escape the limits on
contributions. The Court's effort to blend First Amendment principles and practical politics has produced
a strange offspring.
Moreover, the Act -- or so much as the Court leaves standing -- creates significant inequities. A
candidate with substantial personal resources is now given by the Court a clear advantage over his less
affluent opponents, who are constrained by law in fundraising, because the Court holds that the "First
Amendment cannot tolerate" any restrictions on spending. Ante, at 59. Minority parties, whose situation
is difficult enough under an Act that excludes them from public funding, are prevented from accepting
large single-donor contributions. At the same time the Court sustains the provision aimed at broadening
the base of political support by requiring candidates to seek a greater number of small contributors, it
sustains the unrealistic disclosure thresholds of $10 and $100 that I believe will deter those hoped-for
small contributions. Minor parties must now compete for votes against two major parties whose
expenditures will be vast. Finally, the Act's distinction between contributions in money and contributions
in services remains, with only the former being subject to any limits. As Judge Tamm put it in dissent
from the Court of Appeals' opinion:
● "[T]he classification created only regulates certain [424 U.S. 1, 254] types of disproportional
influences. Under section 591 (e) (5), services are excluded from contributions. This allows the
housewife to volunteer time that might cost well over $1000 to hire on the open market, while
limiting her neighbor who works full-time to a regulated contribution. It enhances the
disproportional influence of groups who command large quantities of these volunteer services and
will continue to magnify this inequity by not allowing for an inflation adjustment to the
contribution limit. It leads to the absurd result that a lawyer's contribution of services to aid a
candidate in complying with FECA is exempt, but his first amendment activity is regulated if he
falls ill and hires a replacement." 171 U.S. App. D.C. 172, 266, 519 F.2d 821, 915 (1975).
One need not call problems of this order equal protection violations to recognize that the contribution
limitations of the Act create grave inequities that are aggravated by the Court's interpretation of the Act.
The Court's piecemeal approach fails to give adequate consideration to the integrated nature of this
legislation. A serious question is raised, which the Court does not consider:20 when central segments, key

operative provisions, of this Act are stricken, can what remains function in anything like the way
Congress intended? The incongruities are obvious. The Commission is now eliminated, yet its very
purpose was to guide candidates and campaign workers -- and their accountants and lawyers -- through
an intricate statutory maze where a misstep can lead to imprisonment. All candidates can now spend
freely; affluent candidates, after today, can spend their own money without limit; yet, contributions for
the ordinary [424 U.S. 1, 255] candidate are severely restricted in amount -- and small contributors are
deterred. I cannot believe that Congress would have enacted a statutory scheme containing such
incongruous and inequitable provisions.
Although the statute contains a severability clause, 2 U.S.C. 454 (1970 ed., Supp. IV), such a clause is
not an "inexorable command."21 Dorchy v. Kansas, 264 U.S. 286, 290 (1924). The clause creates a
rebuttable presumption that "èliminating invalid parts, the legislature would have been satisfied with
what remained.'" Welsh v. United States, 398 U.S. 333, 364 (1970) (Harlan, J., concurring, quoting from
Champlin Rfg. Co. v. Commission, 286 U.S. 210, 235 (1932)). Here just as the presumption of
constitutionality of a statute has been overcome to the point that major proportions and chapters of the
Act have been declared unconstitutional, for me the presumption of severability has been rebutted. To
invoke a severability clause to salvage parts of a comprehensive, integrated statutory scheme, which
parts, standing alone, are unworkable and in many aspects unfair, exalts a formula at the expense of the
broad objectives of Congress.
Finally, I agree with the Court that the members of the Federal Election Commission were
unconstitutionally appointed. However, I disagree that we should give blanket de facto validation to all
actions of the Commission undertaken until today. The issue is not before us and we cannot know what
acts we are ratifying. I would leave this issue to the District Court to resolve if and when any challenges
are brought.
In the past two decades the Court has frequently [424 U.S. 1, 256] spoken of the broad coverage of the
First Amendment, especially in the area of political dialogue:
● "[T]o assure unfettered interchange of ideas for the bringing about of political and social changes
desired by the people," Roth v. United States, 354 U.S. 476, 484 (1957);
and:
● "[T]here is practically universal agreement that a major purpose of [the First] Amendment was to
protect the free discussion of governmental affairs ... [including] discussions of candidates ...,"
Mills v. Alabama, 384 U.S. 214, 218 (1966);
and again:
● "[I]t can hardly be doubted that the constitutional guarantee [of the First Amendment] has its
fullest and most urgent application precisely to the conduct of campaigns for political office."
Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).
To accept this generalization one need not agree that the Amendment has its "fullest and most urgent
application" only in the political area, for others would think religious freedom is on the same or even a
higher plane. But I doubt that the Court would tolerate for an instant a limitation on contributions to a
church or other religious cause; however grave an "evil" Congress thought the limits would cure, limits
on religious expenditures would most certainly fall as well. To limit either contributions or expenditures

as to churches would plainly restrict "the free exercise" of religion. In my view Congress can no more
ration political expression than it can ration religious expression; and limits on political or religious
contributions and expenditures effectively curb expression in both areas. There are many prices we pay
for the freedoms secured by the First Amendment; the risk of undue [424 U.S. 1, 257] influence is one of
them, confirming what we have long known: Freedom is hazardous, but some restraints are worse.
[ Footnote 1 ] The particular verbalization has varied from case to case. First Amendment analysis defies
capture in a single, easy phrase. The basic point of our inquiry, however expressed, is to determine
whether the Government has sought to achieve admittedly important goals by means which demonstrably
curtail our liberties to an unnecessary extent.
[ Footnote 2 ] The 1910 legislation required disclosure of the names of recipients of expenditures in
excess of $10.
[ Footnote 3 ] Ironically, the Court seems to recognize this principle when dealing with the limitations on
contributions. Ante, at 25.
[ Footnote 4 ] The record does not show systematic harassment of the sort involved in NAACP v.
Alabama, 357 U.S. 449 (1958). But uncontradicted evidence was adduced with respect to actual
experiences of minor parties indicating a sensitivity on the part of potential contributors to the prospect
of disclosure. See, e. g., District Court findings of fact, affidavits of Wertheimer ( 6) and Reed ( 8), 2B
App. 736, 742. This evidence suffices when the governmental interest in putting the spotlight on the
sources of support for minor parties or splinter groups is so tenuous.
[ Footnote 5 ] The Court notes that 94.9% of the funds raised by congressional candidates in 1974 came
in contributions of less than $1,000, ante, at 26 n. 27, and suggests that the effect of the contribution
limitations will be minimal. This logic ignores the disproportionate influence large contributions may
have when they are made early in a campaign; "seed money" can be essential, and the inability to obtain
it may effectively end some candidacies before they begin. Appellants have excerpted from the record
data on nine campaigns to which large, initial contributions were critical. Brief for Appellants 132-138.
Campaigns such as these will be much harder, and perhaps impossible, to mount under the Act.
[ Footnote 6 ] Whatever the effect of the limitation, it is clearly arbitrary -- Congress has imposed the
same ceiling on contributions to a New York or California senatorial campaign that it has put on House
races in Alaska or Wyoming. Both the strength of support conveyed by the gift of $1,000 and the gift's
potential for corruptly influencing the recipient will vary enormously from place to place. Seven Senators
each spent from $1,000,000 to $1,300,000 in their successful 1974 [424 U.S. 1, 243] election campaigns. A
great many congressional candidates spent less than $25,000. 33 Cong. Quarterly 789-790 (1975). The
same contribution ceiling would seem to apply to each of these campaigns. Congress accounted for these
tremendous variations when it geared the expenditure limits to voting population; but it imposed a flat
ceiling on contributions without focusing on the actual evil attacked or the actual harm the restrictions
will work.
[ Footnote 7 ] Suppose, for example, that a candidate's committee authorizes a celebrity or elder
statesman to make a radio or television address on the candidate's behalf, for which the speaker himself
plans to pay. As the Court recognizes, ante, at 24 n. 25, the Act defines this activity as a contribution and
subjects it to the $1,000 limit on individual contributions and the $5,000 limit on contributions by

political committees - effectively preventing the speech over any substantial radio or television station.
Whether the speech is considered an impermissible "contribution" or an allowable "expenditure" turns,
not on whether speech by "someone other than the contributor" is involved, but on whether the speech is
"authorized" or not. The contribution limitations directly restrict speech by the contributor himself. Of
course, this restraint can be avoided if the speaker makes his address without consulting the candidate or
his agents. Elsewhere I suggest that the distinction between "independent" and "authorized" political
activity is unrealistic and simply cannot be maintained. For present purposes I wish only to emphasize
that the Act directly restricts, as a "contribution," what is clearly speech by the "contributor" himself.
[ Footnote 8 ] The Court treats the Act's provisions limiting a candidate's spending from his personal
resources as expenditure limits, as indeed the Act characterizes them, and holds them unconstitutional.
As MR. JUSTICE MARSHALL points out, post, at 287, by the Court's logic these provisions could as
easily be treated as limits on contributions, since they limit what the candidate can give to his own
campaign.
[ Footnote 9 ] Candidates who must raise large initial contributions in order to appeal for more funds to a
broader audience will be handicapped. See n. 5, supra. It is not enough to say that the contribution
ceilings [424 U.S. 1, 245] "merely ... require candidates ... to raise funds from a greater number of
persons," ante, at 22, where the limitations will effectively prevent candidates without substantial
personal resources from doing just that.
[ Footnote 10 ] Under the Court's holding, candidates with personal fortunes will be free to contribute to
their own campaigns as much as they like, since the Court chooses to view the Act's provisions in this
regard as unconstitutional "expenditure" limitations rather than "contribution" limitations. See n. 8,
supra.
[ Footnote 11 ] 113 Cong. Rec. 12165 (1967).
[ Footnote 12 ] Brief for Appellee Attorney General and for United States as Amicus Curiae 93.

[ Footnote 15 ] Such considerations have never before influenced the Court's evaluation of the risks of
restraints on expression.
[ Footnote 16 ] The Court's opinion demonstrates one such intrusion. While the Court finds that the Act's
expenditure limitations unconstitutionally inhibit a candidate's or a party's First Amendment rights, it
imposes, by invoking the severability clause of Subtitle H, such limitations on qualifying for public
funds.
[ Footnote 17 ] See, e. g., 26 U.S.C. 9003, 9007, 9033, 9038 (1970 ed., Supp. IV).
[ Footnote 18 ] Cf. Terry v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649 (1944).
[ Footnote 19 ] See generally remarks of Senator Gore, 112 Cong. Rec. 28783 (1966).
[ Footnote 20 ] The problem is considered only in the limited context of Subtitle H.

[ Footnote 21 ] Section 454 provides that if a "provision" is invalid, the entire Act will not be deemed
invalid. More than a provision, more than a few provisions, have been held invalid today. Section 454
probably does not even reach such extensive invalidation.
MR. JUSTICE WHITE, concurring in part and dissenting in part.
I concur in the Court's answers to certified questions 1, 2, 3 (b), 3 (c), 3 (e), 3 (f), 3 (h), 5, 6, 7 (a), 7 (b),
7 (c), 7 (d), 8 (a), 8 (b), 8 (c), 8 (d), 8 (e), and 8 (f). I dissent from the answers to certified questions 3 (a),
3 (d), and 4 (a). I also join in Part III of the Court's opinion and in much of Parts I-B, II, and IV.
I
It is accepted that Congress has power under the Constitution to regulate the election of federal officers,
including the President and the Vice President. This includes the authority to protect the elective
processes against the "two great natural and historical enemies of all republics, open violence and
insidious corruption," Ex parte Yarbrough, 110 U.S. 651, 658 (1884); for "[i]f this government is
anything more than a mere aggregation of delegated agents of other States and governments, each of
which is superior to the general government, it must have the power to protect the elections on which its
existence depends from violence and corruption," the latter being the consequence of "the free use of
money in elections, arising from the vast growth of recent wealth ... ." Id., at 657-658, 667.
This teaching from the last century was quoted at length and reinforced in Burroughs v. United States,
290 U.S. 534, 546 -548 (1934). In that case the Court sustained the Federal Corrupt Practices Act of
1925, Title III of the Act of Feb. 28, 1925, 43 Stat. 1070, which, among other things, required political
committees to keep [424 U.S. 1, 258] records and file reports concerning all contributions and expenditures
received and made by political committees for the purposes of influencing the election of candidates for
federal office. The Court noted the conclusion of Congress that public disclosure of contributions would
tend to prevent the corrupt use of money to influence elections; this, together with the requirement "that
the treasurer's statement shall include full particulars in respect of expenditures," made it "plain that the
statute as a whole is calculated to discourage the making and use of contributions for purposes of
corruption." 290 U.S., at 548 . Congress clearly had the power to further as it did that fundamental goal:
● "The power of Congress to protect the election of President and Vice President from corruption
being clear, the choice of means to that end presents a question primarily addressed to the
judgment of Congress. If it can be seen that the means adopted are really calculated to attain the
end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the
relationship between the means adopted and the end to be attained, are matters for congressional
determination alone." Id., at 547-548.
Pursuant to this undoubted power of Congress to vindicate the strong public interest in controlling
corruption and other undesirable uses of money in connection with election campaigns, the Federal
Election Campaign Act substantially broadened the reporting and disclosure requirements that so long
have been a part of the federal law. Congress also concluded that limitations on contributions and
expenditures were essential if the aims of the Act were to be achieved fully. In another major innovation,
aimed at insulating candidates from the time-consuming and entangling task of raising huge sums of [424
U.S. 1, 259] money, provision was made for public financing of political campaigns for federal office. A
Federal Election Commission (FEC) was also created to administer the law.

The disclosure requirements and the limitations on contributions and expenditures are challenged as
invalid abridgments of the right of free speech protected by the First Amendment. I would reject these
challenges. I agree with the Court's conclusion and much of its opinion with respect to sustaining the
disclosure provisions. I am also in agreement with the Court's judgment upholding the limitations on
contributions. I dissent, however, from the Court's view that the expenditure limitations of 18 U.S.C. 608
(c) and (e) (1970 ed., Supp. IV) violate the First Amendment.
Concededly, neither the limitations on contributions nor those on expenditures directly or indirectly
purport to control the content of political speech by candidates or by their supporters or detractors. What
the Act regulates is giving and spending money, acts that have First Amendment significance not because
they are themselves communicative with respect to the qualifications of the candidate, but because
money may be used to defray the expenses of speaking or otherwise communicating about the merits or
demerits of federal candidates for election. The act of giving money to political candidates, however,
may have illegal or other undesirable consequences: it may be used to secure the express or tacit
understanding that the giver will enjoy political favor if the candidate is elected. Both Congress and this
Court's cases have recognized this as a mortal danger against which effective preventive and curative
steps must be taken.
Since the contribution and expenditure limitations are neutral as to the content of speech and are not
motivated by fear of the consequences of the political speech [424 U.S. 1, 260] of particular candidates or
of political speech in general, this case depends on whether the nonspeech interests of the Federal
Government in regulating the use of money in political campaigns are sufficiently urgent to justify the
incidental effects that the limitations visit upon the First Amendment interests of candidates and their
supporters.
Despite its seeming struggle with the standard by which to judge this case, this is essentially the question
the Court asks and answers in the affirmative with respect to the limitations on contributions which
individuals and political committees are permitted to make to federal candidates. In the interest of
preventing undue influence that large contributors would have or that the public might think they would
have, the Court upholds the provision that an individual may not give to a candidate, or spend on his
behalf if requested or authorized by the candidate to do so, more than $1,000 in any one election. This
limitation is valid although it imposes a low ceiling on what individuals may deem to be their most
effective means of supporting or speaking on behalf of the candidate -- i. e., financial support given
directly to the candidate. The Court thus accepts the congressional judgment that the evils of unlimited
contributions are sufficiently threatening to warrant restriction regardless of the impact of the limits on
the contributor's opportunity for effective speech and in turn on the total volume of the candidate's
political communications by reason of his inability to accept large sums from those willing to give.
The congressional judgment, which I would also accept, was that other steps must be taken to counter the
corrosive effects of money in federal election campaigns. One of these steps is 608 (e), which, aside from
those funds that are given to the candidate or spent at his [424 U.S. 1, 261] request or with his approval or
cooperation, limits what a contributor may independently spend in support or denigration of one running
for federal office. Congress was plainly of the view that these expenditures also have corruptive
potential; but the Court strikes down the provision, strangely enough claiming more insight as to what
may improperly influence candidates than is possessed by the majority of Congress that passed this bill
and the President who signed it. Those supporting the bill undeniably included many seasoned
professionals who have been deeply involved in elective processes and who have viewed them at close

range over many years.

It would make little sense to me, and apparently made none to Congress, to limit the amounts an
individual may give to a candidate or spend with his approval but fail to limit the amounts that could be
spent on his behalf. Yet the Court permits the former while striking down the latter limitation. No more
than $1,000 may be given to a candidate or spent at his request or with his approval or cooperation; but
otherwise, apparently, a contributor is to be constitutionally protected in spending unlimited amounts of
money in support of his chosen candidate or candidates.
Let us suppose that each of two brothers spends $1 million on TV spot announcements that he has
individually prepared and in which he appears, urging the election of the same named candidate in
identical words. One brother has sought and obtained the approval of the candidate; the other has not.
The former may validly be prosecuted under 608 (e); under the Court's view, the latter may not, even
though the candidate could scarcely help knowing about and appreciating the expensive favor. For
constitutional purposes it is difficult to see the difference between the two situations. I would take the
word of those who know -- that limiting [424 U.S. 1, 262] independent expenditures is essential to prevent
transparent and widespread evasion of the contribution limits.
In sustaining the contribution limits, the Court recognizes the importance of avoiding public
misapprehension about a candidate's reliance on large contributions. It ignores that consideration in
invalidating 608 (e). In like fashion, it says that Congress was entitled to determine that the criminal
provisions against bribery and corruption, together with the disclosure provisions, would not in
themselves be adequate to combat the evil and that limits on contributions should be provided. Here, the
Court rejects the identical kind of judgment made by Congress as to the need for and utility of
expenditure limits. I would not do so.
The Court also rejects Congress' judgment manifested in 608 (c) that the federal interest in limiting total
campaign expenditures by individual candidates justifies the incidental effect on their opportunity for
effective political speech. I disagree both with the Court's assessment of the impact on speech and with
its narrow view of the values the limitations will serve.
Proceeding from the maxim that "money talks," the Court finds that the expenditure limitations will
seriously curtail political expression by candidates and interfere substantially with their chances for
election. The Court concludes that the Constitution denies Congress the power to limit campaign
expenses; federal candidates -- and I would suppose state candidates, too -- are to have the constitutional
right to raise and spend unlimited amounts of money in quest of their own election.
As an initial matter, the argument that money is speech and that limiting the flow of money to the
speaker violates the First Amendment proves entirely too much. Compulsory bargaining and the right to
strike, both provided for or protected by federal law, inevitably have [424 U.S. 1, 263] increased the labor
costs of those who publish newspapers, which are in turn an important factor in the recent disappearance
of many daily papers. Federal and state taxation directly removes from company coffers large amounts of
money that might be spent on larger and better newspapers. The antitrust laws are aimed at preventing
monopoly profits and price fixing, which gouge the consumer. It is also true that general price controls
have from time to time existed and have been applied to the newspapers or other media. But it has not
been suggested, nor could it be successfully, that these laws, and many others, are invalid because they
siphon off or prevent the accumulation of large sums that would otherwise be available for
communicative activities.

In any event, as it should be unnecessary to point out, money is not always equivalent to or used for
speech, even in the context of political campaigns. I accept the reality that communicating with potential
voters is the heart of an election campaign and that widespread communication has become very
expensive. There are, however, many expensive campaign activities that are not themselves
communicative or remotely related to speech. Furthermore, campaigns differ among themselves. Some
seem to spend much less money than others and yet communicate as much as or more than those
supported by enormous bureaucracies with unlimited financing. The record before us no more supports
the conclusion that the communicative efforts of congressional and Presidential candidates will be
crippled by the expenditure limitations than it supports the contrary. The judgment of Congress was that
reasonably effective campaigns could be conducted within the limits established by the Act and that the
communicative efforts of these campaigns would not seriously suffer. In this posture [424 U.S. 1, 264] of
the case, there is no sound basis for invalidating the expenditure limitations, so long as the purposes they
serve are legitimate and sufficiently substantial, which in my view they are.
In the first place, expenditure ceilings reinforce the contribution limits and help eradicate the hazard of
corruption. The Court upholds the overall limit of $25,000 on an individual's political contributions in a
single election year on the ground that it helps reinforce the limits on gifts to a single candidate. By the
same token, the expenditure limit imposed on candidates plays its own role in lessening the chance that
the contribution ceiling will be violated. Without limits on total expenditures, campaign costs will
inevitably and endlessly escalate. Pressure to raise funds will constantly build and with it the temptation
to resort in "emergencies" to those sources of large sums, who, history shows, are sufficiently confident
of not being caught to risk flouting contribution limits. Congress would save the candidate from this
predicament by establishing a reasonable ceiling on all candidates. This is a major consideration in favor
of the limitation. It should be added that many successful candidates will also be saved from large,
overhanging campaign debts which must be paid off with money raised while holding public office and
at a time when they are already preparing or thinking about the next campaign. The danger to the public
interest in such situations is self-evident.
Besides backing up the contribution provisions, which are aimed at preventing untoward influence on
candidates that are elected, expenditure limits have their own potential for preventing the corruption of
federal elections themselves. For many years the law has required the disclosure of expenditures as well
as contributions. As Burroughs indicates, the corrupt use of money by candidates [424 U.S. 1, 265] is as
much to be feared as the corrosive influence of large contributions. There are many illegal ways of
spending money to influence elections. One would be blind to history to deny that unlimited money
tempts people to spend it on whatever money can buy to influence an election. On the assumption that
financing illegal activities is low on the campaign organization's priority list, the expenditure limits could
play a substantial role in preventing unethical practices. There just would not be enough of "that kind of
money" to go around.
I have little doubt in addition that limiting the total that can be spent will ease the candidate's
understandable obsession with fundraising, and so free him and his staff to communicate in more places
and ways unconnected with the fundraising function. There is nothing objectionable -- indeed it seems to
me a weighty interest in favor of the provision -- in the attempt to insulate the political expression of
federal candidates from the influence inevitably exerted by the endless job of raising increasingly large
sums of money. I regret that the Court has returned them all to the treadmill.
It is also important to restore and maintain public confidence in federal elections. It is critical to obviate

or dispel the impression that federal elections are purely and simply a function of money, that federal
offices are bought and sold or that political races are reserved for those who have the facility -- and the
stomach -- for doing whatever it takes to bring together those interests, groups, and individuals that can
raise or contribute large fortunes in order to prevail at the polls.
The ceiling on candidate expenditures represents the considered judgment of Congress that elections are
to be decided among candidates none of whom has overpowering advantage by reason of a huge
campaign war chest. At least so long as the ceiling placed upon the candidates [424 U.S. 1, 266] is not
plainly too low, elections are not to turn on the difference in the amounts of money that candidates have
to spend. This seems an acceptable purpose and the means chosen a commonsense way to achieve it. The
Court nevertheless holds that a candidate has a constitutional right to spend unlimited amounts of money,
mostly that of other people, in order to be elected. The holding perhaps is not that federal candidates have
the constitutional right to purchase their election, but many will so interpret the Court's conclusion in this
case. I cannot join the Court in this respect.
I also disagree with the Court's judgment that 608 (a), which limits the amount of money that a candidate
or his family may spend on his campaign, violates the Constitution. Although it is true that this provision
does not promote any interest in preventing the corruption of candidates, the provision does,
nevertheless, serve salutary purposes related to the integrity of federal campaigns. By limiting the
importance of personal wealth, 608 (a) helps to assure that only individuals with a modicum of support
from others will be viable candidates. This in turn would tend to discourage any notion that the outcome
of elections is primarily a function of money. Similarly, 608 (a) tends to equalize access to the political
arena, encouraging the less wealthy, unable to bankroll their own campaigns, to run for political office.
As with the campaign expenditure limits, Congress was entitled to determine that personal wealth ought
to play a less important role in political campaigns than it has in the past. Nothing in the First
Amendment stands in the way of that determination.
For these reasons I respectfully dissent from the Court's answers to certified questions 3 (a), 3 (d), and 4
(a). [424 U.S. 1, 267]
II
I join the answers in Part IV of the Court's opinion, ante, at 141-142, n. 177, to the questions certified by
the District Court relating to the composition and powers of the FEC, i. e., questions 8 (a), 8 (b), 8 (c), 8
(d) (with the qualifications stated infra, at 282-286), 8 (e), and 8 (f). I also agree with much of that part of
the Court's opinion, including the conclusions that these questions are properly before us and ripe for
decision, that the FEC's past acts are de facto valid, that the Court's judgment should be stayed, and that
the FEC may function de facto while the stay is in effect.
The answers to the questions turn on whether the FEC is illegally constituted because its members were
not selected in the manner required by Art. II, 2, cl. 2, the Appointments Clause. It is my view that with
one exception Congress could endow a properly constituted commission with the powers and duties it
has given the FEC.1
Section 437c creates an eight-member FEC. Two members, the Secretary of the Senate and the Clerk of
the House of Representatives, are ex officio members [424 U.S. 1, 268] without the right to vote or to hold
an FEC office.2 Of the remaining six, two are appointed by the President pro tempore of the Senate upon

the recommendation of the majority and minority leaders of that body; two are similarly appointed by the
Speaker of the House; and two are appointed by the President of the United States. The appointment of
each of these six members is subject to confirmation by a majority of both Houses of Congress. 437c (a)
(1). Each member is appointed for a term of years; none can be an elected or appointed officer or
employee of any branch of the Government at the time of his appointment. 437c (a) (2), (3). The FEC is
empowered to elect its own officers, 437c (a) (5), and to appoint a staff director and general counsel.
437c (f). Decisions are by a majority vote. 437c (c).
It is apparent that none of the members of the FEC is selected in a manner Art. II specifies for the
appointment of officers of the United States. The Appointments Clause provides:
● "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments are not herein otherwise provided for,
and which shall be established by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments."3
Although two of the members of the FEC are initially selected by the President, his nominations are
subject to confirmation by both Houses of Congress. Neither [424 U.S. 1, 269] he, the head of any
department, nor the Judiciary has any voice in the selection of the remaining members of the FEC. The
challenge to the FEC, therefore, is that its members are officers of the United States the mode of whose
appointment was required to, but did not, conform to the Appointments Clause. That challenge is well
taken.
The Appointments Clause applies only to officers of the United States whose appointment is not
"otherwise provided for" in the Constitution. Senators and Congressmen are officers of the United States,
but the Constitution expressly provides the mode of their selection.4 The Constitution also expressly
provides that each House of Congress is to appoint its own officers.5 But it is not contended here that
FEC members are officers of either House selected pursuant to these express provisions, if for no other
reason, perhaps, than that none of the Commissioners was selected in the manner specified by these
provisions -- none of them was finally selected by either House acting alone as Art. I authorizes.
The appointment power provided in Art. II also applies only to officers, as distinguished from
employees,6 of the United States, but there is no claim the Commissioners are employees of the United
States rather than officers. That the Commissioners are among those officers of the United States referred
to in the Appointments Clause of Art. II is evident from the breadth of their [424 U.S. 1, 270] assigned
duties and the nature and importance of their assigned functions.
The functions and duties of the FEC relate to three different aspects of the election laws: First, the
provisions of the Criminal Code, 18 U.S.C. 608-617 (1970 ed., Supp. IV), which establish major
substantive limitations on political contributions and expenditures by individuals, political organizations,
and candidates; second, the reporting and disclosure provisions contained in 2 U.S.C. 431-437b (1970
ed., Supp. IV), these sections requiring the filing of detailed reports of political contributions and
expenditures; and third, the provisions of 26 U.S.C. 9001-9042 (1970 ed., Supp. IV) with respect to the
public financing of Presidential primary and general election campaigns. From the "representative
examples of [the FEC's] various powers" the Court describes, ante, at 109-113, it is plain that the FEC is
the primary agency for the enforcement and administration of major parts of the election laws. It does not

replace or control the executive agencies with respect to criminal prosecutions, but within the wide zone
of its authority the FEC is independent of executive as well as congressional control except insofar as
certain of its regulations must be laid before and not be disapproved by Congress. 438 (c); 26 U.S.C.
9009 (c), 9039 (c) (1970 ed., Supp. IV). With duties and functions such as these, members of the FEC are
plainly "officers of the United States" as that term is used in Art. II, 2, cl. 2.
It is thus not surprising that the FEC, in defending the legality of its members' appointments, does not
deny that they are "officers of the United States" as that term is used in the Appointments Clause of Art.
II.7 Instead, [424 U.S. 1, 271] for reasons the Court outlines, ante, at 131-132, 133-134, its position appears
to be that even if its members are officers of the United States, Congress may nevertheless appoint a
majority of the FEC without participation by the President.8 This position that Congress may itself
appoint the members of a body that is to administer a wide-ranging statute will not withstand
examination in light of either the purpose and history of the Appointments Clause or of prior cases in this
Court.
The language of the Appointments Clause was not mere inadvertence. The matter of the appointment of
officers of the new Federal Government was repeatedly debated by the Framers, and the final
formulation of the Clause arrived at only after the most careful debate and consideration of its place in
the overall design of government. The appointment power was a major building block fitted into the
constitutional structure designed to avoid the accumulation or exercise of arbitrary power by the Federal
Government. The basic approach was that official power should be divided among the Executive,
Legislative, and Judicial Departments. The separation-of-powers principle was implemented by a series
of provisions, among which was the knowing decision that Congress was to have no power whatsoever
to appoint federal officers, except for the power of each House to appoint its own officers serving in the
strictly legislative [424 U.S. 1, 272] processes and for the confirming power of the Senate alone.
The decision to give the President the exclusive power to initiate appointments was thoughtful and
deliberate. The Framers were attempting to structure three departments of government so that each would
have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was
that the same persons should not both legislate and administer the laws.9 From the very outset, provision
was made to prohibit members of Congress from holding office in another branch of the Government
while also serving in Congress. There was little if any dispute about this incompatibility provision which
survived in Art. I, 6, of the Constitution as finally ratified.10 Today, no person may serve in Congress and
at the same time be Attorney General, Secretary of State, a member of the judiciary, a United States
attorney, or a member of the Federal Trade Commission or the National Labor Relations Board.
Early in the 1787 Convention it was also proposed that members of Congress be absolutely ineligible
during the term for which they were elected, and for a period thereafter, for appointment to any state or
federal office. 11 But to meet substantial opposition to so stringent a provision, ineligibility for state
office was first eliminated, 12 and under the language ultimately adopted, Congressmen [424 U.S. 1, 273]
were disqualified from being appointed only to those offices which were created, or for which the
emoluments were increased, during their term of office.13 Offices not in this category could be filled by
Representatives or Senators, but only upon resignation.
Immediately upon settling the ineligibility provision, the Framers returned to the appointment power
which they had several times before debated and postponed for later consideration.14 From the outset,
there had been no dispute that the Executive alone should appoint, and not merely nominate, purely

executive officers,15 but at one stage judicial officers were to be selected by the entire Congress.16 This
provision was subsequently changed to lodge the power to choose judges in the Senate, 17 which was
later also given the power to appoint ambassadors and other public ministers.18 But following resolution
of the dispute over the ineligibility provision, which served both to prevent members of Congress from
appointing themselves to federal office and to limit their being appointed to federal office, it was
determined that the appointment of all principal officers, whether executive or not, should originate with
the President and that the Senate should have only the power of advice and consent.19 Inferior officers
[424 U.S. 1, 274] could be otherwise appointed, but not by Congress itself. 20 This allocation of the
appointment power, in which for the first time the Executive had the power to initiate appointment to all
principal offices and the Senate was empowered to advise and consent to nominations by the
Executive,21 was made possible by adoption of the ineligibility provisions and was formulated as part of
the fundamental compromises with respect to the composition of the Senate, the respective roles of the
House and Senate, and the placement of the election of the President in the electoral college.
Under Art. II as finally adopted, law enforcement authority was not to be lodged in elected legislative
officials subject to political pressures. Neither was the Legislative Branch to have the power to appoint
those who were to enforce and administer the law. Also, the appointment power denied Congress and
vested in the President was not limited to purely executive officers but reached officers performing
purely judicial functions as well as all other officers of the United States.
I thus find singularly unpersuasive the proposition that because the FEC is implementing statutory
policies with respect to the conduct of elections, which policies Congress has the power to propound, its
members may be appointed by Congress. One might as well argue that the exclusive and plenary power
of Congress over interstate commerce authorizes Congress to appoint the members of the Interstate
Commerce Commission and of many other regulatory commissions; that its exclusive power to provide
for patents and copyrights would permit the administration of the patent laws to be carried out by a
congressional committee; or that the exclusive power of the Federal Government to establish post offices
authorizes [424 U.S. 1, 275] Congress itself or the Speaker of the House and the President pro tempore of
the Senate to appoint postmasters and to enforce the postal laws.
Congress clearly has the power to create federal offices and to define the powers and duties of those
offices, Myers v. United States, 272 U.S. 52, 128 -129 (1926), but no case in this Court even remotely
supports the power of Congress to appoint an officer of the United States aside from those officers each
House is authorized by Art. I to appoint to assist in the legislative processes.
In Myers, a postmaster of the first class was removed by the President prior to the expiration of his
statutory four-year term. Challenging the President's power to remove him contrary to the statute, he sued
for his salary. The challenge was rejected here. The Court said that under the Constitution the power to
appoint the principal officers of the Executive Branch was an inherent power of the President:
● "[T]he reasonable implication, even in the absence of express words, was that as part of his
executive power [the President] should select those who were to act for him under his direction in
the execution of the laws." Id., at 117.
Further, absent express limitation in the Constitution, the President was to have unrestricted power to
remove those administrative officers essential to him in discharging his duties. These fundamental rules
were to extend to those bureau and department officers with power to issue regulations and to discharge

duties of a quasi-judicial nature -- those members of "executive tribunal whose decisions after hearing
affect interests of individuals." Id., at 135. As for inferior officers such as the plaintiff postmaster, the
same principles were to govern if Congress chose to place the appointment in the President with the
advice and consent of the Senate, as [424 U.S. 1, 276] was the case in Myers. Under the Appointments
Clause, Congress could -- but did not in the Myers case - permit the appointment of inferior officers by
the heads of departments, in which event, the Court said, Congress would have the authority to establish
a term of office and limit the reasons for their removal. But in no circumstance could Congress
participate in the removal:
● "[T]he Court never has held, nor reasonably could hold, although it is argued to the contrary on
behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either
branch of it, the power to remove or the right to participate in the exercise of that power. To do
this would be to go beyond the words and implications of that clause and to infringe the
constitutional principle of the separation of governmental powers." Id., at 161.
Humphrey's Executor v. United States, 295 U.S. 602 (1935), limited the reach of the Myers case. There
the President attempted to remove a member of the Federal Trade Commission prior to the expiration of
his statutory term and for reasons not specified in the statute. The Court ruled that the Presidential
removal power vindicated in Myers related solely to "purely executive officers," 295 U.S., at 628 , from
whom the Court sharply distinguished officers such as the members of the Federal Trade Commission
who were to be free from political dominance and control, whose duties are "neither political nor
executive, but predominantly quasi-judicial and quasi-legislative." Id., at 624. Contrary to the dicta in
Myers, such an officer was thought to occupy "no place in the executive department," to exercise "no
part of the executive power vested by the Constitution in the President," 295 U.S., at 628 , and to be
immune from removal by the President except on terms specified by Congress. The Commissioners were
described as being [424 U.S. 1, 277] in part an administrative body carrying out legislative policies and in
part an agency of the Judiciary, ibid.; such a body was intended to be "independent of executive
authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any
other official or any department of the government." Id., at 625-626. (Emphasis in original.)
The holding in Humphrey's Executor was confirmed in Wiener v. United States, 357 U.S. 349 (1958),
but the Court did not question what Humphrey's Executor had expressly recognized -- that members of
independent agencies are not independent of the Executive with respect to their appointments. Nor did
either Wiener or Humphrey's Executor suggest that Congress could not only create the independent
agency, specify its duties, and control the grounds for removal of its members but could also itself
appoint or remove them without the participation of the Executive Branch of the Government. To have
so held would have been contrary to the Appointments Clause as the Myers case recognized.
It is said that historically Congress has used its own officers to receive and file the reports of campaign
expenditures and contributions as required by law and that this Court should not interfere with this
practice. But the Act before us creates a separate and independent campaign commission with members,
some nominated by the President, who have specified terms of office, are not subject to removal by
Congress, and are free from congressional control in their day-to-day functions. The FEC, it is true, is the
designated authority with which candidates and political committees must file reports of contributions
and expenditures, as required by the Act. But the FEC may also make rules and regulations with respect
to the disclosure requirements, may investigate reported violations, issue subpoenas, hold its own
hearings [424 U.S. 1, 278] and institute civil enforcement proceedings in its own name. Absent a request

by the FEC, it would appear that the Attorney General has no role in the civil enforcement of the
reporting and disclosure requirements. The FEC may also issue advisory opinions with respect to the
legality of any particular activities so as to protect those persons who in good faith have conducted
themselves in reliance on the FEC's opinion. These functions go far beyond mere information gathering,
and there is no long history of lodging such enforcement powers in congressional appointees.
Nor do the FEC's functions stop with policing the reporting and disclosure requirements of the Act. The
FEC is given express power to administer, obtain compliance with, and "to formulate general policy" 22
with respect to 18 U.S.C. 608-617, so much so that the Act expressly provides that "[t]he Commission
has primary jurisdiction with respect to the civil enforcement of such provisions." 23 Following its own
proceedings the FEC may request the Attorney General to bring civil enforcement proceedings, a request
which the Attorney General must honor.24 And good-faith conduct taken in accordance [424 U.S. 1, 279]
with the FEC's advisory opinions as to whether any transaction or activity would violate any of these
criminal provisions "shall be presumed to be in compliance with" these sections. 25 437f (b). Finally, the
FEC has the central role in administering and enforcing the provisions [424 U.S. 1, 280] of Title 26
contemplating the public financing of political campaigns.26
It is apparent that the FEC is charged with the enforcement of the election laws in major respects. Indeed,
except for the conduct of criminal proceedings, it would appear that the FEC has the entire responsibility
for enforcement of the statutes at issue here. By no stretch of the imagination can its various functions in
this respect be considered mere adjuncts to the legislative process or to the powers of Congress to judge
the election and qualifications of its own members.
It is suggested, without accounting for the President's role in appointing some of its members, that the
FEC would be willing to forgo its civil enforcement powers and that absent these functions, it is left with
nothing that purely legislative officers may not do. The difficulty is that the statute invests the FEC not
only with the authority but with the duties that unquestionably make its members officers of the United
States, fully as much as the members of other commissions charged with the major responsibility for
administering statutes. What is more, merely forgoing its authority to bring suit would still leave the FEC
with the power to issue rules and regulations, its advisory opinion authority, and primary duties to
enforce the Act. Absent notice and hearing by the FEC and a request on its part, it would not appear that
the Executive Branch of the Government would have any authority under the statute to institute civil
enforcement proceedings with respect to the reporting and disclosure requirements or the relevant
provisions of Titles 18 and 26.
There is no doubt that the development of the administrative [424 U.S. 1, 281] agency in response to
modern legislative and administrative need has placed severe strain on the separation-of-powers principle
in its pristine formulation. See Kilbourn v. Thompson, 103 U.S. 168, 191 (1881). Any notion that the
Constitution bans any admixture of powers that might be deemed legislative, executive, and judicial has
had to give way. The independent agency has survived attacks from various directions: that it exercises
invalidly delegated legislative power, Sunshine Coal Co. v. Adkins, 310 U.S. 381 (1940); that it invalidly
exercises judicial power, ibid.; and that its functions are so executive in nature that its members must be
subject to Presidential control, Humphrey's Executor v. United States, 295 U.S. 602 (1935). Until now,
however, it has not been insisted that the commands of the Appointments Clause must also yield to
permit congressional appointments of members of a major agency. With the Court, I am not convinced
that we should create a broad exception to the requirements of that Clause that all officers of the United

States be appointed in accordance with its terms. The provision applies to all officers, however their
duties may be classified; and even if some of the FEC's functions, such as rulemaking, are purely
legislative, I know of no authority for the congressional appointment of its own agents to make binding
rules and regulations necessary to or advisable for the administration and enforcement of a major statute
where the President has not participated either in the appointment of each of the administrators or in the
fashioning of the rules or regulations which they propound.
I do not dispute the legislative power of Congress coercively to gather and make available for public
inspection massive amounts of information relevant to the legislative process. Its own officers may, as
they have [424 U.S. 1, 282] done for years, receive and file contribution and expenditure reports of
candidates and political committees. Arguably, the Commissioners, although not properly appointed by
the President, should at least be able to perform this function. But the members of the FEC are appointed
for definite terms of office, are not removable by the President or by Congress, and even if their duties
were to be severely limited, they would appear to remain Art. II officers. In any event, the task of
gathering and publishing campaign finance information has been one of the specialties of the officers of
the respective Houses, and these same officers under the present law continue to receive such
information and to act as custodians for the FEC, at least with respect to the Senate and House political
campaigns. They are also instructed to cooperate with the FEC. 438 (d).
For these reasons I join in the Court's answers to certified questions 8 (a), 8 (b), 8 (c), 8 (e) and 8 (f), and
with the following reservations to question 8 (d).
Question 8 (d) asks whether 438 (c) violates the constitutional rights of one or more of the plaintiffs in
that "it empowers the Federal Election Commission to make rules under the F. E. C. A. in the manner
specified therein." Section 438 (c) imposes certain preconditions to the effectiveness of "any rule or
regulation under this section ...," but does not itself authorize the issuance of rules or regulations. That
authorization is to be found in 438 (a) (10), which includes among the duties of the FEC the task of
prescribing "rules and regulations to carry out the provisions of this subchapter, in accordance with the
provisions of subsection (c)." The "subchapter" referred to is the subchapter dealing with federal election
campaigns and the reports of contributions and expenditures required to be filed with the FEC.27
Subsection [424 U.S. 1, 283] (c), which is the provision expressly mentioned in question 8 (d), requires
that any rule or regulation prescribed by the FEC under 438 shall be transmitted to the Senate or the
House, or to both as thereafter directed. After 30 legislative days,28 the rule or regulation will become
effective unless (1) either House has disapproved the rule if it relates to reports by Presidential candidates
or their supporting committees; (2) the House has disapproved it if it relates to reports to be filed by
House candidates or their committees; or (3) the Senate has disapproved it if the rule relates to reports by
Senate candidates or their related committees.
By expressly referring to subsection (c), question 8 (d) appears to focus on the disapproval requirement;
but the Court's answer is not responsive in these terms. Rather, the Court expressly disclaims holding that
the FEC's rules and regulations are invalid because of the requirement that they are subject to disapproval
by one or both Houses of Congress. Ante, at 140 n. 176. As I understand it, the FEC's rules and
regulations, whether or not issued in compliance with 438 (c), are invalid because the members of the
FEC have not been appointed in accordance with Art. II. To the extent that this is the basis for the Court's
answer to the question, I am in agreement.
If the FEC members had been nominated by the President and confirmed by the Senate as provided in

Art. II, [424 U.S. 1, 284] nothing in the Constitution would prohibit Congress from empowering the
Commission to issue rules and regulations without later participation by, or consent of, the President or
Congress with respect to any particular rule or regulation or initially to adjudicate questions of fact in
accordance with a proper interpretation of the statute. Sunshine Coal Co. v. Adkins, 310 U.S. 381 (1940);
RFC v. Bankers Trust Co., 318 U.S. 163 (1943); Humphrey's Executor v. United States, 295 U.S. 602
(1935). The President must sign the statute creating the rulemaking authority of the agency or it must
have been passed over his veto, and he must have nominated the members of the agency in accordance
with Art. II; but agency regulations issued in accordance with the statute are not subject to his veto even
though they may be substantive in character and have the force of law.
I am also of the view that the otherwise valid regulatory power of a properly created independent agency
is not rendered constitutionally infirm, as violative of the President's veto power, by a statutory provision
subjecting agency regulations to disapproval by either House of Congress. For a bill to become law it
must pass both Houses and be signed by the President or be passed over his veto. Also, "Every Order,
Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be
necessary . . ." is likewise subject to the veto power.29 Under 438 (c) the FEC's regulations are subject to
disapproval; but for a regulation to become effective, neither House need approve it, pass it, or take any
action at all with respect to it. The regulation becomes effective by nonaction. This no more invades the
President's powers than does a regulation not required to be laid before Congress. Congressional
influence over the substantive content of agency regulation may be enhanced, [424 U.S. 1, 285] but I
would not view the power of either House to disapprove as equivalent to legislation or to an order,
resolution, or vote requiring the concurrence of both Houses. 30
In terms of the substantive content of regulations and the degree of congressional influence over agency
lawmaking, I do not suggest that there is no difference between the situation where regulations are
subject to disapproval by Congress and the situation where the agency need not run the congressional
gantlet. But the President's veto power, which gives him an important role in the legislative process, was
obviously not considered an inherently executive function. Nor was its principal aim to provide another
check against poor legislation. The major purpose of the veto power appears to have been to shore up the
Executive Branch and to provide it with some bargaining and survival power against what the Framers
feared would be the overweening power of legislators. As Hamilton said the veto power was to provide a
defense against the legislative department's intrusion on the rights and powers of other departments;
without such power, "the legislative and executive powers might speedily come to be blended in the
same hands." 31
I would be much more concerned if Congress purported to usurp the functions of law enforcement, to
control the outcome of particular adjudications, or to pre-empt the President's appointment power; but in
the [424 U.S. 1, 286] light of history and modern reality, the provision for congressional disapproval of
agency regulations does not appear to transgress the constitutional design, at least where the President
has agreed to legislation establishing the disapproval procedure or the legislation has been passed over
his veto. It would be considerably different if Congress itself purported to adopt and propound
regulations by the action of both Houses. But here no action of either House is required for the agency
rule to go into effect, and the veto power of the President does not appear to be implicated.
[ Footnote 1 ] That is, if the FEC were properly constituted, I would answer questions 8 (b), 8 (c), 8 (d)
(see infra, at 282-286), and 8 (f) in the negative. With respect to question 8 (e), I reserve judgment on the

validity of 2 U.S.C. 456 (1970 ed., Supp. IV) which empowers the FEC to disqualify a candidate for
failure to file certain reports. Of course, to the extent that the Court invalidates the expenditure
limitations of the FECA, Part I-C, ante, at 39-59, the FEC, however appointed, would be powerless to
enforce those provisions.
Unless otherwise indicated, all statutory citations in this part of the opinion are to the Federal Election
Campaign Act of 1971, 301-311, 86 Stat. 11, as amended by the Federal Election Campaign Act
Amendments of 1974, 201-407, 88 Stat. 1272, 2 U.S.C. 431 et seq. (1970 ed., Supp. IV).
[ Footnote 2 ] References to the "Commissioners," the "FEC," or its "members" do not include these two
ex officio members.
[ Footnote 3 ] U.S. Const., Art. II, 2, cl. 2.
[ Footnote 4 ] Id., Art. I, 2, 3, and the Seventeenth Amendment.
[ Footnote 5 ] "The House of Representatives shall chuse their Speaker and other Officers ... ." U.S.
Const., Art. I, 2, cl. 5.
● "The Vice President of the United States shall be President of the Senate, but ... [t]he Senate shall
chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President,
or when he shall exercise the Office of President of the United States." 3, cls. 4, 5.
[ Footnote 6 ] The distinction appears ante, at 126 n. 162.
[ Footnote 7 ] Indeed the FEC attacks as "erroneous" appellants' statement that the Court of Appeals
ruled that "the FEC commissioners are [424 U.S. 1, 271] not officers of the United States. Rather, it held
that the grant of power to the President to appoint civil officers of the United States is not to be read as
preclusive of Congressional authority to appoint such officers to aid in the discharge of Congressional
responsibilities." Brief for Appellee Federal Election Commission 16 n. 19 (hereafter FEC Brief).
[ Footnote 8 ] How Congress may both appoint officers itself and condition appointment of the
President's nominees on confirmation by a majority of both Houses of Congress is not explained.
[ Footnote 9 ] Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.
L. Rev. 983, 1042-1043 (1975).
[ Footnote 10 ] U.S. Const., Art. I, 6, cl. 2, provides in part:
● "[N]o Person holding any Office under the United States, shall be a Member of either House
during his Continuance in Office."
See 1 M. Farrand, The Records of the Federal Convention of 1787, pp. 379-382 (1911) (hereafter
Farrand); 2 Farrand 483.
[ Footnote 11 ] 1 Farrand 20.
[ Footnote 12 ] Id., at 210-211, 217, 219, 221, 222, 370, 375-377, 379-382, 383, 384, 419, 429, 435; 2
Farrand 180.
[ Footnote 13 ] Id., at 487. As ratified, the Ineligibility Clause provides:

● "No Senator or Representative shall, during the Time for which he was elected, be appointed to
any civil Office under the Authority of the United States, which shall have been created, or the
Emoluments whereof shall have been encreased during such time ... ." U.S. Const., Art. I, 6, cl. 2.
[ Footnote 14 ] 1 Farrand 116, 120, 224, 233; 2 Farrand 37-38, 41-44, 71-72, 116, 138.
[ Footnote 15 ] 1 Farrand 63, 67.
[ Footnote 16 ] Id., at 21-22.
[ Footnote 17 ] Id., at 224, 233.
[ Footnote 18 ] 2 Farrand 183, 383, 394.
[ Footnote 21 ] C. Warren, The Making of the Constitution 641-642 (1947).
[ Footnote 22 ] 437d (a) (9).
[ Footnote 23 ] 437c (b).
[ Footnote 24 ] Section 437g (a) (7) provides:

● "Whenever in the judgment of the Commission, after affording due notice and an opportunity for a
hearing, any person has engaged or is about to engage in any acts or practices which constitute or
will constitute a violation of any [relevant] provision ... upon request by the Commission the
Attorney General on behalf of the United States shall institute a civil action for relief ... ."
(Emphasis supplied.)
The FEC argues that "`there is no showing in this case of a convincing legislative history that would
enable us to conclude that "shall" was intended to be the "language of command."'" FEC Brief 62 n. 52,
quoting 171 U.S. App. D.C. 172, 244 n. 191, [424 U.S. 1, 279] 519 F.2d 821, 893 n. 191 (1975). The
contention is that the FEC's enforcement power is not exclusive, because the Attorney General retains the
traditional discretion to decline to institute legal proceedings. However this may be, the FEC's civil
enforcement responsibilities are substantial. Moreover it is authorized under 26 U.S.C. 9010, 9040 (1970
ed., Supp. IV), to appear in and to defend actions brought in the Court of Appeals for the District of
Columbia Circuit under 9011, 9041, to review the FEC's actions under Chapters 95 and 96 of Title 26,
and to appear in district court to seek recovery of amounts repayable to the Treasury under 9007, 9008,
9038.
[ Footnote 25 ] Although the FEC resists appellants' attack on its position that it has "no general
substantive rulemaking authority with regard to Title 18 spending and contribution limitations" (FEC
Brief 49), it agrees "that there is inevitably some interplay between Title 2 and Title 18." (Id., at 55.) It
seeks to minimize the importance of the interplay by noting that its definitions of what is to be disclosed
and reported would not be binding in judicial proceedings to determine whether substantive provisions of
the Act had been violated, but would simply be extended a measure of deference as administrative
interpretations. Appellants' reply is the practical one that, whether the FEC's power is substantive or not,

persons violating its regulations do so at their peril. To illustrate the extent to which the FEC's
regulations implicate the provisions of Title 18, appellants point to the FEC's interim guidelines for the
New Hampshire and Tennessee special elections, 40 Fed. Reg. 40668, 43660 (1975), and its regulations,
rejected by the Senate, providing that funds contributed to and expended from the "office accounts" of
Members of Congress were contributions or expenditures "subject to the limitations of 18 U.S.C. 608,
610, 611, 613, 614 and 615." See notice of proposed rulemaking, id., at 32951. Unless the FEC's
regulations are to be given no weight in criminal proceedings, it seems plain that through those
regulations the FEC will have a significant role in the implementation and enforcement of criminal
statutes.
[ Footnote 26 ] The FEC itself cannot fashion coercive relief by, for example, issuing cease-and-desist
orders. To obtain such relief it must apply to the courts itself or through the Attorney General.
[ Footnote 27 ] The same preconditions are imposed with respect to regulations [424 U.S. 1, 283] issued
under the public financing provisions of the election laws. 26 U.S.C. 9009 and 9039 (1970 ed., Supp.
IV). No such requirement appears to exist with respect to the FEC's power to make "policy" with respect
to the enforcement of the criminal provisions in Title 18 or with respect to any power it may have to
issue rules and regulations dealing with the civil enforcement of those provisions. See also 439a.
[ Footnote 28 ] Section 438 (c) (4) defines "legislative day." See also 26 U.S.C. 9009 (c) (3), 9039 (c) (3)
(1970 ed., Supp. IV).
[ Footnote 29 ] U.S. Const., Art. I, 7, cl. 3.
[ Footnote 30 ] Surely the challengers to the provision for congressional disapproval do not mean to
suggest that the FEC's regulations must become effective despite the disapproval of one House or the
other. Disapproval nullifies the suggested regulation and prevents the occurrence of any change in the
law. The regulation is void. Nothing remains on which the veto power could operate. It is as though a bill
passed in one House and failed in another.
[ Footnote 31 ] The Federalist No. 73, pp. 468-469 (Wright ed. 1961).
MR. JUSTICE MARSHALL, concurring in part and dissenting in part.

I join in all of the Court's opinion except Part I-C-2, which deals with 18 U.S.C. 608 (a) (1970 ed., Supp.
IV). That section limits the amount a candidate may spend from his personal funds, or family funds
under his control, in connection with his campaigns during any calendar year. See ante, at 51-52, n. 57.
The Court invalidates 608 (a) as violative of the candidate's First Amendment rights. "[T]he First
Amendment," the Court explains, "simply cannot tolerate 608 (a)'s restriction upon the freedom of a
candidate to speak without legislative limit on behalf of his own candidacy." Ante, at 54. I disagree.
To be sure, 608 (a) affects the candidate's exercise of his First Amendment rights. But unlike the other
expenditure limitations contained in the Act and invalidated by the Court -- the limitation on independent
expenditures relative to a clearly identified candidate, 608 (e), and the limitations on overall candidate
expenditures, 608 (c) -- the limitations on expenditures by candidates from personal resources contained
in 608 (a) need never prevent the speaker from spending another [424 U.S. 1, 287] dollar to communicate
his ideas. Section 608 (a) imposes no overall limit on the amount a candidate can spend; it simply limits
the "contribution" a candidate may make to his own campaign. The candidate remains free to raise an

unlimited amount in contributions from others. So long as the candidate does not contribute to his
campaign more than the amount specified in 608 (a), and so long as he does not accept contributions
from others in excess of the limitations imposed by 608 (b), he is free to spend without limit on behalf of
his campaign.
It is significant, moreover, that the ceilings imposed by 608 (a) on candidate expenditures from personal
resources are substantially higher than the $1,000 limit imposed by 608 (e) on independent expenditures
by noncandidates. Presidential and Vice Presidential candidates may contribute $50,000 of their own
money to their campaigns, Senate candidates $35,000, and most House candidates $25,000. Those
ceilings will not affect most candidates. But they will admittedly limit the availability of personal funds
for some candidates, and the question is whether that limitation is justified.
The Court views "[t]he ancillary interest in equalizing the relative financial resources of candidates" as
the relevant rationale for 608 (a), and deems that interest insufficient to justify 608 (a). Ante, at 54. In my
view the interest is more precisely the interest in promoting the reality and appearance of equal access to
the political arena. Our ballot-access decisions serve as a reminder of the importance of the general
interest in promoting equal access among potential candidates. See, e. g., Lubin v. Panish, 415 U.S. 709
(1974); Bullock v. Carter, 405 U.S. 134 (1972). While admittedly those cases dealt with barriers to entry
different from those we consider here, the barriers to which 608 (a) is directed [424 U.S. 1, 288] are
formidable ones, and the interest in removing them substantial.
One of the points on which all Members of the Court agree is that money is essential for effective
communication in a political campaign. It would appear to follow that the candidate with a substantial
personal fortune at his disposal is off to a significant "headstart." Of course, the less wealthy candidate
can potentially overcome the disparity in resources through contributions from others. But ability to
generate contributions may itself depend upon a showing of a financial base for the campaign or some
demonstration of pre-existing support, which in turn is facilitated by expenditures of substantial personal
sums. Thus the wealthy candidate's immediate access to a substantial personal fortune may give him an
initial advantage that his less wealthy opponent can never overcome. And even if the advantage can be
overcome, the perception that personal wealth wins elections may not only discourage potential
candidates without significant personal wealth from entering the political arena, but also undermine
public confidence in the integrity of the electoral process.1
The concern that candidacy for public office not become, or appear to become, the exclusive province of
the wealthy assumes heightened significance when one considers the impact of 608 (b), which the Court
today upholds. That provision prohibits contributions from individuals and groups to candidates in excess
of $1,000, and contributions from political committees in excess of $5,000. While the limitations on
contributions are neutral in the sense that [424 U.S. 1, 289] all candidates are foreclosed from accepting
large contributions, there can be no question that large contributions generally mean more to the
candidate without a substantial personal fortune to spend on his campaign. Large contributions are the
less wealthy candidate's only hope of countering the wealthy candidate's immediate access to substantial
sums of money. With that option removed, the less wealthy candidate is without the means to match the
large initial expenditures of money of which the wealthy candidate is capable. In short, the limitations on
contributions put a premium on a candidate's personal wealth.
In view of 608 (b)'s limitations on contributions, then, 608 (a) emerges not simply as a device to reduce
the natural advantage of the wealthy candidate, but as a provision providing some symmetry to a

regulatory scheme that otherwise enhances the natural advantage of the wealthy. 2 Regardless of whether
the goal of equalizing access would justify a legislative limit on personal candidate expenditures standing
by itself, I think it clear that that goal justifies 608 (a)'s limits when they are considered in conjunction
with the remainder of the [424 U.S. 1, 290] Act. I therefore respectfully dissent from the Court's
invalidation of 608 (a).
[ Footnote 1 ] "In the Nation's seven largest States in 1970, 11 of the 15 major senatorial candidates were
millionaires. The four who were not millionaires lost their bid for election." 117 Cong. Rec. 42065
(1971) (remarks of Rep. Macdonald).
[ Footnote 2 ] Of course, 608 (b)'s enhancement of the wealthy candidate's natural advantage does not
require its invalidation. As the Court demonstrates, 608 (b) is fully justified by the governmental interest
in limiting the reality and appearance of corruption. Ante, at 26-29.
In addition to 608 (a), 608 (c), which limits overall candidate expenditures in a campaign, also provides a
check on the advantage of the wealthy candidate. But we today invalidate that section, which unlike 608
(a) imposes a flat prohibition on candidate expenditures above a certain level, and which is less tailored
to the interest in equalizing access than 608 (a). The effect of invalidating both 608 (c) and 608 (a) is to
enable the wealthy candidate to spend his personal resources without limit, while his less wealthy
opponent is forced to make do with whatever amount he can accumulate through relatively small
contributions.
MR. JUSTICE BLACKMUN, concurring in part and dissenting in part.
I am not persuaded that the Court makes, or indeed is able to make, a principled constitutional distinction
between the contribution limitations, on the one hand, and the expenditure limitations, on the other, that
are involved here. I therefore do not join Part I-B of the Court's opinion or those portions of Part I-A that
are consistent with Part I-B. As to those, I dissent.
I also dissent, accordingly, from the Court's responses to certified questions 3 (b), (c), and (h). I would
answer those questions in the affirmative.
I do join the remainder of the Court's opinion and its answers to the other certified questions.
MR. JUSTICE REHNQUIST, concurring in part and dissenting in part.
I concur in Parts I, II, and IV of the Court's opinion. I concur in so much of Part III of the Court's opinion
as holds that the public funding of the cost of a Presidential election campaign is a permissible exercise
of congressional authority under the power to tax and spend granted by Art. I, but dissent from Part
III-B-1 of the Court's opinion, which holds that certain aspects of the statutory treatment of minor parties
and independent candidates are constitutionally valid. I state as briefly as possible my reasons for so
doing.
The limits imposed by the First and Fourteenth Amendments on governmental action may vary in their
stringency depending on the capacity in which the government is acting. The government as proprietor,
Adderley v. Florida, 385 U.S. 39 (1966), is, I believe, [424 U.S. 1, 291] permitted to affect putatively
protected interests in a manner in which it might not do if simply proscribing conduct across the board.
Similarly, the government as employer, Pickering v. Board of Education, 391 U.S. 563 (1968), and CSC
v. Letter Carriers, 413 U.S. 548 (1973), may prescribe conditions of employment which might be

constitutionally unacceptable if enacted into standards of conduct made applicable to the entire citizenry.
For the reasons stated in the dissenting opinion of Mr. Justice Jackson in Beauharnais v. Illinois, 343
U.S. 250, 288 -295 (1952), and by Mr. Justice Harlan in his dissenting opinion in Roth v. United States,
354 U.S. 476, 500 -503 (1957), I am of the opinion that not all of the strictures which the First
Amendment imposes upon Congress are carried over against the States by the Fourteenth Amendment,
but rather that it is only the "general principle" of free speech, Gitlow v. New York, 268 U.S. 652, 672
(1925) (Holmes J., dissenting), that the latter incorporates. See Palko v. Connecticut, 302 U.S. 319, 324
-325 (1937).
Given this view, cases which deal with state restrictions on First Amendment freedoms are not fungible
with those which deal with restrictions imposed by the Federal Government, and cases which deal with
the government as employer or proprietor are not fungible with those which deal with the government as
a lawmaker enacting criminal statutes applying to the population generally. The statute before us was
enacted by Congress, not with the aim of managing the Government's property nor of regulating the
conditions of Government employment, but rather with a view to the regulation of the citizenry as a
whole. The case for me, then, presents the First Amendment interests of the appellants at their strongest,
and the legislative authority of Congress in the position where it is most vulnerable to First Amendment
attacks. [424 U.S. 1, 292]
While this approach undoubtedly differs from some of the underlying assumptions in the opinion of the
Court, opinions are written not to explore abstract propositions of law but to decide concrete cases. I
therefore join in all of the Court's opinion except Part III-B-1, which sustains, against appellants' First
and Fifth Amendment challenges, the disparities found in the congressional plan for financing general
Presidential elections between the two major parties, on the one hand, and minor parties and candidacies
on the other.
While I am not sure that I agree with the Court's comment, ante, at 95, that "public financing is generally
less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior
cases," in any case that is not, under my view, an adequate answer to appellants' claim. The electoral
laws relating to ballot access which were examined in Lubin v. Panish, 415 U.S. 709, 716 (1974);
American Party of Texas v. White, 415 U.S. 767, 780 (1974); and Storer v. Brown, 415 U.S. 724, 729
730 (1974), all arose out of state efforts to regulate minor party candidacies and the actual physical size
of the ballot. If the States are to afford a republican form of government, they must by definition provide
for general elections and for some standards as to the contents of the official ballots which will be used at
those elections. The decision of the state legislature to enact legislation embodying such regulations is
therefore not in any sense an optional one; there must be some standards, however few, which prescribe
the contents of the official ballot if the popular will is to be translated into a choice among candidates.
Dealing thus by necessity with these issues, the States have strong interests in "limiting places on the
ballot to those candidates who demonstrate substantial popular support," ante, at 96. They have a like
interest in discouraging [424 U.S. 1, 293] "splintered parties and unrestrained factionalism" which might
proliferate the number of candidates on a state ballot so as to make it virtually unintelligible to the
average voter. Storer v. Brown, supra, at 736.
Congress, on the other hand, while undoubtedly possessing the legislative authority to undertake the task
if it wished, is not obliged to address the question of public financing of Presidential elections at all.

When it chooses to legislate in this area, so much of its action as may arguably impair First Amendment
rights lacks the same sort of mandate of necessity as does a State's regulation of ballot access.
Congress, of course, does have an interest in not "funding hopeless candidacies with large sums of public
money," ante, at 96, and may for that purpose legitimately require "`some preliminary showing of a
significant modicum of support,' Jenness v. Fortson, [ 403 U.S. 431, 442 (1971),] as an eligibility
requirement for public funds." Ante, at 96. But Congress in this legislation has done a good deal more
than that. It has enshrined the Republican and Democratic Parties in a permanently preferred position,
and has established requirements for funding minor-party and independent candidates to which the two
major parties are not subject. Congress would undoubtedly be justified in treating the Presidential
candidates of the two major parties differently from minor-party or independent Presidential candidates,
in view of the long demonstrated public support of the former. But because of the First Amendment
overtones of the appellants' Fifth Amendment equal protection claim, something more than a merely
rational basis for the difference in treatment must be shown, as the Court apparently recognizes. I find it
impossible to subscribe to the Court's reasoning that because no third party has posed a credible threat to
the two major parties in Presidential [424 U.S. 1, 294] elections since 1860, Congress may by law attempt
to assure that this pattern will endure forever.
I would hold that, as to general election financing, Congress has not merely treated the two major parties
differently from minor parties and independents, but has discriminated in favor of the former in such a
way as to run afoul of the Fifth and First Amendments to the United States Constitution. [424 U.S. 1, 295]
Text Version | Contents | Comment

U.S. Supreme Court
BUCKLEY v. VALEO, 424 U.S. 1 (1976)
424 U.S. 1
BUCKLEY ET AL. v. VALEO, SECRETARY OF THE UNITED

STATES SENATE, ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE
DISTRICT OF COLUMBIA CIRCUIT.
No. 75-436.
Argued November 10, 1975.

Decided January 30, 1976. *
[ Footnote * ] Together with No. 75-437, Buckley et al. v. Valeo,

Secretary of the United States Senate, et al., on appeal from the United
States District Court for the District of Columbia.
The Federal Election Campaign Act of 1971 (Act), as amended in

1974, (a) limits political contributions to candidates for federal elective
office by an individual or a group to $1,000 and by a political committee
to $5,000 to any single candidate per election, with an overall annual
limitation of $25,000 by an individual contributor; (b) limits expenditures
by individuals or groups "relative to a clearly identified candidate" to
$1,000 per candidate per election, and by a candidate from his personal
or family funds to various specified annual amounts depending upon the
federal office sought, and restricts overall general election and primary
campaign expenditures by candidates to various specified amounts,
again depending upon the federal office sought; (c) requires political
committees to keep detailed records of contributions and expenditures,
including the name and address of each individual contributing in excess
of $10, and his occupation and [424 U.S. 1, 2] principal place of business
if his contribution exceeds $100, and to file quarterly reports with the
Federal Election Commission disclosing the source of every contribution
exceeding $100 and the recipient and purpose of every expenditure over
$100, and also requires every individual or group, other than a candidate
or political committee, making contributions or expenditures exceeding
$100 "other than by contribution to a political committee or candidate"
to file a statement with the Commission; and (d) creates the
eight-member Commission as the administering agency with
recordkeeping, disclosure, and investigatory functions and extensive
rulemaking, adjudicatory, and enforcement powers, and consisting of
two members appointed by the President pro tempore of the Senate,
two by the Speaker of the House, and two by the President (all subject
to confirmation by both Houses of Congress), and the Secretary of the
Senate and the Clerk of the House as ex officio nonvoting members.
Subtitle H of the Internal Revenue Code of 1954 (IRC), as amended in
1974, provides for public financing of Presidential nominating
conventions and general election and primary campaigns from general
revenues and allocates such funding to conventions and general election
campaigns by establishing three categories: (1) "major" parties (those
whose candidate received 25% or more of the vote in the most recent
election), which receive full funding, (2) "minor" parties (those whose
candidate received at least 5% but less than 25% of the votes at the last
election), which receive only a percentage of the funds to which the
major parties are entitled; and (3) "new" parties (all other parties), which
are limited to receipt of post-election funds or are not entitled to any
funds if their candidate receives less than 5% of the vote. A primary
candidate for the Presidential nomination by a political party who

receives more than $5,000 from private sources (counting only the first
$250 of each contribution) in each of at least 20 States is eligible for
matching public funds. Appellants (various federal officeholders and
candidates, supporting political organizations, and others) brought suit
against appellees (the Secretary of the Senate, Clerk of the House,
Comptroller General, Attorney General, and the Commission) seeking
declaratory and injective relief against the above statutory provisions on
various constitutional grounds. The Court of Appeals, on certified
questions from the District Court, upheld all but one of the statutory
provisions. A three-judge District Court upheld the constitutionality of
Subtitle H. Held: [424 U.S. 1, 3]
1. This litigation presents an Art. III "case or controversy," since

the complaint discloses that at least some of the appellants have a
sufficient "personal stake" in a determination of the constitutional
validity of each of the challenged provisions to present "a real and
substantial controversy admitting of specific relief through a
decree of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of
facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 . Pp.
11-12.
2. The Act's contribution provisions are constitutional, but the
expenditure provisions violate the First Amendment. Pp. 12-59.
(a) The contribution provisions, along with those covering
disclosure, are appropriate legislative weapons against the
reality or appearance of improper influence stemming from
the dependence of candidates on large campaign
contributions, and the ceilings imposed accordingly serve
the basic governmental interest in safeguarding the integrity
of the electoral process without directly impinging upon the
rights of individual citizens and candidates to engage in
political debate and discussion. Pp. 23-38.
(b) The First Amendment requires the invalidation of the
Act's independent expenditure ceiling, its limitation on a
candidate's expenditures from his own personal funds, and
its ceilings on overall campaign expenditures, since those
provisions place substantial and direct restrictions on the
ability of candidates, citizens, and associations to engage in
protected political expression, restrictions that the First
Amendment cannot tolerate. Pp. 39-59.
3. The Act's disclosure and recordkeeping provisions are
constitutional. Pp. 60-84.
(a) The general disclosure provisions, which serve
substantial governmental interests in informing the
electorate and preventing the corruption of the political
process, are not overbroad insofar as they apply to
contributions to minor parties and independent candidates.
No blanket exemption for minor parties is warranted since
such parties in order to prove injury as a result of
application to them of the disclosure provisions need show
only a reasonable probability that the compelled disclosure
of a party's contributors' names will subject them to threats,
harassment, or reprisals in violation of their First
Amendment associational rights. Pp. 64-74.
(b) The provision for disclosure by those who make
independent [424 U.S. 1, 4] contributions and expenditures,
as narrowly construed to apply only (1) when they make
contributions earmarked for political purposes or
authorized or requested by a candidate or his agent to
some person other than a candidate or political committee
and (2) when they make an expenditure for a

communication that expressly advocates the election or

defeat of a clearly identified candidate is not
unconstitutionally vague and does not constitute a prior
restraint but is a reasonable and minimally restrictive
method of furthering First Amendment values by public
exposure of the federal election system. Pp. 74-82.
(c) The extension of the recordkeeping provisions to
contributions as small as those just above $10 and the
disclosure provisions to contributions above $100 is not on
this record overbroad since it cannot be said to be
unrelated to the informational and enforcement goals of the
legislation. Pp. 82-84.
4. Subtitle H of the IRC is constitutional. Pp. 85-109.
(a) Subtitle H is not invalid under the General Welfare
Clause but, as a means to reform the electoral process,
was clearly a choice within the power granted to Congress
by the Clause to decide which expenditures will promote
the general welfare. Pp. 90-92.
(b) Nor does Subtitle H violate the First Amendment.
Rather than abridging, restricting, or censoring speech, it
represents an effort to use public money to facilitate and
enlarge public discussion and participation in the electoral
process. Pp. 92-93.
(c) Subtitle H, being less burdensome than ballot-access
regulations and having been enacted in furtherance of vital
governmental interests in relieving major-party candidates
from the rigors of soliciting private contributions, in not
funding candidates who lack significant public support, and
in eliminating reliance on large private contributions for
funding of conventions and campaigns, does not invidiously
discriminate against minor and new parties in violation of
the Due Process Clause of the Fifth Amendment. Pp.
93-108.
(d) Invalidation of the spending-limit provisions of the Act
does not render Subtitle H unconstitutional, but the Subtitle
is severable from such provisions and is not dependent
upon the existence of a generally applicable expenditure
limit. Pp. 108-109.
5. The Commission's composition as to all but its investigative and
informative powers violates Art. II, 2, cl. 2. With respect to the
Commission's powers, all of which are ripe for review, [424 U.S. 1,
5] to enforce the Act, including primary responsibility for bringing
civil actions against violators, to make rules for carrying out the
Act, to temporarily disqualify federal candidates for failing to file
required reports, and to authorize convention expenditures in
excess of the specified limits, the provisions of the Act vesting
such powers in the Commission and the prescribed method of
appointment of members of the Commission to the extent that a
majority of the voting members are appointed by the President
pro tempore of the Senate and the Speaker of the House, violate
the Appointments Clause, which provides in pertinent part that the
President shall nominate, and with the Senate's advice and
consent appoint, all "Officers of the United States," whose
appointments are not otherwise provided for, but that Congress
may vest the appointment of such inferior officers, as it deems
proper, in the President alone, in the courts, or in the heads of
departments. Hence (though the Commission's past acts are
accorded de facto validity and a stay is granted permitting it to
function under the Act for not more than 30 days), the
Commission, as presently constituted, may not because of that
Clause exercise such powers, which can be exercised only by

"Officers of the United States" appointed in conformity with the

Appointments Clause, although it may exercise such investigative
and informative powers as are in the same category as those
powers that Congress might delegate to one of its own
committees. Pp. 109-143.
No. 75-436, 171 U.S. App. D.C. 172, 519 F.2d 821, affirmed in part
and reversed in part; No. 75-437, 401 F. Supp. 1235, affirmed.
Per curiam opinion, in the "case or controversy" part of which (post, pp.
11-12) all participating Members joined; and as to all other Parts of
which BRENNAN, STEWART, and POWELL, JJ., joined;
MARSHALL, J., joined in all but Part I-C-2; BLACKMUN, J., joined
in all but Part I-B; REHNQUIST, J., joined in all but Part III-B-1;
BURGER, C. J., joined in Parts I-C and IV (except insofar as it
accords de facto validity for the Commission's past acts); and WHITE,
J., joined in Part III. BURGER, C. J., post, p. 235, WHITE, J., post, p.
257, MARSHALL, J., post, p. 286, BLACKMUN, J., post, p. 290,
and REHNQUIST, J., post, p. 290, filed opinions concurring in part and
dissenting in part. STEVENS, J., took no part in the consideration or
decision of the cases.
Ralph K. Winter, Jr., pro hac vice, Joel M. Gora, and [424 U.S. 1, 6]
Brice M. Clagett argued the cause for appellants. With them on the
briefs was Melvin L. Wulf.
Deputy Solicitor General Friedman, Archibald Cox, Lloyd N. Cutler,

and Ralph S. Spritzer argued the cause for appellees. With Mr.
Friedman on the brief for appellees Levi and the Federal Election
Commission were Attorney General Levi, pro se, Solicitor General
Bork, and Louis F. Claiborne. With Mr. Cutler on the brief for appellees
Center for Public Financing of Elections et al. were Paul J. Mode, Jr.,
William T. Lake, Kenneth J. Guido, Jr., and Fred Wertheimer. With Mr.
Spritzer on the brief for appellee Federal Election Commission was Paul
Bender. Attorney General Levi, pro se, Solicitor General Bork, and
Deputy Solicitor General Randolph filed a brief for appellee Levi and for
the United States as amicus curiae.Fn
Fn [424 U.S. 1, 6] Thomas F. Monaghan filed a brief for James B. Longley

as amicus curiae urging reversal.
Mr. Cox filed a brief for Hugh Scott et al. as amici curiae urging
affirmance.
Briefs of amici curiae were filed by Jerome B. Falk, Jr., Daniel H.

Lowenstein, Howard F. Sachs, and Guy L. Heinemann for the California
Fair Political Practices Commission et al.; by Lee Metcalf, pro se, and
G. Roger King for Mr. Metcalf; by Vincent Hallinan for the Socialist
Labor Party; by Marguerite M. Buckley for the Los Angeles County
Central Committee of the Peace and Freedom Party; and by the
Committee for Democratic Election Laws.
PER CURIAM.
These appeals present constitutional challenges to the key provisions of

the Federal Election Campaign Act of 1971 (Act), and related
provisions of the Internal Revenue Code of 1954, all as amended in
1974.[1] [424 U.S. 1, 7]
The Court of Appeals, in sustaining the legislation in large part against

various constitutional challenges,[2] viewed it as "by far the most

comprehensive reform legislation [ever] passed by Congress concerning

the election of the President, Vice-President, and members of
Congress." 171 U.S. App. D.C. 172, 182, 519 F.2d 821, 831 (1975).
The statutes at issue summarized in broad terms, contain the following
provisions: (a) individual political contributions are limited to $1,000 to
any single candidate per election, with an overall annual limitation of
$25,000 by any contributor; independent expenditures by individuals
and groups "relative to a clearly identified candidate" are limited to
$1,000 a year; campaign spending by candidates for various federal
offices and spending for national conventions by political parties are
subject to prescribed limits; (b) contributions and expenditures above
certain threshold levels must be reported and publicly disclosed; (c) a
system for public funding of Presidential campaign activities is
established by Subtitle H of the Internal Revenue Code;[3] and (d) a
Federal Election Commission is established to administer and enforce
the legislation.
This suit was originally filed by appellants in the United States District
Court for the District of Columbia. Plaintiffs included a candidate for the
Presidency of the United States, a United States Senator who is a
candidate for re-election, a potential contributor, the [424 U.S. 1, 8]
Committee for a Constitutional Presidency - McCarthy '76, the
Conservative Party of the State of New York, the Mississippi
Republican Party, the Libertarian Party, the New York Civil Liberties
Union, Inc., the American Conservative Union, the Conservative Victory
Fund, and Human Events, Inc. The defendants included the Secretary of
the United States Senate and the Clerk of the United States House of
Representatives, both in their official capacities and as ex officio
members of the Federal Election Commission. The Commission itself
was named as a defendant. Also named were the Attorney General of
the United States and the Comptroller General of the United States.
Jurisdiction was asserted under 28 U.S.C. 1331, 2201, and 2202, and
315 (a) of the Act, 2 U.S.C. 437h (a) (1970 ed., Supp. IV).[4] The
complaint sought both a [424 U.S. 1, 9] declaratory judgment that the
major provisions of the Act were unconstitutional and an injunction
against enforcement of those provisions. Appellants requested the
convocation of a three-judge District Court as to all matters and also
requested certification of constitutional questions to the Court of
Appeals, pursuant to the terms of 315 (a). The District Judge denied the
application for a three-judge court and directed that the case be
transmitted to the Court of Appeals. That court entered an order stating
that the case was "preliminarily deemed" to be properly certified under
315 (a). Leave to intervene was granted to various groups and
individuals.[5] After considering matters regarding factfinding
procedures, the Court of Appeals entered an order en banc remanding
the case to the District Court to (1) identify the constitutional issues in
the complaint; (2) take whatever evidence was found necessary in
addition to the submissions suitably dealt with by way of judicial notice;
(3) make findings of fact with reference to those issues; and (4) certify
the constitutional questions arising from the foregoing steps to the Court
of Appeals.[6] On remand, the District [424 U.S. 1, 10] Judge entered a
memorandum order adopting extensive findings of fact and transmitting
the augmented record back to the Court of Appeals.
On plenary review, a majority of the Court of Appeals rejected, for the

most part, appellants' constitutional attacks. The court found "a clear and
compelling interest," 171 U.S. App. D.C., at 192, 519 F.2d, at 841, in
preserving the integrity of the electoral process. On that basis, the court
upheld, with one exception,[7] the substantive provisions of the Act with
respect to contributions, expenditures, and disclosure. It also sustained

the constitutionality of the newly established Federal Election

Commission. The court concluded that, notwithstanding the manner of
selection of its members and the breadth of its powers, which included
nonlegislative functions, the Commission is a constitutionally authorized
agency created to perform primarily legislative functions.[8] [424 U.S. 1,
11] The provisions for public funding of the three stages of the
Presidential selection process were upheld as a valid exercise of
congressional power under the General Welfare Clause of the
Constitution, Art. I, 8.
In this Court, appellants argue that the Court of Appeals failed to give
this legislation the critical scrutiny demanded under accepted First
Amendment and equal protection principles. In appellants' view, limiting
the use of money for political purposes constitutes a restriction on
communication violative of the First Amendment, since virtually all
meaningful political communications in the modern setting involve the
expenditure of money. Further, they argue that the reporting and
disclosure provisions of the Act unconstitutionally impinge on their right
to freedom of association. Appellants also view the federal subsidy
provisions of Subtitle H as violative of the General Welfare Clause, and
as inconsistent with the First and Fifth Amendments. Finally, appellants
renew their attack on the Commission's composition and powers.
At the outset we must determine whether the case before us presents a

"case or controversy" within the meaning of Art. III of the Constitution.
Congress may not, of course, require this Court to render opinions in
matters which are not "cases or controversies." Aetna Life Ins. Co. v.
Haworth, 300 U.S. 227, 240 -241 (1937). We must therefore decide
whether appellants have the "personal stake in the outcome of the
controversy" necessary to meet the requirements of Art. III. Baker v.
Carr, 369 U.S. 186, 204 (1962). It is clear that Congress, in enacting
[424 U.S. 1, 12] 2 U.S.C. 437h (1970 ed., Supp. IV),[9] intended to
provide judicial review to the extent permitted by Art. III. In our view,
the complaint in this case demonstrates that at least some of the
appellants have a sufficient "personal stake"[10] in a determination of the
constitutional validity of each of the challenged provisions to present "a
real and substantial controversy admitting of specific relief through a
decree of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts."
Aetna Life Ins. Co. v. Haworth, supra, at 241.[11]
I. CONTRIBUTION AND EXPENDITURE LIMITATIONS
The intricate statutory scheme adopted by Congress to regulate federal

election campaigns includes restrictions [424 U.S. 1, 13] on political
contributions and expenditures that apply broadly to all phases of and all
participants in the election process. The major contribution and
expenditure limitations in the Act prohibit individuals from contributing
more than $25,000 in a single year or more than $1,000 to any single
candidate for an election campaign[12] and from spending more than
$1,000 a year "relative to a clearly identified candidate." [13] Other
provisions restrict a candidate's use of personal and family resources in
his campaign[14] and limit the overall amount that can be spent by a
candidate in campaigning for federal office.[15]
The constitutional power of Congress to regulate federal elections is well

established and is not questioned by any of the parties in this case. [16]
Thus, the critical constitutional [424 U.S. 1, 14] questions presented here
go not to the basic power of Congress to legislate in this area, but to
whether the specific legislation that Congress has enacted interferes with
First Amendment freedoms or invidiously discriminates against

nonincumbent candidates and minor parties in contravention of the Fifth

Amendment.
A. General Principles
The Act's contribution and expenditure limitations operate in an area of

the most fundamental First Amendment activities. Discussion of public
issues and debate on the qualifications of candidates are integral to the
operation of the system of government established by our Constitution.
The First Amendment affords the broadest protection to such political
expression in order "to assure [the] unfettered interchange of ideas for
the bringing about of political and social changes desired by the people."
Roth v. United States, 354 U.S. 476, 484 (1957). Although First
Amendment protections are not confined to "the exposition of ideas,"
Winters v. New York, 333 U.S. 507, 510 (1948), "there is practically
universal agreement that a major purpose of that Amendment was to
protect the free discussion of governmental affairs, ... of course
includ[ing] discussions of candidates . . . ." Mills v. Alabama, 384 U.S.
214, 218 (1966). This no more than reflects our "profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open," New York Times Co. v. Sullivan,
376 U.S. 254, 270 (1964). In a republic where the people are
sovereign, the ability of the citizenry to make informed choices among
candidates [424 U.S. 1, 15] for office is essential, for the identities of those
who are elected will inevitably shape the course that we follow as a
nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S.
265, 272 (1971), "it can hardly be doubted that the constitutional
guarantee has its fullest and most urgent application precisely to the
conduct of campaigns for political office."
The First Amendment protects political association as well as political

expression. The constitutional right of association explicated in NAACP
v. Alabama, 357 U.S. 449, 460 (1958), stemmed from the Court's
recognition that "[e]ffective advocacy of both public and private points
of view, particularly controversial ones, is undeniably enhanced by group
association." Subsequent decisions have made clear that the First and
Fourteenth Amendments guarantee "`freedom to associate with others
for the common advancement of political beliefs and ideas,'" a freedom
that encompasses "`[t]he right to associate with the political party of
one's choice.'" Kusper v. Pontikes, 414 U.S. 51, 56 , 57 (1973),
quoted in Cousins v. Wigoda, 419 U.S. 477, 487 (1975).
It is with these principles in mind that we consider the primary

contentions of the parties with respect to the Act's limitations upon the
giving and spending of money in political campaigns. Those conflicting
contentions could not more sharply define the basic issues before us.
Appellees contend that what the Act regulates is conduct, and that its
effect on speech and association is incidental at most. Appellants
respond that contributions and expenditures are at the very core of
political speech, and that the Act's limitations thus constitute restraints on
First Amendment liberty that are both gross and direct.
In upholding the constitutional validity of the Act's contribution and

expenditure provisions on the ground [424 U.S. 1, 16] that those provisions
should be viewed as regulating conduct, not speech, the Court of
Appeals relied upon United States v. O'Brien, 391 U.S. 367 (1968).
See 171 U.S. App. D.C., at 191, 519 F.2d, at 840. The O'Brien case
involved a defendant's claim that the First Amendment prohibited his
prosecution for burning his draft card because his act was "`symbolic
speech'" engaged in as a "`demonstration against the war and against the
draft.'" 391 U.S., at 376 . On the assumption that "the alleged

communicative element in O'Brien's conduct [was] sufficient to bring into

play the First Amendment," the Court sustained the conviction because it
found "a sufficiently important governmental interest in regulating the
non-speech element" that was "unrelated to the suppression of free
expression" and that had an "incidental restriction on alleged First
Amendment freedoms ... no greater than [was] essential to the
furtherance of that interest." Id., at 376-377. The Court expressly
emphasized that O'Brien was not a case "where the alleged
governmental interest in regulating conduct arises in some measure
because the communication allegedly integral to the conduct is itself
thought to be harmful." Id., at 382.
We cannot share the view that the present Act's contribution and
expenditure limitations are comparable to the restrictions on conduct
upheld in O'Brien. The expenditure of money simply cannot be equated
with such conduct as destruction of a draft card. Some forms of
communication made possible by the giving and spending of money
involve speech alone, some involve conduct primarily, and some involve
a combination of the two. Yet this Court has never suggested that the
dependence of a communication on the expenditure of money operates
itself to introduce a non speech element or to reduce the exacting
scrutiny required by the First Amendment. See Bigelow v. Virginia, 421
U.S. 809 , [424 U.S. 1, 17] 820 (1975); New York Times Co. v. Sullivan,
supra, at 266. For example, in Cox v. Louisiana, 379 U.S. 559 (1965),
the Court contrasted picketing and parading with a newspaper comment
and a telegram by a citizen to a public official. The parading and
picketing activities were said to constitute conduct "intertwined with
expression and association," whereas the newspaper comment and the
telegram were described as a "pure form of expression" involving "free
speech alone" rather than "expression mixed with particular conduct."
Id., at 563-564.
Even if the categorization of the expenditure of money as conduct were

accepted, the limitations challenged here would not meet the O'Brien test
because the governmental interests advanced in support of the Act
involve "suppressing communication." The interests served by the Act
include restricting the voices of people and interest groups who have
money to spend and reducing the overall scope of federal election
campaigns. Although the Act does not focus on the ideas expressed by
persons or groups subject to its regulations, it is aimed in part at
equalizing the relative ability of all voters to affect electoral outcomes by
placing a ceiling on expenditures for political expression by citizens and
groups. Unlike O'Brien, where the Selective Service System's
administrative interest in the preservation of draft cards was wholly
unrelated to their use as a means of communication, it is beyond dispute
that the interest in regulating the alleged "conduct" of giving or spending
money "arises in some measure because the communication allegedly
integral to the conduct is itself thought to be harmful." 391 U.S., at 382 .
Nor can the Act's contribution and expenditure limitations be sustained,

as some of the parties suggest, by reference to the constitutional
principles reflected in such [424 U.S. 1, 18] decisions as Cox v. Louisiana,
supra; Adderley v. Florida, 385 U.S. 39 (1966); and Kovacs v.
Cooper, 336 U.S. 77 (1949). Those cases stand for the proposition that
the government may adopt reasonable time, place, and manner
regulations, which do not discriminate among speakers or ideas, in order
to further an important governmental interest unrelated to the restriction
of communication. See Erznoznik v. City of Jacksonville, 422 U.S. 205,
209 (1975). In contrast to O'Brien, where the method of expression
was held to be subject to prohibition, Cox, Adderley, and Kovacs
involved place or manner restrictions on legitimate modes of expression

- picketing, parading, demonstrating, and using a soundtruck. The critical

difference between this case and those time, place, and manner cases is
that the present Act's contribution and expenditure limitations impose
direct quantity restrictions on political communication and association by
persons, groups, candidates, and political parties in addition to any
reasonable time, place, and manner regulations otherwise imposed.[17]
[424 U.S. 1, 19]
A restriction on the amount of money a person or group can spend on

political communication during a campaign necessarily reduces the
quantity of expression by restricting the number of issues discussed, the
depth of their exploration, and the size of the audience reached.[18] This
is because virtually every means of communicating ideas in today's mass
society requires the expenditure of money. The distribution of the
humblest handbill or leaflet entails printing, paper, and circulation costs.
Speeches and rallies generally necessitate hiring a hall and publicizing the
event. The electorate's increasing dependence on television, radio, and
other mass media for news and information has made these expensive
modes of communication indispensable instruments of effective political
speech.
The expenditure limitations contained in the Act represent substantial

rather than merely theoretical restraints on the quantity and diversity of
political speech. The $1,000 ceiling on spending "relative to a clearly
identified candidate," 18 U.S.C. 608 (e) (1) (1970 ed., Supp. IV),
would appear to exclude all citizens and groups except candidates,
political parties, and the institutional press[19] from any significant use of
the most [424 U.S. 1, 20] effective modes of communication.[20] Although
the Act's limitations on expenditures by campaign organizations and
political parties provide substantially greater room for discussion and
debate, they would have required restrictions in the scope of a number
of past congressional and Presidential campaigns [21] and would operate
to constrain campaigning by candidates who raise sums in excess of the
spending ceiling.
By contrast with a limitation upon expenditures for political expression, a

limitation upon the amount that any one person or group may contribute
to a candidate or political committee entails only a marginal restriction
upon the contributor's ability to engage in free communication. [424 U.S. 1,
21] A contribution serves as a general expression of support for the
candidate and his views, but does not communicate the underlying basis
for the support. The quantity of communication by the contributor does
not increase perceptibly with the size of his contribution, since the
expression rests solely on the undifferentiated, symbolic act of
contributing. At most, the size of the contribution provides a very rough
index of the intensity of the contributor's support for the candidate.[22] A
limitation on the amount of money a person may give to a candidate or
campaign organization thus involves little direct restraint on his political
communication, for it permits the symbolic expression of support
evidenced by a contribution but does not in any way infringe the
contributor's freedom to discuss candidates and issues. While
contributions may result in political expression if spent by a candidate or
an association to present views to the voters, the transformation of
contributions into political debate involves speech by someone other
than the contributor.
Given the important role of contributions in financing political campaigns,

contribution restrictions could have a severe impact on political dialogue
if the limitations prevented candidates and political committees from
amassing the resources necessary for effective advocacy. There is no
indication, however, that the contribution limitations imposed by the Act

would have any dramatic adverse effect on the funding of campaigns and
political associations. [23] The overall effect of the Act's contribution [424
U.S. 1, 22] ceilings is merely to require candidates and political
committees to raise funds from a greater number of persons and to
compel people who would otherwise contribute amounts greater than
the statutory limits to expend such funds on direct political expression,
rather than to reduce the total amount of money potentially available to
promote political expression.
The Act's contribution and expenditure limitations also impinge on

protected associational freedoms. Making a contribution, like joining a
political party, serves to affiliate a person with a candidate. In addition, it
enables like-minded persons to pool their resources in furtherance of
common political goals. The Act's contribution ceilings thus limit one
important means of associating with a candidate or committee, but leave
the contributor free to become a member of any political association and
to assist personally in the association's efforts on behalf of candidates.
And the Act's contribution limitations permit associations and candidates
to aggregate large sums of money to promote effective advocacy. By
contrast, the Act's $1,000 limitation on independent expenditures
"relative to a clearly identified candidate" precludes most associations
from effectively amplifying the voice of their adherents, the original basis
for the recognition of First Amendment protection of the freedom of
association. See NAACP v. Alabama, 357 U.S., at 460 . The Act's
constraints on the ability of independent associations and candidate
campaign organizations to expend resources on political expression "is
simultaneously an interference with the freedom of [their] adherents,"
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality
opinion). See Cousins v. [424 U.S. 1, 23] Wigoda, 419 U.S., at 487 -488;
NAACP v. Button, 371 U.S. 415, 431 (1963).
In sum, although the Act's contribution and expenditure limitations both

implicate fundamental First Amendment interests, its expenditure ceilings
impose significantly more severe restrictions on protected freedoms of
political expression and association than do its limitations on financial
contributions.
B. Contribution Limitations
1. The $1,000 Limitation on Contributions by Individuals and Groups to

Candidates and Authorized Campaign Committees
Section 608 (b) provides, with certain limited exceptions, that "no
person shall make contributions to any candidate with respect to any
election for Federal office which, in the aggregate, exceed $1,000." The
statute defines "person" broadly to include "an individual, partnership,
committee, association, corporation or any other organization or group
of persons." 591 (g). The limitation reaches a gift, subscription, loan,
advance, deposit of anything of value, or promise to give a contribution,
made for the purpose of influencing a primary election, a Presidential
preference primary, or a general election for any federal office. [24] 591
(e) (1), (2). The [424 U.S. 1, 24] $1,000 ceiling applies regardless of
whether the contribution is given to the candidate, to a committee
authorized in writing by the candidate to accept contributions on his
behalf, or indirectly via earmarked gifts passed through an intermediary
to the candidate. 608 (b) (4), (6).[25] The restriction applies to
aggregate amounts contributed to the candidate for each election -- with
primaries, runoff elections, and general elections counted separately, and
all Presidential primaries held in any calendar year treated together as a
single election campaign. 608 (b) (5).

Appellants contend that the $1,000 contribution ceiling unjustifiably

burdens First Amendment freedoms, employs overbroad dollar limits,
and discriminates against candidates opposing incumbent officeholders
and against minor-party candidates in violation of the Fifth Amendment.
We address each of these claims of invalidity in turn.
(a)
As the general discussion in Part I-A, supra, indicated, the primary First
Amendment problem raised by the Act's contribution limitations is their
restriction of one aspect of the contributor's freedom of political
association. [424 U.S. 1, 25] The Court's decisions involving associational
freedoms establish that the right of association is a "basic constitutional
freedom," Kusper v. Pontikes, 414 U.S., at 57 , that is "closely allied to
freedom of speech and a right which, like free speech, lies at the
foundation of a free society." Shelton v. Tucker, 364 U.S. 479, 486
(1960). See, e. g., Bates v. Little Rock, 361 U.S. 516, 522 -523
(1960); NAACP v. Alabama, supra, at 460-461; NAACP v. Button,
supra, at 452 (Harlan, J., dissenting). In view of the fundamental nature
of the right to associate, governmental "action which may have the effect
of curtailing the freedom to associate is subject to the closest scrutiny."
NAACP v. Alabama, supra, at 460-461. Yet, it is clear that "[n]either
the right to associate nor the right to participate in political activities is
absolute." CSC v. Letter Carriers, 413 U.S. 548, 567 (1973). Even a
"`significant interference' with protected rights of political association"
may be sustained if the State demonstrates a sufficiently important
interest and employs means closely drawn to avoid unnecessary
abridgment of associational freedoms. Cousins v. Wigoda, supra, at
488; NAACP v. Button, supra, at 438; Shelton v. Tucker, supra, at
488.
Appellees argue that the Act's restrictions on large campaign

contributions are justified by three governmental interests. According to
the parties and amici, the primary interest served by the limitations and,
indeed, by the Act as a whole, is the prevention of corruption and the
appearance of corruption spawned by the real or imagined coercive
influence of large financial contributions on candidates' positions and on
their actions if elected to office. Two "ancillary" interests underlying the
Act are also allegedly furthered by the $1,000 limits on contributions.
First, the limits serve to mute the voices of affluent persons and groups in
the election [424 U.S. 1, 26] process and thereby to equalize the relative
ability of all citizens to affect the outcome of elections.[26] Second, it is
argued, the ceilings may to some extent act as a brake on the
skyrocketing cost of political campaigns and thereby serve to open the
political system more widely to candidates without access to sources of
large amounts of money. [27]
It is unnecessary to look beyond the Act's primary purpose -- to limit

the actuality and appearance of corruption resulting from large individual
financial contributions -- in order to find a constitutionally sufficient
justification for the $1,000 contribution limitation. Under a system of
private financing of elections, a candidate lacking immense personal or
family wealth must depend on financial contributions from others to
provide the resources necessary to conduct a successful campaign. The
increasing importance of the communications media and sophisticated
mass-mailing and polling operations to effective campaigning make the
raising of large sums of money an ever more essential ingredient of an
effective candidacy. To the extent that large contributions are given to
secure a political quid pro quo from current and potential office holders,
the integrity of our system of [424 U.S. 1, 27] representative democracy is
undermined. Although the scope of such pernicious practices can never

be reliably ascertained, the deeply disturbing examples surfacing after the

1972 election demonstrate that the problem is not an illusory one. [28]
Of almost equal concern as the danger of actual quid pro quo

arrangements is the impact of the appearance of corruption stemming
from public awareness of the opportunities for abuse inherent in a regime
of large individual financial contributions. In CSC v. Letter Carriers,
supra, the Court found that the danger to "fair and effective government"
posed by partisan political conduct on the part of federal employees
charged with administering the law was a sufficiently important concern
to justify broad restrictions on the employees' right of partisan political
association. Here, as there, Congress could legitimately conclude that
the avoidance of the appearance of improper influence "is also critical ...
if confidence in the system of representative Government is not to be
eroded to a disastrous extent." 413 U.S., at 565 .[29]
Appellants contend that the contribution limitations must be invalidated

because bribery laws and narrowly drawn disclosure requirements
constitute a less restrictive means of dealing with "proven and suspected
quid pro quo arrangements." But laws making criminal [424 U.S. 1, 28] the
giving and taking of bribes deal with only the most blatant and specific
attempts of those with money to influence governmental action. And
while disclosure requirements serve the many salutary purposes
discussed elsewhere in this opinion,[30] Congress was surely entitled to
conclude that disclosure was only a partial measure, and that
contribution ceilings were a necessary legislative concomitant to deal
with the reality or appearance of corruption inherent in a system
permitting unlimited financial contributions, even when the identities of
the contributors and the amounts of their contributions are fully
disclosed.
The Act's $1,000 contribution limitation focuses precisely on the

problem of large campaign contributions -- the narrow aspect of political
association where the actuality and potential for corruption have been
identified -- while leaving persons free to engage in independent political
expression, to associate actively through volunteering their services, and
to assist to a limited but nonetheless substantial extent in supporting
candidates and committees with financial resources.[31] Significantly, the
[424 U.S. 1, 29] Act's contribution limitations in themselves do not
undermine to any material degree the potential for robust and effective
discussion of candidates and campaign issues by individual citizens,
associations, the institutional press, candidates, and political parties.
We find that, under the rigorous standard of review established by our

prior decisions, the weighty interests served by restricting the size of
financial contributions to political candidates are sufficient to justify the
limited effect upon First Amendment freedoms caused by the $1,000
contribution ceiling.
(b)
Appellants' first overbreadth challenge to the contribution ceilings rests

on the proposition that most large contributors do not seek improper
influence over a candidate's position or an officeholder's action.
Although the truth of that proposition may be assumed, it does not [424
U.S. 1, 30] undercut the validity of the $1,000 contribution limitation. Not
only is it difficult to isolate suspect contributions but, more importantly,
Congress was justified in concluding that the interest in safeguarding
against the appearance of impropriety requires that the opportunity for
abuse inherent in the process of raising large monetary contributions be
eliminated.

A second, related overbreadth claim is that the $1,000 restriction is

unrealistically low because much more than that amount would still not
be enough to enable an unscrupulous contributor to exercise improper
influence over a candidate or officeholder, especially in campaigns for
statewide or national office. While the contribution limitation provisions
might well have been structured to take account of the graduated
expenditure limitations for congressional and Presidential campaigns,[32]
Congress' failure to engage in such fine tuning does not invalidate the
legislation. As the Court of Appeals observed, "[i]f it is satisfied that
some limit on contributions is necessary, a court has no scalpel to probe,
whether, say, a $2,000 ceiling might not serve as well as $1,000." 171
U.S. App. D.C., at 193, 519 F.2d, at 842. Such distinctions in degree
become significant only when they can be said to amount to differences
in kind. Compare Kusper v. Pontikes, 414 U.S. 51 (1973), with
Rosario v. Rockefeller, 410 U.S. 752 (1973).
(c)
Apart from these First Amendment concerns, appellants argue that the
contribution limitations work such an invidious discrimination between
incumbents [424 U.S. 1, 31] and challengers that the statutory provisions
must be declared unconstitutional on their face.[33] In considering this
contention, it is important at the outset to note that the Act applies the
same limitations on contributions to all candidates regardless of their
present occupations, ideological views, or party affiliations. Absent
record evidence of invidious discrimination against challengers as a class,
a court should generally be hesitant to invalidate legislation which on its
face imposes evenhanded restrictions. Cf. James v. Valtierra, 402 U.S.
137 (1971). [424 U.S. 1, 32]
There is no such evidence to support the claim that the contribution

limitations in themselves discriminate against major-party challengers to
incumbents. Challengers can and often do defeat incumbents in federal
elections.[34] Major-party challengers in federal elections are usually
men and women who are well known and influential in their community
or State. Often such challengers are themselves incumbents in important
local, state, or federal offices. Statistics in the record indicate that
major-party challengers as well as incumbents are capable of raising
large sums for campaigning.[35] Indeed, a small but nonetheless
significant number of challengers have in recent elections outspent their
incumbent rivals.[36] And, to the extent that incumbents generally are
more likely than challengers to attract very large contributions, the Act's
$1,000 ceiling has the practical effect of benefiting challengers as a
class.[37] Contrary to the broad generalization [424 U.S. 1, 33] drawn by
the appellants, the practical impact of the contribution ceilings in any
given election will clearly depend upon the amounts in excess of the
ceilings that, for various reasons, the candidates in that election would
otherwise have received and the utility of these additional amounts to the
candidates. To be sure, the limitations may have a significant effect on
particular challengers or incumbents, but the record provides no basis
for predicting that such adventitious factors will invariably and invidiously
benefit incumbents as a class.[38] Since the danger of corruption and the
appearance of corruption apply with equal force to challengers and to
incumbents, Congress had ample justification for imposing the same
fundraising constraints upon both.
The charge of discrimination against minor-party and independent

candidates is more troubling, but the record provides no basis for
concluding that the Act invidiously disadvantages such candidates. As
noted above, the Act on its face treats all candidates equally with regard

to contribution limitations. And the restriction would appear to benefit

minor-party and independent candidates relative to their major-party
opponents because major-party candidates receive far more money in
large contributions.[39] Although there is some [424 U.S. 1, 34] force to
appellants' response that minor-party candidates are primarily concerned
with their ability to amass the resources necessary to reach the electorate
rather than with their funding position relative to their major-party
opponents, the record is virtually devoid of support for the claim that the
$1,000 contribution limitation will have a serious effect on the initiation
and scope of minor-party and independent candidacies. [40] Moreover,
any attempt [424 U.S. 1, 35] to exclude minor parties and independents en
masse from the Act's contribution limitations overlooks the fact that
minor-party candidates may win elective office or have a substantial
impact on the outcome of an election.[41]
In view of these considerations, we conclude that the impact of the Act's

$1,000 contribution limitation on major-party challengers and on
minor-party candidates does not render the provision unconstitutional on
its face.
2. The $5,000 Limitation on Contributions by Political Committees
Section 608 (b) (2) permits certain committees, designated as "political

committees," to contribute up to $5,000 to any candidate with respect to
any election for federal office. In order to qualify for the higher
contribution ceiling, a group must have been registered with the
Commission as a political committee under 2 U.S.C. 433 (1970 ed.,
Supp. IV) for not less than six months, have received contributions from
more than 50 persons, and, except for state political party organizations,
have contributed to five or more candidates for federal office. Appellants
argue that these qualifications unconstitutionally discriminate against ad
hoc organizations in favor of established interest groups and
impermissibly burden free association. The argument is without merit.
Rather than undermining freedom of association, the basic provision
enhances the opportunity of bona fide groups to participate in the
election process, and the registration, contribution, and candidate
conditions serve the permissible purpose of preventing individuals [424
U.S. 1, 36] from evading the applicable contribution limitations by labeling
themselves committees.
3. Limitations on Volunteers' Incidental Expenses
The Act excludes from the definition of contribution "the value of

services provided without compensation by individuals who volunteer a
portion or all of their time on behalf of a candidate or political
committee." 591 (e) (5) (A). Certain expenses incurred by persons in
providing volunteer services to a candidate are exempt from the $1,000
ceiling only to the extent that they do not exceed $500. These expenses
are expressly limited to (1) "the use of real or personal property and the
cost of invitations, food, and beverages, voluntarily provided by an
individual to a candidate in rendering voluntary personal services on the
individual's residential premises for candidate-related activities." 591 (e)
(5) (B); (2) "the sale of any food or beverage by a vendor for use in a
candidate's campaign at a charge [at least equal to cost but] less than the
normal comparable charge," 591 (e) (5) (C); and (3) "any unreimbursed
payment for travel expenses made by an individual who on his own
behalf volunteers his personal services to a candidate," 591 (e) (5) (D).
If, as we have held, the basic contribution limitations are constitutionally

valid, then surely these provisions are a constitutionally acceptable
accommodation of Congress' valid interest in encouraging citizen

participation in political campaigns while continuing to guard against the

corrupting potential of large financial contributions to candidates. The
expenditure of resources at the candidate's direction for a fundraising
event at a volunteer's residence or the provision of in-kind assistance in
the form of food or beverages to be resold to raise funds or consumed
by the participants in such an event provides material financial assistance
to a candidate. The ultimate [424 U.S. 1, 37] effect is the same as if the
person had contributed the dollar amount to the candidate and the
candidate had then used the contribution to pay for the fundraising event
or the food. Similarly, travel undertaken as a volunteer at the direction of
the candidate or his staff is an expense of the campaign and may
properly be viewed as a contribution if the volunteer absorbs the fare.
Treating these expenses as contributions when made to the candidate's
campaign or at the direction of the candidate or his staff forecloses an
avenue of abuse [42] without limiting actions voluntarily undertaken by
citizens independently of a candidate's campaign. [43] [424 U.S. 1, 38]
4. The $25,000 Limitation on Total Contributions During any Calendar

Year
In addition to the $1,000 limitation on the nonexempt contributions that

an individual may make to a particular candidate for any single election,
the Act contains an overall $25,000 limitation on total contributions by
an individual during any calendar year. 608 (b) (3). A contribution made
in connection with an election is considered, for purposes of this
subsection, to be made in the year the election is held. Although the
constitutionality of this provision was drawn into question by appellants,
it has not been separately addressed at length by the parties. The overall
$25,000 ceiling does impose an ultimate restriction upon the number of
candidates and committees with which an individual may associate
himself by means of financial support. But this quite modest restraint
upon protected political activity serves to prevent evasion of the $1,000
contribution limitation by a person who might otherwise contribute
massive amounts of money to a particular candidate through the use of
unearmarked contributions to political committees likely to contribute to
that candidate, or huge contributions to the candidate's political party.
The limited, additional restriction on associational freedom imposed by
the overall ceiling is thus no more than a corollary of the basic individual
contribution limitation that we have found to be constitutionally valid. [424
U.S. 1, 39]
C. Expenditure Limitations
The Act's expenditure ceilings impose direct and substantial restraints on

the quantity of political speech. The most drastic of the limitations
restricts individuals and groups, including political parties that fail to
place a candidate on the ballot,[44] to an expenditure of $1,000 "relative
to a clearly identified candidate during a calendar year." 608 (e) (1).
Other expenditure ceilings limit spending by candidates, 608 (a), their
campaigns, 608 (c), and political parties in connection with election
campaigns, 608 (f). It is clear that a primary effect of these expenditure
limitations is to restrict the quantity of campaign speech by individuals,
groups, and candidates. The restrictions, while neutral as to the ideas
expressed, limit political expression "at the core of our electoral process
and of the First Amendment freedoms." Williams v. Rhodes, 393 U.S.
23, 32 (1968).
1. The $1,000 Limitation on Expenditures "Relative to a Clearly

Identified Candidate"
Section 608 (e) (1) provides that "[n]o person may make any

expenditure ... relative to a clearly identified candidate during a calendar

year which, when added to all other expenditures made by such person
during the year advocating the election or defeat of such candidate,
exceeds $1,000." [45] The plain effect of 608 (e) (1) is to [424 U.S. 1, 40]
prohibit all individuals, who are neither candidates nor owners of
institutional press facilities, and all groups, except political parties and
campaign organizations, from voicing their views "relative to a clearly
identified candidate" through means that entail aggregate expenditures of
more than $1,000 during a calendar year. The provision, for example,
would make it a federal criminal offense for a person or association to
place a single one-quarter page advertisement "relative to a clearly
identified candidate" in a major metropolitan newspaper.[46 ]
Before examining the interests advanced in support of 608 (e) (1)'s

expenditure ceiling, consideration must be given to appellants' contention
that the provision is unconstitutionally vague.[47] Close examination of
the [424 U.S. 1, 41] specificity of the statutory limitation is required where,
as here, the legislation imposes criminal penalties in an area permeated
by First Amendment interests. See Smith v. Goguen, 415 U.S. 566, 573
(1974); Cramp v. Board of Public Instruction, 368 U.S. 278, 287 -288
(1961); Smith v. California, 361 U.S. 147, 151 (1959).[48] The test is
whether the language of 608 (e) (1) affords the "[p]recision of regulation
[that] must be the touchstone in an area so closely touching our most
precious freedoms." NAACP v. Button, 371 U.S., at 438 .
The key operative language of the provision limits "any expenditure . . .

relative to a clearly identified candidate." Although "expenditure," "clearly
identified," and "candidate" are defined in the Act, there is no definition
clarifying what expenditures are "relative to" a candidate. The use of so
indefinite a phrase as "relative to" a candidate fails to clearly mark the
boundary between permissible and impermissible speech, unless other
portions of 608 (e) (1) make sufficiently explicit the range of
expenditures [424 U.S. 1, 42] covered by the limitation. The section
prohibits "any expenditure ... relative to a clearly identified candidate
during a calendar year which, when added to all other expenditures ...
advocating the election or defeat of such candidate, exceeds $1,000."
(Emphasis added.) This context clearly permits, if indeed it does not
require, the phrase "relative to" a candidate to be read to mean
"advocating the election or defeat of" a candidate. [49]
But while such a construction of 608 (e) (1) refocuses the vagueness
question, the Court of Appeals was mistaken in thinking that this
construction eliminates the problem of unconstitutional vagueness
altogether. 171 U.S. App. D.C., at 204, 519 F.2d, at 853. For the
distinction between discussion of issues and candidates and advocacy of
election or defeat of candidates may often dissolve in practical
application. Candidates, especially incumbents, are intimately tied to
public issues involving legislative proposals and governmental actions.
Not only do candidates campaign on the basis of their positions on
various public issues, but campaigns themselves generate issues of public
interest.[50] In an analogous [424 U.S. 1, 43] context, this Court in Thomas
v. Collins, 323 U.S. 516 (1945), observed:
"[W]hether words intended and designed to fall short of invitation

would miss that mark is a question both of intent and of effect. No
speaker, in such circumstances, safely could assume that anything
he might say upon the general subject would not be understood
by some as an invitation. In short, the supposedly clear-cut
distinction between discussion, laudation, general advocacy, and
solicitation puts the speaker in these circumstances wholly at the
mercy of the varied understanding of his hearers and consequently

of whatever inference may be drawn as to his intent and meaning.
"Such a distinction offers no security for free discussion. In these

conditions it blankets with uncertainty whatever may be said. It
compels the speaker to hedge and trim." Id., at 535.
See also United States v. Auto. Workers, 352 U.S. 567, 595 -596
(1957) (Douglas, J., dissenting); Gitlow v. New York, 268 U.S. 652,
673 (1925) (Holmes, J., dissenting).
The constitutional deficiencies described in Thomas v. Collins can be

avoided only by reading 608 (e) (1) as limited to communications that
include explicit words of advocacy of election or defeat of a candidate,
much as the definition of "clearly identified" in 608 (e) (2) requires that
an explicit and unambiguous reference to the candidate appear as part of
the communication.[51] This [424 U.S. 1, 44] is the reading of the provision
suggested by the non-governmental appellees in arguing that "[f]unds
spent to propagate one's views on issues without expressly calling for a
candidate's election or defeat are thus not covered." We agree that in
order to preserve the provision against invalidation on vagueness
grounds, 608 (e) (1) must be construed to apply only to expenditures for
communications that in express terms advocate the election or defeat of
a clearly identified candidate for federal office.[52]
We turn then to the basic First Amendment question -- whether 608 (e)
(1), even as thus narrowly and explicitly construed, impermissibly
burdens the constitutional right of free expression. The Court of Appeals
summarily held the provision constitutionally valid on the ground that
"section 608 (e) is a loophole-closing provision only" that is necessary to
prevent circumvention of the contribution limitations. 171 U.S. App.
D.C., at 204, 519 F.2d, at 853. We cannot agree.
The discussion in Part I-A, supra, explains why the Act's expenditure
limitations impose far greater restraints on the freedom of speech and
association than do its contribution limitations. The markedly greater
burden on basic freedoms caused by 608 (e) (1) thus cannot be
sustained simply by invoking the interest in maximizing the effectiveness
of the less intrusive contribution limitations. Rather, the constitutionality
of 608 (e) (1) turns on whether the governmental interests advanced in
its support satisfy the exacting scrutiny applicable to limitations [424 U.S. 1,
45] on core First Amendment rights of political expression.
We find that the governmental interest in preventing corruption and the

appearance of corruption is inadequate to justify 608 (e) (1)'s ceiling on
independent expenditures. First, assuming, arguendo, that large
independent expenditures pose the same dangers of actual or apparent
quid pro quo arrangements as do large contributions, 608 (e) (1) does
not provide an answer that sufficiently relates to the elimination of those
dangers. Unlike the contribution limitations' total ban on the giving of
large amounts of money to candidates, 608 (e) (1) prevents only some
large expenditures. So long as persons and groups eschew expenditures
that in express terms advocate the election or defeat of a clearly
identified candidate, they are free to spend as much as they want to
promote the candidate and his views. The exacting interpretation of the
statutory language necessary to avoid unconstitutional vagueness thus
undermines the limitation's effectiveness as a loophole-closing provision
by facilitating circumvention by those seeking to exert improper influence
upon a candidate or office-holder. It would naively underestimate the
ingenuity and resourcefulness of persons and groups desiring to buy
influence to believe that they would have much difficulty devising
expenditures that skirted the restriction on express advocacy of election

or defeat but nevertheless benefited the candidate's campaign. Yet no

substantial societal interest would be served by a loophole-closing
provision designed to check corruption that permitted unscrupulous
persons and organizations to expend unlimited sums of money in order
to obtain improper influence over candidates for elective office. Cf. Mills
v. Alabama, 384 U.S., at 220 .
Second, quite apart from the shortcomings of 608 (e) [424 U.S. 1, 46] (1)
in preventing any abuses generated by large independent expenditures,
the independent advocacy restricted by the provision does not presently
appear to pose dangers of real or apparent corruption comparable to
those identified with large campaign contributions. The parties defending
608 (e) (1) contend that it is necessary to prevent would-be contributors
from avoiding the contribution limitations by the simple expedient of
paying directly for media advertisements or for other portions of the
candidate's campaign activities. They argue that expenditures controlled
by or coordinated with the candidate and his campaign might well have
virtually the same value to the candidate as a contribution and would
pose similar dangers of abuse. Yet such controlled or coordinated
expenditures are treated as contributions rather than expenditures under
the Act. [53] Section 608 (b)'s [424 U.S. 1, 47] contribution ceilings rather
than 608 (e) (1)'s independent expenditure limitation prevent attempts to
circumvent the Act through prearranged or coordinated expenditures
amounting to disguised contributions. By contrast, 608 (e) (1) limits
expenditures for express advocacy of candidates made totally
independently of the candidate and his campaign. Unlike contributions,
such independent expenditures may well provide little assistance to the
candidate's campaign and indeed may prove counterproductive. The
absence of prearrangement and coordination of an expenditure with the
candidate or his agent not only undermines the value of the expenditure
to the candidate, but also alleviates the danger that expenditures will be
given as a quid pro quo for improper commitments from the candidate.
Rather than preventing circumvention of the contribution limitations, 608
(e) (1) severely restricts all independent advocacy despite its
substantially diminished potential for abuse.
While the independent expenditure ceiling thus fails to serve any

substantial governmental interest in stemming [424 U.S. 1, 48] the reality or
appearance of corruption in the electoral process, it heavily burdens
core First Amendment expression. For the First Amendment right to
"`speak one's mind ... on all public institutions'" includes the right to
engage in "`vigorous advocacy' no less than àbstract discussion.'" New
York Times Co. v. Sullivan, 376 U.S., at 269 , quoting Bridges v.
California, 314 U.S. 252, 270 (1941), and NAACP v. Button, 371
U.S., at 429. Advocacy of the election or defeat of candidates for
federal office is no less entitled to protection under the First Amendment
than the discussion of political policy generally or advocacy of the
passage or defeat of legislation.[54]
It is argued, however, that the ancillary governmental interest in

equalizing the relative ability of individuals and groups to influence the
outcome of elections serves to justify the limitation on express advocacy
of the election or defeat of candidates imposed by 608 (e) (1)'s
expenditure ceiling. But the concept that government may restrict the
speech of some elements of our society in [424 U.S. 1, 49] order to
enhance the relative voice of others is wholly foreign to the First
Amendment, which was designed "to secure `the widest possible
dissemination of information from diverse and antagonistic sources,'" and
"`to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.'" New York Times
Co. v. Sullivan, supra, at 266, 269, quoting Associated Press v. United

States, 326 U.S. 1, 20 (1945), and Roth v. United States, 354 U.S., at
484 . The First Amendment's protection against governmental
abridgment of free expression cannot properly be made to depend on a
person's financial ability to engage in public discussion. Cf. Eastern R.
Conf. v. Noerr Motors, 365 U.S. 127, 139 (1961).[55] [424 U.S. 1, 50]
The Court's decisions in Mills v. Alabama, 384 U.S. 214 (1966), and
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), held that
legislative restrictions on advocacy of the election or defeat of political
candidates are wholly at odds with the guarantees of the First
Amendment. In Mills, the Court addressed the question whether "a
State, consistently with the United States Constitution, can make it a
crime for the editor of a daily newspaper to write and publish an editorial
on election day urging people to vote a certain way on issues submitted
to them." 384 U.S., at 215 (emphasis in original). We held that "no test
of reasonableness can save [such] a state law from invalidation as a
violation of the First Amendment." Id., at 220. Yet the prohibition of
election-day editorials invalidated in Mills is clearly a lesser intrusion on
constitutional freedom than a $1,000 limitation on the amount of money
any person or association can spend during an entire election year in
advocating the election or defeat of a candidate for public office. More
recently in Tornillo, the Court held that Florida could not constitutionally
require a newspaper [424 U.S. 1, 51] to make space available for a
political candidate to reply to its criticism. Yet under the Florida statute,
every newspaper was free to criticize any candidate as much as it
pleased so long as it undertook the modest burden of printing his reply.
See 418 U.S., at 256-257. The legislative restraint involved in Tornillo
thus also pales in comparison to the limitations imposed by 608 (e) (1).
[56]
For the reasons stated, we conclude that 608 (e) (1)'s independent
expenditure limitation is unconstitutional under the First Amendment.
2. Limitation on Expenditures by Candidates from Personal or Family

Resources
The Act also sets limits on expenditures by a candidate "from his

personal funds, or the personal funds of his immediate family, in
connection with his campaigns during any calendar year." 608 (a) (1).
These ceilings vary from $50,000 for Presidential or Vice Presidential
candidates to $35,000 for senatorial candidates, and $25,000 for most
candidates for the House of Representatives.[57] [424 U.S. 1, 52]
The ceiling on personal expenditures by candidates on their own behalf,

like the limitations on independent expenditures contained in 608 (e) (1),
imposes a substantial restraint on the ability of persons to engage in
protected First Amendment expression.[58] The candidate, no less than
any other person, has a First Amendment right to engage in the
discussion of public issues and vigorously and tirelessly to advocate his
own election and the election of other candidates. Indeed, it is of
particular importance that candidates have the unfettered [424 U.S. 1, 53]
opportunity to make their views known so that the electorate may
intelligently evaluate the candidates' personal qualities and their positions
on vital public issues before choosing among them on election day. Mr.
Justice Brandeis' observation that in our country "public discussion is a
political duty," Whitney v. California, 274 U.S. 357, 375 (1927)
(concurring opinion), applies with special force to candidates for public
office. Section 608 (a)'s ceiling on personal expenditures by a candidate
in furtherance of his own candidacy thus clearly and directly interferes
with constitutionally protected freedoms.

The primary governmental interest served by the Act -- the prevention of

actual and apparent corruption of the political process -- does not
support the limitation on the candidate's expenditure of his own personal
funds. As the Court of Appeals concluded: "Manifestly, the core
problem of avoiding undisclosed and undue influence on candidates from
outside interests has lesser application when the monies involved come
from the candidate himself or from his immediate family." 171 U.S. App.
D.C., at 206, 519 F.2d, at 855. Indeed, the use of personal funds
reduces the candidate's dependence on outside contributions and
thereby counteracts the coercive pressures and attendant risks of abuse
to which the Act's contribution limitations are directed. [59] [424 U.S. 1,
54]
The ancillary interest in equalizing the relative financial resources of

candidates competing for elective office, therefore, provides the sole
relevant rationale for 608 (a)'s expenditure ceiling. That interest is clearly
not sufficient to justify the provision's infringement of fundamental First
Amendment rights. First, the limitation may fail to promote financial
equality among candidates. A candidate who spends less of his personal
resources on his campaign may nonetheless outspend his rival as a result
of more successful fundraising efforts. Indeed, a candidate's personal
wealth may impede his efforts to persuade others that he needs their
financial contributions or volunteer efforts to conduct an effective
campaign. Second, and more fundamentally, the First Amendment
simply cannot tolerate 608 (a)'s restriction upon the freedom of a
candidate to speak without legislative limit on behalf of his own
candidacy. We therefore hold that 608 (a)'s restriction on a candidate's
personal expenditures is unconstitutional.
3. Limitations on Campaign Expenditures
Section 608 (c) places limitations on overall campaign expenditures by

candidates seeking nomination for election and election to federal office.
[60] Presidential candidates may spend $10,000,000 in seeking
nomination for office and an additional $20,000,000 in the general
election campaign. 608 (c) (1) (A), (B).[61 ] [424 U.S. 1, 55] The ceiling
on senatorial campaigns is pegged to the size of the voting-age
population of the State with minimum dollar amounts applicable to
campaigns in States with small populations. In senatorial primary
elections, the limit is the greater of eight cents multiplied by the
voting-age population or $100,000, and in the general election the limit
is increased to 12 cents multiplied by the voting-age population or
$150,000. 608 (c) (1) (C), (D). The Act imposes blanket $70,000
limitations on both primary campaigns and general election campaigns
for the House of Representatives with the exception that the senatorial
ceiling applies to campaigns in States entitled to only one Representative.
608 (c) (1) (C)-(E). These ceilings are to be adjusted upwards at the
beginning of each calendar year by the average percentage rise in the
consumer price index for the 12 preceding months. 608 (d). [62]
No governmental interest that has been suggested is sufficient to justify

the restriction on the quantity of political expression imposed by 608
(c)'s campaign expenditure limitations. The major evil associated with
rapidly increasing campaign expenditures is the danger of candidate
dependence on large contributions. The interest in alleviating the
corrupting influence of large contributions is served by the Act's
contribution limitations and disclosure provisions rather than by 608 (c)'s
campaign expenditure ceilings. The Court of Appeals' assertion that the
expenditure restrictions are necessary to reduce the incentive to
circumvent direct contribution limits is not persuasive. See 171 U.S. [424
U.S. 1, 56] App. D.C., at 210, 519 F.2d, at 859. There is no indication

that the substantial criminal penalties for violating the contribution ceilings
combined with the political repercussion of such violations will be
insufficient to police the contribution provisions. Extensive reporting,
auditing, and disclosure requirements applicable to both contributions
and expenditures by political campaigns are designed to facilitate the
detection of illegal contributions. Moreover, as the Court of Appeals
noted, the Act permits an officeholder or successful candidate to retain
contributions in excess of the expenditure ceiling and to use these funds
for "any other lawful purpose." 2 U.S.C. 439a (1970 ed., Supp. IV).
This provision undercuts whatever marginal role the expenditure
limitations might otherwise play in enforcing the contribution ceilings.
The interest in equalizing the financial resources of candidates competing

for federal office is no more convincing a justification for restricting the
scope of federal election campaigns. Given the limitation on the size of
outside contributions, the financial resources available to a candidate's
campaign, like the number of volunteers recruited, will normally vary
with the size and intensity of the candidate's support.[63] There is nothing
invidious, improper, or unhealthy in permitting such funds to be spent to
carry the candidate's message to the electorate. [64] Moreover, the
equalization of permissible campaign expenditures [424 U.S. 1, 57] might
serve not to equalize the opportunities of all candidates, but to handicap
a candidate who lacked substantial name recognition or exposure of his
views before the start of the campaign.
The campaign expenditure ceilings appear to be designed primarily to

serve the governmental interests in reducing the allegedly skyrocketing
costs of political campaigns. Appellees and the Court of Appeals
stressed statistics indicating that spending for federal election campaigns
increased almost 300% between 1952 and 1972 in comparison with a
57.6% rise in the consumer price index during the same period.
Appellants respond that during these years the rise in campaign spending
lagged behind the percentage increase in total expenditures for
commercial advertising and the size of the gross national product. In any
event, the mere growth in the cost of federal election campaigns in and
of itself provides no basis for governmental restrictions on the quantity of
campaign spending and the resulting limitation on the scope of federal
campaigns. The First Amendment denies government the power to
determine that spending to promote one's political views is wasteful,
excessive, or unwise. In the free society ordained by our Constitution it
is not the government, but the people -- individually as citizens and
candidates and collectively as associations and political committees --
who must retain control over the quantity and range of debate on public
issues in a political campaign. [65] [424 U.S. 1, 58]
For these reasons we hold that 608 (c) is constitutionally invalid.[66]
In sum, the provisions of the Act that impose a $1,000 limitation on

contributions to a single candidate, 608 (b) (1), a $5,000 limitation on
contributions by a political committee to a single candidate, 608 (b) (2),
and a $25,000 limitation on total contributions by an individual during
any calendar year, 608 (b) (3), are constitutionally valid. These
limitations, along with the disclosure provisions, constitute the Act's
primary weapons against the reality or appearance of improper influence
stemming from the dependence of candidates on large campaign
contributions. The contribution ceilings thus serve the basic governmental
interest in safeguarding the integrity of the electoral process without
directly impinging upon the rights of individual citizens and candidates to
engage in political debate and discussion. By contrast, the First
Amendment requires the invalidation of the Act's independent
expenditure ceiling, 608 (e) (1), its limitation on a candidate's

expenditures from his own personal funds, 608 (a), and its ceilings on
overall campaign expenditures, 608 (c). These provisions place
substantial and direct restrictions [424 U.S. 1, 59] on the ability of
candidates, citizens, and associations to engage in protected political
expression, restrictions that the First Amendment cannot tolerate.[67]
[424 U.S. 1, 60]
II. REPORTING AND DISCLOSURE REQUIREMENTS
Unlike the limitations on contributions and expenditures imposed by 18

U.S.C. 608 (1970 ed., Supp. IV), the disclosure requirements of the
Act, 2 U.S.C. 431 et seq. (1970 ed., Supp. IV),[68] are not challenged
by appellants as per se unconstitutional restrictions on the exercise of
First Amendment freedoms of speech and association. [69] Indeed,
appellants argue that "narrowly drawn disclosure requirements are the
proper solution to virtually all of the evils Congress sought to remedy."
Brief for Appellants 171. The particular requirements [424 U.S. 1, 61]
embodied in the Act are attacked as overbroad -- both in their
application to minor-party and independent candidates and in their
extension to contributions as small as $11 or $101. Appellants also
challenge the provision for disclosure by those who make independent
contributions and expenditures, 434 (e). The Court of Appeals found no
constitutional infirmities in the provisions challenged here.[70] We affirm
the determination on overbreadth and hold that 434 (e), if narrowly
construed, also is within constitutional bounds.
The first federal disclosure law was enacted in 1910. Act of June 25,
1910, c. 392, 36 Stat. 822. It required political committees, defined as
national committees and national congressional campaign committees of
parties, and organizations operating to influence congressional elections
in two or more States, to disclose names of all contributors of $100 or
more; identification of recipients of expenditures of $10 or more was
also required. 1, 5-6, 36 Stat. 822 824. Annual expenditures of $50 or
more "for the purpose of influencing or controlling, in two or more
States, the result of" a congressional election had to be reported
independently if they were not made through a political committee. 7, 36
Stat. 824. In 1911 the Act was revised to include prenomination
transactions such as those involved in conventions and primary
campaigns. Act of Aug. 19, 1911, 2, 37 Stat. 26. See United States v.
Auto. Workers, 352 U.S., at 575-576.
Disclosure requirements were broadened in the Federal Corrupt

Practices Act of 1925 (Title III of the Act of Feb. 28, 1925), 43 Stat.
1070. That Act required political committees, defined as organizations
that accept contributions or make expenditures "for the purpose of [424
U.S. 1, 62] influencing or attempting to influence" the Presidential or Vice
Presidential elections (a) in two or more States or (b) as a subsidiary of
a national committee, 302 (c), 43 Stat. 1070, to report total
contributions and expenditures, including the names and addresses of
contributors of $100 or more and recipients of $10 or more in a
calendar year. 305 (a), 43 Stat. 1071. The Act was upheld against a
challenge that it infringed upon the prerogatives of the States in
Burroughs v. United States, 290 U.S. 534 (1934). The Court held that it
was within the power of Congress "to pass appropriate legislation to
safeguard [a Presidential] election from the improper use of money to
influence the result." Id., at 545. Although the disclosure requirements
were widely circumvented, [71] no further attempts were made to tighten
them until 1960, when the Senate passed a bill that would have closed
some existing loopholes. S. 2436, 106 Cong. Rec. 1193. The attempt
aborted because no similar effort was made in the House.

The Act presently under review replaced all prior disclosure laws. Its
primary disclosure provisions impose reporting obligations on "political
committees" and candidates. "Political committee" is defined in 431 (d)
as a group of persons that receives "contributions" or makes
"expenditures" of over $1,000 in a calendar year. "Contributions" and
"expenditures" are defined in lengthy parallel provisions similar to those
in Title 18, discussed [424 U.S. 1, 63] above.[72] Both definitions focus on
the use of money or other objects of value "for the purpose of ...
influencing" the nomination or election of any person to federal office.
431 (e) (1), (f) (1).
Each political committee is required to register with the Commission,

433, and to keep detailed records of both contributions and
expenditures, 432 (c), (d). These records must include the name and
address of everyone making a contribution in excess of $10, along with
the date and amount of the contribution. If a person's contributions
aggregate more than $100, his occupation and principal place of
business are also to be included. 432 (c) (2). These files are subject to
periodic audits and field investigations by the Commission. 438 (a) (8).
Each committee and each candidate also is required to file quarterly

reports. 434 (a). The reports are to contain detailed financial
information, including the full name, mailing address, occupation, and
principal place of business of each person who has contributed over
$100 in a calendar year, as well as the amount and date of the
contributions. 434 (b). They are to be made available by the
Commission "for public inspection and copying." 438 (a) (4). Every
candidate for federal office is required to designate a "principal campaign
committee," which is to receive reports of contributions and expenditures
made on the candidate's behalf from other political committees and to
compile and file these reports, together with its own statements, with the
Commission. 432 (f).
Every individual or group, other than a political committee or candidate,

who makes "contributions" or "expenditures" of over $100 in a calendar
year "other than [424 U.S. 1, 64] by contribution to a political committee
or candidate" is required to file a statement with the Commission. 434
(e). Any violation of these recordkeeping and reporting provisions is
punishable by a fine of not more than $1,000 or a prison term of not
more than a year, or both. 441 (a).
A. General Principles
Unlike the overall limitations on contributions and expenditures, the

disclosure requirements impose no ceiling on campaign-related activities.
But we have repeatedly found that compelled disclosure, in itself, can
seriously infringe on privacy of association and belief guaranteed by the
First Amendment. E. g., Gibson v. Florida Legislative Comm., 372 U.S.
539 (1963); NAACP v. Button, 371 U.S. 415 (1963); Shelton v.
Tucker, 364 U.S. 479 (1960); Bates v. Little Rock, 361 U.S. 516
(1960); NAACP v. Alabama, 357 U.S. 449 (1958).
We long have recognized that significant encroachments on First

Amendment rights of the sort that compelled disclosure imposes cannot
be justified by a mere showing of some legitimate governmental interest.
Since NAACP v. Alabama we have required that the subordinating
interests of the State must survive exacting scrutiny.[73] We also have
insisted that there be a "relevant correlation"[74] or "substantial
relation"[75] between the governmental interest and the information
required to be disclosed. See Pollard v. Roberts, 283 F. Supp. 248,
257 (ED Ark.) (three-judge court), aff'd, 393 U.S. 14 (1968) [424 U.S. 1,

65] (per curiam). This type of scrutiny is necessary even if any deterrent
effect on the exercise of First Amendment rights arises, not through
direct government action, but indirectly as an unintended but inevitable
result of the government's conduct in requiring disclosure. NAACP v.
Alabama, supra, at 461. Cf. Kusper v. Pontikes, 414 U.S., at 57-58.
Appellees argue that the disclosure requirements of the Act differ

significantly from those at issue in NAACP v. Alabama and its progeny
because the Act only requires disclosure of the names of contributors
and does not compel political organizations to submit the names of their
members. [76]
As we have seen, group association is protected because it enhances

"[e]ffective advocacy." NAACP v. Alabama, supra, at 460. The right to
join together "for the advancement of beliefs and ideas," ibid., is diluted if
it does not include the right to pool money through contributions, for
funds are often essential if "advocacy" is [424 U.S. 1, 66] to be truly or
optimally "effective." Moreover, the invasion of privacy of belief may be
as great when the information sought concerns the giving and spending of
money as when it concerns the joining of organizations, for "[f]inancial
transactions can reveal much about a person's activities, associations,
and beliefs." California Bankers Assn. v. Shultz, 416 U.S. 21, 78-79
(1974) (POWELL, J., concurring). Our past decisions have not drawn
fine lines between contributors and members but have treated them
interchangeably. In Bates, for example, we applied the principles of
NAACP v. Alabama and reversed convictions for failure to comply with
a city ordinance that required the disclosure of "dues, assessments, and
contributions paid, by whom and when paid." 361 U.S., at 518 . See
also United States v. Rumely, 345 U.S. 41 (1953) (setting aside a
contempt conviction of an organization official who refused to disclose
names of those who made bulk purchases of books sold by the
organization).
The strict test established by NAACP v. Alabama is necessary because

compelled disclosure has the potential for substantially infringing the
exercise of First Amendment rights. But we have acknowledged that
there are governmental interests sufficiently important to outweigh the
possibility of infringement, particularly when the "free functioning of our
national institutions" is involved. Communist Party v. Subversive
Activities Control Bd., 367 U.S. 1, 97 (1961).
The governmental interests sought to be vindicated by the disclosure

requirements are of this magnitude. They fall into three categories. First,
disclosure provides the electorate with information "as to where political
campaign money comes from and how it is spent by the candidate" [77]
in order to aid the voters in evaluating those [424 U.S. 1, 67] who seek
federal office. It allows voters to place each candidate in the political
spectrum more precisely than is often possible solely on the basis of
party labels and campaign speeches. The sources of a candidate's
financial support also alert the voter to the interests to which a candidate
is most likely to be responsive and thus facilitate predictions of future
performance in office.
Second, disclosure requirements deter actual corruption and avoid the

appearance of corruption by exposing large contributions and
expenditures to the light of publicity.[78] This exposure may discourage
those who would use money for improper purposes either before or
after the election. A public armed with information about a candidate's
most generous supporters is better able to detect any post-election
special favors that may be given in return.[79] And, as we recognized in
Burroughs v. United States, 290 U.S., at 548, Congress could

reasonably conclude that full disclosure during an election campaign

tends "to prevent the corrupt use of money to affect elections." In
enacting these requirements it may have been mindful of Mr. Justice
Brandeis' advice:
"Publicity is justly commended as a remedy for social and

industrial diseases. Sunlight is said to be the best of
disinfectants; electric light the most efficient policeman."[80]
Third, and not least significant, recordkeeping, reporting, [424 U.S. 1, 68]
and disclosure requirements are an essential means of gathering the data
necessary to detect violations of the contribution limitations described
above.
The disclosure requirements, as a general matter, directly serve

substantial governmental interests. In determining whether these interests
are sufficient to justify the requirements we must look to the extent of the
burden that they place on individual rights.
It is undoubtedly true that public disclosure of contributions to

candidates and political parties will deter some individuals who
otherwise might contribute. In some instances, disclosure may even
expose contributors to harassment or retaliation. These are not
insignificant burdens on individual rights, and they must be weighed
carefully against the interests which Congress has sought to promote by
this legislation. In this process, we note and agree with appellants'
concession[81] that disclosure requirements -- certainly in most
applications -- appear to be the least restrictive means of curbing the
evils of campaign ignorance and corruption that Congress found to
exist.[82] Appellants argue, however, that the balance tips against
disclosure when it is required of contributors to certain parties and
candidates. We turn now to this contention.
B. Application to Minor Parties and Independents
Appellants contend that the Act's requirements are overbroad insofar as

they apply to contributions to minor [424 U.S. 1, 69] parties and
independent candidates because the governmental interest in this
information is minimal and the danger of significant infringement on First
Amendment rights is greatly increased.
1. Requisite Factual Showing
In NAACP v. Alabama the organization had "made an uncontroverted

showing that on past occasions revelation of the identity of its
rank-and-file members [had] exposed these members to economic
reprisal, loss of employment, threat of physical coercion, and other
manifestations of public hostility," 357 U.S., at 462 , and the State was
unable to show that the disclosure it sought had a "substantial bearing"
on the issues it sought to clarify, id., at 464. Under those circumstances,
the Court held that "whatever interest the State may have in [disclosure]
has not been shown to be sufficient to overcome petitioner's
constitutional objections." Id., at 465.
The Court of Appeals rejected appellants' suggestion that this case fits
into the NAACP v. Alabama mold. It concluded that substantial
governmental interests in "informing the electorate and preventing the
corruption of the political process" were furthered by requiring
disclosure of minor parties and independent candidates, 171 U.S. App.
D.C., at 218, 519 F.2d, at 867, and therefore found no "tenable
rationale for assuming that the public interest in minority party disclosure

of contributions above a reasonable cutoff point is uniformly outweighed

by potential contributors' associational rights," id., at 219, 519 F.2d, at
868. The court left open the question of the application of the disclosure
requirements to candidates (and parties) who could demonstrate injury
of the sort at stake in NAACP v. Alabama. No record of harassment on
a similar scale was found in this case. [83] We agree with [424 U.S. 1, 70]
the Court of Appeals' conclusion that NAACP v. Alabama is inapposite
where, as here, any serious infringement on First Amendment rights
brought about by the compelled disclosure of contributors is highly
speculative.
It is true that the governmental interest in disclosure is diminished when

the contribution in question is made to a minor party with little chance of
winning an election. As minor parties usually represent definite and
publicized viewpoints, there may be less need to inform the voters of the
interests that specific candidates represent. Major parties encompass
candidates of greater diversity. In many situations the label "Republican"
or "Democrat" tells a voter little. The candidate who bears it may be
supported by funds from the far right, the far left, or any place in
between on the political spectrum. It is less likely that a candidate of,
say, the Socialist Labor Party will represent interests that cannot be
discerned from the party's ideological position.
The Government's interest in deterring the "buying" of elections and the

undue influence of large contributors on officeholders also may be
reduced where contributions to a minor party or an independent
candidate are concerned, for it is less likely that the candidate will be
victorious. But a minor party sometimes can play a significant role in an
election. Even when a minor-party candidate has little or no chance of
winning, he may be encouraged by major-party interests in order to
divert votes from other major-party contenders.[84] [424 U.S. 1, 71]
We are not unmindful that the damage done by disclosure to the

associational interests of the minor parties and their members and to
supporters of independents could be significant. These movements are
less likely to have a sound financial base and thus are more vulnerable to
falloffs in contributions. In some instances fears of reprisal may deter
contributions to the point where the movement cannot survive. The
public interest also suffers if that result comes to pass, for there is a
consequent reduction in the free circulation of ideas both within[85] and
without [86] the political arena.
There could well be a case, similar to those before the Court in NAACP
v. Alabama and Bates, where the threat to the exercise of First
Amendment rights is so serious and the state interest furthered by
disclosure so insubstantial that the Act's requirements cannot be
constitutionally applied. [87] But no appellant in this case has tendered
record evidence of the sort proffered in NAACP v. Alabama. Instead,
appellants primarily rely on "the clearly articulated fears of individuals,
well experienced in the political process." Brief for Appellants 173. At
[424 U.S. 1, 72] best they offer the testimony of several minor-party
officials that one or two persons refused to make contributions because
of the possibility of disclosure. [88] On this record, the substantial public
interest in disclosure identified by the legislative history of this Act
outweighs the harm generally alleged.
2. Blanket Exemption
Appellants agree that "the record here does not reflect the kind of
focused and insistent harassment of contributors and members that
existed in the NAACP cases." Ibid. They argue, however, that a blanket

exemption for minor parties is necessary lest irreparable injury be done

before the required evidence can be gathered.
Those parties that would be sufficiently "minor" to be exempted from the

requirements of 434 could be defined, appellants suggest, along the lines
used for public-financing purposes, see Part III-A, infra, as those who
received less than 25% of the vote in past elections. Appellants do not
argue that this line is constitutionally required. They suggest as an
alternative defining "minor parties" as those that do not qualify for
automatic ballot access under state law. Presumably, other criteria, such
as current political strength (measured by polls or petition), age, or
degree of organization, could also be used.[89]
The difficulty with these suggestions is that they reflect only a party's past
or present political strength and [424 U.S. 1, 73] that is only one of the
factors that must be considered. Some of the criteria are not precisely
indicative of even that factor. Age,[90] or past political success, for
instance, may typically be associated with parties that have a high
probability of success. But not all long-established parties are winners --
some are consistent losers -- and a new party may garner a great deal of
support if it can associate itself with an issue that has captured the
public's imagination. None of the criteria suggested is precisely related to
the other critical factor that must be considered, the possibility that
disclosure will impinge upon protected associational activity.
An opinion dissenting in part from the Court of Appeals' decision

concedes that no one line is "constitutionally required." [91] It argues,
however, that a flat exemption for minor parties must be carved out,
even along arbitrary lines, if groups that would suffer impermissibly from
disclosure are to be given any real protection. An approach that requires
minor parties to submit evidence that the disclosure requirements cannot
constitutionally be applied to them offers only an illusory safeguard, the
argument goes, because the "evils" of "chill and harassment ... are largely
incapable of formal proof." [92] This dissent expressed its concern that a
minor party, particularly a [424 U.S. 1, 74] new party, may never be able
to prove a substantial threat of harassment, however real that threat may
be, because it would be required to come forward with witnesses who
are too fearful to contribute but not too fearful to testify about their fear.
A strict requirement that chill and harassment be directly attributable to
the specific disclosure from which the exemption is sought would make
the task even more difficult.
We recognize that unduly strict requirements of proof could impose a

heavy burden, but it does not follow that a blanket exemption for minor
parties is necessary. Minor parties must be allowed sufficient flexibility in
the proof of injury to assure a fair consideration of their claim. The
evidence offered need show only a reasonable probability that the
compelled disclosure of a party's contributors' names will subject them
to threats, harassment, or reprisals from either Government officials or
private parties. The proof may include, for example, specific evidence of
past or present harassment of members due to their associational ties, or
of harassment directed against the organization itself. A pattern of threats
or specific manifestations of public hostility may be sufficient. New
parties that have no history upon which to draw may be able to offer
evidence of reprisals and threats directed against individuals or
organizations holding similar views.
Where it exists the type of chill and harassment identified in NAACP v.

Alabama can be shown. We cannot assume that courts will be
insensitive to similar showings when made in future cases. We therefore
conclude that a blanket exemption is not required.

C. Section 434 (e)
Section 434 (e) requires "[e]very person (other than a political

committee or candidate) who makes contributions [424 U.S. 1, 75] or
expenditures" aggregating over $100 in a calendar year "other than by
contribution to a political committee or candidate" to file a statement with
the Commission.[93] Unlike the other disclosure provisions, this section
does not seek the contribution list of any association. Instead, it requires
direct disclosure of what an individual or group contributes or spends.
In considering this provision we must apply the same strict standard of

scrutiny, for the right of associational privacy developed in NAACP v.
Alabama derives from the rights of the organization's members to
advocate their personal points of view in the most effective way. 357
U.S., at 458, 460. See also NAACP v. Button, 371 U.S., at 429-431;
Sweezy v. New Hampshire, 354 U.S., at 250.
Appellants attack 434 (e) as a direct intrusion on privacy of belief, in

violation of Talley v. California, 362 U.S. 60 (1960), and as imposing
"very real, practical burdens ... certain to deter individuals from making
expenditures for their independent political speech" analogous to those
held to be impermissible in Thomas v. Collins, 323 U.S. 516 (1945).
1. The Role of 434 (e)
The Court of Appeals upheld 434 (e) as necessary to enforce the

independent-expenditure ceiling imposed by 18 U.S.C. 608 (e) (1)
(1970 ed., Supp. IV). It said:
"If ... Congress has both the authority and a compelling interest to
regulate independent expenditures under section 608 (e), surely it
can require that there be disclosure to prevent misuse of the
spending channel." 171 U.S. App. D.C., at 220 519 F.2d, at
869.
We have found that 608 (e) (1) unconstitutionally infringes [424 U.S. 1, 76]
upon First Amendment rights. [94] If the sole function of 434 (e) were to
aid in the enforcement of that provision, it would no longer serve any
governmental purpose.
But the two provisions are not so intimately tied. The legislative history
on the function of 434 (e) is bare, but it was clearly intended to stand
independently of 608 (e) (1). It was enacted with the general disclosure
provisions in 1971 as part of the original Act,[95 ] while 608 (e) (1) was
part of the 1974 amendments. [96] Like the other disclosure provisions,
434 (e) could play a role in the enforcement of the expanded
contribution and expenditure limitations included in the 1974
amendments, but it also has independent functions. Section 434 (e) is
part of Congress' effort to achieve "total disclosure" by reaching "every
kind of political activity"[97] in order to insure that the voters are fully
informed and to achieve through publicity the maximum deterrence to
corruption and undue influence possible. The provision is responsive to
the legitimate fear that efforts would be made, as they had been in the
past,[98] to avoid the disclosure requirements by routing financial
support of candidates through avenues not explicitly covered by the
general provisions of the Act.
2. Vagueness Problems
In its effort to be all-inclusive, however, the provision raises serious

problems of vagueness, particularly treacherous where, as here, the

violation of its terms carries criminal penalties[99] and fear of incurring
these sanctions [424 U.S. 1, 77] may deter those who seek to exercise
protected First Amendment rights.
Section 434 (e) applies to "[e]very person ... who makes contributions
or expenditures." "Contributions" and "expenditures" are defined in
parallel provisions in terms of the use of money or other valuable assets
"for the purpose of ... influencing" the nomination or election of
candidates for federal office.[100] It is the ambiguity of this phrase that
poses constitutional problems.
Due process requires that a criminal statute provide adequate notice to a

person of ordinary intelligence that his contemplated conduct is illegal,
for "no man shall be held criminally responsible for conduct which he
could not reasonably understand to be proscribed." United States v.
Harriss, 347 U.S. 612, 617 (1954). See also Papachristou v. City of
Jacksonville, 405 U.S. 156 (1972). Where First Amendment rights are
involved, an even "greater degree of specificity" is required. Smith v.
Goguen, 415 U.S., at 573. See Grayned v. City of Rockford, 408 U.S.
104, 109 (1972); Kunz v. New York, 340 U.S. 290 (1951).
There is no legislative history to guide us in determining the scope of the

critical phrase "for the purpose of ... influencing." It appears to have
been adopted without comment from earlier disclosure Acts. [101]
Congress "has voiced its wishes in [most] muted strains," leaving us to
draw upon "those common-sense assumptions that must be made in
determining direction without a compass." Rosado v. Wyman, 397 U.S.
397, 412 (1970). Where the constitutional requirement of definiteness is
at stake, we have the further obligation to construe the statute, [424 U.S. 1,
78] if that can be done consistent with the legislature's purpose, to avoid
the shoals of vagueness. United States v. Harriss, supra, at 618; United
States v. Rumely, 345 U.S., at 45.
In enacting the legislation under review Congress addressed broadly the

problem of political campaign financing. It wished to promote full
disclosure of campaign-oriented spending to insure both the reality and
the appearance of the purity and openness of the federal election
process. [102] Our task is to construe "for the purpose of ... influencing,"
incorporated in 434 (e) through the definitions of "contributions" and
"expenditures," in a manner that precisely furthers this goal.
In Part I we discussed what constituted a "contribution" for purposes of

the contribution limitations set forth in 18 U.S.C. 608 (b) (1970 ed.,
Supp. IV).[103] We construed that term to include not only contributions
made directly or indirectly to a candidate, political party, or campaign
committee, and contributions made to other organizations or individuals
but earmarked for political purposes, but also all expenditures placed in
cooperation with or with the consent of a candidate, his agents, or an
authorized committee of the candidate. The definition of "contribution" in
431 (e) for disclosure purposes parallels the definition in Title 18 almost
word for word, and we construe the former provision as we have the
latter. So defined, "contributions" have a sufficiently close relationship to
the goals of the Act, for they are connected with a candidate or his
campaign.
When we attempt to define "expenditure" in a similarly narrow way we

encounter line-drawing problems [424 U.S. 1, 79] of the sort we faced in
18 U.S.C. 608 (e) (1) (1970 ed., Supp. IV). Although the phrase, "for
the purpose of ... influencing" an election or nomination, differs from the
language used in 608 (e) (1), it shares the same potential for

encompassing both issue discussion and advocacy of a political

result.[104] The general requirement that "political committees" and
candidates disclose their expenditures could raise similar vagueness
problems, for "political committee" is defined only in terms of amount of
annual "contributions" and "expenditures," [105] and could be interpreted
to reach groups engaged purely in issue discussion. The lower courts
have construed the words "political committee" more narrowly.[106 ] To
fulfill the purposes of the Act they need only encompass organizations
that are under the control of a candidate or the major purpose of which
is the nomination or election of a candidate. Expenditures of candidates
and of "political committees" so construed can be assumed to fall within
the core area sought to be addressed by Congress. They are, by
definition, campaign related.
But when the maker of the expenditure is not within these categories --
when it is an individual other than a candidate or a group other than a
"political committee"[107] [424 U.S. 1, 80] -- the relation of the information
sought to the purposes of the Act may be too remote. To insure that the
reach of 434 (e) is not impermissibly broad, we construe "expenditure"
for purposes of that section in the same way we construed the terms of
608 (e) -- to reach only funds used for communications that expressly
advocate[108] the election or defeat of a clearly identified candidate.
This reading is directed precisely to that spending that is unambiguously
related to the campaign of a particular federal candidate.
In summary, 434 (e), as construed, imposes independent reporting

requirements on individuals and groups that are not candidates or
political committees only in the following circumstances: (1) when they
make contributions earmarked for political purposes or authorized or
requested by a candidate or his agent, to some person other than a
candidate or political committee, and (2) when they make expenditures
for communications that expressly advocate the election or defeat of a
clearly identified candidate.
Unlike 18 U.S.C. 608 (e) (1) (1970 ed., Supp. IV), 434 (e), as
construed, bears a sufficient relationship to a substantial governmental
interest. As narrowed, 434 (e), like 608 (e) (1), does not reach all
partisan discussion for it only requires disclosure of those expenditures
that expressly advocate a particular election result. This might have been
fatal if the only purpose of 434 (e) [424 U.S. 1, 81] were to stem
corruption or its appearance by closing a loophole in the general
disclosure requirements. But the disclosure provisions, including 434 (e),
serve another, informational interest, and even as construed 434 (e)
increases the fund of information concerning those who support the
candidates. It goes beyond the general disclosure requirements to shed
the light of publicity on spending that is unambiguously campaign related
but would not otherwise be reported because it takes the form of
independent expenditures or of contributions to an individual or group
not itself required to report the names of its contributors. By the same
token, it is not fatal that 434 (e) encompasses purely independent
expenditures uncoordinated with a particular candidate or his agent. The
corruption potential of these expenditures may be significantly different,
but the informational interest can be as strong as it is in coordinated
spending, for disclosure helps voters to define more of the candidates'
constituencies.
Section 434 (e), as we have construed it, does not contain the infirmities
of the provisions before the Court in Talley v. California, 362 U.S. 60
(1960), and Thomas v. Collins, 323 U.S. 516 (1945). The ordinance
found wanting in Talley forbade all distribution of handbills that did not
contain the name of the printer, author, or manufacturer, and the name of

the distributor. The city urged that the ordinance was aimed at identifying
those responsible for fraud, false advertising, and libel, but the Court
found that it was "in no manner so limited." 362 U.S., at 64 . Here, as
we have seen, the disclosure requirement is narrowly limited to those
situations where the information sought has a substantial connection with
the governmental interests sought to be advanced. Thomas held
unconstitutional a prior restraint in the form of a registration requirement
for labor organizers. [424 U.S. 1, 82] The Court found the State's interest
insufficient to justify the restrictive effect of the statute. The burden
imposed by 434 (e) is no prior restraint, but a reasonable and minimally
restrictive method of furthering First Amendment values by opening the
basic processes of our federal election system to public view.[109]
D. Thresholds
Appellants' third contention, based on alleged overbreadth, is that the

monetary thresholds in the recordkeeping and reporting provisions lack
a substantial nexus with the claimed governmental interests, for the
amounts involved are too low even to attract the attention of the
candidate, much less have a corrupting influence.
The provisions contain two thresholds. Records are to be kept by

political committees of the names and addresses of those who make
contributions in excess of $10, 432 (c) (2), and these records are
subject to Commission audit, 438 (a) (8). If a person's contributions to a
committee or candidate aggregate more than $100, his name and
address, as well as his occupation and principal place of business, are to
be included in reports filed by committees and candidates with the
Commission, 434 (b) (2), and made available for public inspection, 438
(a) (4).
The Court of Appeals rejected appellants' contention that these

thresholds are unconstitutional. It found the challenge on First
Amendment grounds to the $10 threshold to be premature, for it could
"discern no basis in the statute for authorizing disclosure outside the
Commission [424 U.S. 1, 83] ..., and hence no substantial ìnhibitory effect'
operating upon" appellants. 171 U.S. App. D.C., at 216, 519 F.2d, at
865. The $100 threshold was found to be within the "reasonable
latitude" given the legislature "as to where to draw the line." Ibid. We
agree.
The $10 and $100 thresholds are indeed low. Contributors of relatively
small amounts are likely to be especially sensitive to recording or
disclosure of their political preferences. These strict requirements may
well discourage participation by some citizens in the political process, a
result that Congress hardly could have intended. Indeed, there is little in
the legislative history to indicate that Congress focused carefully on the
appropriate level at which to require recording and disclosure. Rather, it
seems merely to have adopted the thresholds existing in similar
disclosure laws since 1910. [110] But we cannot require Congress to
establish that it has chosen the highest reasonable threshold. The line is
necessarily a judgmental decision, best left in the context of this complex
legislation to congressional discretion. We cannot say, on this bare
record, that the limits designated are wholly without rationality.[111]
We are mindful that disclosure serves informational functions, as well as

the prevention of corruption and the enforcement of the contribution
limitations. Congress is not required to set a threshold that is tailored
only to the latter goals. In addition, the enforcement [424 U.S. 1, 84] goal
can never be well served if the threshold is so high that disclosure
becomes equivalent to admitting violation of the contribution limitations.

The $10 recordkeeping threshold, in a somewhat similar fashion,

facilitates the enforcement of the disclosure provisions by making it
relatively difficult to aggregate secret contributions in amounts that
surpass the $100 limit. We agree with the Court of Appeals that there is
no warrant for assuming that public disclosure of contributions between
$10 and $100 is authorized by the Act. Accordingly, we do not reach
the question whether information concerning gifts of this size can be
made available to the public without trespassing impermissibly on First
Amendment rights. Cf. California Bankers Assn. v. Shultz, 416 U.S., at
56-57.[112]
In summary, we find no constitutional infirmities in the recordkeeping,

reporting, and disclosure provisions of the Act.[113] [424 U.S. 1, 85]
III. PUBLIC FINANCING OF PRESIDENTIAL ELECTION

CAMPAIGNS
A series of statutes[114] for the public financing of Presidential election

campaigns produced the scheme now found in 6096 and Subtitle H of
the Internal Revenue [424 U.S. 1, 86] Code of 1954, 26 U.S.C. 6096,
9001-9012, 9031-9042 (1970 ed., Supp. IV).[115] Both the District
Court, 401 F. Supp. 1235, and the Court of Appeals, 171 U.S. App.
D.C., at 229-238, 519 F.2d, at 878-887, sustained Subtitle H against a
constitutional attack.[116] Appellants renew their challenge here,
contending that the legislation violates the First and Fifth Amendments.
We find no merit in their claims and affirm.
A. Summary of Subtitle H
Section 9006 establishes a Presidential Election Campaign Fund (Fund),

financed from general revenues in the aggregate amount designated by
individual taxpayers, under 6096, who on their income tax returns may
authorize payment to the Fund of one dollar of their tax liability in the
case of an individual return or two dollars in the case of a joint return.
The Fund consists of three separate accounts to finance (1) party
nominating conventions, 9008 (a), (2) general election campaigns, 9006
(a), and (3) primary campaigns, 9037 (a). [117] [424 U.S. 1, 87]
Chapter 95 of Title 26, which concerns financing of party nominating

conventions and general election campaigns, distinguishes among
"major," "minor," and "new" parties. A major party is defined as a party
whose candidate for President in the most recent election received 25%
or more of the popular vote. 9002 (6). A minor party is defined as a
party whose candidate received at least 5% but less than 25% of the
vote at the most recent election. 9002 (7). All other parties are new
parties, 9002 (8), including both newly created parties and those
receiving less than 5% of the vote in the last election.[118 ]
Major parties are entitled to $2,000,000 to defray their national

committee Presidential nominating convention expenses, must limit total
expenditures to that amount, 9008 (d),[119] and may not use any of this
money to benefit a particular candidate or delegate, 9008 (c). [424 U.S. 1,
88] A minor party receives a portion of the major-party entitlement
determined by the ratio of the votes received by the party's candidate in
the last election to the average of the votes received by the major
parties' candidates. 9008 (b) (2). The amounts given to the parties and
the expenditure limit are adjusted for inflation, using 1974 as the base
year. 9008 (b) (5). No financing is provided for new parties, nor is there
any express provision for financing independent candidates or parties not
holding a convention.

For expenses in the general election campaign, 9004 (a) (1) entitles each
major-party candidate to $20,000,000.[120] This amount is also
adjusted for inflation. See 9004 (a) (1). To be eligible for funds the
candidate[121] must pledge not to incur expenses in excess of the
entitlement under 9004 (a) (1) and not to accept private contributions
except to the extent that the fund is insufficient to provide the full
entitlement. 9003 (b) Minor-party candidates are also entitled to
funding, again based on the ratio of the vote received by the party's
candidate in the preceding election to the average of the major-party
candidates. 9004 (a) (2) (A). Minor-party candidates must certify that
they will not incur campaign expenses in excess of the major-party
entitlement and [424 U.S. 1, 89] that they will accept private contributions
only to the extent needed to make up the difference between that
amount and the public funding grant. 9003 (c). New-party candidates
receive no money prior to the general election, but any candidate
receiving 5% or more of the popular vote in the election is entitled to
post-election payments according to the formula applicable to
minor-party candidates. 9004 (a) (3). Similarly, minor-party candidates
are entitled to post-election funds if they receive a greater percentage of
the average major-party vote than their party's candidate did in the
preceding election; the amount of such payments is the difference
between the entitlement based on the preceding election and that based
on the actual vote in the current election. 9004 (a) (3). A further
eligibility requirement for minor- and new-party candidates is that the
candidate's name must appear on the ballot, or electors pledged to the
candidate must be on the ballot, in at least 10 States. 9002 (2) (B).
Chapter 96 establishes a third account in the Fund, the Presidential

Primary Matching Payment Account. 9037 (a). This funding is intended
to aid campaigns by candidates seeking Presidential nomination "by a
political party," 9033 (b) (2), in "primary elections," 9032 (7). [122] The
threshold eligibility requirement is that the candidate raise at least $5,000
in each of 20 States, counting only the first $250 from each person
contributing to the candidate. 9033 (b) (3), (4). In addition, the
candidate must agree to abide by the spending limits in 9035. See 9033
(b) (1).[123] Funding is [424 U.S. 1, 90] provided according to a matching
formula: each qualified candidate is entitled to a sum equal to the total
private contributions received, disregarding contributions from any
person to the extent that total contributions to the candidate by that
person exceed $250. 9034 (a). Payments to any candidate under
Chapter 96 may not exceed 50% of the overall expenditure ceiling
accepted by the candidate. 9034 (b).
B. Constitutionality of Subtitle H
Appellants argue that Subtitle H is invalid (1) as "contrary to the `general

welfare,'" Art. I, 8, (2) because any scheme of public financing of
election campaigns is inconsistent with the First Amendment, and (3)
because Subtitle H invidiously discriminates against certain interests in
violation of the Due Process Clause of the Fifth Amendment. We find no
merit in these contentions.
Appellants'"general welfare" contention erroneously treats the General

Welfare Clause as a limitation upon congressional power. It is rather a
grant of power, the scope of which is quite expansive, particularly in
view of the enlargement of power by the Necessary and Proper Clause.
M`Culloch v. Maryland, 4 Wheat. 316, 420 (1819). Congress has
power to regulate Presidential elections and primaries, United States v.
Classic, 313 U.S. 299 (1941); Burroughs v. United States, 290 U.S.
534 (1934); and public financing of Presidential elections as a means to

reform the electoral process was clearly a choice within the granted
power. It is for Congress to decide which expenditures will promote the
general welfare: "[T]he power of Congress to authorize expenditure of
public moneys for public purposes is not [424 U.S. 1, 91] limited by the
direct grants of legislative power found in the Constitution." United
States v. Butler, 297 U.S. 1, 66 (1936). See Helvering v. Davis, 301
U.S. 619, 640-641 (1937). Any limitations upon the exercise of that
granted power must be found elsewhere in the Constitution. In this case,
Congress was legislating for the "general welfare" -- to reduce the
deleterious influence of large contributions on our political process, to
facilitate communication by candidates with the electorate, and to free
candidates from the rigors of fundraising. See S. Rep. No. 93-689, Pp.
1-10 (1974). Whether the chosen means appear "bad," "unwise," or
"unworkable" to us is irrelevant; Congress has concluded that the means
are "necessary and proper" to promote the general welfare, and we thus
decline to find this legislation without the grant of power in Art. I, 8.
Appellants' challenge to the dollar check-off provision ( 6096) fails for

the same reason. They maintain that Congress is required to permit
taxpayers to designate particular candidates or parties as recipients of
their money. But the appropriation to the Fund in 9006 is like any other
appropriation from the general revenue except that its amount is
determined by reference to the aggregate of the one-and two-dollar
authorization on taxpayers' income tax returns. This detail does not
constitute the appropriation any less an appropriation by Congress.[124]
The fallacy of appellants' argument is therefore apparent; [424 U.S. 1, 92]
every appropriation made by Congress uses public money in a manner
to which some taxpayers object.[125]
Appellants next argue that "by analogy" to the Religion Clauses of the
First Amendment public financing of election campaigns, however
meritorious, violates the First Amendment. We have, of course, held that
the Religion Clauses -- "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof" --
require Congress, and the States through the Fourteenth Amendment, to
remain neutral in matters of religion. E. g., Abington School Dist. v.
Schempp, 374 U.S. 203, 222-226 (1963). The government may not aid
one religion to the detriment of others or impose a burden on one
religion that is not imposed on others, and may not even aid all religions.
E. g., Everson v. Board of Education, 330 U.S. 1, 15-16 (1947). See
Kurland, Of Church and State and the Supreme Court, 29 U. Chi. L.
Rev. 1, 96 (1961). But the analogy is patently inapplicable to our issue
here. Although "Congress shall make no law ... abridging the freedom of
speech, or the press," Subtitle H is a congressional effort, not to abridge,
restrict, or censor speech, but rather to use public money to facilitate
and enlarge public [424 U.S. 1, 93] discussion and participation in the
electoral process, goals vital to a self-governing people. [126] Thus,
Subtitle H furthers, not abridges, pertinent First Amendment values.[127]
Appellants argue, however, that as constructed public financing
invidiously discriminates in violation of the Fifth Amendment. We turn
therefore to that argument.
Equal protection analysis in the Fifth Amendment area is the same as that
under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U.S.
636, 638 n. 2 (1975), and cases cited. In several situations concerning
the electoral process, the principle has been [424 U.S. 1, 94] developed
that restrictions on access to the electoral process must survive exacting
scrutiny. The restriction can be sustained only if it furthers a "vital"
governmental interest, American Party of Texas v. White, 415 U.S. 767,
780-781 (1974), that is "achieved by a means that does not unfairly or
unnecessarily burden either a minority party's or an individual candidate's

equally important interest in the continued availability of political

opportunity." Lubin v. Panish, 415 U.S. 709, 716 (1974). See
American Party of Texas v. White, supra, at 780; Storer v. Brown, 415
U.S. 724, 729-730 (1974). These cases, however, dealt primarily with
state laws requiring a candidate to satisfy certain requirements in order
to have his name appear on the ballot. These were, of course, direct
burdens not only on the candidate's ability to run for office but also on
the voter's ability to voice preferences regarding representative
government and contemporary issues. In contrast, the denial of public
financing to some Presidential candidates is not restrictive of voters'
rights and less restrictive of candidates'. [128] Subtitle H does not
prevent any candidate from getting on the ballot or any voter from
casting a vote for the candidate of his choice; the inability, if any, of
minor-party candidates to wage effective campaigns will derive not from
lack of public funding but from their inability to [424 U.S. 1, 95] raise
private contributions. Any disadvantage suffered by operation of the
eligibility formulae under Subtitle H is thus limited to the claimed denial of
the enhancement of opportunity to communicate with the electorate that
the formulae afford eligible candidates. But eligible candidates suffer a
countervailing denial. As we more fully develop later, acceptance of
public financing entails voluntary acceptance of an expenditure ceiling.
Non-eligible candidates are not subject to that limitation.[129]
Accordingly, we conclude that public financing is generally less
restrictive of access to the electoral process than the ballot-access
regulations dealt with in prior cases.[130] In any event, Congress enacted
Subtitle H in furtherance of sufficiently important governmental interests
and has [424 U.S. 1, 96] not unfairly or unnecessarily burdened the political
opportunity of any party or candidate.
It cannot be gainsaid that public financing as a means of eliminating the

improper influence of large private contributions furthers a significant
governmental interest. S. Rep. No. 93-689, pp. 4-5 (1974). In addition,
the limits on contributions necessarily increase the burden of fundraising,
and Congress properly regarded public financing as an appropriate
means of relieving major-party Presidential candidates from the rigors of
soliciting private contributions. See id., at 5. The States have also been
held to have important interests in limiting places on the ballot to those
candidates who demonstrate substantial popular support. E. g., Storer v.
Brown, supra, at 736; Lubin v. Panish, supra, at 718-719; Jenness v.
Fortson, 403 U.S. 431, 442 (1971); Williams v. Rhodes, 393 U.S., at
31-33. Congress' interest in not funding hopeless candidacies with large
sums of public money, S. Rep. No. 93-689, supra, at 7, necessarily
justifies the withholding of public assistance from candidates without
significant public support. Thus, Congress may legitimately require "some
preliminary showing of a significant modicum of support," Jenness v.
Fortson, supra, at 442, as an eligibility requirement for public funds. This
requirement also serves the important public interest against providing
artificial incentives to "splintered parties and unrestrained factionalism."
Storer v. Brown, supra, at 736; S. Rep. No. 93-689, supra, at 8; H. R.
Rep. No. 93-1239, p. 13 (1974). Cf. Bullock v. Carter, 405 U.S. 134,
145 (1972).
At the same time Congress recognized the constitutional restraints

against inhibition of the present opportunity of minor parties to become
major political entities if they obtain widespread support. S. Rep. No.
93-689, supra, at 8-10; H. R. Rep. No. 93-1239, supra, at 13. As [424
U.S. 1, 97] the Court of Appeals said, "provisions for public funding of
Presidential campaigns ... could operate to give an unfair advantage to
established parties, thus reducing, to the nation's detriment... . the
`potential fluidity of American political life.'" 171 U.S. App. D.C., at
231, 519 F.2d, at 880, quoting from Jenness v. Fortson, supra, at 439.

1. General Election Campaign Financing
Appellants insist that Chapter 95 falls short of the constitutional

requirement in that its provisions supply larger, and equal, sums to
candidates of major parties, use prior vote levels as the sole criterion for
pre-election funding, limit new-party candidates to post-election funds,
and deny any funds to candidates of parties receiving less than 5% of the
vote. These provisions, it is argued, are fatal to the validity of the
scheme, because they work invidious discrimination against minor and
new parties in violation of the Fifth Amendment. We disagree.[131]
As conceded by appellants, the Constitution does not require Congress

to treat all declared candidates the same for public financing purposes.
As we said in Jenness v. Fortson, "there are obvious differences in kind
between the needs and potentials of a political party with historically
established broad support, on the one hand, and a new or small political
organization on the other... . Sometimes the grossest discrimination can
lie in treating [424 U.S. 1, 98] things that are different as though they were
exactly alike, a truism well illustrated in Williams v. Rhodes, supra." 403
U.S., at 441-442. Since the Presidential elections of 1856 and 1860,
when the Whigs were replaced as a major party by the Republicans, no
third party has posed a credible threat to the two major parties in
Presidential elections. [132] Third parties have been completely
incapable of matching the major parties' ability to raise money and win
elections. Congress was, of course, aware of this fact of American life,
and thus was justified in providing both major parties full funding and all
other parties only a percentage of the major-party entitlement. [133]
Identical treatment of all parties, on the other hand, "would not only
make it easy to raid the United States Treasury, it would also artificially
foster the proliferation of splinter parties." 171 U.S. App. D.C., at 231,
519 F.2d, at 881. The Constitution does not require the Government to
"finance the efforts of every nascent political group," American Party of
Texas v. White, 415 U.S., at 794, merely because Congress chose to
finance the efforts of the major parties.
Furthermore, appellants have made no showing that [424 U.S. 1, 99] the
election funding plan disadvantages nonmajor parties by operating to
reduce their strength below that attained without any public financing.
First, such parties are free to raise money from private sources,[134] and
by our holding today new parties are freed from any expenditure limits,
although admittedly those limits may be a largely academic matter to
them. But since any major-party candidate accepting public financing of
a campaign voluntarily assents to a spending ceiling, other candidates will
be able to spend more in relation to the major-party candidates. The
relative position of minor parties that do qualify to receive some public
funds because they received 5% of the vote in the previous Presidential
election is also enhanced. Public funding for candidates of major parties
is intended as a substitute for private contributions; but for minor-party
candidates[135] such assistance may be viewed as a supplement to
private contributions since these candidates may continue to solicit
private funds up to the applicable spending limit. Thus, we conclude that
the general election funding system does not work an invidious
discrimination against candidates of nonmajor parties.
Appellants challenge reliance on the vote in past elections as the basis

for determining eligibility. That challenge is foreclosed, however, by our
holding in Jenness v. Fortson, 403 U.S., at 439-440, that popular vote
totals in the last election are a proper measure of public support. [424 U.S.
1, 100] And Congress was not obliged to select instead from among
appellants' suggested alternatives. Congress could properly regard the

means chosen as preferable, since the alternative of petition drives

presents cost and administrative problems in validating signatures, and
the alternative of opinion polls might be thought inappropriate since it
would involve a Government agency in the business of certifying polls or
conducting its own investigation of support for various candidates, in
addition to serious problems with reliability.[136]
Appellants next argue, relying on the ballot-access decisions of this

Court, that the absence of any alternative means of obtaining
pre-election funding renders the scheme unjustifiably restrictive of
minority political interests. Appellants' reliance on the ballot-access
decisions is misplaced. To be sure, the regulation sustained in Jenness v.
Fortson, for example, incorporated alternative means of qualifying for
the ballot, 403 U.S., at 440 , and the lack of an alternative was a defect
in the scheme struck down in Lubin v. Panish, 415 U.S., at 718. To [424
U.S. 1, 101] suggest, however, that the constitutionality of Subtitle H
therefore hinges solely on whether some alternative is afforded
overlooks the rationale of the operative constitutional principles. Our
decisions finding a need for an alternative means turn on the nature and
extent of the burden imposed in the absence of available alternatives.
We have earlier stated our view that Chapter 95 is far less burdensome
upon and restrictive of constitutional rights than the regulations involved
in the ballot-access cases. See supra, at 94-95. Moreover, expenditure
limits for major parties and candidates may well improve the chances of
nonmajor parties and their candidates to receive funds and increase their
spending. Any risk of harm to minority interests is speculative due to our
present lack of knowledge of the practical effects of public financing and
cannot overcome the force of the governmental interests against use of
public money to foster frivolous candidacies, create a system of
splintered parties, and encourage unrestrained factionalism.
Appellants' reliance on the alternative-means analyses of the

ballot-access cases generally fails to recognize a significant distinction
from the instant case. The primary goal of all candidates is to carry on a
successful campaign by communicating to the voters persuasive reasons
for electing them. In some of the ballot-access cases the States afforded
candidates alternative means for qualifying for the ballot, a step in any
campaign that, with rare exceptions, is essential to successful effort.
Chapter 95 concededly provides only one method of obtaining
pre-election financing; such funding is, however, not as necessary as
being on the ballot. See n. 128, supra. Plainly, campaigns can be
successfully carried out by means other than public financing; they have
been up to this date, and this avenue is still open to all candidates. And,
after all, the important achievements of minority [424 U.S. 1, 102] political
groups in furthering the development of American democracy[137] were
accomplished without the help of public funds. Thus, the limited
participation or nonparticipation of nonmajor parties or candidates in
public funding does not unconstitutionally disadvantage them.
Of course, nonmajor parties and their candidates may qualify for

post-election participation in public funding and in that sense the claimed
discrimination is not total. Appellants contend, however, that the benefit
of any such participation is illusory due to 9004 (c), which bars the use
of the money for any purpose other than paying campaign expenses or
repaying loans that had been used to defray such expenses. The only
meaningful use for post-election funds is thus to repay loans; but loans,
except from national banks, are "contributions" subject to the general
limitations on contributions, 18 U.S.C. 591 (e) (1970 ed., Supp. IV).
Further, they argue, loans are not readily available to nonmajor parties
or candidates before elections to finance their campaigns. Availability of
post-election funds therefore assertedly gives them nothing. But in the

nature of things the willingness of lenders to make loans will depend

upon the pre-election probability that the candidate and his party will
attract 5% or more of the voters. When a reasonable prospect of such
support appears, the party and candidate may be an acceptable loan
risk since the prospect of post-election participation in public funding will
be good.[138] [424 U.S. 1, 103]
Finally, appellants challenge the validity of the 5% threshold requirement

for general election funding. They argue that, since most state regulations
governing ballot access have threshold requirements well below 5%, and
because in their view the 5% requirement here is actually stricter than
that upheld in Jenness v. Fortson, 403 U.S. 431 (1971),[139] the
requirement is unreasonable. We have already concluded that the
restriction under Chapter 95 is generally less burdensome than
ballot-access regulations. Supra, at 94-95. Further, the Georgia
provision sustained in Jenness required the candidate to obtain the
signatures of 5% of all eligible voters, without regard to party. To be
sure, the public funding formula does not permit anyone who voted for
another party in the last election to be part of a candidate's 5%. But
under Chapter 95 a Presidential candidate needs only 5% or more of the
actual vote, not the larger universe of eligible voters. As a result, we
cannot say that Chapter 95 is numerically more, or less, restrictive than
the regulation in Jenness. In any event, the choice of the percentage
requirement that best accommodates the competing interests involved
was for Congress to make. See Louisville Gas Co. v. Coleman, 277
U.S. 32, 41 (1928) (Holmes, J., dissenting); n. 111, supra. Without any
doubt a range of formulations would sufficiently protect the public fisc
and not foster factionalism, and would also recognize the public interest
in the fluidity of our political [424 U.S. 1, 104] affairs. We cannot say that
Congress' choice falls without the permissible range.[140]
2. Nominating Convention Financing
The foregoing analysis and reasoning sustaining general election funding

apply in large part to convention funding under Chapter 95 and suffice to
support our rejection of appellants' challenge to these provisions.
Funding of party conventions has increasingly been derived from large
private contributions, see H. R. Rep. No. 93-1239, p. 14 (1974), and
the governmental interest in eliminating this reliance is as vital as in the
case of private contributions to individual candidates. The expenditure
limitations on major parties participating in public financing enhance the
ability of nonmajor parties to increase their spending relative to the major
parties; further, in soliciting private contributions to finance conventions,
parties are not subject to the $1,000 contribution limit pertaining to
candidates. [141] We therefore conclude that appellants' constitutional
challenge to the [424 U.S. 1, 105] provisions for funding nominating
conventions must also be rejected.
3. Primary Election Campaign Financing
Appellants' final challenge is to the constitutionality of Chapter 96, which

provides funding of primary campaigns. They contend that these
provisions are constitutionally invalid (1) because they do not provide
funds for candidates not running in party primaries[142] and (2) because
the eligibility formula actually increases the influence of money on the
electoral process. In not providing assistance to candidates who do not
enter party primaries, Congress has merely chosen to limit at this time
the reach of the reforms encompassed in Chapter 96. This Congress
could do without constituting the reforms a constitutionally invidious
discrimination. The governing principle was stated in Katzenbach v.
Morgan, 384 U.S. 641, 657 (1966):

"[I]n deciding the constitutional propriety of the limitations

in such a reform measure we are guided by the familiar
principles that a `statute is not invalid under the Constitution
because it might have gone farther than it did,' Roschen v.
Ward, 279 U.S. 337, 339, that a legislature need not
`strike at all evils at the same time,' Semler v. Dental
Examiners, 294 U.S. 608, 610, and that `reform may take
one step at a time, addressing itself to the phase of the
problem which seems most acute to the legislative mind,'
Williamson v. Lee Optical Co., 348 U.S. 483, 489."[143]
[424 U.S. 1, 106]
The choice to limit matching funds to candidates running in primaries may

reflect that concern about large private contributions to candidates
centered on primary races and that there is no historical evidence of
similar abuses involving contributions to candidates who engage in
petition drives to qualify for state ballots. Moreover, assistance to
candidates and nonmajor parties forced to resort to petition drives to
gain ballot access implicates the policies against fostering frivolous
candidacies, creating a system of splintered parties, and encouraging
unrestrained factionalism.
The eligibility requirements in Chapter 96 are surely not an unreasonable

way to measure popular support for a candidate, accomplishing the
objective of limiting subsidization to those candidates with a substantial
chance of being nominated. Counting only the first $250 of each
contribution for eligibility purposes requires candidates to solicit smaller
contributions from numerous people. Requiring the money to come from
citizens of a minimum number of States eliminates candidates whose
appeal is limited geographically; a President is elected not by popular
vote, but by winning the popular vote in enough States to have a
majority in the Electoral College.[144] [424 U.S. 1, 107]
We also reject as without merit appellants' argument that the matching

formula favors wealthy voters and candidates. The thrust of the
legislation is to reduce financial barriers[145] and to enhance the
importance of smaller contributions.[146] Some candidates undoubtedly
could raise large sums of money and thus have little need for public
funds, but candidates with lesser fundraising capabilities will gain
substantial benefits from matching funds. In addition, one eligibility
requirement for [424 U.S. 1, 108] matching funds is acceptance of an
expenditure ceiling, and candidates with little fundraising ability will be
able to increase their spending relative to candidates capable of raising
large amounts in private funds.
For the reasons stated, we reject appellants' claims that Subtitle H is

facially unconstitutional.[147]
C. Severability
The only remaining issue is whether our holdings invalidating 18 U.S.C.

608 (a), (c), and (e) (1) (1970 ed., Supp. IV) require the conclusion
that Subtitle H is unconstitutional. There is, of course, a relationship
between the spending limits in 608 (c) and the public financing
provisions; the expenditure limits accepted by a candidate to be eligible
for public funding are identical to the limits in 608 (c). But we have no
difficulty in concluding that Subtitle H is severable. "Unless it is evident
that the Legislature would not have enacted those provisions which are
within its power, independently of that which is not, the invalid part may
be dropped if what is left is fully operative as a law." Champlin [424 U.S.

1, 109] Refining Co. v. Corporation Commission, 286 U.S. 210, 234

(1932). Our discussion of "what is left" leaves no doubt that the value of
public financing is not dependent on the existence of a generally
applicable expenditure limit. We therefore hold Subtitle H severable
from those portions of the legislation today held constitutionally infirm.
IV. THE FEDERAL ELECTION COMMISSION
The 1974 amendments to the Act create an eight-member Federal

Election Commission (Commission) and vest in it primary and substantial
responsibility for administering and enforcing the Act. The question that
we address in this portion of the opinion is whether, in view of the
manner in which a majority of its members are appointed, the
Commission may under the Constitution exercise the powers conferred
upon it. We find it unnecessary to parse the complex statutory provisions
in order to sketch the full sweep of the Commission's authority. It will
suffice for present purposes to describe what appear to be
representative examples of its various powers.
Chapter 14 of Title 2[148] makes the Commission the principal

repository of the numerous reports and statements which are required by
that chapter to be filed by those engaging in the regulated political
activities. Its duties under 438 (a) with respect to these reports and
statements include filing and indexing, making them available for public
inspection, preservation, and auditing and field investigations. It is
directed to "serve as a national clearinghouse for information in respect
to the administration of elections." 438 (b). [424 U.S. 1, 110]
Beyond these recordkeeping, disclosure, and investigative functions,

however, the Commission is given extensive rulemaking and adjudicative
powers. Its duty under 438 (a) (10) is "to prescribe suitable rules and
regulations to carry out the provisions of ... chapter 14.." Under 437d
(a) (8) the Commission is empowered to make such rules "as are
necessary to carry out the provisions of this Act."[149] Section 437d (a)
(9) authorizes it to "formulate general policy with respect to the
administration of this Act" and enumerated sections of Title 18's Criminal
Code,[150] as to all of which provisions the Commission "has primary
jurisdiction with respect to [their] civil enforcement." 437c (b).[151] The
Commission is authorized under 437f (a) to render advisory opinions
with respect to activities possibly violating the Act, the Title 18 sections,
or the campaign funding provisions of Title 26,[152] the effect of which is
that "[n]otwithstanding [424 U.S. 1, 111] any other provision of law, any
person with respect to whom an advisory opinion is rendered ... who
acts in good faith in accordance with the provisions and findings
[thereof] shall be presumed to be in compliance with the [statutory
provision] with respect to which such advisory opinion is rendered."
437f (b). In the course of administering the provisions for Presidential
campaign financing, the Commission may authorize convention
expenditures which exceed the statutory limits. 26 U.S.C. 9008 (d) (3)
(1970 ed., Supp. IV).
The Commission's enforcement power is both direct and wide ranging. It

may institute a civil action for (i) injunctive or other relief against "any
acts or practices which constitute or will constitute a violation of this
Act," 437g (a) (5); (ii) declaratory or injunctive relief "as may be
appropriate to implement or con[s]true any provisions" of Chapter 95 of
Title 26, governing administration of funds for Presidential election
campaigns and national party conventions, 26 U.S.C. 9011 (b) (1)
(1970 ed., Supp. IV); and (iii) "such injunctive relief as is appropriate to
implement any provision" of Chapter 96 of Title 26, governing the
payment of matching funds for Presidential primary campaigns, 26

U.S.C. 9040 (c) (1970 ed., Supp. IV). If after the Commission's
post-disbursement audit of candidates receiving payments under
Chapter 95 or 96 it finds an overpayment, it is empowered to seek
repayment of all funds due the Secretary of the Treasury. 26 U.S.C.
9010 (b), 9040 (b) (1970 ed., Supp. IV). In no respect do the
foregoing civil actions require the concurrence of or participation by the
Attorney General; conversely, the decision not to seek judicial relief in
the above respects would appear to rest solely with the
Commission.[153] With respect to the [424 U.S. 1, 112] referenced Title 18
sections, 437g (a) (7) provides that if, after notice and opportunity for a
hearing before it, the Commission finds an actual or threatened criminal
violation, the Attorney General "upon request by the Commission ... shall
institute a civil action for relief." Finally, as "[a]dditional enforcement
authority," 456 (a) authorizes the Commission, after notice and
opportunity for hearing, to make "a finding that a person ... while a
candidate for Federal office, failed to file" a required report of
contributions or expenditures. If that finding is made within the applicable
limitations period [424 U.S. 1, 113] for prosecutions, the candidate is
thereby "disqualified from becoming a candidate in any future election for
Federal office for a period of time beginning on the date of such finding
and ending one year after the expiration of the term of the Federal office
for which such person was a candidate."[154]
The body in which this authority is reposed consists of eight members.

[155] The Secretary of the Senate and the Clerk of the House of
Representatives are ex officio members of the Commission without the
right to vote. Two members are appointed by the President pro tempore
of the Senate "upon the recommendations of the majority leader of the
Senate and the minority leader of the Senate." [156] Two more are to be
appointed by the Speaker of the House of Representatives, likewise
upon the recommendations of its respective majority and minority
leaders. The remaining two members are appointed by the President.
Each of the six voting members of the Commission must be confirmed
by the majority of both Houses of Congress, and each of the three
appointing authorities is forbidden to choose both of their appointees
from the same political party.
A. Ripeness
Appellants argue that given the Commission's extensive powers the

method of choosing its members under 437c (a) (1) runs afoul of the
separation of powers embedded in the Constitution, and urge that as
presently constituted the Commission's "existence be held
unconstitutional by this Court." Before embarking on this or any [424 U.S.
1, 114] related inquiry, however, we must decide whether these issues
are properly before us. Because of the Court of Appeals' emphasis on
lack of "ripeness" of the issue relating to the method of appointment of
the members of the Commission, we find it necessary to focus
particularly on that consideration in this section of our opinion.
We have recently recognized the distinction between jurisdictional

limitations imposed by Art. III and "[p]roblems of prematurity and
abstractness" that may prevent adjudication in all but the exceptional
case. Socialist Labor Party v. Gilligan, 406 U.S. 583, 588 (1972). In
Regional Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974), we
stated that "ripeness is peculiarly a question of timing," and therefore the
passage of months between the time of the decision of the Court of
Appeals and our present ruling is of itself significant. We likewise
observed in the Reorganization Act Cases:
"Thus, occurrence of the conveyance allegedly violative of

Fifth Amendment rights is in no way hypothetical or

speculative. Where the inevitability of the operation of a
statute against certain individuals is patent, it is irrelevant to
the existence of a justiciable controversy that there will be a
time delay before the disputed provisions will come into
effect." Id., at 143.
The Court of Appeals held that of the five specific certified questions
directed at the Commission's authority, only its powers to render
advisory opinions and to authorize excessive convention expenditures
were ripe for adjudication. The court held that the remaining aspects of
the Commission's authority could not be adjudicated because "[in] its
present stance, this litigation does not present the court with the concrete
facts that are necessary [424 U.S. 1, 115] to an informed decision."[157]
171 U.S. App. D.C., at 244, 519 F.2d, at 893.
Since the entry of judgment by the Court of Appeals, [424 U.S. 1, 116] the
Commission has undertaken to issue rules and regulations under the
authority of 438 (a) (10). While many of its other functions remain as yet
unexercised, the date of their all but certain exercise is now closer [424
U.S. 1, 117] by several months than it was at the time the Court of
Appeals ruled. Congress was understandably most concerned with
obtaining a final adjudication of as many issues as possible litigated
pursuant to the provisions of 437h. Thus, in order to decide the basic
question whether the Act's provision for appointment of the members of
the Commission violates the Constitution, we believe we are warranted
in considering all of those aspects of the Commission's authority which
have been presented by the certified questions.[158]
Party litigants with sufficient concrete interests at stake may have

standing to raise constitutional questions of separation of powers with
respect to an agency designated to adjudicate their rights. Palmore v.
United States, 411 U.S. 389 (1973); Glidden Co. v. Zdanok, 370 U.S.
530 (1962); Coleman v. Miller, 307 U.S. 433 (1939). In Glidden, of
course, the challenged adjudication had already taken place, whereas in
this case appellants' claim is of impending future rulings and
determinations by the Commission. But this is a question of ripeness,
rather than lack of case or controversy under Art. III, and for the
reasons to which we have previously [424 U.S. 1, 118] adverted we hold
that appellants' claims as they bear upon the method of appointment of
the Commission's members may be presently adjudicated.
B. The Merits
Appellants urge that since Congress has given the Commission

wide-ranging rulemaking and enforcement powers with respect to the
substantive provisions of the Act, Congress is precluded under the
principle of separation of powers from vesting in itself the authority to
appoint those who will exercise such authority. Their argument is based
on the language of Art. II, 2, cl. 2, of the Constitution, which provides in
pertinent part as follows:
"[The President] shall nominate, and by and with the

Advice and Consent of the Senate, shall appoint ... all
other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the
Heads of Departments."

Appellants' argument is that this provision is the exclusive method by

which those charged with executing the laws of the United States may be
chosen. Congress, they assert, cannot have it both ways. If the
Legislature wishes the Commission to exercise all of the conferred
powers, then its members are in fact "Officers of the United States" and
must be appointed under the Appointments Clause. But if Congress
insists upon retaining the power to appoint, then the members of the
Commission may not discharge those many functions of the Commission
which can be performed only by "Officers of [424 U.S. 1, 119] the United
States," as that term must be construed within the doctrine of separation
of powers.
Appellee Commission and amici in support of the Commission urge that

the Framers of the Constitution, while mindful of the need for checks and
balances among the three branches of the National Government, had no
intention of denying to the Legislative Branch authority to appoint its own
officers. Congress, either under the Appointments Clause or under its
grants of substantive legislative authority and the Necessary and Proper
Clause in Art. I, is in their view empowered to provide for the
appointment to the Commission in the manner which it did because the
Commission is performing "appropriate legislative functions."
The majority of the Court of Appeals recognized the importance of the

doctrine of separation of powers which is at the heart of our
Constitution, and also recognized the principle enunciated in Springer v.
Philippine Islands, 277 U.S. 189 (1928), that the Legislative Branch
may not exercise executive authority by retaining the power to appoint
those who will execute its laws. But it described appellants' argument
based upon Art. II, 2, cl. 2, as "strikingly syllogistic," and concluded that
Congress had sufficient authority under the Necessary and Proper
Clause of Art. I of the Constitution not only to establish the Commission
but to appoint the Commission's members. As we have earlier noted, it
upheld the constitutional validity of congressional vesting of certain
authority in the Commission, and concluded that the question of the
constitutional validity of the vesting of its remaining functions was not yet
ripe for review. The three dissenting judges in the Court of Appeals
concluded that the method of appointment for the Commission did
violate the doctrine of separation of powers. [424 U.S. 1, 120]
1. Separation of Powers
We do not think appellants' arguments based upon Art. II, 2, cl. 2, of

the Constitution may be so easily dismissed as did the majority of the
Court of Appeals. Our inquiry of necessity touches upon the
fundamental principles of the Government established by the Framers of
the Constitution, and all litigants and all of the courts which have
addressed themselves to the matter start on common ground in the
recognition of the intent of the Framers that the powers of the three great
branches of the National Government be largely separate from one
another.
James Madison, writing in the Federalist No. 47,[159] defended the

work of the Framers against the charge that these three governmental
powers were not entirely separate from one another in the proposed
Constitution. He asserted that while there was some admixture, the
Constitution was nonetheless true to Montesquieu's well-known maxim
that the legislative, executive, and judicial departments ought to be
separate and distinct:
"The reasons on which Montesquieu grounds his maxim are

a further demonstration of his meaning. `When the

legislative and executive powers are united in the same

person or body,' says he, `there can be no liberty, because
apprehensions may arise lest the same monarch or senate
should enact tyrannical laws to execute them in a tyrannical
manner.' Again: `Were the power of judging joined with the
legislative, the life and liberty of the subject would be
exposed to arbitrary control, for the judge would then be
the legislator. Were it joined to the executive power, the
judge might behave with all the violence of an oppressor.'
Some of these reasons [424 U.S. 1, 121] are more fully
explained in other passages; but briefly stated as they are
here, they sufficiently establish the meaning which we have
put on this celebrated maxim of this celebrated author."
[160]
Yet it is also clear from the provisions of the Constitution itself, and from
the Federalist Papers, that the Constitution by no means contemplates
total separation of each of these three essential branches of Government.
The President is a participant in the lawmaking process by virtue of his
authority to veto bills enacted by Congress. The Senate is a participant
in the appointive process by virtue of its authority to refuse to confirm
persons nominated to office by the President. The men who met in
Philadelphia in the summer of 1787 were practical statesmen,
experienced in politics, who viewed the principle of separation of
powers as a vital check against tyranny. But they likewise saw that a
hermetic sealing off of the three branches of Government from one
another would preclude the establishment of a Nation capable of
governing itself effectively.
Mr. Chief Justice Taft, writing for the Court in Hampton & Co. v.
United States, 276 U.S. 394 (1928), after stating the general principle of
separation of powers found in the United States Constitution, went on to
observe:
"[T]he rule is that in the actual administration of the

government Congress or the Legislature should exercise
the legislative power, the President or the State executive,
the Governor, the executive power, and the Courts or the
judiciary the judicial power, and in carrying out that
constitutional division into three branches it is a breach of
the National fundamental law if Congress gives up its
legislative power [424 U.S. 1, 122] and transfers it to the
President, or to the Judicial branch, or if by law it attempts
to invest itself or its members with either executive power
or judicial power. This is not to say that the three branches
are not co-ordinate parts of one government and that each
in the field of its duties may not invoke the action of the two
other branches in so far as the action invoked shall not be
an assumption of the constitutional field of action of another
branch. In determining what it may do in seeking assistance
from another branch, the extent and character of that
assistance must be fixed according to common sense and
the inherent necessities of the governmental co-ordination."
Id., at 406.
More recently, Mr. Justice Jackson, concurring in the opinion and the
judgment of the Court in Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 635 (1952), succinctly characterized this understanding:
"While the Constitution diffuses power the better to secure liberty,

it also contemplates that practice will integrate the dispersed

powers into a workable government. It enjoins upon its branches

separateness but interdependence, autonomy but reciprocity."
The Framers regarded the checks and balances that they had built into
the tripartite Federal Government as a self-executing safeguard against
the encroachment or aggrandizement of one branch at the expense of the
other. As Madison put it in Federalist No. 51:
"This policy of supplying, by opposite and rival interests, the

defect of better motives, might be traced through the whole
system of human affairs, private as well as public. We see it
particularly displayed in all the subordinate distributions of power,
where the constant aim is to divide and arrange the [424 U.S. 1, 123]
several offices in such a manner as that each may be a check on
the other - that the private interest of every individual may be a
sentinel over the public rights. These inventions of prudence
cannot be less requisite in the distribution of the supreme powers
of the State." [161]
This Court has not hesitated to enforce the principle of separation of

powers embodied in the Constitution when its application has proved
necessary for the decisions of cases or controversies properly before it.
The Court has held that executive or administrative duties of a
nonjudicial nature may not be imposed on judges holding office under
Art. III of the Constitution. United States v. Ferreira, 13 How. 40
(1852); Hayburn's Case, 2 Dall. 409 (1792). The Court has held that
the President may not execute and exercise legislative authority
belonging only to Congress. Youngstown Sheet & Tube Co. v. Sawyer,
supra. In the course of its opinion in that case, the Court said:
"In the framework of our Constitution, the President's power to

see that the laws are faithfully executed refutes the idea that he is
to be a law-maker. The Constitution limits his functions in the
lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And the Constitution is
neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says
that Àll legislative Powers herein granted shall be vested in a
Congress of the United States ... .'" 343 U.S., at 587-588. [424
U.S. 1, 124]
More closely in point to the facts of the present case is this Court's
decision in Springer v. Philippine Islands, 277 U.S. 189 (1928), where
the Court held that the legislature of the Philippine Islands could not
provide for legislative appointment to executive agencies.
2. The Appointments Clause
The principle of separation of powers was not simply an abstract

generalization in the minds of the Framers: it was woven into the
document that they drafted in Philadelphia in the summer of 1787.
Article I, 1, declares: "All legislative Powers herein granted shall be
vested in a Congress of the United States." Article II, 1, vests the
executive power "in a President of the United States of America," and
Art. III, 1, declares that "The judicial Power of the United States, shall
be vested in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish." The further
concern of the Framers of the Constitution with maintenance of the
separation of powers is found in the so-called "Ineligibility" and
"Incompatibility" Clauses contained in Art. I, 6:

"No Senator or Representative shall, during the Time for which he

was elected, be appointed to any civil Office under the Authority
of the United States, which shall have been created, or the
Emoluments whereof shall have been encreased during such time;
and no Person holding any Office under the United States, shall
be a Member of either House during his Continuance in Office."
It is in the context of these cognate provisions of the document that we

must examine the language of Art. II. 2, cl. 2, which appellants contend
provides the only authorization for appointment of those to whom
substantial executive or administrative authority is given [424 U.S. 1, 125]
by statute. Because of the importance of its language, we again set out
the provision:
"[The President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Departments."
The Appointments Clause could, of course, be read as merely dealing

with etiquette or protocol in describing "Officers of the United States,"
but the drafters had a less frivolous purpose in mind. This conclusion is
supported by language from United States v. Germaine, 99 U.S. 508,
509-510 (1879):
"The Constitution for purposes of appointment very clearly

divides all its officers into two classes. The primary class requires
a nomination by the President and confirmation by the Senate. But
foreseeing that when offices became numerous, and sudden
removals necessary, this mode might be inconvenient, it was
provided that, in regard to officers inferior to those specially
mentioned, Congress might by law vest their appointment in the
President alone, in the courts of law, or in the heads of
departments. That all persons who can be said to hold an office
under the government about to be established under the
Constitution were intended to be included within one or the other
of these modes of appointment there can be but little doubt."
(Emphasis supplied.)
We think that the term "Officers of the United States" [424 U.S. 1, 126] as
used in Art. II, defined to include "all persons who can be said to hold
an office under the government" in United States v. Germaine, supra, is a
term intended to have substantive meaning. We think its fair import is
that any appointee exercising significant authority pursuant to the laws of
the United States is an "Officer of the United States," and must,
therefore, be appointed in the manner prescribed by 2, cl. 2, of that
Article.
If "all persons who can be said to hold an office under the government
about to be established under the Constitution were intended to be
included within one or the other of these modes of appointment," United
States v. Germaine, supra, it is difficult to see how the members of the
Commission may escape inclusion. If a postmaster first class, Myers v.
United States, 272 U.S. 52 (1926), and the clerk of a district court, Ex
parte Hennen, 13 Pet. 230 (1839), are inferior officers of the United
States within the meaning of the Appointments Clause, as they are,
surely the Commissioners before us are at the very least such "inferior

Officers" within the meaning of that Clause.[162]
Although two members of the Commission are initially selected by the

President, his nominations are subject to confirmation not merely by the
Senate, but by the House of Representatives as well. The remaining four
voting members of the Commission are appointed by the President pro
tempore of the Senate and by the Speaker of the House. While the
second part of the Clause [424 U.S. 1, 127] authorizes Congress to vest the
appointment of the officers described in that part in "the Courts of Law,
or in the Heads of Departments," neither the Speaker of the House nor
the President pro tempore of the Senate comes within this language.
The phrase "Heads of Departments," used as it is in conjunction with the

phrase "Courts of Law," suggests that the Departments referred to are
themselves in the Executive Branch or at least have some connection
with that branch. While the Clause expressly authorizes Congress to vest
the appointment of certain officers in the "Courts of Law," the absence
of similar language to include Congress must mean that neither Congress
nor its officers were included within the language "Heads of
Departments" in this part of cl. 2.
Thus with respect to four of the six voting members of the Commission,
neither the President, the head of any department, nor the Judiciary has
any voice in their selection.
The Appointments Clause specifies the method of appointment only for

"Officers of the United States" whose appointment is not "otherwise
provided for" in the Constitution. But there is no provision of the
Constitution remotely providing any alternative means for the selection of
the members of the Commission or for anybody like them. Appellee
Commission has argued, and the Court of Appeals agreed, that the
Appointments Clause of Art. II should not be read to exclude the
"inherent power of Congress" to appoint its own officers to perform
functions necessary to that body as an institution. But there is no need to
read the Appointments Clause contrary to its plain language in order to
reach the result sought by the Court of Appeals. Article I, 3, cl. 5,
expressly authorizes the selection of the President pro tempore of the
Senate, and 2, cl. 5, of that Article provides [424 U.S. 1, 128] for the
selection of the Speaker of the House. Ranking nonmembers, such as
the Clerk of the House of Representatives, are elected under the internal
rules of each House[163] and are designated by statute as "officers of the
Congress."[164] There is no occasion for us to decide whether any of
these member officers are "Officers of the United States" whose
"appointment" is otherwise provided for within the meaning of the
Appointments Clause, since even if they were such officers their
appointees would not be. Contrary to the fears expressed by the
majority of the Court of Appeals, nothing in our holding with respect to
Art. II, 2, cl. 2, will deny to Congress "all power to appoint its own
inferior officers to carry out appropriate legislative functions."[165]
Appellee Commission and amici contend somewhat obliquely that

because the Framers had no intention of relegating Congress to a
position below that of the co-equal Judicial and Executive Branches of
the National Government, the Appointments Clause must somehow be
read to include Congress or its officers as among those [424 U.S. 1, 129] in
whom the appointment power may be vested. But the debates of the
Constitutional Convention, and the Federalist Papers, are replete with
expressions of fear that the Legislative Branch of the National
Government will aggrandize itself at the expense of the other two
branches. [166] The debates during the Convention, and the evolution of
the draft version of the Constitution, seem to us to lend considerable

support to our reading of the language of the Appointments Clause itself.
An interim version of the draft Constitution had vested in the Senate the
authority to appoint Ambassadors, public Ministers, and Judges of the
Supreme Court, and the language of Art. II as finally adopted is a
distinct change in this regard. We believe that it was a deliberate change
made by the Framers with the intent to deny Congress any authority
itself to appoint those who were "Officers of the United States." The
debates on the floor of the Convention reflect at least in part the way the
change came about.
On Monday, August 6, 1787, the Committee on Detail to which had

been referred the entire draft of the Constitution reported its draft to the
Convention, including the following two articles that bear on the question
before us:[167]
Article IX, 1: "The Senate of the United States shall have power
... to appoint Ambassadors, and Judges of the Supreme Court."
Article X, 2: "[The President] shall commission all [424 U.S. 1, 130]
the officers of the United States; and shall appoint officers in all
cases not otherwise provided for by this Constitution."
It will be seen from a comparison of these two articles that the

appointment of Ambassadors and Judges of the Supreme Court was
confided to the Senate, and that the authority to appoint -- not merely
nominate, but to actually appoint - all other officers was reposed in the
President.
During a discussion of a provision in the same draft from the Committee

on Detail which provided that the "Treasurer" of the United States
should be chosen by both Houses of Congress, Mr. Read moved to
strike out that clause, "leaving the appointment of the Treasurer as of
other officers to the Executive."[168] Opposition to Read's motion was
based, not on objection to the principle of executive appointment, but on
the particular nature of the office of the "Treasurer." [169]
On Thursday, August 23, the Convention voted to insert after the word
"Ambassadors" in the text of draft Art. IX the words "and other public
Ministers." Immediately afterwards, the section as amended was
referred to the "Committee of Five."[170] The following day the
Convention took up Art. X. Roger Sherman objected to the draft
language of 2 because it conferred too much power on the President,
and proposed to insert after the words "not otherwise provided for by
this Constitution" the words "or by law." This motion was defeated by a
vote of nine States to one.[171] On September [424 U.S. 1, 131] 3 the
Convention debated the Ineligibility and Incompatibility Clauses which
now appear in Art. I, and made the Ineligibility Clause somewhat less
stringent. [172]
Meanwhile, on Friday, August 31, a motion had been carried without

opposition to refer such parts of the Constitution as had been postponed
or not acted upon to a Committee of Eleven. Such reference carried
with it both Arts. IX and X. The following week the Committee of
Eleven made its report to the Convention, in which the present language
of Art. II, 2, cl. 2, dealing with the authority of the President to nominate
is found, virtually word for word, as 4 of Art. X.[173] The same
Committee also reported a revised article concerning the Legislative
Branch to the Convention. The changes are obvious. In the final version,
the Senate is shorn of its power to appoint Ambassadors and Judges of
the Supreme Court. The President is given, not the power to appoint
public officers of the United States, but only the right to nominate them,

and a provision is inserted by virtue of which Congress may require

Senate confirmation of his nominees.
It would seem a fair surmise that a compromise had been made. But no
change was made in the concept of the term "Officers of the United
States," which since it had first appeared in Art. X had been taken by all
concerned to embrace all appointed officials exercising responsibility
under the public laws of the Nation.
Appellee Commission and amici urge that because of what they

conceive to be the extraordinary authority reposed in Congress to
regulate elections, this case stands on a different footing than if Congress
had exercised its legislative authority in another field. There is, of course,
no doubt that Congress has express authority to regulate [424 U.S. 1, 132]
congressional elections, by virtue of the power conferred in Art. I,
4.[174] This Court has also held that it has very broad authority to
prevent corruption in national Presidential elections. Burroughs v. United
States, 290 U.S. 534 (1934). But Congress has plenary authority in all
areas in which it has substantive legislative jurisdiction, M`Culloch v.
Maryland, 4 Wheat. 316 (1819), so long as the exercise of that
authority does not offend some other constitutional restriction. We see
no reason to believe that the authority of Congress over federal election
practices is of such a wholly different nature from the other grants of
authority to Congress that it may be employed in such a manner as to
offend well-established constitutional restrictions stemming from the
separation of powers.
The position that because Congress has been given explicit and plenary
authority to regulate a field of activity, it must therefore have the power
to appoint those who are to administer the regulatory statute is both
novel and contrary to the language of the Appointments Clause. Unless
their selection is elsewhere provided for, all officers of the United States
are to be appointed in accordance with the Clause. Principal officers are
selected by the President with the advice and consent of the Senate.
Inferior officers Congress may allow to be appointed by the President
alone, by the heads of departments, or by the Judiciary. No class or
type of officer is excluded because of its special functions. The President
appoints judicial as well as executive officers. Neither has it been
disputed -- and apparently [424 U.S. 1, 133] it is not now disputed -- that
the Clause controls the appointment of the members of a typical
administrative agency even though its functions, as this Court recognized
in Humphrey's Executor v. United States, 295 U.S. 602, 624 (1935),
may be "predominantly quasi-judicial and quasi-legislative" rather than
executive. The Court in that case carefully emphasized that although the
members of such agencies were to be independent of the Executive in
their day-to-day operations, the Executive was not excluded from
selecting them. Id., at 625-626.
Appellees argue that the legislative authority conferred upon the

Congress in Art. I, 4, to regulate "the Times, places and Manner of
holding Elections for Senators and Representatives" is augmented by the
provision in 5 that "Each House shall be the Judge of the Elections,
Returns and Qualifications of its own Members." Section 5 confers,
however, not a general legislative power upon the Congress, but rather a
power "judicial in character" upon each House of the Congress. Barry v.
United States ex rel. Cunningham, 279 U.S. 597, 613 (1929). The
power of each House to judge whether one claiming election as Senator
or Representative has met the requisite qualifications, Powell v.
McCormack, 395 U.S. 486 (1969), cannot reasonably be translated
into a power granted to the Congress itself to impose substantive
qualifications on the right to so hold such office. Whatever power

Congress may have to legislate, such qualifications must derive from 4,

rather than 5, of Art. I.
Appellees also rely on the Twelfth Amendment to the Constitution

insofar as the authority of the Commission to regulate practices in
connection with the Presidential election is concerned. This Amendment
provides that certificates of the votes of the electors be "sealed [and]
[424 U.S. 1, 134] directed to the President of the Senate," and that the
"President of the Senate shall, in the presence of the Senate and House
of Representatives, open all the certificates and the votes shall then be
counted." The method by which Congress resolved the celebrated
disputed Hayes-Tilden election of 1876, reflected in 19 Stat. 227,
supports the conclusion that Congress viewed this Amendment as
conferring upon its two Houses the same sort of power "judicial in
character," Barry v. United States ex rel. Cunningham, supra, at 613, as
was conferred upon each House by Art. I, 5, with respect to elections of
its own members.
We are also told by appellees and amici that Congress had good reason
for not vesting in a Commission composed wholly of Presidential
appointees the authority to administer the Act, since the administration of
the Act would undoubtedly have a bearing on any incumbent President's
campaign for re-election. While one cannot dispute the basis for this
sentiment as a practical matter, it would seem that those who sought to
challenge incumbent Congressmen might have equally good reason to
fear a Commission which was unduly responsive to members of
Congress whom they were seeking to unseat. But such fears, however
rational, do not by themselves warrant a distortion of the Framers' work.
Appellee Commission and amici finally contend, and the majority of the
Court of Appeals agreed with them, that whatever shortcomings the
provisions for the appointment of members of the Commission might
have under Art. II, Congress had ample authority under the Necessary
and Proper Clause of Art. I to effectuate this result. We do not agree.
The proper inquiry when considering the Necessary and Proper Clause
is not the authority of Congress to create an office or a commission,
which is broad indeed, but rather its authority to provide [424 U.S. 1, 135]
that its own officers may make appointments to such office or
commission.
So framed, the claim that Congress may provide for this manner of
appointment under the Necessary and Proper Clause of Art. I stands on
no better footing than the claim that it may provide for such manner of
appointment because of its substantive authority to regulate federal
elections. Congress could not, merely because it concluded that such a
measure was "necessary and proper" to the discharge of its substantive
legislative authority, pass a bill of attainder or ex post facto law contrary
to the prohibitions contained in 9 of Art. I. No more may it vest in itself,
or in its officers, the authority to appoint officers of the United States
when the Appointments Clause by clear implication prohibits it from
doing so.
The trilogy of cases from this Court dealing with the constitutional
authority of Congress to circumscribe the President's power to remove
officers of the United States is entirely consistent with this conclusion. In
Myers v. United States, 272 U.S. 52 (1926), the Court held that
Congress could not by statute divest the President of the power to
remove an officer in the Executive Branch whom he was initially
authorized to appoint. In explaining its reasoning in that case, the Court
said:

"The vesting of the executive power in the President was

essentially a grant of the power to execute the laws. But the
President alone and unaided could not execute the laws. He must
execute them by the assistance of subordinates... . As he is
charged specifically to take care that they be faithfully executed,
the reasonable implication, even in the absence of express words,
was that as part of his executive power he should select those
who were [424 U.S. 1, 136] to act for him under his direction in the
execution of the laws.
... . .
"Our conclusion on the merits, sustained by the arguments before
stated, is that Article II grants to the President the executive
power of the Government, i. e., the general administrative control
of those executing the laws, including the power of appointment
and removal of executive officers -- a conclusion confirmed by his
obligation to take care that the laws be faithfully executed ... ."
Id., at 117, 163-164.
In the later case of Humphrey's Executor, where it was held that

Congress could circumscribe the President's power to remove members
of independent regulatory agencies, the Court was careful to note that it
was dealing with an agency intended to be independent of executive
authority "except in its selection." 295 U.S. at 625 (emphasis in original).
Wiener v. United States, 357 U.S. 349 (1958), which applied the
holding in Humphrey's Executor to a member of the War Claims
Commission, did not question in any respect that members of
independent agencies are not independent of the Executive with respect
to their appointments.
This conclusion is buttressed by the fact that Mr. Justice Sutherland, the
author of the Court's opinion in Humphrey's Executor, likewise wrote
the opinion for the Court in Springer v. Philippine Islands, 277 U.S. 189
(1928), in which it was said:
"Not having the power of appointment, unless expressly granted

or incidental to its powers, the legislature cannot engraft executive
duties upon a legislative office, since that would be to usurp the
power of appointment by indirection; though the case might be
different if the additional duties [424 U.S. 1, 137] were devolved
upon an appointee of the executive." Id., at 202.
3. The Commission's Powers
Thus, on the assumption that all of the powers granted in the statute may
be exercised by an agency whose members have been appointed in
accordance with the Appointments Clause,[175] the ultimate question is
which, if any, of those powers may be exercised by the present voting
Commissioners, none of whom was appointed as provided by that
Clause. Our previous description of the statutory provisions, see supra,
at 109-113, disclosed that the Commission's powers fall generally into
three categories: functions relating to the flow of necessary information --
receipt, dissemination, and investigation; functions with respect to the
Commission's task of fleshing out the statute -- rulemaking and advisory
opinions; and functions necessary to ensure compliance with the statute
and rules -- informal procedures, administrative determinations and
hearings, and civil suits.
Insofar as the powers confided in the Commission are essentially of an

investigative and informative nature, falling in the same general category
as those powers which Congress might delegate to one of its own
committees, there can be no question that the Commission as presently

constituted may exercise them. Kilbourn v. Thompson, 103 U.S. 168

(1881); McGrain v. Daugherty, [424 U.S. 1, 138] 273 U.S. 135 (1927);
Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975). As
this Court stated in McGrain, supra, at 175:
"A legislative body cannot legislate wisely or effectively in the

absence of information respecting the conditions which the
legislation is intended to affect or change; and where the legislative
body does not itself possess the requisite information -- which not
infrequently is true -- recourse must be had to others who do
possess it. Experience has taught that mere requests for such
information often are unavailing, and also that information which is
volunteered is not always accurate or complete; so some means
of compulsion are essential to obtain what is needed. All this was
true before and when the Constitution was framed and adopted.
In that period the power of inquiry -- with enforcing process --
was regarded and employed as a necessary and appropriate
attribute of the power to legislate -- indeed, was treated as
inhering in it."
But when we go beyond this type of authority to the more substantial

powers exercised by the Commission, we reach a different result. The
Commission's enforcement power, exemplified by its discretionary
power to seek judicial relief, is authority that cannot possibly be
regarded as merely in aid of the legislative function of Congress. A
lawsuit is the ultimate remedy for a breach of the law, and it is to the
President, and not to the Congress, that the Constitution entrusts the
responsibility to "take Care that the Laws be faithfully executed." Art. II,
3.
Congress may undoubtedly under the Necessary and Proper Clause

create "offices" in the generic sense and provide such method of
appointment to those "offices" as it chooses. But Congress' power under
that Clause [424 U.S. 1, 139] is inevitably bounded by the express language
of Art. II, 2, cl. 2, and unless the method it provides comports with the
latter, the holders of those offices will not be "Officers of the United
States." They may, therefore, properly perform duties only in aid of
those functions that Congress may carry out by itself, or in an area
sufficiently removed from the administration and enforcement of the
public law as to permit their being performed by persons not "Officers of
the United States."
This Court observed more than a century ago with respect to litigation
conducted in the courts of the United States:
"Whether tested, therefore, by the requirements of the Judiciary

Act, or by the usage of the government, or by the decisions of this
court, it is clear that all such suits, so far as the interests of the
United States are concerned, are subject to the direction, and
within the control of, the Attorney-General." Confiscation Cases,
7 Wall. 454, 458-459 (1869).
The Court echoed similar sentiments 59 years later in Springer v.

Philippine Islands, 277 U.S., at 202, saying:
"Legislative power, as distinguished from executive power, is the

authority to make laws, but not to enforce them or appoint the
agents charged with the duty of such enforcement. The latter are
executive functions. It is unnecessary to enlarge further upon the
general subject, since it has so recently received the full
consideration of this Court. Myers v. United States, 272 U.S. 52.

"Not having the power of appointment, unless expressly granted

or incidental to its powers, the legislature cannot engraft executive
duties upon a legislative office, since that would be to usurp the
power of appointment by indirection; though the [424 U.S. 1, 140]
case might be different if the additional duties were devolved upon
an appointee of the executive."
We hold that these provisions of the Act, vesting in the Commission

primary responsibility for conducting civil litigation in the courts of the
United States for vindicating public rights, violate Art. II, 2, cl. 2, of the
Constitution. Such functions may be discharged only by persons who are
"Officers of the United States" within the language of that section.
All aspects of the Act are brought within the Commission's broad
administrative powers: rulemaking, advisory opinions, and
determinations of eligibility for funds and even for federal elective office
itself. These functions, exercised free from day-to-day supervision of
either Congress [176] or the Executive Branch, are more legislative and
judicial in nature than are the Commission's [424 U.S. 1, 141] enforcement
powers, and are of kinds usually performed by independent regulatory
agencies or by some department in the Executive Branch under the
direction of an Act of Congress. Congress viewed these broad powers
as essential to effective and impartial administration of the entire
substantive framework of the Act. Yet each of these functions also
represents the performance of a significant governmental duty exercised
pursuant to a public law. While the President may not insist that such
functions be delegated to an appointee of his removable at will,
Humphrey's Executor v. United States, 295 U.S. 602 (1935), none of
them operates merely in aid of congressional authority to legislate or is
sufficiently removed from the administration and enforcement of public
law to allow it to be performed by the present Commission. These
administrative functions may therefore be exercised only by persons who
are "Officers of the United States." [177] [424 U.S. 1, 142]
It is also our view that the Commission's inability to exercise certain

powers because of the method by which its members have been
selected should not affect the validity of the Commission's administrative
actions and determinations to this date, including its administration of
those provisions, upheld today, authorizing the public financing of federal
elections. The past acts of the Commission are therefore accorded de
facto validity, just as we have recognized should be the case with
respect to legislative acts performed by legislators held to have been
elected in accordance with an unconstitutional apportionment plan.
Connor v. Williams, 404 U.S. 549, 550-551 (1972). See Ryan v.
Tinsley, 316 F.2d 430, 431-432 (CA10 1963); Schaefer v. Thomson,
251 F. Supp. 450, 453 (Wyo. 1965), aff'd sub nom. Harrison v.
Schaeffer, 383 U.S. 269 (1966). Cf. City of Richmond v. United States,
422 U.S. 358, 379 (1975) (BRENNAN, J., dissenting). We also draw
on the Court's practice in [424 U.S. 1, 143] the apportionment and voting
rights cases and stay, for a period not to exceed 30 days, the Court's
judgment insofar as it affects the authority of the Commission to exercise
the duties and powers granted it under the Act. This limited stay will
afford Congress an opportunity to reconstitute the Commission by law
or to adopt other valid enforcement mechanisms without interrupting
enforcement of the provisions the Court sustains, allowing the present
Commission in the interim to function de facto in accordance with the
substantive provisions of the Act. Cf. Georgia v. United States, 411
U.S. 526, 541(1973); Fortson v. Morris, 385 U.S. 231, 235 (1966);
Maryland Comm. v. Tawes, 377 U.S. 656, 675-676 (1964).

CONCLUSION
In summary,[178] we sustain the individual contribution limits, the

disclosure and reporting provisions, and the public financing scheme. We
conclude, however, that the limitations on campaign expenditures, on
independent expenditures by individuals and groups, and on
expenditures by a candidate from his personal funds are constitutionally
infirm. Finally, we hold that most of the powers conferred by the Act
upon the Federal Election Commission can be exercised only by
"Officers of the United States," appointed in conformity with Art. II, 2,
cl. 2, of the Constitution, and therefore cannot be exercised by the
Commission as presently constituted.
In No. 75-436, the judgment of the Court of Appeals [424 U.S. 1, 144] is
affirmed in part and reversed in part. The judgment of the District Court
in No. 75-437 is affirmed. The mandate shall issue forthwith, except that
our judgment is stayed, for a period not to exceed 30 days, insofar as it
affects the authority of the Commission to exercise the duties and
powers granted it under the Act.
So ordered.
MR. JUSTICE STEVENS took no part in the consideration or

decision of these cases.
APPENDIX TO PER CURIAM OPINION*
TITLE 2. THE CONGRESS
CHAPTER 14 -- FEDERAL ELECTION CAMPAIGNS
SUBCHAPTER I. -- DISCLOSURE OF FEDERAL

CAMPAIGN
FUNDS
431. Definitions.
When used in this subchapter and subchapter II of this chapter -
(1) a general, special, primary, or runoff election;
(2) a convention or caucus of a political party held to nominate a

candidate;
(3) a primary election held for the selection of delegates to a

national nominating convention of a political party; and
(4) a primary election held for the expression of a preference for

the nomination of persons for election to the office of President;
[424 U.S. 1, 145]
(b) "candidate" means an individual who seeks nomination for election,

or election, to Federal office, whether or not such individual is elected,
and, for purposes of this paragraph, an individual shall be deemed to
seek nomination for election, or election, if he has -
(1) taken the action necessary under the law of a State to qualify
himself for nomination for election, or election, to Federal office;

or
(2) received contributions or made expenditures, or has given his

consent for any other person to receive contributions or make
expenditures, with a view to bringing about his nomination for
(c) "Federal office" means the office of President or Vice President of

the United States; or of Senator or Representative in, or Delegate or
Resident Commissioner to, the Congress of the United States;
(d) "political committee" means any committee, club, association, or

other group of persons which receives contributions or makes
expenditures during a calendar year in an aggregate amount exceeding
$1,000;
(1) means a gift, subscription, loan, advance, or deposit of money

or anything of value made for the purpose of -
(A) influencing the nomination for election, or election, of any

person to Federal office or for the purpose of influencing the
results of a primary held for the selection of delegates to a national
nominating convention of a political party; or
(B) influencing the result of an election held for the expression of a

preference for the nomination of persons for election to the office
of President of the United States; [424 U.S. 1, 146]
(2) means a contract, promise, or agreement, expressed or

implied, whether or not legally enforceable, to make a
contribution for such purposes;
(3) means funds received by a political committee which are

transferred to such committee from another political committee or
other source;
(4) means the payment, by any person other than a candidate or a

political committee, of compensation for the personal services of
another person which are rendered to such candidate or political
committee without charge for any such purpose; but
(5) does not include -
(A) the value of services provided without compensation by

individuals who volunteer a portion or all of their time on behalf of
a candidate or political committee;
(B) the use of real or personal property and the cost of invitations,
food, and beverages, voluntarily provided by an individual to a
candidate in rendering voluntary personal services on the
(C) the sale of any food or beverage by a vendor for use in a

candidate's campaign at a charge less than the normal comparable
charge, if such charge for use in a candidate's campaign is at least
(D) any unreimbursed payment for travel expenses made by an

individual who on his own behalf volunteers his personal services

to a candidate;
(E) the payment by a State or local committee of a political party

of the costs of preparation, [424 U.S. 1, 147] display, or mailing or
other distribution incurred by such committee with respect to a
printed slate card or sample ballot, or other printed listing, of
three or more candidates for any public office for which an
election is held in the State in which such committee is organized,
except that this clause shall not apply in the case of costs incurred
by such committee with respect to a display of any such listing
made on broadcasting stations, or in newspapers, magazines, or
other similar types of general public political advertising; or
(F) any payment made or obligation incurred by a corporation or

a labor organization which, under the provisions of the last
paragraph of section 610 of Title 18, would not constitute an
to the extent that the cumulative value of activities by any

individual on behalf of any candidate under each of clauses (B),
(C), and (D) does not exceed $500 with respect to any election;
(f) "expenditure" -
(1) means a purchase, payment, distribution, loan, advance,

deposit, or gift of money or anything of value, made for the
purpose of -
(A) influencing the nomination for election, or the election, of any

person to Federal office, or to the office of presidential and vice
presidential elector; or
(B) influencing the results of a primary election held for the

selection of delegates to a national nominating convention of a
political party or for the expression of a preference for [424 U.S. 1,
148] the nomination of persons for election to the office of
President of the United States;
(2) means a contract, promise, or agreement, express or implied,

whether or not legally enforceable, to make any expenditure;
(3) means the transfer of funds by a political committee to another

political committee; but
(A) any news story, commentary, or editorial distributed through

the facilities of any broadcasting station, newspaper, magazine, or
other periodical publication, unless such facilities are owned or
(B) nonpartisan activity designed to encourage individuals to

register to vote or to vote;
(C) any communication by any membership organization or

corporation to its members or stockholders, if such membership
organization or corporation is not organized primarily for the
purpose of influencing the nomination for election, or election, of
any person to Federal office;
(D) the use of real or personal property and the cost of

invitations, food, and beverages, voluntarily provided by an

individual to a candidate in rendering voluntary personal services
on the individual's residential premises for candidate-related
activities if the cumulative value of such activities by such
individual on behalf of any candidate do [sic] not exceed $500
with respect to any election;
(E) any unreimbursed payment for travel expenses made by an

to a candidate if the cumulative amount for such individual
incurred with respect to such candidate [424 U.S. 1, 149] does not
exceed $500 with respect to any election;
(F) any communication by any person which is not made for the
any person to Federal office; or
(G) the payment by a State or local committee of a political party

of the costs of preparation, display, or mailing or other distribution
incurred by such committee with respect to a printed slate card or
sample ballot, or other printed listing, of three or more candidates
for any public office for which an election is held in the State in
which such committee is organized, except that this clause shall
not apply in the case of costs incurred by such committee with
respect to a display of any such listing made on broadcasting
stations, or in newspapers, magazines or other similar types of
general public political advertising; or
(H) any payment made or obligation incurred by a corporation or

a labor organization which, under the provisions of the last
paragraph of section 610 of Title 18, would not constitute an
(g) "Commission" means the Federal Election Commission;
(h) "person" means an individual, partnership, committee, association,

corporation, labor organization, and any other organization or group of
persons;
(i) "State" means each State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States; [424 U.S. 1, 150]
(j) "identification" means -
(1) in the case of an individual, his full name and the full address of
his principal place of residence; and
(2) in the case of any other person, the full name and address of
such person;
(k) "national committee" means the organization which, by virtue of the

bylaws of a political party, is responsible for the day-to-day operation of
such political party at the national level, as determined by the
Commission;
(l) "State committee" means the organization which, by virtue of the

bylaws of a political party, is responsible for the day-to-day operation of
such political party at the State level, as determined by the Commission;
(m) "political party" means an association, committee, or organization

which nominates a candidate for election to any Federal office, whose

name appears on the election ballot as the candidate of such association,
committee, or organization; and
(n) "principal campaign committee" means the principal campaign

committee designated by a candidate under section 432 (f) (1) of this
title.
432. Organization of political committees.
(a) Chairman; treasurer; vacancies; official authorizations. Every political

committee shall have a chairman and a treasurer. No contribution and no
expenditure shall be accepted or made by or on behalf of a political
committee at a time when there is a vacancy in the office of chairman or
treasurer thereof. No expenditure shall be made for or on behalf of a
political committee without the authorization of its chairman or treasurer,
or their designated agents.
(b) Account of contributions; segregated funds. [424 U.S. 1, 151] Every

person who receives a contribution in excess of $10 for a political
committee shall, on demand of the treasurer, and in any event within 5
days after receipt of such contribution, render to the treasurer a detailed
account thereof, including the amount of the contribution and the
identification of the person making such contribution, and the date on
which received. All funds of a political committee shall be segregated
from, and may not be commingled with, any personal funds of officers,
members, or associates of such committee.
(c) Recordkeeping. It shall be the duty of the treasurer of a political

committee to keep a detailed and exact account of -
(1) all contributions made to or for such committee;
(2) the identification of every person making a contribution in

excess of $10, and the date and amount thereof and, if a person's
contributions aggregate more than $100, the account shall include
occupation, and the principal place of business (if any);
(3) all expenditures made by or on behalf of such committee; and
(4) the identification of every person to whom any expenditure is

made, the date and amount thereof and the name and address of,
and office sought by, each candidate on whose behalf such
expenditure was made.
(d) Receipts; preservation. It shall be the duty of the treasurer to obtain

and keep a receipted bill, stating the particulars, for every expenditure
made by or on behalf of a political committee in excess of $100 in
amount, and for any such expenditure in a lesser amount, if the aggregate
amount of such expenditures to the same person during a calendar year
exceeds $100. The treasurer [424 U.S. 1, 152] shall preserve all receipted
bills and accounts required to be kept by this section for periods of time
to be determined by the Commission.
(e) Unauthorized activities; notice. Any political committee which solicits

or receives contributions or makes expenditures on behalf of any
candidate that is not authorized in writing by such candidate to do so
shall include a notice on the face or front page of all literature and
advertisements published in connection with such candidate's campaign
by such committee or on its behalf stating that the committee is not
authorized by such candidate and that such candidate is not responsible

for the activities of such committee.
(f) Principal campaign committees; one candidate limitation; office of

President: national committee for candidate; duties. (1) Each individual
who is a candidate for Federal office (other than the office of Vice
President of the United States) shall designate a political committee to
serve as his principal campaign committee. No political committee may
be designated as the principal campaign committee of more than one
candidate, except that the candidate for the office of President of the
United States nominated by a political party may designate the national
committee of such political party as his principal campaign committee.
Except as provided in the preceding sentence, no political committee
which supports more than one candidate may be designated as a
principal campaign committee.
(2) Notwithstanding any other provision of this subchapter, each report

or statement of contributions received or expenditures made by a
political committee (other than a principal campaign committee) which is
required to be filed with the Commission under this subchapter shall be
filed instead with the principal campaign [424 U.S. 1, 153] committee for
the candidate on whose behalf such contributions are accepted or such
expenditures are made.
(3) It shall be the duty of each principal campaign committee to receive

all reports and statements required to be filed with it under paragraph (2)
of this subsection and to compile and file such reports and statements,
together with its own reports and statements, with the Commission in
accordance with the provisions of this subchapter.
433. Registration of political committees.
(a) Statements of organization. Each political committee which

anticipates receiving contributions or making expenditures during the
calendar year in an aggregate amount exceeding $1,000 shall file with
the Commission a statement of organization, within 10 days after its
organization or, if later, 10 days after the date on which it has
information which causes the committee to anticipate it will receive
contributions or make expenditures in excess of $1,000. Each such
committee in existence at the date of enactment of this Act shall file a
statement of organization with the Commission at such time as it
prescribes.
(b) Contents of statements. The statement of organization shall include --
(1) the name and address of the committee;
(2) the names, addresses, and relationships of affiliated or

connected organizations;
(3) the area, scope, or jurisdiction of the committee;
(4) the name, address, and position of the custodian of books and
accounts;
(5) the name, address, and position of other principal officers,

including officers and members of the finance committee, if any;
[424 U.S. 1, 154]
(6) the name, address, office sought, and party affiliation of -
(A) each candidate whom the committee is supporting; and

(B) any other individual, if any, whom the committee is supporting

for nomination for election, or election, to any public office
whatever; or, if the committee is supporting the entire ticket of any
party, the name of the party;
(7) a statement whether the committee is a continuing one;
(8) the disposition of residual funds which will be made in the

event of dissolution;
(9) a listing of all banks, safety deposit boxes, or other

repositories used;
(10) a statement of the reports required to be filed by the

committee with State or local officers, and, if so, the names,
addresses, and positions of such persons; and
(11) such other information as shall be required by the

Commission.
(c) Information changes; report. Any change in information previously

submitted in a statement of organization shall be reported to the
Commission within a 10-day period following the change.
(d) Disbanding of political committees or contributions and expenditures

below prescribed ceiling; notice. Any committee which, after having filed
one or more statements of organization, disbands or determines it will no
longer receive contributions or make expenditures during the calendar
year in an aggregate amount exceeding $1,000 shall so notify the
Commission.
(e) Filing reports and notifications with appropriate principal campaign

committees. In the case of a political [424 U.S. 1, 155] committee which is
not a principal campaign committee, reports and notifications required
under this section to be filed with the Commission shall be filed instead
with the appropriate principal campaign committee.
434. Reports by political committees and candidates.
(a) Receipts and expenditures; completion date, exception.
(1) Except as provided by paragraph (2), each treasurer of a political

committee supporting a candidate or candidates for election to Federal
office, and each candidate for election to such office, shall file with the
Commission reports of receipts and expenditures on forms to be
prescribed or approved by it. The reports referred to in the preceding
sentence shall be filed as follows:
(A) (i) In any calendar year in which an individual is a candidate

for Federal office and an election for such Federal office is held in
such year, such reports shall be filed not later than the 10th day
before the date on which such election is held and shall be
complete as of the 15th day before the date of such election;
except that any such report filed by registered or certified mail
must be postmarked not later than the close of the 12th day
before the date of such election.
(ii) such reports shall be filed not later than the 30th day after the
day of such election and shall be complete as of the 20th day after
the date of such election.

(B) In any other calendar year in which an individual is a

candidate for Federal office, such reports shall be filed after
December 31 of such calendar year, but not later than January 31
of the following calendar year and shall be complete as of the
close of the calendar year with respect to which the report is filed.
[424 U.S. 1, 156]
(C) Such reports shall be filed not later than the 10th day
following the close of any calendar quarter in which the candidate
or political committee concerned received contributions in excess
of $1,000, or made expenditures in excess of $1,000, and shall
be complete as of the close of such calendar quarter; except that
any such report required to be filed after December 31 of any
calendar year with respect to which a report is required to be filed
under subparagraph (B) shall be filed as provided in such
subparagraph.
(D) When the last day for filing any quarterly report required by
subparagraph (C) occurs within 10 days of an election, the filing
of such quarterly report shall be waived and superseded by the
report required by subparagraph (A) (i).
Any contribution of $1,000 or more received after the 15th day, but
more than 48 hours, before any election shall be reported within 48
hours after its receipt.
(2) Each treasurer of a political committee which is not a principal

campaign committee shall file the reports required under this section with
the appropriate principal campaign committee.
(3) Upon a request made by a presidential candidate or a political

committee which operates in more than one State, or upon its own
motion, the Commission may waive the reporting dates set forth in
paragraph (1) (other than the reporting date set forth in paragraph (1)
(B)), and require instead that such candidate or political committee file
reports not less frequently than monthly. The Commission may not
require a presidential candidate or a political committee operating in
more than one State to file more than 12 reports (not counting any
report referred to in paragraph (1) (B)) during any calendar year. If the
Commission acts on its own motion [424 U.S. 1, 157] under this paragraph
with respect to a candidate or a political committee, such candidate or
committee may obtain judicial review in accordance with the provisions
of chapter 7 of Title 5.
(b) Contents of reports. Each report under this section shall disclose --
(1) the amount of cash on hand at the beginning of the reporting

period;
(2) the full name and mailing address (occupation and the
principal place of business, if any) of each person who has made
one or more contributions to or for such committee or candidate
(including the purchase of tickets for events such as dinners,
luncheons, rallies, and similar fundraising events) within the
calendar year in an aggregate amount or value in excess of $100,
together with the amount and date of such contributions;
(3) the total sum of individual contributions made to or for such

committee or candidate during the reporting period and not
reported under paragraph (2);

(4) the name and address of each political committee or candidate

from which the reporting committee or the candidate received, or
to which that committee or candidate made, any transfer of funds,
together with the amounts and dates of all transfers;
(5) each loan to or from any person within the calendar year in an
aggregate amount or value in excess of $100, together with the
full names and mailing addresses (occupations and the principal
places of business, if any) of the lender, endorsers, and
guarantors, if any, and the date and amount of such loans;
(6) the total amount of proceeds from -- [424 U.S. 1, 158]
(A) the sale of tickets to each dinner, luncheon, rally, and other
fundraising event;
(B) mass collections made at such events; and
(C) sales of items such as political campaign pins, buttons,

badges, flags, emblems, hats, banners, literature, and similar
materials;
(7) each contribution, rebate, refund, or other receipt in excess of

$100 not otherwise listed under paragraphs (2) through (6);
(8) the total sum of all receipts by or for such committee or

candidate during the reporting period, together with total
expenditures less transfers between political committees which
support the same candidate and which do not support more than
one candidate;
(9) the identification of each person to whom expenditures have

been made by such committee or on behalf of such committee or
candidate within the calendar year in an aggregate amount or
value in excess of $100, the amount, date, and purpose of each
such expenditure and the name and address of, and office sought
by, each candidate on whose behalf such expenditure was made;
(10) the identification of each person to whom an expenditure for

personal services, salaries, and reimbursed expenses in excess of
$100 has been made, and which is not otherwise reported,
including the amount, date, and purpose of such expenditure;
(11) the total sum of expenditures made by such committee or

candidate during the calendar year, together with total receipts
less transfers between political committees which support the
same candidate and which do not support more than one
candidate; [424 U.S. 1, 159]
(12) the amount and nature of debts and obligations owed by or

to the committee, in such form as the supervisory officer may
prescribe and a continuous reporting of their debts and obligations
after the election at such periods as the Commission may require
until such debts and obligations are extinguished, together with a
statement as to the circumstances and conditions under which any
such debt or obligation is extinguished and the consideration
therefor; and
(13) such other information as shall be required by the

Commission.

(c) Cumulative reports for calendar year; amounts for unchanged items
carried forward; statement of inactive status. The reports required to be
filed by subsection (a) of this section shall be cumulative during the
calendar year to which they relate, but where there has been no change
in an item reported in a previous report during such year, only the
amount need be carried forward. If no contributions or expenditures
have been accepted or expended during a calendar year, the treasurer of
the political committee or candidate shall file a statement to that effect.
(d) Members of Congress; reporting exemption. This section does not

require a Member of the Congress to report, as contributions received
or as expenditures made, the value of photographic, matting, or
recording services furnished to him by the Senate Recording Studio, the
House Recording Studio, or by an individual whose pay is disbursed by
the Secretary of the Senate or the Clerk of the House of Representatives
and who furnishes such services as his primary duty as an employee of
the Senate or House of Representatives, or if such services were paid
for by the Republican or Democratic Senatorial Campaign Committee,
the Democratic National Congressional [424 U.S. 1, 160] Committee, or
the National Republican Congressional Committee. This subsection does
not apply to such recording services furnished during the calendar year
before the year in which the Member's term expires.
(e) Reports by other than political committees. Every person (other than
a political committee or candidate) who makes contributions or
expenditures, other than by contribution to a political committee or
candidate, in an aggregate amount in excess of $100 within a calendar
year shall file with the Commission a statement containing the information
required by this section. Statements required by this subsection shall be
filed on the dates on which reports by political committees are filed but
need not be cumulative.
437a. Reports by certain persons; exemptions.
Any person (other than an individual) who expends any funds or

commits any act directed to the public for the purpose of influencing the
outcome of an election, or who publishes or broadcasts to the public any
material referring to a candidate (by name, description, or other
reference) advocating the election or defeat of such candidate, setting
forth the candidate's position on any public issue, his voting record, or
other official acts (in the case of a candidate who holds or has held
Federal office), or otherwise designed to influence individuals to cast
their votes for or against such candidate or to withhold their votes from
such candidate shall file reports with the Commission as if such person
were a political committee. The reports filed by such person shall set
forth the source of the funds used in carrying out any activity described
in the preceding sentence in the same detail as if the funds were
contributions within the meaning of section 431 (e) of this title, and
payments of such funds in the same detail as if they were expenditures
within the meaning of section 431 (f) of this title. The provisions [424 U.S.
1, 161] of this section do not apply to any publication or broadcast of the
United States Government or to any news story, commentary, or
editorial distributed through the facilities of a broadcasting station or a
bona fide newspaper, magazine, or other periodical publication. A news
story, commentary, or editorial is not considered to be distributed
through a bona fide newspaper, magazine, or other periodical
publication if -
(1) such publication is primarily for distribution to individuals

affiliated by membership or stock ownership with the person

(other than an individual) distributing it or causing it to be

distributed, and not primarily for purchase by the public at
newsstands or paid by subscription; or
(2) the news story, commentary, or editorial is distributed by a

person (other than an individual) who devotes a substantial part of
his activities to attempting to influence the outcome of elections, or
to influence public opinion with respect to matters of national or
State policy or concern.
437c. Federal Election Commission.
(a) Establishment; membership; term of office; vacancies; qualifications;

compensation; chairman and vice chairman.
(1) There is established a commission to be known as the Federal

Election Commission. The Commission is composed of the
Secretary of the Senate and the Clerk of the House of
Representatives, ex officio and without the right to vote, and six
members appointed as follows:
(A) two shall be appointed, with the confirmation of a majority of

both Houses of the Congress, by the President pro tempore of
the Senate upon the recommendations of the majority leader of
the Senate and the minority leader of the Senate; [424 U.S. 1, 162]
(B) two shall be appointed, with the confirmation of a majority of

both Houses of the Congress, by the Speaker of the House of
Representatives, upon the recommendations of the majority
leader of the House and the minority leader of the House; and
(C) two shall be appointed, with the confirmation of a majority of

both Houses of the Congress, by the President of the United
States.
A member appointed under subparagraph (A), (B), or (C) shall not be

affiliated with the same political party as the other member appointed
under such paragraph.
(2) Members of the Commission shall serve for terms of 6 years,

except that of the members first appointed -
(A) one of the members appointed under paragraph (1) (A) shall
be appointed for a term ending on the April 30 first occurring
more than 6 months after the date on which he is appointed;
(B) one of the members appointed under paragraph (1) (B) shall
be appointed for a term ending 1 year after the April 30 on which
the term of the member referred to in subparagraph (A) of this
paragraph ends;
(C) one of the members appointed under paragraph (1) (C) shall
be appointed for a term ending 2 years thereafter;
(D) one of the members appointed under paragraph (1) (A) shall
be appointed for a term ending 3 years thereafter;
(E) one of the members appointed under paragraph (1) (B) shall
be appointed for a term ending 4 years thereafter; and
(F) one of the members appointed under paragraph [424 U.S. 1,

163] (1) (C) shall be appointed for a term ending 5 years

thereafter.
An individual appointed to fill a vacancy occurring other than by the

expiration of a term of office shall be appointed only for the unexpired
term of the member he succeeds. Any vacancy occurring in the
membership of the Commission shall be filled in the same manner as in
the case of the original appointment.
(3) Members shall be chosen on the basis of their maturity,

experience, integrity, impartiality, and good judgment and shall be
chosen from among individuals who, at the time of their
appointment, are not elected or appointed officers or employees
in the executive, legislative, or judicial branch of the Government
of the United States.
(4) Members of the Commission (other than the Secretary of the

Senate and the Clerk of the House of Representatives) shall
receive compensation equivalent to the compensation paid at level
IV of the Executive Schedule (5 U.S.C. 5315).
(5) The Commission shall elect a chairman and a vice chairman

from among its members (other than the Secretary of the Senate
and the Clerk of the House of Representatives) for a term of one
year. No member may serve as chairman more often than once
during any term of office to which he is appointed. The chairman
and the vice chairman shall not be affiliated with the same political
party. The vice chairman shall act as chairman in the absence or
disability of the chairman, or in the event of a vacancy in such
office.
(b) Administration, enforcement, and formulation of policy; primary

jurisdiction of civil enforcement.
The Commission shall administer, seek to obtain compliance with, and

formulate policy with respect to this Act and sections 608, 610, 611,
613, 614, 615, 616, [424 U.S. 1, 164] and 617 of Title 18. The
Commission has primary jurisdiction with respect to the civil
enforcement of such provisions.
(c) Voting requirement; nondelegation of function.
All decisions of the Commission with respect to the exercise of its duties
and powers under the provisions of this subchapter shall be made by a
majority vote of the members of the Commission. A member of the
Commission may not delegate to any person his vote or any
decisionmaking authority or duty vested in the Commission by the
provisions of this subchapter.
(d) Meetings.
The Commission shall meet at least once each month and also at the call
of any member.
(e) Rules for conduct of activities; seal, judicial notice; principal office.
The Commission shall prepare written rules for the conduct of its
activities, shall have an official seal which shall be judicially noticed, and
shall have its principal office in or near the District of Columbia (but it
may meet or exercise any of its powers anywhere in the United States).

(f) Staff director and general counsel: appointment and compensation;

appointment and compensation of personnel and procurement of
intermittent services by staff director; use of assistance, personnel, and
facilities of Federal agencies and departments.
(1) The Commission shall have a staff director and a general counsel
who shall be appointed by the Commission. The staff director shall be
paid at a rate not to exceed the rate of basic pay in effect for level IV of
the Executive Schedule (5 U.S.C. 5315). The general counsel shall be
paid at a rate not to exceed the rate of basic pay in effect for level V of
the Executive Schedule (5 U.S.C. 5316). With the approval of the [424
U.S. 1, 165] Commission, the staff director may appoint and fix the pay of
such additional personnel as he considers desirable.
(2) With the approval of the Commission, the staff director may
procure temporary and intermittent services to the same extent as
is authorized by section 3109 (b) of Title 5, but at rates for
individuals not to exceed the daily equivalent of the annual rate of
basic pay in effect for grade GS-15 of the general schedule (5
U.S.C. 5332).
(3) In carrying out its responsibilities under this Act, the

Commission shall, to the fullest extent practicable, avail itself of
the assistance, including personnel and facilities, of other agencies
and departments of the United States Government. The heads of
such agencies and departments may make available to the
Commission such personnel, facilities, and other assistance, with
or without reimbursement, as the Commission may request.
437d. Powers of Commission.
(a) Specific enumeration.
The Commission has the power -
(1) to require, by special or general orders, any person to submit

in writing such reports and answers to questions as the
Commission may prescribe; and such submission shall be made
within such a reasonable period of time and under oath or
otherwise as the Commission may determine;
(2) to administer oaths or affirmations;
(3) to require by subpena, signed by the chairman or the vice

chairman, the attendance and testimony of witnesses and the
production of all documentary evidence relating to the execution
of its duties;
(4) in any proceeding or investigation, to order testimony to be

taken by deposition before any person who is designated by the
Commission and has [424 U.S. 1, 166] the power to administer
oaths and, in such instances, to compel testimony and the
production of evidence in the same manner as authorized under
paragraph (3) of this subsection;
(5) to pay witnesses the same fees and mileage as are paid in like
circumstances in the courts of the United States;
(6) to initiate (through civil proceedings for injunctive, declaratory,

or other appropriate relief), defend, or appeal any civil action in
the name of the Commission for the purpose of enforcing the

provisions of this Act, through its general counsel;
(7) to render advisory opinions under section 437 of this title;
(8) to make, amend, and repeal such rules, pursuant to the

provisions of chapter 5 of Title 5, as are necessary to carry out
the provisions of this Act;
(9) to formulate general policy with respect to the administration

of this Act and sections 608, 610, 611, 613, 614, 615, 616, and
617 of Title 18;
(10) to develop prescribed forms under subsection (a) (1) of this

section; and
(11) to conduct investigations and hearings expeditiously, to

encourage voluntary compliance, and to report apparent
violations to the appropriate law enforcement authorities.
(b) Judicial orders for compliance with subpenas and orders of

Commission; contempt of court.
Any United States district court within the jurisdiction of which any
inquiry is carried on, may, upon petition by the Commission, in case of
refusal to obey a subpena or order of the Commission issued under
subsection (a) of this section, issue an order requiring compliance
therewith. Any failure to obey the order of the [424 U.S. 1, 167] court may
be punished by the court as a contempt thereof.
(c) Civil liability for disclosure of information.
No person shall be subject to civil liability to any person (other than the
Commission or the United States) for disclosing information at the
request of the Commission.
(d) Transmittal to Congress: Budget estimates or requests and legislative

recommendations; prior transmittal to Congress: legislative
recommendations.
(1) Whenever the Commission submits any budget estimate or request

to the President of the United States or the Office of Management and
Budget, it shall concurrently transmit a copy of such estimate or request
to the Congress.
(2) Whenever the Commission submits any legislative

recommendations, or testimony, or comments on legislation,
requested by the Congress or by any Member of the Congress,
to the President of the United States or the Office of Management
and Budget, it shall concurrently transmit a copy thereof to the
Congress or to the Member requesting the same. No officer or
agency of the United States shall have any authority to require the
Commission to submit its legislative recommendations, testimony,
or comments on legislation, to any office or agency of the United
States for approval, comments, or review, prior to the submission
of such recommendations, testimony, or comments to the
Congress.
437e. Reports to President and Congress.
The Commission shall transmit reports to the President of the United

States and to each House of the Congress no later than March 31 of

each year. Each such report shall contain a detailed statement with
respect to the activities of the Commission in carrying out its duties under
this subchapter, together with recommendations [424 U.S. 1, 168] for such
legislative or other action as the Commission considers appropriate.
437f. Advisory opinions.
(a) Written requests; written opinions within reasonable time; specific

transactions or activities constituting violations of provisions.
Upon written request to the Commission by any individual holding

Federal office, any candidate for Federal office, or any political
committee, the Commission shall render an advisory opinion, in writing,
within a reasonable time with respect to whether any specific transaction
or activity by such individual, candidate, or political committee would
constitute a violation of this Act, of chapter 95 or chapter 96 of Title 26
or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18.
(b) Presumption of compliance with provisions based on good faith

actions.
Notwithstanding any other provision of law, any person with respect to

whom an advisory opinion is rendered under subsection (a) of this
section who acts in good faith in accordance with the provisions and
findings of such advisory opinion shall be presumed to be in compliance
with the provision of this Act, of chapter 95 or chapter 96 of Title 26, or
of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, with
respect to which such advisory opinion is rendered.
(c) Requests made public; transmittal to Commission of comments of

interested parties with respect to such requests.
Any request made under subsection (a) shall be made public by the
Commission. The Commission shall before rendering an advisory
opinion with respect to such request, provide any interested party with
an opportunity to transmit written comments to the Commission with
respect to such request. [424 U.S. 1, 169]
437g. Enforcement.
(a) Violations; complaints and referrals; notification and investigation by

Commission: venue, judicial orders; referral to law enforcement
authorities: civil actions by Attorney General: venue, judicial orders,
bond; subpenas; review by courts of appeals: time for petition, finality of
judgment; review by Supreme Court; docket: advancement and
priorities.
(1) (A) Any person who believes a violation of this Act or of section
608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 has occurred
may file a complaint with the Commission.
(B) In any case in which the Clerk of the House of Representatives or

the Secretary of the Senate (who receive reports and statements as
custodian for the Commission) has reason to believe a violation of this
act or section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18
has occurred he shall refer such apparent violation to the Commission.
(2) The Commission upon receiving any complaint under paragraph (1)
(A), or a referral under paragraph (1) (B), or if it has reason to believe
that any person has committed a violation of any such provision, shall
notify the person involved of such apparent violation and shall -

(A) report such apparent violation to the Attorney General; or
(B) make an investigation of such apparent violation.
(3) Any investigation under paragraph (2) (B) shall be conducted

expeditiously and shall include an investigation of reports and statements
filed by any complainant under this subchapter, if such complainant is a
candidate. Any notification or investigation made under paragraph (2)
shall not be made public by the Commission or by [424 U.S. 1, 170] any
other person without the written consent of the person receiving such
notification or the person with respect to whom such investigation is
made.
(4) The Commission shall, at the request of any person who receives
notice of an apparent violation under paragraph (2), conduct a hearing
with respect to such apparent violation.
(5) If the Commission determines, after investigation, that there is reason

to believe that any person has engaged, or is about to engage in any acts
or practices which constitute or will constitute a violation of this Act, it
may endeavor to correct such violation by informal methods of
conference, conciliation, and persuasion. If the Commission fails to
correct the violation through informal methods, it may institute a civil
action for relief, including a permanent or temporary injunction,
restraining order, or any other appropriate order in the district court of
the United States for the district in which the person against whom such
action is brought is found, resides, or transacts business. Upon a proper
showing that such person has engaged or is about to engage in such acts
or practices, the court shall grant a permanent or temporary injunction,
restraining order, or other order.
(6) The Commission shall refer apparent violations to the appropriate

law enforcement authorities to the extent that violations of provisions of
chapter 29 of Title 18 are involved, or if the Commission is unable to
correct apparent violations of this Act under the authority given it by
paragraph (5), or if the Commission determines that any such referral is
appropriate.
(7) Whenever in the judgment of the Commission, after affording due

notice and an opportunity for a hearing, any person has engaged or is
about to engage in any acts or practices which constitute or will
constitute a violation of any provision of this Act or of section 608, 610,
611, 613, 614, 615, 616, or 617 of Title 18, [424 U.S. 1, 171] upon
request by the Commission the Attorney General on behalf of the United
States shall institute a civil action for relief, including a permanent or
temporary injunction, restraining order, or any other appropriate order in
the district court of the United States for the district in which the person
is found, resides, or transacts business. Upon a proper showing that
such person has engaged or is about to engage in such acts or practices,
a permanent or temporary injunction, restraining order, or other order
shall be granted without bond by such court.
(8) In any action brought under paragraph (5) or (7) of this subsection,
subpenas for witnesses who are required to attend a United States
district court may run into any other district.
(9) Any party aggrieved by an order granted under paragraph (5) or (7)
of this subsection may, at any time within 60 days after the date of entry
thereof, file a petition with the United States court of appeals for the
circuit in which such order was issued for judicial review of such order.

(10) The judgment of the court of appeals affirming or setting aside, in

whole or in part, any such order of the district Court shall be final,
subject to review by the Supreme Court of the United States upon
certiorari or certification as provided in section 1254 of Title 28.
(11) Any action brought under this subsection shall be advanced on the
docket of the court in which filed, and put ahead of all other actions
(other than other actions brought under this subsection or under section
437h of this title).
(b) Reports of Attorney General to Commission respecting action taken;

reports of Commission respecting status of referrals.
In any case in which the Commission refers an apparent violation to the

Attorney General, the Attorney [424 U.S. 1, 172] General shall respond by
report to the Commission with respect to any action taken by the
Attorney General regarding such apparent violation. Each report shall be
transmitted no later than 60 days after the date the Commission refers
any apparent violation, and at the close of every 30-day period
thereafter until there is final disposition of such apparent violation. The
Commission may from time to time prepare and publish reports on the
status of such referrals.
437h. Judicial review.
(a) Actions, including declaratory judgments, for construction of

constitutional questions; eligible plaintiffs; certification of such questions
to courts of appeals sitting en banc.
The Commission, the national committee of any political party, or any

individual eligible to vote in any election for the office of President of the
United States may institute such actions in the appropriate district court
of the United States, including actions for declaratory judgment, as may
be appropriate to construe the constitutionality of any provision of this
Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title
18. The district court immediately shall certify all questions of
constitutionality of this Act or of section 608, 610, 611, 613, 614, 615,
616, or 617 of Title 18, to the United States court of appeals for the
circuit involved, which shall hear the matter sitting en banc.
(b) Appeal to Supreme Court; time for appeal.
Notwithstanding any other provision of law, any decision on a matter

certified under subsection (a) of this section shall be reviewable by
appeal directly to the Supreme Court of the United States. Such appeal
shall be brought no later than 20 days after the decision of the court of
appeals.
(c) Advancement on appellate docket and expedited deposition of

certified questions. [424 U.S. 1, 173]
It shall be the duty of the court of appeals and of the Supreme Court of
the United States to advance on the docket and to expedite to the
greatest possible extent the disposition of any matter certified under
subsection (a) of this section.
438. Administrative and judicial provisions.
(a) Federal Election Commission; duties.

It shall be the duty of the Commission -
(1) Forms. To develop and furnish to the person required by the

provisions of this Act prescribed forms for the making of the
reports and statements required to be filed with it under this
subchapter;
(2) Manual for uniform bookkeeping and reporting methods. To

prepare, publish, and furnish to the person required to file such
reports and statements a manual setting forth recommended
uniform methods of bookkeeping and reporting;
(3) Filing, coding, and cross-indexing system. To develop a filing,

coding, and cross-indexing system consonant with the purposes
of this subchapter;
(4) Public inspection; copies; sale or use restrictions. To make the

reports and statements filed with it available for public inspection
and copying, commencing as soon as practicable but not later
than the end of the second day following the day during which it
was received, and to permit copying of any such report or
statement by hand or by duplicating machine, as requested by any
person, at the expense of such person: Provided, That any
information copied from such reports and statements shall not be
sold or utilized by any person for the purpose of soliciting
contributions or for any commercial purpose;
(5) Preservation of reports and statements. To preserve such

reports and statements for a period of [424 U.S. 1, 174] 10 years
from date of receipt, except that reports and statements relating
solely to candidates for the House of Representatives shall be
preserved for only 5 years from the date of receipt;
(6) Index of reports and statements; publication in Federal

Register. To compile and maintain a cumulative index of reports
and statements filed with it, which shall be published in the
Federal Register at regular intervals and which shall be available
for purchase directly or by mail for a reasonable price;
(7) Special reports; publication. To prepare and publish from time

to time special reports listing those candidates for whom reports
were filed as required by this subchapter and those candidates for
whom such reports were not filed as so required;
(8) Audits; investigations. To make from time to time audits and

field investigations with respect to reports and statements filed
under the provisions of this subchapter, and with respect to
alleged failures to file any report or statement required under the
provisions of this subchapter;
(9) Enforcement authorities; reports of violations. To report

apparent violations of law to the appropriate law enforcement
authorities; and
(10) Rules and regulations. To prescribe suitable rules and

regulations to carry out the provisions of this subchapter, in
accordance with the provisions of subsection (c) of this section.
(b) Commission; duties: national clearinghouse for information; studies,

scope, publication, copies to general public at cost. It shall be the duty
of the Commission to serve as a national clearinghouse for information in

respect to the administration of elections. In carrying out its duties under

this subsection, the Commission shall enter into contracts for the purpose
of conducting independent [424 U.S. 1, 175] studies of the administration
of elections. Such studies shall include, but shall not be limited to, studies
of -
(1) the method of selection of, and the type of duties assigned to,
officials and personnel working on boards of elections;
(2) practices relating to the registration of voters; and
(3) voting and counting methods.
Studies made under this subsection shall be published by the

Commission and copies thereof shall be made available to the general
public upon the payment of the cost thereof.
(c) Proposed rules or regulations; statement, transmittal to Congress;

Presidential elections and Congressional elections; "legislative days"
defined.
(1) The Commission, before prescribing any rule or regulation

under this section, shall transmit a statement with respect to such
rule or regulation to the Senate or the House of Representatives,
as the case may be, in accordance with the provisions of this
subsection. Such statement shall set forth the proposed rule or
regulation and shall contain a detailed explanation and justification
of such rule or regulation.
(2) If the appropriate body of the Congress which receives a

statement from the Commission under this subsection does not,
through appropriate action, disapprove the proposed rule or
regulation set forth in such statement no later than 30 legislative
days after receipt of such statement, then the Commission may
prescribe such rule or regulation. In the case of any rule or
regulation proposed to deal with reports or statements required to
be filed under this subchapter by a candidate for the office of
President [424 U.S. 1, 176] of the United States, and by political
committees supporting such a candidate both the Senate and the
House of Representatives shall have the power to disapprove
such proposed rule or regulation. The Commission may not
prescribe any rule or regulation which is disapproved under this
paragraph.
(3) If the Commission proposes to prescribe any rule or

regulation dealing with reports or statements required to be filed
under this subchapter by a candidate for the office of Senator,
and by political committees supporting such candidate, it shall
transmit such statement to the Senate. If the Commission
proposes to prescribe any rule or regulation dealing with reports
or statements required to be filed under this subchapter by a
candidate for the office of Representative, Delegate, or Resident
Commissioner, and by political committees supporting such
candidate, it shall transmit such statement to the House of
Representatives. If the Commission proposes to prescribe any
rule or regulation dealing with reports or statements required to be
filed under this subchapter by a candidate for the office of
President of the United States, and by political committees
supporting such candidate it shall transmit such statement to the
House of Representatives and the Senate.

(4) For purposes of this subsection, the term "legislative days"

does not include, with respect to statements transmitted to the
Senate, any calendar day on which the Senate is not in session,
and with respect to statements transmitted to the House of
Representatives, any calendar day on which the House of
Representatives is not in session, and with respect to statements
transmitted to both such bodies, any calendar day on which both
Houses of the Congress are not in session. [424 U.S. 1, 177]
(d) Rules and regulations; issuance; custody of reports and statements;

Congressional cooperation.
(1) The Commission shall prescribe suitable rules and regulations

to carry out the provisions of this subchapter, including such rules
and regulations as may be necessary to require that -
(A) reports and statements required to be filed under this

subchapter by a candidate for the office of Representative in, or
Delegate or Resident Commissioner to, the Congress of the
United States, and by political committees supporting such
candidate, shall be received by the Clerk of the House of
Representatives as custodian for the Commission;
(B) reports and statements required to be filed under this

subchapter by a candidate for the office of Senator, and by
political committees supporting such candidate, shall be received
by the Secretary of the Senate as custodian for the Commission;
and
(C) the Clerk of the House of Representatives and the Secretary

of the Senate, as custodians for the Commission, each shall make
the reports and statements received by him available for public
inspection and copying in accordance with paragraph (4) of
subsection (a) of this section, and preserve such reports and
statements in accordance with paragraph (5) of subsection (a) of
this section.
(2) It shall be the duty of the Clerk of the House of

Representatives and the Secretary of the Senate to cooperate
with the Commission in carrying out its duties under this Act and
to furnish such services and facilities as may be required in
accordance with this section. [424 U.S. 1, 178]
439. Statements filed with State officers.
(a) "Appropriate State" defined. A copy of each statement required to

be filed with the Commission by this subchapter shall be filed with the
Secretary of State (or, if there is no office of Secretary of State, the
equivalent State officer) of the appropriate State. For purposes of this
subsection, the term "appropriate State" means -
(1) for reports relating to expenditures and contributions in

connection with the campaign for nomination for election, or
election, of a candidate to the office of President or Vice
President of the United States, each State in which an expenditure
is made by him or on his behalf, and
(2) for reports relating to expenditures and contributions in

connection with the campaign for nomination for election, or
election, of a candidate to the office of Senator or Representative
in, or Delegate or Resident Commissioner to, the Congress of the

United States, the State in which he seeks election.
(b) Duties of State officers. It shall be the duty of the Secretary of State,
or the equivalent State officer, under subsection (a) of this section --
(1) to receive and maintain in an orderly manner all reports and

statements required by this subchapter to be filed with him;
(2) to preserve such reports and statements for a period of 10

years from date of receipt, except that reports and statements
relating solely to candidates for the House of Representatives shall
be preserved for only 5 years from the date of receipt;
(3) to make the reports and statements filed with him available for
public inspection and copying during regular office hours,
commencing as soon [424 U.S. 1, 179] as practicable but not later
than the end of the day during which it was received, and to
permit copying of any such report or statement by hand or by
duplicating machine, requested by any person, at the expense of
such person; and
(4) to compile and maintain a current list of all statements or parts

of statements pertaining to each candidate.
439a. Use of contributed amounts for certain purposes; rules of

Commission.
Amounts received by a candidate as contributions that are in excess of

any amount necessary to defray his expenditures, and any other amounts
contributed to an individual for the purpose of supporting his activities as
a holder of Federal office, may be used by such candidate or individual,
as the case may be, to defray any ordinary and necessary expenses
incurred by him in connection with his duties as a holder of Federal
office, may be contributed by him to any organization described in
section 170 (c) of Title 26, or may be used for any other lawful purpose.
To the extent any such contribution, amount contributed, or expenditure
thereof is not otherwise required to be disclosed under the provisions of
this subchapter, such contribution, amount contributed, or expenditure
shall be fully disclosed in accordance with rules promulgated by the
Commission. The Commission is authorized to prescribe such rules as
may be necessary to carry out the provisions of this section.
441. Penalties for violations.
(a) Any person who violates any of the provisions of this subchapter
shall be fined not more than $1,000 or imprisoned not more than 1 year,
or both. [424 U.S. 1, 180]
(b) In case of any conviction under this subchapter, where the

punishment inflicted does not include imprisonment, such conviction shall
be deemed a misdemeanor conviction only.
SUBCHAPTER II. -- GENERAL PROVISIONS
454. Partial invalidity.
If any provision of this Act, or the application thereof to any person or

circumstance, is held invalid, the validity of the remainder of the Act and
the application of such provision to other persons and circumstances
shall not be affected thereby.

456. Additional enforcement authority.
(a) Findings, after notice and hearing, or failure to file timely reports;
disqualification for prescribed period from candidacy in future Federal
elections.
In any case in which the Commission, after notice and opportunity for a
hearing on the record in accordance with section 554 of Title 5, makes a
finding that a person who, while a candidate for Federal office, failed to
file a report required by subchapter I of this chapter, and such finding is
made before the expiration of the time within which the failure to file such
report may be prosecuted as a violation of such subchapter I, such
person shall be disqualified from becoming a candidate in any future
election for Federal office for a period of time beginning on the date of
such finding and ending one year after the expiration of the term of the
Federal office for which such person was a candidate.
(b) Judicial review of findings.
Any finding by the Commission under subsection (a) of this section shall
be subject to judicial review in accordance with the provisions of
chapter 7 of Title 5. [424 U.S. 1, 181]
TITLE 18. CRIMES AND CRIMINAL
PROCEDURE
CHAPTER 29 -- ELECTIONS AND POLITICAL

ACTIVITIES
591. Definitions.
Except as otherwise specifically provided, when used in this section and

in sections 597, 599, 600, 602, 608, 610, 611, 614, 615, and 617 of
this title --
(1) a general, special, primary, or runoff election,
(2) a convention or caucus of a political party held to nominate a

candidate,
(3) a primary election held for the selection of delegates to a

national nominating convention of a political party, or
(4) a primary election held for the expression of a preference for

the nomination of persons for election to the office of President;
(b) a "candidate" means an individual who seeks nomination for

election, or election, to Federal office, whether or not such
individual is elected, and, for purposes of this paragraph, an
individual shall be deemed to seek nomination for election, or
election, to Federal office, if he has --
(1) taken the action necessary under the law of a State to qualify
himself for nomination for election, or election, or
(2) received contributions or made expenditures, or has given his

consent for any other person to receive contributions or make
expenditures, with a view to bringing about his nomination for

(c) "Federal office" means the office of President or Vice

President of the United States, or Senator [424 U.S. 1, 182] or
Representative in, or Delegate or Resident Commissioner to, the
Congress of the United States;
(d) "political committee" means any committee, club, association,

or other group of persons which receives contributions or makes
expenditures during a calendar year in an aggregate amount
exceeding $1,000;
(1) means a gift, subscription, loan, advance, or deposit of money

or anything of value (except a loan of money by a national or
State bank made in accordance with the applicable banking laws
and regulations and in the ordinary course of business, which shall
be considered a loan by each endorser or guarantor, in that
proportion of the unpaid balance thereof that each endorser or
guarantor bears to the total number of endorsers or guarantors),
made for the purpose of influencing the nomination for election, or
election, of any person to Federal office or for the purpose of
influencing the results of a primary held for the selection of
delegates to a national nominating convention of a political party
or for the expression of a preference for the nomination of
persons for election to the office of President of the United States;

whether or not legally enforceable, to make a contribution for
such purposes;
(3) means funds received by a political committee which are

transferred to such committee from another political committee or
other source; [424 U.S. 1, 183]
(4) means the payment, by any person other than a candidate or a

political committee, of compensation for the personal services of
another person which are rendered to such candidate or political
committee without charge for any such purpose; but
(A) the value of services provided without compensation by

individuals who volunteer a portion or all of their time on behalf of
a candidate or political committee;
(B) the use of real or personal property and the cost of invitations,
food, and beverages, voluntarily provided by an individual to a
candidate in rendering voluntary personal services on the
(C) the sale of any food or beverage by a vendor for use in a

candidate's campaign at a charge less than the normal comparable
charge, if such charge for use in a candidate's campaign is at least
(D) any unreimbursed payment for travel expenses made by an

to a candidate; or

(E) the payment by a State or local committee of a political party

of the costs of preparation, display, or mailing or other distribution
incurred by such committee with respect to a printed slate card or
sample [424 U.S. 1, 184] ballot, or other printed listing, of three or
more candidates for any public office for which an election is held
in the State in which such committee is organized, except that this
clause shall not apply in the case of costs incurred by such
committee with respect to a display of any such listing made on
broadcasting stations, or in newspapers, magazines or other
similar types of general public political advertising; to the extent
that the cumulative value of activities by any person on behalf of
any candidate under each of clauses (B), (C), and (D) does not
exceed $500 with respect to any election;
(f) "expenditure" -
(1) means a purchase, payment, distribution, loan, advance,

deposit, or gift of money or anything of value (except a loan of
money by a national or State bank made in accordance with the
applicable banking laws and regulations and in the ordinary
course of business), made for the purpose of influencing the
nomination for election, or election, of any person to Federal
office or for the purpose of influencing the results of a primary
held for the selection of delegates to a national nominating
convention of a political party or for the expression of a
preference for the nomination of persons for election to the office
of President of the United States;

whether or not legally enforceable, to make any expenditure; and
(3) means the transfer of funds by a political committee to another

political committee; but [424 U.S. 1, 185]
(A) any news story, commentary, or editorial distributed through

the facilities of any broadcasting station, newspaper, magazine, or
other periodical publication, unless such facilities are owned or
(B) nonpartisan activity designed to encourage individuals to

register to vote or to vote;
(C) any communication by any membership organization or

organization or corporation is not organized primarily for the
(D) the use of real or personal property and the cost of

invitations, food, and beverages, voluntarily provided by an
individual to a candidate in rendering voluntary personal services
on the individual's residential premises for candidate-related
activities;
(E) any unreimbursed payment for travel expenses made by an

to a candidate;
(F) any communication by any person which is not made for the


(G) the payment by a State or local committee of a political party

of the costs of [424 U.S. 1, 186] preparation, display, or mailing or
other distribution incurred by such committee with respect to a
printed slate card or sample ballot, or other printed listing, of
three or more candidates for any public office for which an
election is held in the State in which such committee is organized,
except that this clause shall not apply in the case of costs incurred
by such committee with respect to a display of any such listing
made on broadcasting stations, or in newspapers, magazines or
other similar types of general public political advertising;
(H) any costs incurred by a candidate in connection with the

solicitation of contributions by such candidate, except that this
clause shall not apply with respect to costs incurred by a
candidate in excess of an amount equal to 20 percent of the
expenditure limitation applicable to such candidate under section
608 (c) of this title; or
(I) any costs incurred by a political committee (as such term is

defined by section 608 (b) (2) of this title) with respect to the
solicitation of contributions to such political committee or to any
general political fund controlled by such political committee,
except that this clause shall not apply to exempt costs incurred
with respect to the solicitation of contributions to any such
political committee made through broadcasting stations,
newspapers, magazines, outdoor advertising facilities, and [424
U.S. 1, 187] other similar types of general public political
advertising;
to the extent that the cumulative value of activities by any

individual on behalf of any candidate under each of clauses (D) or
(E) does not exceed $500 with respect to any election;
(g) "person" and "whoever" mean an individual, partnership,

committee, association, corporation, or any other organization or
group of persons;
(h) "State" means each State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory
or possession of the United States;
(i) "political party" means any association, committee, or

organization which nominates a candidate for election to any
Federal office whose name appears on the election ballot as the
candidate of such association, committee, or organization;
(j) "State committee" means the organization which, by virtue of

the bylaws of a political party, is responsible for the day-to-day
operation of such political party at the State level, as determined
by the Federal Election Commission;
(k) "national committee" means the organization which, by virtue

of the bylaws of the political party, is responsible for the
day-to-day operation of such political party at the national level,
as determined by the Federal Election Commission established
under section 437c (a) of Title 2; and
(l) "principal campaign committee" means the principal campaign

committee designated by a candidate under section 432 (f) (1) of

Title 2.
608. Limitations on contributions and expenditures.
(a) Personal funds of candidate and family.
(1) No candidate may make expenditures from [424 U.S. 1, 188] his
personal funds, or the personal funds of his immediate family, in
connection with his campaigns during any calendar year for
nomination for election, or for election, to Federal office in excess
of, in the aggregate -
(A) $50,000, in the case of a candidate for the office of President

or Vice President of the United States;
(B) $35,000, in the case of a candidate for the office of Senator

or for the office of Representative from a State which is entitled to
only one Representative; or
(C) $25,000, in the case of a candidate for the office of

Representative, or Delegate or Resident Commissioner, in any
other State.
For purposes of this paragraph, any expenditure made in a year

other than the calendar year in which the election is held with
respect to which such expenditure was made, is considered to be
(2) For purposes of this subsection, "immediate family" means a

candidate's spouse, and any child, parent, grandparent, brother,
or sister of the candidate, and the spouses of such persons.
(3) No candidate or his immediate family may make loans or

advances from their personal funds in connection with his
campaign for nomination for election, or for election, to Federal
office unless such loan or advance is evidenced by a written
instrument fully disclosing the terms and conditions of such loan or
advance.
(4) For purposes of this subsection, any such loan or advance

shall be included in computing the total amount of such
expenditures only to the extent [424 U.S. 1, 189] of the balance of
such loan or advance outstanding and unpaid.
(b) Contributions by persons and committees.
(1) Except as otherwise provided by paragraphs (2) and (3), no

person shall make contributions to any candidate with respect to
any election for Federal office which, in the aggregate, exceed
$1,000.
(2) No political committee (other than a principal campaign

committee) shall make contributions to any candidate with respect
to any election for Federal office which, in the aggregate, exceed
$5,000. Contributions by the national committee of a political
party serving as the principal campaign committee of a candidate
for the office of President of the United States shall not exceed
the limitation imposed by the preceding sentence with respect to
any other candidate for Federal office. For purposes of this
paragraph, the term "political committee" means an organization

registered as a political committee under section 433, Title 2,

United States Code, for a period of not less than 6 months which
has received contributions from more than 50 persons and,
except for any State political party organization, has made
contributions to 5 or more candidates for Federal office.
(3) No individual shall make contributions aggregating more than

$25,000 in any calendar year. For purposes of this paragraph,
any contribution made in a year other than the calendar year in
which the election is held with respect to which such contribution
was made, is considered to be made during the calendar year in
which such election is held.
(A) contributions to a named candidate made [424 U.S. 1, 190] to

any political committee authorized by such candidate, in writing,
to accept contributions on his behalf shall be considered to be
contributions made to such candidate; and
(B) contributions made to or for the benefit of any candidate

nominated by a political party for election to the office of Vice
President of the United States shall be considered to be
contributions made to or for the benefit of the candidate of such
party for election to the office of President of the United States.
(5) The limitations imposed by paragraphs (1) and (2) of this

subsection shall apply separately with respect to each election,
except that all elections held in any calendar year for the office of
President of the United States (except a general election for such
office) shall be considered to be one election.
(6) For purposes of the limitations imposed by this section, all

contributions made by a person, either directly or indirectly, on
behalf of a particular candidate, including contributions which are
in any way earmarked or otherwise directed through an
intermediary or conduit to such candidate, shall be treated as
contributions from such person to such candidate. The
intermediary or conduit shall report the original source and the
intended recipient of such contribution to the Commission and to
the intended recipient.
(c) Limitations on expenditures.
(1) No candidate shall make expenditures in excess of -
(A) $10,000,000, in the case of a candidate for nomination for

election to the office of President of the United States, except that
[424 U.S. 1, 191] the aggregate of expenditures under this
subparagraph in any one State shall not exceed twice the
expenditure limitation applicable in such State to a candidate for
nomination for election to the office of Senator, Delegate, or
Resident Commissioner, as the case may be;
(B) $20,000,000, in the case of a candidate for election to the

office of President of the United States;
(C) in the case of any campaign for nomination for election by a

candidate for the office of Senator or by a candidate for the office
of Representative from a State which is entitled to only one
Representative, the greater of --

(i) 8 cents multiplied by the voting age population of the State (as
certified under subsection (g)); or
(ii) $100,000;
(D) in the case of any campaign for election by a candidate for the
office of Senator or by a candidate for the office of
Representative from a State which is entitled to only one
(i) 12 cents multiplied by the voting age population of the State

(as certified under subsection (g)); or
(ii) $150,000;
(E) $70,000, in the case of any campaign for nomination for

election, or for election, by a candidate for the office of
Representative in any other State, Delegate from the District of
Columbia, or Resident Commissioner; or
(F) $15,000, in the case of any campaign for nomination for

election, or for election, by [424 U.S. 1, 192] a candidate for the
office of Delegate from Guam or the Virgin Islands.
(A) expenditures made by or on behalf of any candidate

nominated by a political party for election to the office of Vice
President of the United States shall be considered to be
expenditures made by or on behalf of the candidate of such party
for election to the office of President of the United States; and
(B) an expenditure is made on behalf of a candidate, including a

vice presidential candidate, if it is made by -
(i) an authorized committee or any other agent of the candidate

for the purposes of making any expenditure; or
(ii) any person authorized or requested by the candidate, an

authorized committee of the candidate, or an agent of the
candidate, to make the expenditure.
(3) The limitations imposed by subparagraphs (C), (D), (E), and

(F) of paragraph (1) of this subsection shall apply separately with
respect to each election.
(4) The Commission shall prescribe rules under which any

expenditure by a candidate for presidential nomination for use in 2
or more States shall be attributed to such candidate's expenditure
limitation in each such State, based on the voting age population in
such State which can reasonably be expected to be influenced by
such expenditure.
(d) Adjustment of limitations based on price index.
(1) At the beginning of each calendar year (commencing in 1976),

as there become available necessary [424 U.S. 1, 193] data from the
Bureau of Labor Statistics of the Department of Labor, the
Secretary of Labor shall certify to the Commission and publish in
the Federal Register the per centum difference between the price

index for the 12 months preceding the beginning of such calendar

year and the price index for the base period. Each limitation
established by subsection (c) and subsection (f) shall be increased
by such per centum difference. Each amount so increased shall be
the amount in effect for such calendar year.
(2) For purposes of paragraph (1) -
(A) the term "price index" means the average over a calendar year
of the Consumer Price Index (all items -- United States city
average) published monthly by the Bureau of Labor Statistics; and
(B) the term "base period" means the calendar year 1974.
(e) Expenditure relative to clearly identified candidate.
(1) No person may make any expenditure (other than an

expenditure made by or on behalf of a candidate within the
meaning of subsection (c) (2) (B)) relative to a clearly identified
candidate during a calendar year which, when added to all other
expenditures made by such person during the year advocating the
election or defeat of such candidate, exceeds $1,000.
(2) For purposes of paragraph (1) -
(A) "clearly identified" means -
(i) the candidate's name appears;
(ii) a photograph or drawing of the candidate appears; or [424 U.S.

1, 194]
(iii) the identity of the candidate is apparent by unambiguous

reference; and
(B) "expenditure" does not include any payment made or incurred

by a corporation or a labor organization which, under the
provisions of the last paragraph of section 610, would not
constitute an expenditure by such corporation or labor
organization.
(f) Exceptions for national and State committees.
(1) Notwithstanding any other provision of law with respect to

limitations on expenditures or limitations on contributions, the
national committee of a political party and a State committee of a
political party, including any subordinate committee of a State
committee, may make expenditures in connection with the general
election campaign of candidates for Federal office, subject to the
limitations contained in paragraphs (2) and (3) of this subsection.
(2) The national committee of a political party may not make any
expenditure in connection with the general election campaign of
any candidate for President of the United States who is affiliated
with such party which exceeds an amount equal to 2 cents
multiplied by the voting age population of the United States (as
certified under subsection (g)). Any expenditure under this
paragraph shall be in addition to any expenditure by a national
committee of a political party serving as the principal campaign
committee of a candidate for the office of President of the United
States.

(3) The national committee of a political party, or a State

committee of a political party, including any subordinate
committee of a State committee, may not make any expenditure in
connection with the general election campaign of a candidate for
[424 U.S. 1, 195] Federal office in a State who is affiliated with such
party which exceeds -
(A) in the case of a candidate for election to the office of Senator,

or of Representative from a State which is entitled to only one
(i) 2 cents multiplied by the voting age population of the State (as
certified under subsection (g)); or
(ii) $20,000; and
(B) in the case of a candidate for election to the office of

Representative, Delegate, or Resident Commissioner in any other
State, $10,000.
(g) Voting age population estimates. During the first week of January
1975, and every subsequent year, the Secretary of Commerce shall
certify to the Commission and publish in the Federal Register an estimate
of the voting age population of the United States, of each State, and of
each congressional district as of the first day of July next preceding the
date of certification. The term "voting age population" means resident
population, 18 years of age or older.
(h) Knowing violations. No candidate or political committee shall

knowingly accept any contribution or make any expenditure in violation
of the provisions of this section. No officer or employee of a political
committee shall knowingly accept a contribution made for the benefit or
use of a candidate, or knowingly make any expenditure on behalf of a
candidate, in violation of any limitation imposed on contributions and
expenditures under this section.
(i) Penalties. Any person who violates any provision of this section shall
be fined not more than $25,000 or imprisoned not more than 1 year, or
both. [424 U.S. 1, 196]
610. Contributions or expenditures by national banks, corporations or

labor organizations.
It is unlawful for any national bank, or any corporation organized by

authority of any law of Congress, to make a contribution or expenditure
in connection with any election to any political office, or in connection
with any primary election or political convention or caucus held to select
candidates for any political office, or for any corporation whatever, or
any labor organization to make a contribution or expenditure in
connection with any election at which presidential and vice presidential
electors or a Senator or Representative in, or a Delegate or Resident
Commissioner to Congress are to be voted for, or in connection with
any primary election or political convention or caucus held to select
candidates for any of the foregoing offices, or for any candidate, political
committee, or other person to accept or receive any contribution
prohibited by this section.
Every corporation or labor organization which makes any contribution or

expenditure in violation of this section shall be fined not more than
$25,000; and every officer or director of any corporation, or officer of

any labor organization, who consents to any contribution or expenditure

by the corporation or labor organization, as the case may be, and any
person who accepts or receives any contribution, in violation of this
section, shall be fined not more than $1,000 or imprisoned not more
than 1 year, or both; and if the violation was willful, shall be fined not
more than $50,000 or imprisoned not more than 2 years or both.
For the purposes of this section "labor organization" means any

organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exist for
the purpose, [424 U.S. 1, 197] in whole or in part, of dealing with
employers concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of work.
As used in this section, the phrase "contribution or expenditure" shall

include any direct or indirect payment, distribution, loan, advance,
deposit, or gift of money, or any services, or anything of value (except a
loan of money by a national or State bank made in accordance with the
applicable banking laws and regulations and in the ordinary course of
business) to any candidate, campaign committee, or political party or
organization, in connection with any election to any of the offices
referred to in this section; but shall not include communications by a
corporation to its stockholders and their families or by a labor
organization to its members and their families on any subject; nonpartisan
registration and get-out-the-vote campaigns by a corporation aimed at
its stockholders and their families, or by a labor organization aimed at its
members and their families; the establishment, administration, and
solicitation of contributions to a separate segregated fund to be utilized
for political purposes by a corporation or labor organization: Provided,
That it shall be unlawful for such a fund to make a contribution or
expenditure by utilizing money or anything of value secured by physical
force, job discrimination, financial reprisals, or the threat of force, job
discrimination, or financial reprisal; or by dues, fees, or other monies
required as a condition of membership in a labor organization or as a
condition of employment, or by monies obtained in any commercial
transaction.
611. Contributions by Government contractors.
Whoever -
(a) entering into any contract with the United States or any
department or agency thereof either [424 U.S. 1, 198] for the
rendition of personal services or furnishing any material, supplies,
or equipment to the United States or any department or agency
thereof or for selling any land or building to the United States or
any department or agency thereof, if payment for the performance
of such contract or payment for such material, supplies,
equipment, land, or building is to be made in whole or in part from
funds appropriated by the Congress, at any time between the
commencement of negotiations for and the later of -
(1) the completion of performance under, or
(2) the termination of negotiations for, such contract or furnishing

of material, supplies, equipment, land or buildings,
directly or indirectly makes any contribution of money or other

thing of value, or promises expressly or impliedly to make any
such contribution, to any political party, committee, or candidate
for public office or to any person for any political purpose or use;

or
(b) knowingly solicits any such contribution from any such person
for any such purpose during any such period;
shall be fined not more than $25,000 or imprisoned not more than 5
years, or both.
This section does not prohibit or make unlawful the establishment or

administration of, or the solicitation of contributions to, any separate
segregated fund by any corporation or labor organization for the
purpose of influencing the nomination for election, or election, of any
person to Federal office, unless the provisions of section 610 of this title
prohibit or make unlawful the establishment or administration of, or the
solicitation of contributions to, such fund.
For purposes of this section, the term "labor organization" [424 U.S. 1, 199]
has the meaning given it by section 610 of this title.
TITLE 26. INTERNAL REVENUE CODE
6096. Designation by individuals.
(a) In general. Every individual (other than a non-resident alien) whose

income tax liability for the taxable year is $1 or more may designate that
$1 shall be paid over to the Presidential Election Campaign Fund in
accordance with the provisions of section 9006 (a). In the case of a joint
return of husband and wife having an income tax liability of $2 or more,
each spouse may designate that $1 shall be paid to the fund.
(b) Income tax liability. For purposes of subsection (a), the income tax
liability for an individual for any taxable year is the amount of the tax
imposed by chapter 1 on such individual for such taxable year (as shown
on his return), reduced by the sum of the credits (as shown in his return)
allowable under sections 33, 37, 38, 40, and 41.
(c) Manner and time of designation. A designation under subsection (a)

may be made with respect to any taxable year -
(1) at the time of filing the return of the tax imposed by chapter 1
for such taxable year, or
(2) at any other time (after the time of filing the return of the tax
imposed by chapter 1 for such taxable year) specified in
regulations prescribed by the Secretary or his delegate.
Such designation shall be made in such manner as the Secretary or his

delegate prescribes by regulations except that, if such designation is
made at the time of filing the return of the tax imposed by chapter 1 for
such taxable year, such designation shall be made either on the [424 U.S.
1, 200] first page of the return or on the page bearing the taxpayer's
signature.
CHAPTER 95 -- PRESIDENTIAL ELECTION CAMPAIGN FUND
9001. Short title.
This chapter may be cited as the "Presidential Election Campaign Fund

Act."
9002. Definitions.

For purposes of this chapter -
(1) The term "authorized committee" means, with respect to the

candidates of a political party for President and Vice President of the
United States, any political committee which is authorized in writing by
such candidates to incur expenses to further the election of such
candidates. Such authorization shall be addressed to the chairman of
such political committee, and a copy of such authorization shall be filed
by such candidates with the Commission. Any withdrawal of any
authorization shall also be in writing and shall be addressed and filed in
the same manner as the authorization.
(2) The term "candidate" means, with respect to any presidential

election, an individual who -
(A) has been nominated for election to the office of President of

the United States or the office of Vice President of the United
States by a major party, or
(B) has qualified to have his name on the election ballot (or to
have the names of electors pledged to him on the election ballot)
as the candidate of a political party for election to either such
office in 10 or more States.
For purposes of paragraphs (6) and (7) of this section and purposes of
section 9004 (a) (2), the term "candidate" means, with respect to any
preceding presidential [424 U.S. 1, 201] election, an individual who
received popular votes for the office of President in such election.
(3) The term "Commission" means the Federal Election Commission

established by section 437c (a) (1) of Title 2, United States Code.
(4) The term "eligible candidates" means the candidates of a political

party for President and Vice President of the United States who have
met all applicable conditions for eligibility to receive payments under this
chapter set forth in section 9003.
(5) The term "fund" means the Presidential Election Campaign Fund
established by section 9006 (a).
(6) The term "major party" means, with respect to any presidential
election, a political party whose candidate for the office of President in
the preceding presidential election received, as the candidate of such
party, 25 percent or more of the total number of popular votes received
by all candidates for such office.
(7) The term "minor party" means, with respect to any presidential
election, a political party whose candidate for the office of President in
the preceding presidential election received, as the candidate of such
party, 5 percent or more but less than 25 percent of the total number of
popular votes received by all candidates for such office.
(8) The term "new party" means, with respect to any presidential
election, a political party which is neither a major party nor a minor
party.
(9) The term "political committee" means any committee, association, or

organization (whether or not incorporated) which accepts contributions
or makes expenditures for the purpose of influencing, or attempting to
influence, the nomination or election of one or more individuals to

Federal, State, or local elective public office. [424 U.S. 1, 202]
(10) The term "presidential election" means the election of presidential

and vice-presidential electors.
(11) The term "qualified campaign expense" means an expense -
(A) incurred -
(i) by the candidate of a political party for the office of President

to further his election to such office or to further the election of the
candidate of such political party for the office of Vice President,
or both,
(ii) by the candidate of a political party for the office of Vice

President to further his election to such office or to further the
election of the candidate of such political party for the office of
President, or both, or
(iii) by an authorized committee of the candidates of a political

party for the offices of President and Vice President to further the
election of either or both of such candidates to such offices;
(B) incurred within the expenditure report period (as defined in

paragraph (12)), or incurred before the beginning of such period
to the extent such expense is for property, services, or facilities
used during such period; and
(C) neither the incurring nor payment of which constitutes a

violation of any law of the United States or of the State in which
such expense is incurred or paid.
An expense shall be considered as incurred by a candidate or an

authorized committee if it is incurred by a person authorized by such
candidate or such committee, as the case may be, to incur such expense
on behalf of such candidate or such committee. If an authorized
committee of the candidates of a political party for [424 U.S. 1, 203]
President and vice President of the United States also incurs expenses to
further the election of one or more other individuals to Federal, State, or
local elective public office, expenses incurred by such committee which
are not specifically to further the election of such other individual or
individuals shall be considered as incurred to further the election of such
candidates for President and Vice President in such proportion as the
Commission prescribes by rules or regulations.
(12) The term "expenditure report period" with respect to any

presidential election means -
(A) in the case of a major party, the period beginning with the first
day of September before the election, or, if earlier, with the date
on which such major party at its national convention nominated its
candidate for election to the office of President of the United
States, and ending 30 days after the date of the presidential
election; and
(B) in the case of a party which is not a major party, the same
period as the expenditure report period of the major party which
has the shortest expenditure report period for such presidential
election under subparagraph (A).
9003. Condition for eligibility for payments.

(a) In general. In order to be eligible to receive any payments under

section 9006, the candidates of a political party in a presidential election
shall, in writing -
(1) agree to obtain and furnish to the Commission such evidence

as it may request of the qualified campaign expenses of such
candidates;
(2) agree to keep and furnish to the Commission such records,

books, and other information as it may request; and
(3) agree to an audit and examination by the [424 U.S. 1, 204]

Commission under section 9007 and to pay any amounts required
to be paid under such section.
(b) Major parties. In order to be eligible to receive any payments under

section 9006, the candidates of a major party in a presidential election
shall certify to the Commission, under penalty of perjury, that -
(1) such candidates and their authorized committees will not incur
qualified campaign expenses in excess of the aggregate payments
to which they will be entitled under section 9004; and
(2) no contributions to defray qualified campaign expenses have

been or will be accepted by such candidates or any of their
authorized committees except to the extent necessary to make up
any deficiency in payments received out of the fund on account of
the application of section 9006 (d), and no contributions to defray
expenses which would be qualified campaign expenses but for
subparagraph (C) of section 9002 (11) have been or will be
accepted by such candidates or any of their authorized
committees.
Such certification shall be made within such time prior to the day of the
presidential election as the Commission shall prescribe by rules or
regulations.
(c) Minor and new parties. In order to be eligible to receive any

payments under section 9006, the candidates of a minor or new party in
a presidential election shall certify to the Commission, under penalty of
perjury, that -
(1) such candidates and their authorized committees will not incur
qualified campaign expenses in excess of the aggregate payments
to which the eligible candidates of a major party are entitled under
section 9004; and [424 U.S. 1, 205]
(2) such candidates and their authorized committees will accept

and expend or retain contributions to defray qualified campaign
expenses only to the extent that the qualified campaign expenses
incurred by such candidates and their authorized committees
certified to under paragraph (1) exceed the aggregate payments
received by such candidates out of the fund pursuant to section
9006.
Such certification shall be made within such time prior to the day of the
presidential election as the Commission shall prescribe by rules or
regulations.

(a) In general. Subject to the provisions of this chapter -
(1) The eligible candidates of each major party in a presidential

election shall be entitled to equal payments under section 9006 in
an amount which, in the aggregate, shall not exceed the
expenditure limitations applicable to such candidates under
section 608 (c) (1) (B) of Title 18, United States Code.
(2) (A) The eligible candidates of a minor party in a presidential

election shall be entitled to payments under section 9006 equal in
the aggregate to an amount which bears the same ratio to the
amount allowed under paragraph (1) for a major party as number
of popular votes received by the candidate for President of the
minor party, as such candidate, in the preceding presidential
election bears to the average number of popular votes received
by the candidates for President of the major parties in the
preceding presidential election.
(B) If the candidate of one or more political parties (not including

a major party) for the office of President was a candidate for such
office in the preceding presidential election and received 5 percent
[424 U.S. 1, 206] or more but less than 25 percent of the total
number of popular votes received by all candidates for such
office, such candidate and his running mate for the office of Vice
President, upon compliance with the provisions of section 9003
(a) and (c), shall be treated as eligible candidates entitled to
payments under section 9006 in an amount computed as provided
in subparagraph (A) by taking into account all the popular votes
received by such candidate for the office of President in the
preceding presidential election. If eligible candidates of a minor
party are entitled to payments under this subparagraph, such
entitlement shall be reduced by the amount of the entitlement
allowed under subparagraph (A).
(3) The eligible candidates of a minor party or a new party in a

presidential election whose candidate for President in such
election receives, as such candidate, 5 percent or more of the
total number of popular votes cast for the office of President in
such election shall be entitled to payments under section 9006
equal in the aggregate to an amount which bears the same ratio to
the amount allowed under paragraph (1) for a major party as the
number of popular votes received by such candidate in such
election bears to the average number of popular votes received in
such election by the candidates for President of the major parties.
In the case of eligible candidates entitled to payments under
paragraph (2), the amount allowable under this paragraph shall be
limited to the amount, if any, by which the entitlement under the
preceding sentence exceeds the amount of the entitlement under
paragraph (2).
(b) Limitations. The aggregate payments to which the eligible candidates

of a political party shall be entitled [424 U.S. 1, 207] under subsections (a)
(2) and (3) with respect to a presidential election shall not exceed an
amount equal to the lower of -
(1) the amount of qualified campaign expenses incurred by such

eligible candidates and their authorized committees, reduced by
the amount of contributions to defray qualified campaign expenses
received and expended or retained by such eligible candidates
and such committees; or

(2) the aggregate payments to which the eligible candidates of a

major party are entitled under subsection (a) (1), reduced by the
amount of contributions described in paragraph (1) of this
subsection.
(c) Restrictions. The eligible candidates of a political party shall be

entitled to payments under subsection (a) only -
(1) to defray qualified campaign expenses incurred by such

eligible candidates or their authorized committees; or
(2) to repay loans the proceeds of which were used to defray

such qualified campaign expenses, or otherwise to restore funds
(other than contributions to defray qualified campaign expenses
received and expended by such candidates or such committees)
used to defray such qualified campaign expenses.
(a) Initial certifications. Not later than 10 days after the candidates of a
political party for President and Vice President of the United States have
met all applicable conditions for eligibility to receive payments under this
chapter set forth in section 9003, the Commission shall certify to the
Secretary for payment to such eligible candidates under section 9006
payment in full of amounts to which such candidates are entitled under
section 9004. [424 U.S. 1, 208]
(b) Finality of certifications and determinations. Initial certifications by

the Commission under subsection (a), and all determinations made by it
under this chapter shall be final and conclusive, except to the extent that
they are subject to examination and audit by the Commission under
section 9007 and judicial review under section 9011.
(a) Establishment of campaign fund. There is hereby established on the

books of the Treasury of the United States a special fund to be known
as the "Presidential Election Campaign Fund." The Secretary shall, from
time to time, transfer to the fund an amount not in excess of the sum of
the amounts designated (subsequent to the previous Presidential
election) to the fund by individuals under section 6096. There is
appropriated to the fund for each fiscal year, out of amounts in the
general fund of the Treasury not otherwise appropriated, an amount
equal to the amounts so designated during each fiscal year, which shall
remain available to the fund without fiscal year limitation.
(b) Transfer to the general fund. If, after a Presidential election and after
all eligible candidates have been paid the amount which they are entitled
to receive under this chapter, there are moneys remaining in the fund, the
Secretary shall transfer the moneys so remaining to the general fund of
the Treasury.
(c) Payments from the fund. Upon receipt of a certification from the
Commission under section 9005 for payment to the eligible candidates
of a political party, the Secretary shall pay to such candidates out of the
fund the amount certified by the Commission. Amounts paid to any such
candidates shall be under the control of such candidates.
(d) Insufficient amounts in fund. If at the time of a [424 U.S. 1, 209]

certification by the Commission under section 9005 for payment to the

eligible candidates of a political party, the Secretary or his delegate

determines that the moneys in the fund are not, or may not be, sufficient
to satisfy the full entitlements of the eligible candidates of all political
parties, he shall withhold from such payment such amount as he
determines to be necessary to assure that the eligible candidates of each
political party will receive their pro rata share of their full entitlement.
Amounts withheld by reason of the preceding sentence shall be paid
when the Secretary or his delegate determines that there are sufficient
moneys in the fund to pay such amounts, or portions thereof, to all
eligible candidates from whom amounts have been withheld, but, if there
are not sufficient moneys in the fund to satisfy the full entitlement of the
eligible candidates of all political parties, the amounts so withheld shall
be paid in such manner that the eligible candidates of each political party
receive their pro rata share of their full entitlement.
(a) Examinations and audits. After each presidential election, the

Commission shall conduct a thorough examination and audit of the
qualified campaign expenses of the candidates of each political party for
President and Vice President.
(b) Repayments.
(1) If the Commission determines that any portion of the

payments made to the eligible candidates of a political party under
section 9006 was in excess of the aggregate payments to which
candidates were entitled under section 9004, it shall so notify such
candidates, and such candidates shall pay to the Secretary an
amount equal to such portion.
(2) If the Commission determines that the eligible candidates of a

political party and their authorized [424 U.S. 1, 210] committees
incurred qualified campaign expenses in excess of the aggregate
payments to which the eligible candidates of a major party were
entitled under section 9004, it shall notify such candidates of the
amount of such excess and such candidates shall pay to the
Secretary an amount equal to such amount.
(3) If the Commission determines that the eligible candidates of a

major party or any authorized committee of such candidates
accepted contributions (other than contributions to make up
deficiencies in payments out of the fund on account of the
application of section 9006 (d)) to defray qualified campaign
expenses (other than qualified campaign expenses with respect to
which payment is required under paragraph (2)), it shall notify
such candidates of the amount of the contributions so accepted,
and such candidates shall pay to the Secretary an amount equal to
such amount.
(4) If the Commission determines that any amount of any payment

made to the eligible candidates of a political party under section
9006 was used for any purpose other than -
(A) to defray the qualified campaign expenses with respect to

which such payment was made; or
(B) to repay loans the proceeds of which were used, or otherwise

to restore funds (other than contributions to defray qualified
campaign expenses which were received and expended) which
were used to defray such qualified campaign expenses,

it shall notify such candidates of the amount so used, and such

candidates shall pay to the Secretary an amount equal to such
amount.
(5) No payment shall be required from the eligible [424 U.S. 1, 211]
candidates of a political party under this subsection to the extent
that such payment, when added to other payments required from
such candidates under this subsection, exceeds the amount of
payments received by such candidates under section 9006.
(c) Notification. No notification shall be made by the Commission under

subsection (b) with respect to a presidential election more than 3 years
after the day of such election.
(d) Deposit of repayments. All payments received by the Secretary

under subsection (b) shall be deposited by him in the general fund of the
Treasury.
9008. Payments for presidential nominating conventions.
(a) Establishment of accounts. The Secretary shall maintain in the fund, in

addition to any account which he maintains under section 9006 (a), a
separate account for the national committee of each major party and
minor party. The Secretary shall deposit in each such account an amount
equal to the amount which each such committee may receive under
subsection (b). Such deposits shall be drawn from amounts designated
by individuals under section 6096 and shall be made before any transfer
is made to any account for any eligible candidate under section 9006 (a).
(b) Entitlement to payments from the fund.
(1) Major parties. Subject to the provisions of this section, the

national committee of a major party shall be entitled to payments
under paragraph (3), with respect to any presidential nominating
convention, in amounts which, in the aggregate, shall not exceed
$2 million.
(2) Minor parties. Subject to the provisions of this section, the

national committee of a minor party [424 U.S. 1, 212] shall be
entitled to payments under paragraph (3), with respect to any
presidential nominating convention, in amounts which, in the
aggregate, shall not exceed an amount which bears the same ratio
to the amount the national committee of a major party is entitled
to receive under paragraph (1) as the number of popular votes
received by the candidate for President of the minor party, as
such candidate, in the preceding presidential election bears to the
average number of popular votes received by the candidates for
President of the United States of the major parties in the
preceding presidential election.
(3) Payments. Upon receipt of certification from the Commission

under subsection (g), the Secretary shall make payments from the
appropriate account maintained under subsection (a) to the
national committee of a major party or minor party which elects to
receive its entitlement under this subsection. Such payments shall
be available for use by such committee in accordance with the
provisions of subsection (c).
(4) Limitation. Payments to the national committee of a major

party or minor party under this subsection from the account

designated for such committee shall be limited to the amounts in

such account at the time of payment.
(5) Adjustment of entitlements. The entitlements established by

this subsection shall be adjusted in the same manner as
expenditure limitations established by section 608 (c) and section
608 (f) of Title 18, United States Code, are adjusted pursuant to
the provisions of section 608 (d) of such title.
(c) Use of funds. No part of any payment made under subsection (b)
shall be used to defray the expenses [424 U.S. 1, 213] of any candidate or
delegate who is participating in any presidential nominating convention.
Such payments shall be used only -
(1) to defray expenses incurred with respect to a presidential

nominating convention (including the payment of deposits) by or
on behalf of the national committee receiving such payments; or
(2) to repay loans the proceeds of which were used to defray

such expenses, or otherwise to restore funds (other than
contributions to defray such expenses received by such
committee) used to defray such expenses.
(d) Limitation of expenditures.
(1) Major parties. Except as provided by paragraph (3), the

national committee of a major party may not make expenditures
with respect to a presidential nominating convention which, in the
aggregate, exceed the amount of payments to which such
committee is entitled under subsection (b) (1).
(2) Minor parties. Except as provided by paragraph (3), the

national committee of a minor party may not make expenditures
with respect to a presidential nominating convention which, in the
aggregate, exceed the amount of the entitlement of the national
committee of a major party under subsection (b) (1).
(3) Exception. The Commission may authorize the national

committee of a major party or minor party to make expenditures
which, in the aggregate, exceed the limitation established by
paragraph (1) or paragraph (2) of this subsection. Such
authorization shall be based upon a determination by the
Commission that, due to extraordinary and unforeseen
circumstances, such expenditures are necessary [424 U.S. 1, 214] to
assure the effective operation of the presidential nominating
convention by such committee.
(e) Availability of payments. The national committee of a major party or

minor party may receive payments under subsection (b) (3) beginning on
July 1 of the calendar year immediately preceding the calendar year in
which a presidential nominating convention of the political party involved
is held.
(f) Transfer to the fund. If, after the close of a presidential nominating
convention and after the national committee of the political party
involved has been paid the amount which it is entitled to receive under
this section, there are moneys remaining in the account of such national
committee, the Secretary shall transfer the moneys so remaining to the
fund.
(g) Certification by Commission. Any major party or minor party may

file a statement with the Commission in such form and manner and at
such times as it may require, designating the national committee of such
party. Such statement shall include the information required by section
433 (b) of Title 2, United States Code, together with such additional
information as the Commission may require. Upon receipt of a statement
filed under the preceding sentences, the Commission promptly shall
verify such statement according to such procedures and criteria as it may
establish and shall certify to the Secretary for payment in full to any such
committee of amounts to which such committee may be entitled under
subsection (b). Such certifications shall be subject to an examination and
audit which the Commission shall conduct no later than December 31 of
the calendar year in which the presidential nominating convention
involved is held.
(h) Repayments. The Commission shall have the same authority to

require repayments from the national [424 U.S. 1, 215] committee of a
major party or a minor party as it has with respect to repayments from
any eligible candidate under section 9007 (b). The provisions of section
9007 (c) and section 9007 (d) shall apply with respect to any repayment
required by the Commission under this subsection.
(a) Reports. The Commission shall, as soon as practicable after each

presidential election, submit a full report to the Senate and House of
Representatives setting forth -
(1) the qualified campaign expenses (shown in such detail as the

Commission determines necessary) incurred by the candidates of
each political party and their authorized committees;
(2) the amounts certified by it under section 9005 for payment to

eligible candidates of each political party;
(3) the amount of payments, if any, required from such candidates

under section 9007, and the reasons for each payment required;
(4) the expenses incurred by the national committee of a major

party or minor party with respect to a presidential nominating
convention;
(5) the amounts certified by it under section 9008 (g) for payment
to each such committee; and
(6) the amount of payments, if any, required from such

committees under section 9008 (h), and the reasons for each such
payment.
Each report submitted pursuant to this section shall be printed as a

Senate document.
(b) Regulations, etc. The Commission is authorized to prescribe such

rules and regulations in accordance with the provisions of subsection (c),
to conduct such [424 U.S. 1, 216] examinations and audits (in addition to
the examinations and audits required by section 9007 (a)), to conduct
such investigations, and to require the keeping and submission of such
books, records, and information, as it deems necessary to carry out the
functions and duties imposed on it by this chapter.


under subsection (b), shall transmit a statement with respect to
such rule or regulation to the Senate and to the House of
Representatives, in accordance with the provisions of this
subsection. Such statement shall set forth the proposed rule or
regulation and shall contain a detailed explanation and justification
of such rule or regulation.
(2) If either such House does not, through appropriate action,

disapprove the proposed rule or regulation set forth in such
statement no later than 30 legislative days after receipt of such
statement, then the Commission may prescribe such rule or
regulation. The Commission may not prescribe any rule or
regulation which is disapproved by either such House under this
paragraph.

does not include any calendar day on which both Houses of the
Congress are not in session.
(a) Appearance by counsel. The Commission is authorized to appear in

and defend against any action filed under section 9011, either by
attorneys employed in its office or by counsel whom it may appoint
without regard to the provisions of Title 5, United States Code,
governing appointments in the competitive service, and [424 U.S. 1, 217]
whose compensation it may fix without regard to the provisions of
chapter 51 and subchapter III of chapter 53 of such title.
(b) Recovery of certain payments. The Commission is authorized

through attorneys and counsel described in subsection (a) to appear in
the district courts of the United States to seek recovery of any amounts
determined to be payable to the Secretary as a result of examination and
audit made pursuant to section 9007.
(c) Declaratory and injunctive relief. The Commission is authorized

through attorneys and counsel described in subsection (a) to petition the
courts of the United States for declaratory or injunctive relief concerning
any civil matter covered by the provisions of this subtitle or section
6096. Upon application of the Commission an action brought pursuant
to this subsection shall be heard and determined by a court of three
judges in accordance with the provisions of section 2284 of Title 28,
United States Code, and any appeal shall lie to the Supreme Court. It
shall be the duty of the judges designated to hear the case to assign the
case for hearing at the earliest practicable date, to participate in the
hearing and determination thereof, and to cause the case to be in every
way expedited.
(d) Appeal. The Commission is authorized on behalf of the United States

to appeal from, and to petition the Supreme Court for certiorari to
review, judgments or decrees entered with respect to actions in which it
appears pursuant to the authority provided in this section.
(a) Review of certification, determination, or other action by the

Commission. Any certification, determination, or other action by the
Commission made or taken pursuant to the provisions of this chapter
shall be subject to review by the United States Court of Appeals for [424
U.S. 1, 218] the District of Columbia upon petition filed in such Court by

any interested person. Any petition filed pursuant to this section shall be
filed within 30 days after the certification, determination, or other action
by the Commission for which review is sought.
(b) Suits to implement chapter.
(1) The Commission, the national committee of any political party,

and individuals eligible to vote for President are authorized to
institute such actions, including actions for declaratory judgment
or injunctive relief, as may be appropriate to implement or
construe1a any provisions of this chapter.
(2) The district courts of the United States shall have jurisdiction
of proceedings instituted pursuant to this subsection and shall
exercise the same without regard to whether a person asserting
rights under provisions of this subsection shall have exhausted any
administrative or other remedies that may be provided at law.
Such proceedings shall be heard and determined by a court of
three judges in accordance with the provisions of section 2284 of
Title 28, United States Code, and any appeal shall lie to the
Supreme Court. It shall be the duty of the judges designated to
hear the case to assign the case for hearing at the earliest
practicable date, to participate in the hearing and determination
thereof, and to cause the case to be in every way expedited.
(a) Excess expenses.
(1) It shall be unlawful for an eligible candidate of a political party

for President and Vice President in a presidential election or any
of his authorized committees knowingly and willfully to incur
qualified [424 U.S. 1, 219] campaign expenses in excess of the
aggregate payments to which the eligible candidates of a major
party are entitled under section 9004 with respect to such
election. It shall be unlawful for the national committee of a major
party or minor party knowingly and willfully to incur expenses
with respect to a presidential nominating convention in excess of
the expenditure limitation applicable with respect to such
committee under section 9008 (d), unless the incurring of such
expenses is authorized by the Commission under section 9008 (d)
(3).
(2) Any person who violates paragraph (1) shall be fined not
more than $5,000, or imprisoned not more than 1 year or both. In
the case of a violation by an authorized committee, any officer or
member of such committee who knowingly and willfully consents
to such violation shall be fined not more than $5,000, or
imprisoned not more than 1 year, or both.
(b) Contributions.
(1) It shall be unlawful for an eligible candidate of a major party in

a presidential election or any of his authorized committees
knowingly and willfully to accept any contribution to defray
qualified campaign expenses, except to the extent necessary to
make up any deficiency in payments received out of the fund on
account of the application of section 9006 (d), or to defray
expenses which would be qualified campaign expenses but for
subparagraph (C) of section 9002 (11).

(2) It shall be unlawful for an eligible candidate of a political party

(other than a major party) in a presidential election or any of his
authorized committees knowingly and willfully to accept and
expend or retain contributions to defray qualified [424 U.S. 1, 220]
campaign expenses in an amount which exceeds the qualified
campaign expenses incurred with respect to such election by such
eligible candidate and his authorized committees.
(3) Any person who violates paragraph (1) or (2) shall be fined
not more than $5,000, or imprisoned not more than 1 year, or
both. In the case of a violation by an authorized committee, any
officer or member of such committee who knowingly and willfully
consents to such violation shall be fined not more than $5,000, or
imprisoned not more than 1 year, or both.
(c) Unlawful use of payments.
(1) It shall be unlawful for any person who receives any payment
under section 9006, or to whom any portion of any payment
received under such section is transferred, knowingly and willfully
to use, or authorize the use of, such payment or such portion for
any purpose other than -


were used, to defray such qualified campaign expenses.
(2) It shall be unlawful for the national committee of a major party

or minor party which receives any payment under section 9008
(b) (3) to use, or authorize the use of, such payment for any
purpose other than a purpose authorized by section 9008 (c).
(3) Any person who violates paragraph (1) shall [424 U.S. 1, 221]
be fined not more than $10,000, or imprisoned not more than 5
years, or both.
(d) False statements, etc.
(1) It shall be unlawful for any person knowingly and willfully -
(A) to furnish any false, fictitious, or fraudulent evidence, books,

or information to the Commission under this subtitle, or to include
in any evidence, books, or information so furnished any
misrepresentation of a material fact, or to falsify or conceal any
evidence, books, or information relevant to a certification by the
Commission or an examination and audit by the Commission
under this chapter; or
(B) to fail to furnish to the Commission any records, books, or

information requested by it for purposes of this chapter.
more than $10,000, or imprisoned not more than 5 years, or
both.
(e) Kickbacks and illegal payments.

(1) It shall be unlawful for any person knowingly and willfully to

give or accept any kickback or any illegal payment in connection
with any qualified campaign expense of eligible candidates or their
authorized committees. It shall be unlawful for the national
committee of a major party or minor party knowingly and willfully
to give or accept any kickback or any illegal payment in
connection with any expense incurred by such committee with
respect to a presidential nominating convention.
more than $10,000, or imprisoned not more than 5 years, or
both. [424 U.S. 1, 222]
(3) In addition to the penalty provided by paragraph (2), any

person who accepts any kickback or illegal payment in
connection with any qualified campaign expense of eligible
candidates or their authorized committees, or in connection with
any expense incurred by the national committee of a major party
or minor party with respect to a presidential nominating
convention, shall pay to the Secretary, for deposit in the general
fund of the Treasury, an amount equal to 125 percent of the
kickback or payment received.
(f) Unauthorized expenditures and contributions.
(1) Except as provided in paragraph (2), it shall be unlawful for

any political committee which is not an authorized committee with
respect to the eligible candidates of a political party for President
and Vice President in a presidential election knowingly and
willfully to incur expenditures to further the election of such
candidates, which would constitute qualified campaign expenses if
incurred by an authorized committee of such candidates, in an
aggregate amount exceeding $1,000.
(2) This subsection shall not apply to -
(A) expenditures by a broadcaster regulated by the Federal

Communications Commission, or by a periodical publication, in
reporting the news or in taking editorial positions; or
(B) expenditures by any organization described in section 501 (c)

which is exempt from tax under section 501 (a) in communicating
to its members the views of that organization.
(3) Any political committee which violates paragraph (1) shall be

fined not more than $5,000, and any officer or member of such
committee who knowingly and willfully consents to such violation
and [424 U.S. 1, 223] any other individual who knowingly and
willfully violates paragraph (1) shall be fined not more than
$5,000, or imprisoned not more than 1 year, or both.
(g) Unauthorized disclosure of information.
(1) It shall be unlawful for any individual to disclose any

information obtained under the provisions of this chapter except
as may be required by law.
more than $5,000, or imprisoned not more than 1 year, or both.
CHAPTER 96 -- PRESIDENTIAL PRIMARY MATCHING

PAYMENT ACCOUNT
9031. Short title.
This chapter may be cited as the "Presidential Primary Matching

Payment Account Act."
9032. Definitions.
For the purposes of this chapter -
(1) The term "authorized committee" means, with respect to the

candidates of a political party for President and Vice President of
the United States, any political committee which is authorized in
writing by such candidates to incur expenses to further the
election of such candidates. Such authorization shall be addressed
to the chairman of such political committee, and a copy of such
authorization shall be filed by such candidates with the
Commission. Any withdrawal of any authorization shall also be in
writing and shall be addressed and filed in the same manner as the
authorization.
(2) The term "candidate" means an individual who seeks

nomination for election to be President of the United States. For
purposes of this paragraph, [424 U.S. 1, 224] an individual shall be
considered to seek nomination for election if he --
(A) takes the action necessary under the law of a State to qualify
himself for nomination for election;
(B) receives contributions or incurs qualified campaign expenses;

or
(C) gives his consent for any other person to receive contributions
or to incur qualified campaign expenses on his behalf.
(3) The term "Commission" means the Federal Election

Commission established by section 437c (a) (1) of Title 2, United
States Code.
(4) Except as provided by section 9034 (a), the term

"contribution" -
(A) means a gift, subscription, loan, advance, or deposit of

money, or anything of value, the payment of which was made on
or after the beginning of the calendar year immediately preceding
the calendar year of the presidential election with respect to which
such gift, subscription, loan, advance, or deposit of money, or
anything of value, is made for the purpose of influencing the result
of a primary election;
(B) means a contract, promise, or agreement, whether or not

legally enforceable, to make a contribution for any such purpose;
(C) means funds received by a political committee which are

transferred to that committee from another committee; and
(D) means the payment by any person other than a candidate, or

his authorized committee, of compensation for the personal
services of another person which are rendered to the candidate or
committee without charge; but [424 U.S. 1, 225]

(E) does not include -
(i) except as provided in subparagraph (D), the value of personal

services rendered to or for the benefit of a candidate by an
individual who receives no compensation for rendering such
service to or for the benefit of the candidate; or
(ii) payments under section 9037.
(5) The term "matching payment account" means the Presidential

Primary Matching Payment Account established under section
9037 (a).
(6) The term "matching payment period" means the period

beginning with the beginning of the calendar year in which a
general election for the office of President of the United States will
be held and ending on the date on which the national convention
of the party whose nomination a candidate seeks nominates its
candidate for the office of President of the United States, or, in
the case of a party which does not make such nomination by
national convention, ending on the earlier of -
(A) the date such party nominates its candidate for the office of
President of the United States; or
(B) the last day of the last national convention held by a major
party during such calendar year.
(7) The term "primary election" means an election, including a

runoff election or a nominating convention or caucus held by a
political party, for the selection of delegates to a national
nominating convention of a political party, or for the expression of
a preference for the nomination of persons for election to the
office of President of the United States. [424 U.S. 1, 226]
(8) The term "political committee" means any individual,

committee, association, or organization (whether or not
incorporated) which accepts contributions or incurs qualified
campaign expenses for the purpose of influencing, or attempting
to influence, the nomination of any person for election to the office
of President of the United States.
(9) The term "qualified campaign expense" means a purchase,

payment, distribution, loan, advance, deposit, or gift of money or
of anything of value -
(A) incurred by a candidate, or by his authorized committee, in

connection with his campaign for nomination for election; and
(B) neither the incurring nor payment of which constitutes a

violation of any law of the United States or of the State in which
the expense is incurred or paid.
For purposes of this paragraph, an expense is incurred by a

candidate or by an authorized committee if it is incurred by a
person specifically authorized in writing by the candidate or
committee, as the case may be, to incur such expense on behalf of
the candidate or the committee.
(10) The term "State" means each State of the United States and

the District of Columbia.
9033. Eligibility for payments.
(a) Conditions. To be eligible to receive payments under section 9037, a

candidate shall, in writing -
(1) agree to obtain and furnish to the Commission any evidence it

may request of qualified campaign expenses;
(2) agree to keep and furnish to the Commission any records,

books, and other information it may request; and
(3) agree to an audit and examination by the [424 U.S. 1, 227]

Commission under section 9038 and to pay any amounts required
to be paid under such section.
(b) Expense limitation; declaration of intent; minimum contributions. To

be eligible to receive payments under section 9037, a candidate shall
certify to the Commission that -
(1) the candidate and his authorized committees will not incur
qualified campaign expenses in excess of the limitation on such
expenses under section 9035;
(2) the candidate is seeking nomination by a political party for

election to the office of President of the United States;
(3) the candidate has received matching contributions which in the

aggregate, exceed $5,000 in contributions from residents of each
of at least 20 States; and
(4) the aggregate of contributions certified with respect to any

person under paragraph (3) does not exceed $250.
(a) In general. Every candidate who is eligible to receive payments under

section 9033 is entitled to payments under section 9037 in an amount
equal to the amount of each contribution received by such candidate on
or after the beginning of the calendar year immediately preceding the
calendar year of the presidential election with respect to which such
candidate is seeking nomination, or by his authorized committees,
disregarding any amount of contributions from any person to the extent
that the total of the amounts contributed by such person on or after the
beginning of such preceding calendar year exceeds $250. For purposes
of this subsection and section 9033 (b), the term "contribution" means a
gift of money made by a written instrument which identifies [424 U.S. 1,
228] the person making the contribution by full name and mailing
address, but does not include a subscription, loan, advance, or deposit
of money, or anything of value or anything described in subparagraph
(B), (C), or (D) of section 9032 (4).
(b) Limitations. The total amount of payments to which a candidate is

entitled under subsection (a) shall not exceed 50 percent of the
expenditure limitation applicable under section 608 (c) (1) (A) of Title
18, United States Code.
9035. Qualified campaign expense limitation.
No candidate shall knowingly incur qualified campaign expenses in

excess of the expenditure limitation applicable under section 608 (c) (1)
(A) of Title 18, United States Code.
(a) Initial certifications. Not later than 10 days after a candidate

establishes his eligibility under section 9033 to receive payments under
section 9037, the Commission shall certify to the Secretary for payment
to such candidate under section 9037 payment in full of amounts to
which such candidate is entitled under section 9034. The Commission
shall make such additional certifications as may be necessary to permit
candidates to receive payments for contributions under section 9037.
(b) Finality of determinations. Initial certifications by the Commission

under subsection (a), and all determinations made by it under this
chapter, are final and conclusive, except to the extent that they are
subject to examination and audit by the Commission under section 9038
and judicial review under section 9041.
(a) Establishment of account. The Secretary shall maintain in the

Presidential Election Campaign Fund [424 U.S. 1, 229] established by
section 9006 (a), in addition to any account which he maintains under
such section, a separate account to be known as the Presidential
Primary Matching Payment Account. The Secretary shall deposit into
the matching payment account, for use by the candidate of any political
party who is eligible to receive payments under section 9033, the
amount available after the Secretary determines that amounts for
payments under section 9006 (c) and for payments under section 9008
(b) (3) are available for such payments.
(b) Payments from the matching payment account. Upon receipt of a

certification from the Commission under section 9036, but not before the
beginning of the matching payment period, the Secretary or his delegate
shall promptly transfer the amount certified by the Commission from the
matching payment account to the candidate. In making such transfers to
candidates of the same political party, the Secretary or his delegate shall
seek to achieve an equitable distribution of funds available under
subsection (a), and the Secretary or his delegate shall take into account,
in seeking to achieve an equitable distribution, the sequence in which
such certifications are received.
(a) Examinations and audits. After each matching payment period, the
Commission shall conduct a thorough examination and audit of the
qualified campaign expenses of every candidate and his authorized
committees who received payments under section 9037.
(b) Repayments.
(1) If the Commission determines that any portion of the

payments made to a candidate from the matching payment
account was in excess of the aggregate amount of payments to
which such candidate was entitled under section 9034, it shall [424
U.S. 1, 230] notify the candidate, and the candidate shall pay to the
Secretary or his delegate an amount equal to the amount of
excess payments.
(2) If the Commission determines that any amount of any payment

made to a candidate from the matching payment account was

used for any purpose other than -


were used, to defray qualified campaign expenses;
it shall notify such candidate of the amount so used, and the candidate
shall pay to the Secretary or his delegate an amount equal to such
amount.
(3) Amounts received by a candidate from the matching payment

account may be retained for the liquidation of all obligations to
pay qualified campaign expenses incurred for a period not
exceeding 6 months after the end of the matching payment period.
After all obligations have been liquidated, that portion of any
unexpended balance remaining in the candidate's accounts which
bears the same ratio to the total unexpended balance as the total
amount received from the matching payment account bears to the
total of all deposits made into the candidate's accounts shall be
promptly repaid to the matching payment account.
(c) Notification. No notification shall be made by the Commission under

subsection (b) with respect to a matching payment period more than 3
years after the end of such period. [424 U.S. 1, 231]
(d) Deposit of repayments. All payments received by the Secretary or

his delegate under subsection (b) shall be deposited by him in the
matching payment account.
(a) Reports. The Commission shall, as soon as practicable after each

matching payment period, submit a full report to the Senate and House
of Representatives setting forth -
(1) the qualified campaign expenses (shown in such detail as the

Commission determines necessary) incurred by the candidates of
each political party and their authorized committees;
(2) the amounts certified by it under section 9036 for payment to

each eligible candidate; and
(3) the amount of payments, if any, required from candidates

under section 9038, and the reasons for each payment required.
Each report submitted pursuant to this section shall be printed as a

Senate document.
(b) Regulations, etc. The Commission is authorized to prescribe rules

and regulations in accordance with the provisions of subsection (c), to
conduct examinations and audits (in addition to the examinations and
audits required by section 9038 (a)), to conduct investigations, and to
require the keeping and submission of any books, records, and
information, which it determines to be necessary to carry out its
responsibilities under this chapter.


under subsection (b), shall transmit a statement with respect to
such rule or regulation to the Senate and to the House of
Representatives, [424 U.S. 1, 232] in accordance with the provisions
of this subsection. Such statement shall set forth the proposed rule
or regulation and shall contain a detailed explanation and
justification of such rule or regulation.
(2) If either such House does not, through appropriate action,

disapprove the proposed rule or regulation set forth in such
statement no later than 30 legislative days after receipt of such
statement, then the Commission may prescribe such rule or
regulation. The Commission may not prescribe any rule or
regulation which is disapproved by either such House under this
paragraph.

does not include any calendar day on which both Houses of the
Congress are not in session.
(a) Appearance by counsel. The Commission is authorized to appear in

and defend against any action instituted under this section, either by
attorneys employed in its office or by counsel whom it may appoint
without regard to the provisions of Title 5, United States Code,
governing appointments in the competitive service, and whose
compensation it may fix without regard to the provisions of chapter 51
and subchapter III of chapter 53 of such title.
(b) Recovery of certain payments. The Commission is authorized,

through attorneys and counsel described in subsection (a), to institute
actions in the district courts of the United States to seek recovery of any
amounts determined to be payable to the Secretary or his delegate as a
result of an examination and audit made pursuant to section 9038. [424
U.S. 1, 233]
(c) Injunctive relief. The Commission is authorized, through attorneys

and counsel described in subsection (a), to petition the courts of the
United States for such injunctive relief as is appropriate to implement any
provision of this chapter.
(d) Appeal. The Commission is authorized on behalf of the United States

to appeal from, and to petition the Supreme Court for certiorari to
review, judgments or decrees entered with respect to actions in which it
appears pursuant to the authority provided in this section.
(a) Review of agency action by the Commission. Any agency action by

the Commission made under the provisions of this chapter shall be
subject to review by the United States Court of Appeals for the District
of Columbia Circuit upon petition filed in such court within 30 days after
the agency action by the Commission for which review is sought.
(b) Review procedures. The provisions of chapter 7 of Title 5, United

States Code, apply to judicial review of any agency action, as defined in
section 551 (13) of Title 5, United States Code, by the Commission.

(a) Excess campaign expenses. Any person who violates the provisions
of section 9035 shall be fined not more than $25,000, or imprisoned not
more than 5 years, or both. Any officer or member of any political
committee who knowingly consents to any expenditure in violation of the
provisions of section 9035 shall be fined not more than $25,000, or
imprisoned not more than 5 years, or both.
(b) Unlawful use of payments.
(1) It is unlawful for any person who receives any payment under
section 9037, or to whom any portion [424 U.S. 1, 234] of any such
payment is transferred, knowingly and willfully to use, or authorize
the use of, such payment or such portion for any purpose other
than -
(A) to defray qualified campaign expenses; or

were used, to defray qualified campaign expenses.
(2) Any person who violates the provisions of paragraph (1) shall
years, or both.
(c) False statements, etc.
(1) It is unlawful for any person knowingly and willfully -
(A) to furnish any false, fictitious, or fraudulent evidence, books,

or information to the Commission under this chapter, or to include
in any evidence, books, or information so furnished any
misrepresentation of a material fact, or to falsify or conceal any
evidence, books, or information relevant to a certification by the
Commission or an examination and audit by the Commission
under this chapter; or
(B) to fail to furnish to the Commission any records, books, or

information requested by it for purposes of this chapter.
years, or both.
(d) Kickbacks and illegal payments.
(1) It is unlawful for any person knowingly and willfully to give or

accept any kickback or any illegal [424 U.S. 1, 235] payment in
connection with any qualified campaign expense of a candidate,
or his authorized committees, who receives payments under
section 9037.
years, or both.
(3) In addition to the penalty provided by paragraph (2), any

person who accepts any kickback or illegal payment in

connection with any qualified campaign expense of a candidate or

his authorized committees shall pay to the Secretary for deposit in
the matching payment account, an amount equal to 125 percent of
the kickback or payment received.
Footnotes
[ Footnote 1 ] Federal Election Campaign Act of 1971, 86 Stat. 3, as

amended by the Federal Election Campaign Act Amendments of 1974,
88 Stat. 1263. The pertinent portions of the legislation are set forth in the
Appendix to this opinion.
[ Footnote 2 ] 171 U.S. App. D.C. 172, 519 F.2d 821 (1975).
[ Footnote 3 ] The Revenue Act of 1971, Title VIII, 85 Stat. 562, as

amended, 87 Stat. 138, and further amended by the Federal Election
Campaign Act Amendments of 1974, 403 et seq., 88 Stat. 1291. This
subtitle consists of two parts: Chapter 95 deals with funding national
party conventions and general election campaigns for president, and
Chapter 96 deals with matching funds for Presidential primary
campaigns.
[ Footnote 4 ] " 437h. Judicial review.
"(a) ...
"The Commission, the national committee of any political party, or

any individual eligible to vote in any election for the office of
President of the United States may institute such actions in the
appropriate district court of the United States, including actions
for declaratory judgment, as may be appropriate to construe the
constitutionality of any provision of this Act or of section 608,
610, 611, 613, 614, 615, 616, or 617 of Title 18. The district
court immediately shall certify all questions of constitutionality of
this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617
of Title 18, to the United States court of appeals for the circuit
involved, which shall hear the matter sitting en banc.
"(b) ...
"Notwithstanding any other provision of law, any decision on a

matter certified under subsection (a) of this section shall be
reviewable by appeal directly to the Supreme Court of the United
States. Such appeal shall be brought no later than 20 days after
the decision of the court of appeals.
"(c) ...
"It shall be the duty of the court of appeals and of the Supreme
Court of the United States to advance on the docket and to
expedite [424 U.S. 1, 9] to the greatest possible extent the
disposition of any matter certified under subsection (a) of this
section."
[ Footnote 5 ] Center for Public Financing of Elections, Common

Cause, the League of Women Voters of the United States, Chellis
O'Neal Gregory, Norman F. Jacknis, Louise D. Wides, Daniel R.
Noyes, Mrs. Edgar B. Stern, Charles P. Taft, John W. Gardner, and
Ruth Clusen.
[ Footnote 6 ] The Court of Appeals also suggested in its en banc order

that the issues arising under Subtitle H (relating to the public financing of
Presidential campaigns) might require, under 26 U.S.C. 9011 (b) (1970
ed., Supp. IV), a different mode of review from the other issues raised in
the case. The court suggested that a three-judge District Court should
consider the constitutionality of these provisions in order to protect
against the contingency that this Court might eventually hold these issues
to be subject to determination by a three-judge court, either under 9011
(b), or 28 U.S.C. 2282, [424 U.S. 1, 10] 2284. 171 U.S. App. D.C. 168,
170, 519 F.2d 817, 819 (1975). The case was argued simultaneously to
both the Court of Appeals, sitting en banc, and a three-judge District
Court. The three-judge court limited its consideration to issues under
Subtitle H. The three-judge court adopted the Court of Appeals' opinion
on these questions in toto and simply entered an order with respect to
those matters. 401 F. Supp. 1235. Thus, two judgments are before us
-- one from each court -- upholding the constitutionality of Subtitle H,
though the two cases before the Court will generally be referred to
hereinafter in the singular. Since the jurisdiction of this Court to hear at
least one of the appeals is clear, we need not resolve the jurisdictional
ambiguities that occasioned the joint sitting of the Court of Appeals and
the three-judge court.
[ Footnote 7 ] The court held one provision, 437a, unconstitutionally

vague and overbroad on the ground that the provision is "`susceptible to
a reading necessitating reporting by groups whose only connection with
the elective process arises from completely nonpartisan public discussion
of issues of public importance.'" 171 U.S. App. D.C., at 183, 519 F.2d,
at 832. No appeal has been taken from that holding.
[ Footnote 8 ] The court recognized that some of the powers delegated

to the [424 U.S. 1, 11] Commission, when exercised in a concrete context,
may be predominantly executive or judicial or unrelated to the
Commission's legislative function; however, since the Commission had
not yet exercised most of these challenged powers, consideration of the
constitutionality of those grants of authority was postponed. See n. 157,
infra.
[ Footnote 10 ] This Court has held, for instance, that an organization

"may assert, on behalf of its members, a right personal to them to be
protected from compelled disclosure ... of their affiliation." NAACP v.
Alabama, 357 U.S. 449, 458(1958). See also Bates v. Little Rock, 361
U.S. 516, 523 n. 9 (1960). Similarly, parties with sufficient concrete
interests at stake have been held to have standing to raise constitutional
questions of separation of powers with respect to an agency designated
to adjudicate their rights. Palmore v. United States, 411 U.S. 389
(1973); Glidden Co. v. Zdanok, 370 U.S. 530 (1962); Coleman v.
Miller, 307 U.S. 433 (1939).
[ Footnote 11 ] Accordingly, the two relevant certified questions are

answered as follows:
1. Does the first sentence of 315 (a) of the Federal Election Campaign
Act, as amended, 2 U.S.C. 437h (a) (1970 ed., Supp. IV), in the
context of this action, require courts of the United States to render
advisory opinions in violation of the "case or controversy" requirement of
Article III, 2, of the Constitution of the United States? NO.
2. Has each of the plaintiffs alleged sufficient injury to his constitutional

rights enumerated in the following questions to create a constitutional
"case or controversy" within the judicial power under Article III? YES.

[ Footnote 12 ] See 18 U.S.C. 608 (b) (1), (3) (1970 ed., Supp. IV).
set forth in the Appendix, infra, at 189. An organization registered as a
political committee for not less than six months which has received
contributions from at least 50 persons and made contributions to at least
five candidates may give up to $5,000 to any candidate for any election.
18 U.S.C. 608 (b) (2) (1970 ed., Supp. IV), set forth in the Appendix,
infra, at 189. Other groups are limited to making contributions of $1,000
per candidate per election.
[ Footnote 13 ] See 18 U.S.C. 608 (e) (1970 ed., Supp. IV), set forth
in the Appendix, infra, at 193-194.
[ Footnote 14 ] See 18 U.S.C. 608 (a) (1970 ed., Supp. IV), set forth
[ Footnote 15 ] See 18 U.S.C. 608 (c) (1970 ed., Supp. IV), set forth
[ Footnote 16 ] Article I, 4, of the Constitution grants Congress the

power to regulate elections of members of the Senate and House of
Representatives. See Smiley v. Holm, 285 U.S. 355 (1932); Ex parte
Yarbrough, 110 U.S. 651 (1884). Although the Court at one time
indicated that party primary contests were not "elections" within the
meaning of Art. I, 4, Newberry v. United States, 256 U.S. 232 (1921),
it later held that primary elections were within the Constitution's grant of
authority to Congress. United States v. [424 U.S. 1, 14] Classic, 313 U.S.
299 (1941). The Court has also recognized broad congressional power
to legislate in connection with the elections of the president and Vice
President. Burroughs v. United States, 290 U.S. 534 (1934). See Part
III, infra.
[ Footnote 17 ] The nongovernmental appellees argue that just as the

decibels emitted by a sound truck can be regulated consistently with the
First Amendment, Kovacs v. Cooper, 336 U.S. 77 (1949), the Act may
restrict the volume of dollars in political campaigns without impermissibly
restricting freedom of speech. See Freund, Commentary in A.
Rosenthal, Federal Regulation of Campaign Finance: Some
Constitutional Questions 72 (1971). This comparison underscores a
fundamental misconception. The decibel restriction upheld in Kovacs
limited the manner of operating a soundtruck, but not the extent of its
proper use. By contrast, the Act's dollar ceilings restrict the extent of the
reasonable use of virtually every means of communicating information.
As the Kovacs Court emphasized, the nuisance ordinance only barred
soundtrucks from broadcasting "in a loud and raucous manner on the
streets," 336 U.S., at 89 , and imposed "no restriction upon the
communication of ideas or discussion of issues by the human voice, by
newspapers, by pamphlets, by dodgers," or by soundtrucks operating at
a reasonable volume. Ibid. See Saia v. New York, 334 U.S. 558, 561
-562 (1948).
[ Footnote 18 ] Being free to engage in unlimited political expression

subject to a ceiling on expenditures is like being free to drive an
automobile as far and as often as one desires on a single tank of
gasoline.
[ Footnote 19 ] Political parties that fail to qualify a candidate for a

position on the ballot are classified as "persons" and are subject to the
$1,000 independent expenditure ceiling. See 18 U.S.C. 591 (g), (i), 608
(e) (1), (f) (1970 ed., Supp. IV). Institutional press facilities owned or
controlled by candidates or political parties are also subject to

expenditure limits under the Act. See 18 U.S.C. 591 (f) (4) (A), 608 (c)
(2) (B), (e) (1) (1970 ed., Supp. IV).
Unless otherwise indicated all subsequent statutory citations in Part I of

this opinion are to Title 18 of the United States Code, 1970 edition,
Supplement IV.
[ Footnote 20 ] The record indicates that, as of January 1, 1975, one

full-page advertisement in a daily edition of a certain metropolitan
newspaper cost $6,971.04 -- almost seven times the annual limit on
expenditures "relative to" a particular candidate imposed on the vast
majority of individual citizens and associations by 608 (e) (1)
[ Footnote 21 ] The statistical findings of fact agreed to by the parties in

the District Court indicate that 17 of 65 major-party senatorial
candidates in 1974 spent more than the combined primary-election,
general-election, and fundraising limitations imposed by the Act. 591 (f)
(4) (H), 608 (c) (1) (C), (D). The 1972 senatorial figures showed that
18 of 66 major-party candidates exceeded the Act's limitations. This
figure may substantially underestimate the number of candidates who
exceeded the limits provided in the Act, since the Act imposes separate
ceilings for the primary election, the general election, and fundraising,
and does not permit the limits to be aggregated. 608 (c) (3). The data
for House of Representatives elections are also skewed, since statistics
reflect a combined $168,000 limit instead of separate $70,000 ceilings
for primary and general elections with up to an additional 20% permitted
for fundraising. 591 (f) (4) (H), 608 (c) (1) (E). Only 22 of the 810
major-party House candidates in 1974 and 20 of the 816 major-party
candidates in 1972 exceeded the $168,000 figure. Both Presidential
candidates in 1972 spent in excess of the combined Presidential
expenditure ceilings. 608 (c) (1) (A), (B).
[ Footnote 22 ] Other factors relevant to an assessment of the "intensity"

of the support indicated by a contribution include the contributor's
financial ability and his past contribution history.
[ Footnote 23 ] Statistical findings agreed to by the parties reveal that

approximately 5.1% of the $73,483,613 raised by the 1,161 candidates
for Congress in 1974 was obtained in amounts in excess of $1,000. In
1974, two major-party senatorial candidates, Ramsey Clark and [424
U.S. 1, 22] Senator Charles Mathias, Jr., operated large-scale campaigns
on contributions raised under a voluntarily imposed $100 contribution
limitation.
[ Footnote 24 ] The Act exempts from the contribution ceiling the value
of all volunteer services provided by individuals to a candidate or a
political committee and excludes the first $500 spent by volunteers on
certain categories of campaign-related activities. 591 (e) (5) (A)-(D).
See infra, at 36-37.
The Act does not define the phrase -- "for the purpose of influencing" an
election -- that determines when a gift, loan, or advance constitutes a
contribution. Other courts have given that phrase a narrow meaning to
alleviate various problems in other contexts. See United States v.
National Comm. for Impeachment, 469 F.2d 1135, 1139-1142 (CA2
1972); American Civil Liberties Union v. [424 U.S. 1, 24] Jennings, 366 F.
Supp. 1041, 1055-1057 (DC 1973) (three-judge court), vacated as
moot sub nom. Staats v. American Civil Liberties Union, 422 U.S. 1030
(1975). The use of the phrase presents fewer problems in connection
with the definition of a contribution because of the limiting connotation
created by the general understanding of what constitutes a political

contribution. Funds provided to a candidate or political party or

campaign committee either directly or indirectly through an intermediary
constitute a contribution. In addition, dollars given to another person or
organization that are earmarked for political purposes are contributions
under the Act.
[ Footnote 25 ] Expenditures by persons and associations that are

"authorized or requested" by the candidate or his agents are treated as
contributions under the Act. See n. 53, infra.
[ Footnote 26 ] Contribution limitations alone would not reduce the

greater potential voice of affluent persons and well-financed groups, who
would remain free to spend unlimited sums directly to promote
candidates and policies they favor in an effort to persuade voters.
[ Footnote 27 ] Yet, a ceiling on the size of contributions would affect

only indirectly the costs of political campaigns by making it relatively
more difficult for candidates to raise large amounts of money. In 1974,
for example, 94.9% of the funds raised by candidates for Congress
came from contributions of $1,000 or less, see n. 23, supra.
Presumably, some or all of the contributions in excess of $1,000 could
have been replaced through efforts to raise additional contributions from
persons giving less than $1,000. It is the Act's campaign expenditure
limitations, 608 (c), not the contribution limits, that directly address the
overall scope of federal election spending.
[ Footnote 28 ] The Court of Appeals' opinion in this case discussed a

number of the abuses uncovered after the 1972 elections. See 171 U.S.
App. D.C., at 190-191, and nn. 36-38, 519 F.2d, at 839-840, and nn.
36-38.
[ Footnote 29 ] Although the Court in Letter Carriers found that this

interest was constitutionally sufficient to justify legislation prohibiting
federal employees from engaging in certain partisan political activities, it
was careful to emphasize that the limitations did not restrict an
employee's right to express his views on political issues and candidates.
413 U.S., at 561 , 568, 575-576, 579. See n. 54, infra.
[ Footnote 30 ] The Act's disclosure provisions are discussed in Part II,

infra.
[ Footnote 31 ] While providing significant limitations on the ability of all

individuals and groups to contribute large amounts of money to
candidates, the Act's contribution ceilings do not foreclose the making of
substantial contributions to candidates by some major special-interest
groups through the combined effect of individual contributions from
adherents or the proliferation of political funds each authorized under the
Act to contribute to candidates. As a prime example, 610 permits
corporations and labor unions to establish segregated funds to solicit
voluntary contributions to be utilized for political purposes. Corporate
and union resources without limitation may be employed to administer
these funds and to solicit contributions from employees, stockholders,
and union members. Each separate fund may contribute up to $5,000
per candidate per election so long as the fund qualifies as a political
committee under 608 (b) (2). See S. Rep. No. 93-1237, pp. 50-52 [424
U.S. 1, 29] (1974); Federal Election Commission, Advisory Opinion
1975-23, 40 Fed. Reg. 56584 (1975).
The Act places no limit on the number of funds that may be formed
through the use of subsidiaries or divisions of corporations, or of local
and regional units of a national labor union. The potential for proliferation

of these sources of contributions is not insignificant. In 1972,

approximately 1,824,000 active corporations filed federal income tax
returns. Internal Revenue Service, Preliminary Statistics of Income 1972,
Corporation Income Tax Returns, p. 1 (pub. 159 (11-74)). (It is not
clear whether this total includes subsidiary corporations where the parent
filed a consolidated return.) In the same year, 71,409 local unions were
chartered by national unions. Department of Labor, Bureau of Labor
Statistics, Directory of National Unions and Employee Associations
1973, p. 87 (1974).
The Act allows the maximum contribution to be made by each unit's fund
provided the decision or judgment to contribute to particular candidates
is made by the fund independently of control or direction by the parent
corporation or the national or regional union. See S. Rep. No. 93-1237,
pp. 51-52 (1974).
[ Footnote 32 ] The Act's limitations applicable to both campaign

expenditures and a candidate's personal expenditures on his own behalf
are scaled to take account of the differences in the amounts of money
required for congressional and Presidential campaigns. See 608 (a) (1),
(c) (1) (A)-(E).
[ Footnote 33 ] In this discussion, we address only the argument that the

contribution limitations alone impressibly discriminate against
non-incumbents. We do not address the more serious argument that
these limitations, in combination with the limitation on expenditures by
individuals and groups, the limitation on a candidate's use of his own
personal and family resources, and the overall ceiling on campaign
expenditures invidiously discriminate against major-party challengers and
minor-party candidates.
Since an incumbent is subject to these limitations to the same degree as

his opponent, the Act, on its face, appears to be even-handed. The
appearance of fairness, however, may not reflect political reality.
Although some incumbents are defeated in every congressional election,
it is axiomatic that an incumbent usually begins the race with significant
advantages. In addition to the factors of voter recognition and the status
accruing to holding federal office, the incumbent has access to substantial
resources provided by the Government. These include local and
Washington offices, staff support, and the franking privilege. Where the
incumbent has the support of major special-interest groups which have
the flexibility described in n. 31, supra, and is further supported by the
media, the overall effect of the contribution and expenditure limitations
enacted by Congress could foreclose any fair opportunity of a successful
challenge.
However, since we decide in Part I-C, infra, that the ceilings on

independent expenditures, on the candidate's expenditures from his
personal funds, and on overall campaign expenditures are
unconstitutional under the First Amendment, we need not express any
opinion with regard to the alleged invidious discrimination resulting from
the full sweep of the legislation as enacted.
[ Footnote 34 ] In 1974, for example, 40 major-party challengers

defeated incumbent members of the House of Representatives in the
general election. Four incumbent Senators were defeated by
major-party challengers in the 1974 primary and general election
campaigns.
[ Footnote 35 ] In the 1974 races for the House of Representatives,

three of the 22 major-party candidates exceeding the combined

expenditure limits contained in the Act were challengers to incumbents

and nine were candidates in races not involving incumbents. The
comparable 1972 statistics indicate that 14 of the 20 major-party
candidates exceeding the combined limits were nonincumbents.
[ Footnote 36 ] In 1974, major-party challengers outspent House

incumbents in 22% of the races, and 22 of the 40 challengers who
defeated House incumbents outspent their opponents. In 1972, 24% of
the major-party challengers in senatorial elections outspent their
incumbent opponents. The 1974 statistics for senatorial contests reveal
substantially greater financial dominance by incumbents.
[ Footnote 37 ] Of the $3,781,254 in contributions raised in 1974 by

congressional candidates over and above a $1,000-per-contributor limit,
almost twice as much money went to incumbents as to major-party
challengers.
[ Footnote 38 ] Appellants contend that the Act discriminates against

challengers, because, while it limits contributions to all candidates, the
Government makes available other material resources to incumbents.
See n. 33, supra. Yet, taking cognizance of the advantages and
disadvantages of incumbency, there is little indication that the $1,000
contribution ceiling will consistently harm the prospects of challengers
relative to incumbents.
[ Footnote 39 ] Between September 1, 1973, and December 31, 1974,

major-party candidates for the House and Senate raised over
$3,725,000 in contributions over and above $1,000 compared to
$55,000 raised by minor-party candidates in amounts exceeding the
$1,000 contribution limit.
[ Footnote 40 ] Appellant Libertarian Party, according to estimates of its

national chairman, has received only 10 contributions in excess of
$1,000 out of a total of 4,000 contributions. Even these 10 contributions
would have been permissible under the Act if the donor did not earmark
the funds for a particular candidate and did not exceed the overall
$25,000 contribution ceiling for the calendar year. See 608 (b).
Similarly, appellants Conservative Victory Fund and American
Conservative Union have received only an insignificant portion of their
funding through contributions in excess of $1,000. The affidavit of the
executive director of the Conservative Victory Fund indicates that in
1974, a typical fundraising year, the Fund received approximately
$152,000 through over 9,500 individual contributions. Only one of the
9,500 contributions, an $8,000 contribution earmarked for a particular
candidate, exceeded $1,000. In 1972, the Fund received only three
contributions in excess of $1,000, all of which might have been legal
under the Act if not earmarked. And between April 7, 1972, and
February 28, 1975, the American Conservative Union did not receive
any aggregate contributions exceeding $1,000. Moreover, the
Committee for a Constitutional Presidency -- McCarthy '76, another
appellant, engaged in a concerted effort to raise contributions in excess
of $1,000 before the effective date of the Act but obtained only five
contributions in excess of $1,000.
Although appellants claim that the $1,000 ceiling governing contributions

to candidates will prevent the acquisition of seed money necessary to
launch campaigns, the absence of experience under the Act prevents us
from evaluating this assertion. As appellees note, it is difficult to assess
the effect of the contribution ceiling on the acquisition of seed money
since candidates have not previously had to make a concerted effort to
raise start-up funds in small amounts.

[ Footnote 41 ] Appellant Buckley was a minor-party candidate in 1970

when he was elected to the United States Senate from the State of New
York.
[ Footnote 42 ] Although expenditures incidental to volunteer services

would appear self-limiting, it is possible for a worker in a candidate's
campaign to generate substantial travel expenses. An affidavit submitted
by Stewart Mott, an appellant, indicates that he "expended some
$50,000 for personal expenses" in connection with Senator McGovern's
1972 Presidential campaign.
[ Footnote 43 ] The Act contains identical, parallel provisions pertaining

to incidental volunteer expenses under the definitions of contribution and
expenditure. Compare 591 (e) (5) (B)-(D) with 591 (f) (4) (D), (E).
The definitions have two effects. First, volunteer expenses that are
counted as contributions by the volunteer would also constitute
expenditures by the candidate's campaign. Second, some volunteer
expenses would qualify as contributions whereas others would constitute
independent expenditures. The statute distinguishes between
independent expenditures by individuals and campaign expenditures on
the basis of whether the candidate, an authorized committee of the
candidate, or an agent of the candidate "authorized or requested" the
expenditure. See 608 (c) (2) (B) (ii), (e) (1); S. Rep. No. 93-689, p. 18
(1974); H. R. Rep. No. 93-1239, p. 6 (1974). As a result, only travel
that is "authorized or requested" by the candidate or his agents would
involve incidental expenses chargeable against the volunteer's
contribution limit and the candidate's expenditure ceiling. See n. 53,
infra. Should a person independently travel across the country to
participate in a campaign, any unreimbursed travel expenses would not
be treated as a contribution. This interpretation is not only consistent
with the statute [424 U.S. 1, 38] and the legislative history but is also
necessary to avoid the administrative chaos that would be produced if
each volunteer and candidate had to keep track of amounts spent on
unsolicited travel in order to comply with the Act's contribution and
expenditure ceilings and the reporting and disclosure provisions. The
distinction between contributions and expenditures is also discussed at n.
53, infra, and in Part II-C-2, infra.
[ Footnote 45 ] The same broad definition of "person" applicable to the

contribution limitations governs the meaning of "person" in 608 (e) (1).
The statute provides some limited exceptions through various exclusions
from the otherwise comprehensive definition of "expenditure." See 591
(f). The most important exclusions are: (1) "any news story,
commentary, or editorial distributed through the facilities of any
broadcasting station, newspaper, magazine, or other periodical
publication, unless such facilities are owned or controlled by any political
party, political committee, or candidate," 591 (f)(4) [424 U.S. 1, 40] (A),
and (2) "any communication by any membership organization or
organization or corporation is not organized primarily for the purpose of
influencing the nomination for election, or election, of any person to
Federal office," 591 (f)(4)(C). In addition, the Act sets substantially
higher limits for personal expenditures by a candidate in connection with
his own campaign, 608 (a), expenditures by national and state
committees of political parties that succeed in placing a candidate on the
ballot, 591 (i), 608 (f), and total campaign expenditures by candidates,
608 (c).

[ Footnote 46 ] Section 608 (i) provides that any person convicted of

exceeding any of the contribution or expenditure limitations "shall be
fined not more than $25,000 or imprisoned not more than one year, or
both."
[ Footnote 47 ] Several of the parties have suggested that problems of

ambiguity regarding the application of 608 (e) (1) to specific campaign
speech could be handled by requesting advisory opinions from the
Commission. While a comprehensive series of advisory opinions or a
rule delineating what expenditures are "relative to a clearly identified
candidate" might alleviate the provision's vagueness problems, reliance
on the Commission is unacceptable because the vast majority of
individuals and groups subject to criminal sanctions for violating 608 (e)
(1) do not have a right to obtain an advisory opinion from the
Commission. See 2 U.S.C. 437f (1970 ed., Supp. IV). Section 437f (a)
of Title 2 accords only candidates, federal [424 U.S. 1, 41] officeholders,
and political committees the right to request advisory opinions and
directs that the Commission "shall render an advisory opinion, in writing,
within a reasonable time" concerning specific planned activities or
transactions of any such individual or committee. The powers delegated
to the Commission thus do not assure that the vagueness concerns will
be remedied prior to the chilling of political discussion by individuals and
groups in this or future election years.
[ Footnote 48 ] In such circumstances, vague laws may not only "trap

the innocent by not providing fair warning" or foster "arbitrary and
discriminatory application" but also operate to inhibit protected
expression by inducing "citizens to `steer far wider of the unlawful zone'
... than if the boundaries of the forbidden areas were clearly marked.'"
Grayned v. City of Rockford, 408 U.S. 104, 108 -109 (1972), quoting
Baggett v. Bullitt, 377 U.S. 360, 372 (1964), quoting Speiser v.
Randall, 357 U.S. 513, 526 (1958). "Because First Amendment
freedoms need breathing space to survive, government may regulate in
the area only with narrow specificity." NAACP v. Button, 371 U.S.
415, 433 (1963).
[ Footnote 49 ] This interpretation of "relative to" a clearly identified

candidate is supported by the discussion of 608 (e) (1) in the Senate
Report, S. Rep. No. 93-689, p. 19 (1974), the House Report, H. R.
Rep. No. 93-1239, p. 7 (1974), the Conference Report, S. Conf. Rep.
No. 93-1237, pp. 56-57 (1974), and the opinion of the Court of
Appeals, 171 U.S. App. D.C., at 203-204, 519 F.2d, at 852-853.
[ Footnote 50 ] In connection with another provision containing the same

advocacy language appearing in 608 (e) (1), the Court of Appeals
concluded:
"Public discussion of public issues which also are campaign issues

readily and often unavoidably draws in candidates and their
positions, their voting records and other official conduct.
Discussions of those issues, and as well more positive efforts to
influence public opinion on them, tend naturally and inexorably to
exert some influence on voting at elections." 171 U.S. App. D.C.,
at 226, 519 F.2d, at 875.
[ Footnote 51 ] Section 608 (e) (2) defines "clearly identified" to require

that the candidate's name, photograph or drawing, or other unambiguous
reference to his identity appear as part of the communication. Such other
unambiguous reference would include use of the candidate's initials (e.
g., FDR), the candidate's nickname (e. g., Ike), his office (e. g., the
President or the Governor of Iowa), or his status as a [424 U.S. 1, 44]

candidate (e. g., the Democratic Presidential nominee, the senatorial

candidate of the Republican Party of Georgia).
[ Footnote 52 ] This construction would restrict the application of 608

(e) (1) to communications containing express words of advocacy of
election or defeat, such as "vote for," "elect," "support," "cast your ballot
for," "Smith for Congress," "vote against," "defeat," "reject."
[ Footnote 53 ] Section 608 (e) (1) does not apply to expenditures "on
behalf of a candidate" within the meaning of 608 (c) (2) (B). The latter
subsection provides that expenditures "authorized or requested by the
candidate, an authorized committee of the candidate, or an agent of the
candidate" are to be treated as expenditures of the candidate and
contributions by the person or group making the expenditure. The House
and Senate Reports provide guidance in differentiating individual
expenditures that are contributions and candidate expenditures under
608 (c) (2) (B) from those treated as independent expenditures subject
to the 608 (e) (1) ceiling. The House Report speaks of independent
expenditures as costs "incurred without the request or consent of a
candidate or his agent." H. R. Rep. No. 93-1239, p. 6 (1974). The
Senate Report addresses the issue in greater detail. It provides an
example illustrating the distinction between "authorized or requested"
expenditures excluded from 608 (e) (1) and independent expenditures
governed by 608 (e) (1):
"[A] person might purchase billboard advertisements endorsing a

candidate. If he does so completely on his own, and not at the
request or suggestion of the candidate or his agent's [sic] that
would constitute an ìndependent expenditure on behalf of a
candidate' [424 U.S. 1, 47] under section 614 (c) of the bill. The
person making the expenditure would have to report it as such.
"However, if the advertisement was placed in cooperation with

the candidate's campaign organization, then the amount would
constitute a gift by the supporter and an expenditure by the
candidate -- just as if there had been a direct contribution
enabling the candidate to place the advertisement, himself. It
would be so reported by both." S. Rep. No. 93-689, p. 18
(1974).
The Conference substitute adopted the provision of the Senate bill

dealing with expenditures by any person "authorized or requested" to
make an expenditure by the candidate or his agents. S. Conf. Rep. No.
93-1237, p. 55 (1974). In view of this legislative history and the
purposes of the Act, we find that the "authorized or requested" standard
of the Act operates to treat all expenditures placed in cooperation with
or with the consent of a candidate, his agents, or an authorized
committee of the candidate as contributions subject to the limitations set
forth in 608 (b).
[ Footnote 54 ] Appellees mistakenly rely on this Court's decision in

CSC v. Letter Carriers, as supporting 608 (e) (1)'s restriction on the
spending of money to advocate the election or defeat of a particular
candidate. In upholding the Hatch Act's broad restrictions on the
associational freedoms of federal employees, the Court repeatedly
emphasized the statutory provision and corresponding regulation
permitting an employee to "`[e]xpress his opinion as an individual
privately and publicly on political subjects and candidates.'" 413 U.S., at
579 , quoting 5 CFR 733.111 (a) (2). See 413 U.S., at 561 568,
575-576. Although the Court "unhesitatingly" found that a statute
prohibiting federal employees from engaging in a wide variety of

"partisan political conduct" would "unquestionably be valid," it carefully

declined to endorse provisions threatening political expression. See id.,
at 556, 579-581. The Court did not rule on the constitutional questions
presented by the regulations forbidding partisan campaign endorsements
through the media and speechmaking to political gatherings because it
found that these restrictions did not "make the statute substantially
overbroad and so invalid on its face." Id., at 581.
[ Footnote 55 ] Neither the voting rights cases nor the Court's decision
upholding the Federal Communications Commission's fairness doctrine
lends support to appellees' position that the First Amendment permits
Congress to abridge the rights of some persons to engage in political
expression in order to enhance the relative voice of other segments of
our society.
Cases invalidating governmentally imposed wealth restrictions on the

right to vote or file as a candidate for public office rest on the conclusion
that wealth "is not germane to one's ability to participate intelligently in
the electoral process" and is therefore an insufficient basis on which to
restrict a citizen's fundamental right to vote. Harper v. Virginia Bd. of
Elections, 383 U.S. 663, 668 (1966). See Lubin v. Panish, 415 U.S.
709 (1974); Bullock v. Carter, 405 U.S. 134 (1972); Phoenix v.
Kolodziejski, 399 U.S. 204 (1970). These voting cases and the
reapportionment decisions serve to assure that citizens are accorded an
equal right to vote for their representatives regardless of factors of
wealth or geography. But the principles that underlie invalidation of
governmentally imposed restrictions on the franchise do not justify
governmentally imposed restrictions on political expression. Democracy
depends on a well-informed electorate, not a citizenry legislatively limited
in its ability to discuss and debate candidates and issues.
In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the Court
upheld the political-editorial and personal-attack portions of [424 U.S. 1,
50] the Federal Communications Commission's fairness doctrine. That
doctrine requires broadcast licensees to devote programing time to the
discussion of controversial issues of public importance and to present
both sides of such issues. Red Lion "makes clear that the broadcast
media pose unique and special problems not present in the traditional
free speech case," by demonstrating that "ìt is idle to posit an
unbridgeable First Amendment right to broadcast comparable to the
right of every individual to speak, write, or publish.'" Columbia
Broadcasting v. Democratic Comm., 412 U.S. 94, 101 (1973), quoting
Red Lion Broadcasting Co., supra, at 388. Red Lion therefore
undercuts appellees' claim that 608 (e) (1)'s limitations may permissibly
restrict the First Amendment rights of individuals in this "traditional free
speech case." Moreover, in contrast to the undeniable effect of 608 (e)
(1), the presumed effect of the fairness doctrine is one of "enhancing the
volume and quality of coverage" of public issues. 395 U.S., at 393 .
[ Footnote 56 ] The Act exempts most elements of the institutional

press, limiting only expenditures by institutional press facilities that are
owned or controlled by candidates and political parties. See 591 (f) (4)
(A). But, whatever differences there may be between the constitutional
guarantees of a free press and of free speech, it is difficult to conceive of
any principled basis upon which to distinguish 608 (e) (1)'s limitations
upon the public at large and similar limitations imposed upon the press
specifically.
[ Footnote 57 ] The $35,000 ceiling on expenditures by candidates for

the Senate also applies to candidates for the House of Representatives
from States entitled to only one Representative. 608 (a) (1) (B).

The Court of Appeals treated 608 (a) as relaxing the

$1,000-per-candidate contribution limitation imposed by 608 (b) (1) so
as to permit any member of the candidate's immediate family -- spouse,
child, grandparent, brother, sister, or spouse of such persons -- to [424
U.S. 1, 52] contribute up to the $25,000 overall annual contribution
ceiling to the candidate. See 171 U.S. App. D.C., at 205, 519 F.2d, at
854. The Commission has recently adopted a similar interpretation of the
provision. See Federal Election Commission, Advisory Opinion
1975-65 (Dec. 5, 1975), 40 Fed. Reg. 58393. However, both the
Court of Appeals and the Commission apparently overlooked the
Conference Report accompanying the final version of the Act which
expressly provides for a contrary interpretation of 608 (a):
"It is the intent of the conferees that members of the immediate

family of any candidate shall be subject to the contribution
limitations established by this legislation. If a candidate for the
office of Senator, for example, already is in a position to exercise
control over funds of a member of his immediate family before he
becomes a candidate, then he could draw upon these funds up to
the limit of $35,000. If, however, the candidate did not have
access to or control over such funds at the time he became a
candidate, the immediate family member would not be permitted
to grant access or control to the candidate in amounts up to
$35,000, if the immediate family member intends that such
amounts are to be used in the campaign of the candidate. The
immediate family member would be permitted merely to make
contributions to the candidate in amounts not greater than $1,000
for each election involved." S. Conf. Rep. No. 93-1237, p. 58
(1974).
[ Footnote 58 ] The Court of Appeals evidently considered the personal

funds expended by the candidate on his own behalf as a contribution
rather than an expenditure. See 171 U.S. App. D.C., at 205, 519 F.2d,
at 854. However, unlike a person's contribution to a candidate, a
candidate's expenditure of his personal funds directly facilitates his own
political speech.
[ Footnote 59 ] The legislative history of the Act clearly indicates that

608 (a) was not intended to suspend the application of the $1,000
contribution limitation of 608 (b) (1) for members of the candidate's
immediate family. See n. 57, supra. Although the risk of improper
influence is somewhat diminished in the case of large contributions from
immediate family members, we cannot say that the danger is sufficiently
reduced to bar Congress from subjecting family members to the same
limitations as nonfamily contributors.
The limitation on a candidate's expenditure of his own funds differs

markedly from a limitation on family contributions both in the absence of
any threat of corruption and the presence of a legislative [424 U.S. 1, 54]
restriction on the candidate's ability to fund his own communication with
the voters.
[ Footnote 60 ] Expenditures made by an authorized committee of the

candidate or any other agent of the candidate as well as any expenditure
by any other person that is "authorized or requested" by the candidate or
his agent are charged against the candidate's spending ceiling. 608 (c)
(2) (B).
[ Footnote 61 ] Expenditures made by or on behalf of a Vice

Presidential candidate of a political party are considered to have been

made by or on behalf of the party's Presidential candidate. 608 (c) (2)

(A).
[ Footnote 62 ] The campaign ceilings contained in 608 (c) would have

required a reduction in the scope of a number of previous congressional
campaigns and substantially limited the overall expenditures of the two
major-party Presidential candidates in 1972. See n. 21, supra.
[ Footnote 63 ] This normal relationship may not apply where the

candidate devotes a large amount of his personal resources to his
campaign.
[ Footnote 64 ] As an opinion dissenting in part from the decision below

noted: "If a senatorial candidate can raise $1 from each voter, what evil
is exacerbated by allowing that candidate to use all that money for
political communication? I know of none." 171 U.S. App. D.C., at 268,
519 F.2d, at 917 (Tamm, J.).
[ Footnote 65 ] For the reasons discussed in Part III, infra, Congress

may engage in public financing of election campaigns and may condition
acceptance of public funds on an agreement by the candidate to abide
by specified expenditure limitations. Just as a candidate may voluntarily
limit the size of the contributions he chooses to accept, he may decide to
forgo private fundraising and accept public funding.
[ Footnote 66 ] Subtitle H of the Internal Revenue Code also established

separate limitations for general election expenditures by national and
state committees of political parties, 608 (f), and for national political
party conventions for the nomination of Presidential candidates. 26
U.S.C. 9008 (d) (1970 ed., Supp. IV). Appellants do not challenge
these ceilings on First Amendment grounds. Instead, they contend that
the provisions discriminate against independent candidates and regional
political parties without national committees because they permit
additional spending by political parties with national committees. Our
decision today holding 608 (e) (1)'s independent expenditure limitation
unconstitutional and 608 (c)'s campaign expenditure ceilings
unconstitutional removes the predicate for appellants' discrimination
claim by eliminating any alleged advantage to political parties with
national committees.
[ Footnote 67 ] Accordingly, the answers to the certified constitutional

questions pertaining to the Act's contribution and expenditure limitations
are as follows:
3. Does any statutory limitation, or do the particular limitations in the

challenged statutes, on the amounts that individuals or organizations may
contribute or expend in connection with elections for federal office
violate the rights of one or more of the plaintiffs under the First, Fifth, or
Ninth Amendment or the Due Process Clause of the Fifth Amendment
of the Constitution of the United States?
(a) Does 18 U.S.C. 608 (a) (1970 ed., Supp. IV) violate such rights, in
that it forbids a candidate or the members of his immediate family from
expending personal funds in excess of the amounts specified in 18
U.S.C. 608 (a) (1) (1970 ed., Supp. IV)?
Answer: YES.
(b) Does 18 U.S.C. 608 (b) (1970 ed., Supp. IV) violate such rights, in
that it forbids the solicitation, receipt or making of contributions on
behalf of political candidates in excess of the amounts specified in 18

U.S.C. 608 (b) (1970 ed., Supp. IV)?
Answer: NO.
(c) Do 18 U.S.C. 591 (e) and 608 (b) (1970 ed., Supp. IV) violate
such rights, in that they limit the incidental expenses which volunteers
working on behalf of political candidates may incur to the amounts
specified in 18 U.S.C. 591 (e) and 608 (b) (1970 ed., Supp. IV)?
Answer: NO.
(d) Does 18 U.S.C. 608 (e) (1970 ed., Supp. IV) violate such rights, in
that it limits to $1,000 the independent (not on behalf of a candidate)
expenditures of any person relative to an identified candidate?
Answer: YES.
(e) Does 18 U.S.C. 608 (f) (1970 ed., Supp. IV) violate such rights, in
that it limits the expenditures of national or state committees of political
parties in connection with general election campaigns for federal office?
Answer: NO, as to the Fifth Amendment challenge advanced by

appellants.
(f) Does 9008 of the Internal Revenue Code of 1954 violate [424 U.S. 1,
60] such rights, in that it limits the expenditures of the national committee
of a party with respect to presidential nominating conventions?
Answer: NO, as to the Fifth Amendment challenge advanced by

appellants.
(h) Does 18 U.S.C. 608 (b) (2) (1970 ed., Supp. IV) violate such
rights, in that it excludes from the definition of "political committee"
committees registered for less than the period of time prescribed in the
statute?
Answer: NO.
4. Does any statutory limitation, or do the particular limitations in the

challenged statutes, on the amounts that candidates for elected federal
office may expend in their campaigns violate the rights of one or more of
the plaintiffs under the First or Ninth Amendment or the Due Process
Clause of the Fifth Amendment?
(a) Does 18 U.S.C. 608 (c) (1970 ed., Supp. IV) violate such rights, in
that it forbids expenditures by candidates for federal office in excess of
the amounts specified in 18 U.S.C. 608 (c) (1970 ed., Supp. IV)?
Answer: YES.
[ Footnote 68 ] Unless otherwise indicated, all statutory citations in Part

II of this opinion are to Title 2 of the United States Code, 1970 edition,
Supplement IV.
[ Footnote 69 ] Appellants do contend that there should be a blanket

exemption from the disclosure provisions for minor parties. See Part
II-B-2, infra.
[ Footnote 70 ] The Court of Appeals' ruling that 437a is

unconstitutional was not appealed. See n. 7, supra.

[ Footnote 71 ] Past disclosure laws were relatively easy to circumvent

because candidates were required to report only contributions that they
had received themselves or that were received by others for them with
their knowledge or consent. 307, 43 Stat. 1072. The data that were
reported were virtually impossible to use because there were no uniform
rules for the compiling of reports or provisions for requiring corrections
and additions. See Redish, Campaign Spending Laws and the First
Amendment, 46 N. Y. U. L. Rev. 900, 905 (1971).
[ Footnote 72 ] See Part I, supra. The relevant provisions of Title 2 are

set forth in the Appendix to this opinion, infra, at 144 et seq.
[ Footnote 73 ] NAACP v. Alabama, 357 U.S., at 463 . See also

Gibson v. Florida Legislative Comm., 372 U.S. 539, 546 (1963);
NAACP v. Button, 371 U.S., at 438 ; Bates v. Little Rock, 361 U.S.,
at 524 .
[ Footnote 75 ] Gibson v. Florida Legislative Comm., supra, at 546.
[ Footnote 76 ] The Court of Appeals held that the applicable test for
evaluating the Act's disclosure requirements is that adopted in United
States v. O'Brien, 391 U.S. 367 (1968), in which "`speech' and
`non-speech' elements [were] combined in the same course of conduct."
Id., at 376. O'Brien is appropriate, the Court of Appeals found, because
the Act is directed toward the spending of money, and money introduces
a nonspeech element. As the discussion in Part I-A, supra, indicates,
O'Brien is inapposite, for money is a neutral element not always
associated with speech but a necessary and integral part of many,
perhaps most, forms of communication. Moreover, the O'Brien test
would not be met, even if it were applicable. O'Brien requires that "the
governmental interest [be] unrelated to the suppression of free
expression." Id., at 377. The governmental interest furthered by the
disclosure requirements is not unrelated to the "suppression" of speech
insofar as the requirements are designed to facilitate the detection of
violations of the contribution and expenditure limitations set out in 18
U.S.C. 608 (1970 ed., Supp. IV).
[ Footnote 77 ] H. R. Rep. No. 92-564, p. 4 (1971).
[ Footnote 78 ] Ibid.; S. Rep. No. 93-689, p. 2 (1974).
[ Footnote 79 ] We have said elsewhere that "informed public opinion is

the most potent of all restraints upon misgovernment." Grosjean v.
American Press Co., 297 U.S. 233, 250 (1936). Cf. United States v.
Harriss, 347 U.S. 612, 625 (1954) (upholding disclosure requirements
imposed on lobbyists by the Federal Regulation of Lobbying Act, Title
III of the Legislative Reorganization Act of 1946, 60 Stat. 839).
[ Footnote 80 ] L. Brandeis, Other People's Money 62 (National Home

Library Foundation ed. 1933).
[ Footnote 81 ] See supra, at 60.
[ Footnote 82 ] Post-election disclosure by successful candidates is

suggested as a less restrictive way of preventing corrupt pressures on
office-holders. Delayed disclosure of this sort would not serve the
equally important informational function played by pre-election reporting.
Moreover, the public interest in sources of campaign funds is likely to be
at its peak during the campaign period; that is the time when improper

influences are most likely to be brought to light.
[ Footnote 83 ] Nor is this a case comparable to Pollard v. Roberts,

283 F. [424 U.S. 1, 70] Supp. 248 (ED Ark.) (three-judge court), aff'd,
393 U.S. 14 (1968), in which an Arkansas prosecuting attorney sought
to obtain, by a subpoena duces tecum, the records of a checking
account (including names of individual contributors) established by a
specific party, the Republican Party of Arkansas.
[ Footnote 84 ] See Developments in the Law - Elections, 88 Harv. L.

Rev. 1111, 1247 n. 75 (1975).
[ Footnote 85 ] See Williams v. Rhodes, 393 U.S. 23, 32 (1968)

("There is, of course, no reason why two parties should retain a
permanent monopoly on the right to have people vote for or against
them. Competition in ideas and governmental policies is at the core of
our electoral process and of the First Amendment freedoms"); Sweezy
v. New Hampshire, 354 U.S. 234, 250 -251 (1957) (plurality opinion).
[ Footnote 86 ] Cf. Talley v. California, 362 U.S. 60, 64 -65 (1960).
[ Footnote 87 ] Allegations made by a branch of the Socialist Workers

Party in a civil action seeking to declare the District of Columbia
disclosure and filing requirements unconstitutional as applied to its
records were held to be sufficient to withstand a motion to dismiss in
Doe v. Martin, 404 F. Supp. 753 (1975) (three-judge court). The
District of Columbia provisions require every political committee to keep
records of contributions of $10 or more and to report contributors of
$50 or more.
[ Footnote 88 ] For example, a campaign worker who had solicited

campaign funds for the Libertarian Party in New York testified that two
persons solicited in a Party campaign "refused to contribute because
they were unwilling for their names to be disclosed or published." None
of the appellants offers stronger evidence of threats or harassment.
[ Footnote 89 ] These criteria were suggested in an opinion concurring in

part and dissenting in part from the decision below. 171 U.S. App.
D.C., at 258 n. 1, 519 F.2d, at 907 n. 1 (Bazelon, C. J.).
[ Footnote 90 ] Age is also underinclusive in that it would presumably

leave long-established but unpopular parties subject to the disclosure
requirements. The Socialist Labor Party, which is not a party to this
litigation but which has filed an amicus brief in support of appellants,
claims to be able to offer evidence of "direct suppression, intimidation,
harassment, physical abuse, and loss of economic sustenance" relating to
its contributors. Brief for Socialist Labor Party as Amicus Curiae 6. The
Party has been in existence since 1877.
[ Footnote 91 ] 171 U.S. App. D.C., at 258, 519 F.2d, at 907 n. 1

(Bazelon C. J.).
[ Footnote 92 ] Id., at 260, 519 F.2d, at 909. See also Developments in

the Law -- Elections, 88 Harv. L. Rev. 1111, 1247-1249 (1975).
[ Footnote 93 ] See Appendix to this opinion, infra, at 160.
[ Footnote 95 ] 305, 86 Stat. 16.

[ Footnote 96 ] 88 Stat. 1265.
[ Footnote 97 ] S. Rep. No. 92-229, p. 57 (1971).
[ Footnote 99 ] Section 441 (a) provides: "Any person who violates any
of [424 U.S. 1, 77] the provisions of this subchapter shall be fined not more
than $1,000 or imprisoned not more than one year, or both."
[ Footnote 100 ] 431 (e), (f). See Appendix to this opinion, infra, at
145-149.
[ Footnote 102 ] S. Rep. No. 92-96, p. 33 (1971); S. Rep. No.

93-689, pp. 1-2 (1974).
[ Footnote 105 ] Section 431 (d) defines "political committee" as "any

committee, club, association, or other group of persons which receives
contributions or makes expenditures during a calendar year in an
aggregate amount exceeding $1,000."
[ Footnote 106 ] At least two lower courts, seeking to avoid questions

of unconstitutionality, have construed the disclosure requirements
imposed on "political committees" by 434 (a) to be nonapplicable to
non-partisan organizations. United States v. National Comm. for
Impeachment, 469 F.2d, at 1139-1142; American Civil Liberties Union
v. Jennings, 366 F. Supp., at 1055-1057. See also 171 U.S. App.
D.C., at 214 n. 112, 519 F.2d, at 863 n. 112.
[ Footnote 107 ] Some partisan committees - groups within the control

of the candidate or primarily organized for political activities -- will fall
within 434 (e) because their contributions and expenditures fall in the
$100-to-$1,000 range. Groups of this sort that do not have
contributions and expenditures over $1,000 are not "political
committees" within the definition in 431 (d); those whose transactions
are not as great as $100 are not required to file statements under 434
(e).
[ Footnote 109 ] Of course, independent contributions and expenditures

made in support of the campaigns of candidates of parties that have
been found to be exempt from the general disclosure requirements
because of the possibility of consequent chill and harassment would be
exempt from the requirements of 434 (e).
[ Footnote 111 ] "Looked at by itself without regard to the necessity

behind it the line or point seems arbitrary. It might as well or nearly as
well be a little more to one side or the other. But when it is seen that a
line or point there must be, and that there is no mathematical or logical
way of fixing it precisely, the decision of the legislature must be accepted
unless we can say that it is very wide of any reasonable mark." Louisville
Gas Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting).

[ Footnote 112 ] Appellants' final argument is directed against 434 (d),

which exempts from the reporting requirements certain "photographic,
matting, or recording services" furnished to Congressmen in nonelection
years. See Appendix to this opinion, infra, at 159. Although we are
troubled by the considerable advantages that this exemption appears to
give to incumbents, we agree with the Court of Appeals that, in the
absence of record evidence of misuse or undue discriminatory impact,
this provision represents a reasonable accommodation between the
legitimate and necessary efforts of legislators to communicate with their
constituents and activities designed to win elections by legislators in their
other role as politicians.
[ Footnote 113 ] Accordingly, we respond to the certified questions, as

follows:
7. Do the particular requirements in the challenged statutes that persons

disclose the amounts that they contribute or expend in connection with
elections for federal office or that candidates for such office disclose the
amounts that they expend in their campaigns violate the rights of one or
more of the plaintiffs under the First, [424 U.S. 1, 85] Fourth, or Ninth
Amendment or the Due Process Clause of the Fifth Amendment?
(a) Do 2 U.S.C. 432 (b), (c), and (d) and 438 (a) (8) (1970 ed., Supp.
IV) violate such rights, in that they provide, through auditing procedures,
for the Federal Election Commission to inspect lists and records
required to be kept by political committees of individuals who contribute
more than $10?
Answer: NO.
(b) Does 2 U.S.C. 434 (b) (1)-(8) (1970 ed., Supp. IV) violate such
rights, in that it requires political committees to register and disclose the
names, occupations, and principal places of business (if any) of those of
their contributors who contribute in excess of $100?
Answer: NO.
(c) Does 2 U.S.C. 434 (d) (1970 ed., Supp. IV) violate such rights, in
that it neither requires disclosure of nor treats as contribution to or
expenditure by incumbent officeholders the resources enumerated in 2
U.S.C. 434 (d) (1970 ed., Supp. IV)?
Answer: NO.
(d) Does 2 U.S.C. 434 (e) (1970 ed., Supp. IV) violate such rights, in
that it provides that every person contributing or expending more than
$100 other than by contribution to a political committee or candidate
(including volunteers with incidental expenses in excess of $600) must
make disclosure to the Federal Election Commission?
Answer: NO.
[ Footnote 114 ] The Presidential Election Campaign Fund Act of 1966,

Title IV of Pub. L. 89-909, 301-305, 80 Stat. 1587, was the first such
provision. This Act also initiated the dollar check-off provision now
contained in 26 U.S.C. 6096 (1970 ed., Supp. IV). The Act was
suspended, however, by a 1967 provision barring any appropriations
until Congress adopted guidelines for the distribution of money from the
Fund. Pub. L. 90-26, 5, 81 Stat. 58. In 1971 Congress added Subtitle
H to the Internal Revenue Code. Pub. L. 92-178, 801, [424 U.S. 1, 86] 85

Stat. 562. Chapter 95 thereof provided public financing of general

election campaigns for President; this legislation was to become effective
for the 1976 election and is substantially the same as the present
scheme. Congress later amended the dollar check-off provision, deleting
the taxpayers' option to designate specific parties as recipients of their
money. Pub. L. 93-53, 6, 87 Stat. 138. Finally, the 1974 amendments
added to Chapter 95 provisions for financing nominating conventions
and enacted a new Chapter 96 providing matching funds for campaigns
in Presidential primaries. Pub. L. 93-443, 403-408, 88 Stat. 1291.
[ Footnote 115 ] Unless otherwise indicated all statutory citations in this

Part III are to the Internal Revenue Code of 1954, Title 26 of the United
States Code, 1970 edition, Supplement IV.
[ Footnote 117 ] Priorities are established when the Fund is insufficient

to satisfy all entitlements in any election year: the amount in the Fund is
first allocated to convention funding, then to financing the general
election, [424 U.S. 1, 87] and finally to primary matching assistance. See
9008 (a), 9037 (a). But the law does not specify how funds are to be
allocated among recipients within these categories. Cf. 9006 (d).
[ Footnote 118 ] Independent candidates might be excluded from

general election funding by Chapter 95. See 9002 (2) (B), 9003 (a), (c),
9004 (a) (2), (c), 9005 (a), 9006 (c). Serious questions might arise as to
the constitutionality of excluding from free annual assistance candidates
not affiliated with a "political party" solely because they lack such
affiliation. Storer v. Brown, 415 U.S. 724, 745 -746 (1974). But we
have no occasion to address that question in this case. The possibility of
construing Chapter 95 as affording financial assistance to independent
candidates was remarked by the Court of Appeals. 171 U.S. App.
D.C., at 238, 519 F.2d, at 887. The only announced independent
candidate for President before the Court -- former Senator McCarthy --
has publicly announced that he will refuse any public assistance.
Moreover, he is affiliated with the Committee for a Constitutional
Presidency -- McCarthy '76, and there is open the question whether it
would qualify as a "political party" under Subtitle H.
[ Footnote 119 ] No party to this case has challenged the

constitutionality of this expenditure limit.
[ Footnote 120 ] This amount is the same as the expenditure limit

provided in 18 U.S.C. 608 (c) (1) (B) (1970 ed., Supp. IV). The Court
of Appeals viewed the provisions as "complementary stratagems." 171
U.S. App. D.C., at 201, 519 F.2d, at 850. Since the Court today hold
608 (c) (1) to be unconstitutional, the question of the severability of
general election funding as now constituted arises. We hold that the
provisions are severable for the reasons stated in Part III-C, infra.
[ Footnote 121 ] No separate pledge is required from the candidate's

party, but if the party organization is an "authorized committee" or
"agent," expenditures by the party may be attributed to the candidate. 18
U.S.C. 608 (c) (2) (B) (1970 ed., Supp. IV). See 608 (b) (4) (A).
[ Footnote 122 ] As with Chapter 95, any constitutional question that

may arise from the exclusion of independent candidates from any
assistance, such as funds to defray expenses of getting on state ballots
by petition drives, need not be addressed in this case. See n. 118, supra.
[ Footnote 123 ] As with general election funding, this limit is the same

as [424 U.S. 1, 90] the candidate expenditure limit of 18 U.S.C. 608 (c)
(1) (1970 ed., Supp. IV). See n. 120, supra, and Part III-C, infra.
[ Footnote 124 ] The scheme involves no compulsion upon individuals to

finance the dissemination of ideas with which they disagree, Lathrop v.
Donohue, 367 U.S. 820, 871 (1961) (Black, J., dissenting); id., at 882
(Douglas, J., dissenting); Machinists v. Street, 367 U.S. 740, 778
(1961) (Douglas, J., concurring); id., at 788-792 (Black, J., dissenting).
The 6096 check-off is simply the means by which Congress determines
the amount of its appropriation.
[ Footnote 125 ] Some proposals for public financing would give

taxpayers the opportunity to designate the candidate or party to receive
the dollar, and 6096 initially offered this choice. See n. 114, supra. The
voucher system proposed by Senator Metcalf, as amicus curiae here,
also allows taxpayers this option. But Congress need not provide a
mechanism for allowing taxpayers to designate the means in which their
particular tax dollars are spent. See n. 124, supra. Further, insofar as
these proposals are offered as less restrictive means, Congress had
legitimate reasons for rejecting both. The designation option was
criticized on privacy grounds, 119 Cong. Rec. 22598, 22396 (1973),
and also because the identity of all candidates would not be known by
April 15, the filing day for annual individual and joint tax returns. Senator
Metcalf's proposal has also been criticized as possibly leading to black
markets and to coercion to obtain vouchers and as administratively
impractical.
[ Footnote 126 ] Appellants voice concern that public funding will lead
to governmental control of the internal affairs of political parties, and thus
to a significant loss of political freedom. The concern is necessarily
wholly speculative and hardly a basis for invalidation of the public
financing scheme on its face. Congress has expressed its determination
to avoid the possibility. S. Rep. No. 93-689, pp. 9-10 (1974).
[ Footnote 127 ] The historical bases of the Religion and Speech

Clauses are markedly different. Intolerable persecutions throughout
history led to the Framers' firm determination that religious worship --
both in method and belief -- must be strictly protected from government
intervention. "Another purpose of the Establishment Clause rested upon
an awareness of the historical fact that governmentally established
religions and religious persecutions go hand in hand." Engel v. Vitale,
370 U.S. 421, 432 (1962) (footnote omitted). See Everson v. Board of
Education, 330 U.S. 1, 8 -15 (1947). But the central purpose of the
Speech and Press Clauses was to assure a society in which "uninhibited,
robust, and wide-open" public debate concerning matters of public
interest would thrive, for only in such a society can a healthy
representative democracy flourish. New York Times Co. v. Sullivan,
376 U.S. 254, 270 (1964). Legislation to enhance these First
Amendment values is the rule, not the exception. Our statute books are
replete with laws providing financial assistance to the exercise of free
speech, such as aid to public broadcasting and other forms of
educational media, 47 U.S.C. 390-399, and preferential postal rates
and antitrust exemptions for newspapers, 39 CFR 132.2 (1975); 15
U.S.C. 1801-1804.
[ Footnote 128 ] Appellants maintain that denial of funding is a more

severe restriction than denial of access to the ballot, because write-in
candidates can win elections, but candidates without funds cannot. New
parties will be unfinanced, however, only if they are unable to get private
financial support, which presumably reflects a general lack of public
support for the party. Public financing of some candidates does not

make private fundraising for others any more difficult; indeed, the
elimination of private contributions to major-party Presidential
candidates might make more private money available to minority
candidates.
[ Footnote 129 ] Appellants dispute the relevance of this answer to their

argument on the ground that they will not be able to raise money to equal
major-party spending. As a practical matter, however, Subtitle H does
not enhance the major parties' ability to campaign; it substitutes public
funding for what the parties would raise privately and additionally
imposes an expenditure limit. If a party cannot raise funds privately,
there are legitimate reasons not to provide public funding, which would
effectively facilitate hopeless candidacies.
[ Footnote 130 ] Our only prior decision dealing with a system of public
financing, American Party of Texas v. White, 415 U.S. 767 (1974), also
recognized that such provisions are less restrictive than regulation of
ballot access. Texas required major parties -- there called "political
parties" -- to nominate candidates by primaries, and the State
reimbursed the parties for some of the expenses incurred in holding the
primaries. But Texas did not subsidize other parties for the expenses
involved in qualifying for the ballot, and this denial was claimed to be a
denial of equal protection of the laws. We said that we were
"unconvinced ... that this financing law is an èxclusionary mechanism'
which `tends to deny some voters the opportunity to vote for a
candidate of their choosing' or that it has à real and appreciable impact
on the exercise of the franchise.'" Id., at 794, quoting from Bullock v.
Carter, 405 U.S., at 144 . That the aid in American Party was provided
to parties and not to candidates, as is most of the Subtitle H funding, is
immaterial.
[ Footnote 131 ] The allegations of invidious discrimination are based on

the claim that Subtitle H is facially invalid; since the public financing
provisions have never been in operation, appellants are unable to offer
factual proof that the scheme is discriminatory in its effect. In rejecting
appellants' arguments, we of course do not rule out the possibility of
concluding in some future case, upon an appropriate factual
demonstration, that the public financing system invidiously discriminates
against nonmajor parties.
[ Footnote 132 ] In 1912 Theodore Roosevelt ran as the candidate of

the Progressive Party, which had split off from the Republican Party, and
he received more votes than William H. Taft, the Republican candidate.
But this third-party "threat" was short-lived; in 1916 the Progressive
came back into the Republican Party when the party nominated Charles
Evans Hughes as its candidate for the Presidency. With the exception of
1912, the major-party candidates have outpolled all others in every
Presidential election since 1856.
[ Footnote 133 ] Appellants suggest that a less discriminatory formula

would be to grant full funding to the candidate of the party getting the
most votes in the last election and then give money to candidates of
other parties based on their showing in the last election relative to the
"leading" party. That formula, however, might unfairly favor incumbents,
since their major-party challengers would receive less financial
assistance. See S. Rep. No. 93-689, p. 10 (1974).
[ Footnote 134 ] Appellants argue that this effort to "catch up" is

hindered by the contribution limits in 18 U.S.C. 608 (b) (1970 ed.,
Supp. IV) and that therefore the public financing provisions are
unconstitutional. Whatever merit the point may have, which is

questionable on the basis of the record before the Court, it is answered

in our treatment of the contribution limits. See Part I-B, supra.
[ Footnote 135 ] There will, however, be no minor-party candidates in

the 1976 Presidential election, since no 1972 candidate other than those
of the major parties received 5% of the popular vote.
[ Footnote 136 ] Another suggested alternative is Senator Metcalf's

voucher scheme, but we have previously mentioned problems presented
by that device. See n. 125, supra. The United States suggests that a
matching formula could be used for general election funding, as it is for
funding primary campaigns, in order to relate current funding to current
support more closely. Congress could readily have concluded, however,
that the matching formula was inappropriate for the general election. The
problems in determining the relative strength of candidates at the
primaries stage of the campaign are far greater than after a candidate has
obtained the nomination of a major party. See S. Rep. No. 93-689, p. 6
(1974). It might be eminently reasonable, therefore, to employ a
matching formula for primary elections related to popular support
evidenced by numerous smaller contributions, yet inappropriate for
general election financing as inconsistent with the congressional effort to
remove the influence of private contributions and to relieve candidates of
the burden of fundraising. Ibid.
[ Footnote 137 ] Williams v. Rhodes, 393 U.S. 23, 31 -32 (1968);

Sweezy v. New Hampshire, 354 U.S. 234, 250 -251 (1957) (plurality
opinion). Cf. Talley v. California, 362 U.S. 60, 64 (1960).
[ Footnote 138 ] Apart from the adjustment for inflation, and assuming a
major-party entitlement of $20,000,000, a candidate getting 5% of the
popular vote, when the balance is divided between two major parties,
would be entitled to a post-election payment of more than $2,100,000 if
that sum remains after priority allocations from the fund.
[ Footnote 139 ] It is also argued that Storer v. Brown, 415 U.S. 724
(1974), is a better analogy than Jenness. In Storer a candidate could
qualify for the ballot by obtaining the signatures of 5% of the voters, but
the signatures could not include any voters who voted for another
candidate at the primary election. 415 U.S., at 739 . The analogy,
however, is no better than Jenness. The Chapter 95 formula is not more
restrictive than that sustained in the two cases, since for the reasons
stated earlier, supra, at 94-95, it burdens minority interests less than
ballot-access regulations.
[ Footnote 140 ] On similar grounds we sustain the 10-state requirement

in 9002 (2). Success in Presidential elections depends on winning
electoral votes in States, not solely popular votes, and the requirement is
plainly not unreasonable in light of that fact.
[ Footnote 141 ] As with primary campaigns, Congress could

reasonably determine that there was no need for reforms as to
minor-party conventions. See infra, at 105-106. This contribution limit
applies to "contributions to any candidate," 18 U.S.C. 608 (b) (1) (1970
ed., Supp. IV), and thus would not govern gifts to a party for general
purposes, such as convention funding. Although "contributions to a
named candidate made to any political committee" are within 608 (b) (1)
if the committee is authorized in writing by a candidate to accept
contributions, 608 (b) (4) (A), contributions to a party not for the benefit
of any specific candidate would apparently not be subject to the $1,000
ceiling. Moreover, 608 (b) (4) (A) governs only party organizations
authorized by a candidate in writing to accept contributions.

[ Footnote 142 ] With respect to the denial of funds to candidates who

may not be affiliated with a "political party" for the purposes of public
financing, see n. 118, supra.
[ Footnote 143 ] Appellants argue that this reasoning from Katzenbach

v. Morgan, is inapplicable to this case involving First Amendment
guarantees. But the argument as to the denial of funds to certain [424 U.S.
1, 106] candidates primarily claims invidious discrimination and hence
presents Fifth Amendment questions, though with First Amendment
overtones, as in Katzenbach v. Morgan.
[ Footnote 144 ] Appellants contend that the 20-state requirement

directly conflicts with Moore v. Ogilvie, 394 U.S. 814 (1969), but that
case is distinguishable. Only 7% of the Illinois voters could have blocked
a candidate from qualifying for the ballot, even though the statewide
elections were decided by straight majority vote. The clear purpose was
to keep any person from being nominated without support in downstate
counties making up only 7% of the vote, but those same voters could not
come close to defeating a candidate in the general election. There is no
similar restriction here on the opportunity to vote for any candidate, and
the 20-state requirement is not an [424 U.S. 1, 107] unreasonable method
of measuring a candidate's breadth of support. See supra, at 103-105.
[ Footnote 145 ] The fear that barriers would be reduced too much was
one reason for rejecting a matching formula for the general election
financing system. See n. 136, supra.
[ Footnote 146 ] By offering a single hypothetical situation, appellants try

to prove that the matching formula gives wealthy contributors an
advantage. Taxpayers are entitled to a deduction from ordinary income
for political contributions up to $100, or $200 on a joint return. 218.
Appellants note that a married couple in the 70% tax bracket could give
$500 to a candidate and claim the full deduction allowed by 218, thus
reducing their tax liability by $140. The matching funds increase the
effective contribution to $1,000, and the total cost to the contributors is
$360. But the appellants have disregarded a myriad of other
possibilities. For example, taxpayers also have the option of claiming a
tax credit up to $25, or $50 on a joint return, for one-half of their
political contributions. 41. Any married couple could give $100 to a
candidate, claim the full $50 credit, and matching thus allows a
contribution of $200 at a cost of only $50 to the contributors. Because
this example and others involve greater subsidization -- 75% against
64% - of smaller contributions than is involved in appellants' hypothesis,
one cannot say that the matching formula unfairly favors wealthy interests
or large contributors. Moreover, the effect noted by appellants
diminishes as the size of individual contributions approaches $1,000.
Finally, these examples clearly reveal that 41 and 218 afford public
subsidies for candidates, but appellants have raised no constitutional
challenge to the provisions, either on First or Fifth Amendment grounds.
[ Footnote 147 ] Our responses to the certified constitutional questions

pertaining to public financing of Presidential election campaigns are:
5. Does any statutory provision for the public financing of political

conventions or campaigns for nomination or election to the Presidency
or Vice Presidency violate the rights of one or more of the plaintiffs
under the First or Ninth Amendment, the Due Process Clause of the
Fifth Amendment, or Article I, Section 8, Clause 1, of the Constitution
of the United States?

Answer: NO.
6. Do the particular provisions of Subtitle H and 6096 of the Internal

Revenue Code of 1954 deprive one or more of the plaintiffs of such
rights under the First or Ninth Amendment or Article 1, Section 8,
Clause 1, in that they provide federal tax money to support certain
political candidates, parties, movements, and organizations or in the
manner that they so provide such federal tax money?
Answer: NO.
[ Footnote 148 ] Unless otherwise indicated, all statutory citations in

Part IV are to Title 2 of the United States Code, 1970 edition,
Supplement IV, the relevant provisions of which are set forth in the
Appendix to this opinion, infra, at 144-180.
[ Footnote 149 ] In administering Chapters 95 and 96 of Title 26, which

provide for funding of Presidential election and primary campaigns,
respectively, the Commission is empowered, inter alia, "to prescribe
such rules and regulations ... as it deems necessary to carry out the
functions and duties imposed on it" by each chapter. 26 U.S.C. 9009
(b) (1970 ed., Supp. IV). See also 26 U.S.C. 9039 (b) (1970 ed.,
Supp. IV).
[ Footnote 150 ] The sections from Title 18, incorporated by reference

into several of the provisions relating to the Commission's powers, were
either enacted or amended by the 1971 Act or the 1974 amendments.
They are codified at 18 U.S.C. 608, 610, 611, 613, 614, 615, 616,
and 617 (1970 ed., Supp. IV) (hereinafter referred to as Title 18
sections).
[ Footnote 151 ] Section 437c (b) also provides, somewhat

redundantly, that the Commission "shall administer, seek to obtain
compliance with, and formulate policy with respect to this Act" and the
Title 18 sections.
[ Footnote 152 ] The Commission is charged with the duty under each
Act to receive and pass upon requests by eligible candidates for
campaign money and certify them to the Secretary of the Treasury for
the latter's disbursement from the Fund. See 26 U.S.C. 9003-9007,
9033-9038 (1970 ed., Supp. IV).
[ Footnote 153 ] This conclusion seems to follow from the manner in

which the subsections of 437g interrelate. Any person may file, and the
[424 U.S. 1, 112] Clerk of the House or the Secretary of the Senate shall
refer, believed or apparent civil or criminal violations to the Commission.
Upon receipt of a complaint or referral, as the case may be, the
Commission is directed to notify the person involved and to report the
violation to the Attorney General or to make an investigation. 437g (a)
(2). The Commission shall conduct a hearing at that person's request.
437g (a) (4). If after its investigation the Commission "determines ... that
there is reason to believe" that a "violation of this Act," i. e., a civil
violation, has occurred or is about to occur, it "may endeavor to correct
such violation by informal methods," failing which, the Commission "may
institute a civil action for relief." 437g (a) (5). Finally, paragraph (6)
provides as follows:
"The Commission shall refer apparent violations to the

appropriate law enforcement authorities to the extent that
violations of provisions of chapter 29 of Title 18 are involved, or

if the Commission is unable to correct apparent violations of this

Act under the authority given it by paragraph (5), or if the
Commission determines that any such referral is appropriate."
437g (a) (6) (emphasis added). While it is clear that the
Commission has a duty to refer apparent criminal violations either
upon their initial receipt or after an investigation, it would appear
at the very least that the Commission, which has "primary
jurisdiction" with respect to civil enforcement, 437c (b), has the
sole discretionary power "to determine" whether or not a civil
violation has occurred or is about to occur, and consequently
whether or not informal or judicial remedies will be pursued.
[ Footnote 154 ] Such a finding is subject to judicial review under the

Administrative Procedure Act, 5 U.S.C. 701 et seq.
[ Footnote 155 ] 437c (a) (1), set forth in the Appendix to this opinion,
infra, at 161-162.
[ Footnote 156 ] 437c (a) (1) (A).
[ Footnote 157 ] The Court of Appeals, following the sequence of the

certified questions, adopted a piecemeal approach to the six questions,
reproduced below, concerning the method of appointment and powers
of the Commission. Its basic holding, in answer to question 8 (a), was
that "Congress has the constitutional authority to establish and appoint
[the Commission] to carry out appropriate legislative functions." 171
U.S. App. D.C., at 244[î], 519 F.2d, at 890. Appellants' claim,
embodied in questions 8 (b) through 8 (f), that the Commission's powers
go well beyond "legislative functions" and are facially invalid was in an
overarching sense not ripe, since "[w]hether particular powers are
predominantly executive or judicial, or insufficiently related to the
exercise of appropriate legislative power is an abstract question ... better
decided in the context of a particular factual controversy." Id., at 243,
519 F.2d, at 892. While some of the statutory grants such as civil
enforcement and candidate disqualification powers (questions 8 (c) and
8 (e)) raised, in the court's view, "very serious constitutional questions,"
only the power of the Commission to issue advisory opinions under 437f
(a) was ripe in the context of an attack on Congress' method of
appointment. Even then, beyond the Commission's power to inform the
public of its interpretations, the question whether Congress under 437f
(b) could validly give substantive effect to the Commission's opinions in
later civil and criminal enforcement proceedings should, the Court of
Appeals held, await a case in which a defense based on 437f (b) was
asserted. Finally, the question of the Commission's power under 26
U.S.C. 9008 (d) (3) (1970 ed., Supp. IV) to authorize nominating
convention expenditures in excess of the statutory limits (question 8 (f))
was found ripe because appellants had not challenged it in relation to the
method of appointment but had asserted only that 26 U.S.C. 9008 (d)
(3) (1970 ed., Supp. IV) vested excessive discretion in the Commission.
The Court of Appeals found that Congress had provided sufficient
guidelines to withstand that attack.
The Court of Appeals accordingly answered the six certified questions

as follows:
"8. Do the provisions in the challenged statutes concerning the

powers and method of appointment of the Federal Election
Commission [424 U.S. 1, 116] violate the rights of one or more of
the plaintiffs under the constitutional separation of powers, the
First, Fourth, Fifth, Sixth, or Ninth Amendment, Article I, Section
2, Clause 6, Article I, Section 5, Clause 1, or Article III?

"(a) Does 2 U.S.C. 437c (a) violate such rights by the method of
appointment of the Federal Election Commission? ...
"Answer: NO
"(b) Do 2 U.S.C. 437d and 437g violate such rights, in that they
entrust administration and enforcement of the FECA to the
Federal Election Commission? ...
"Answer: NO as to the power to issue advisory opinions;

UNRIPE as to all else.
"(c) Does 2 U.S.C. 437g (a) violate such rights, in that it

empowers the Federal Election Commission and the Attorney
General to bring civil actions (including proceedings for
injunctions) against any person who has engaged or who may
engage in acts or practices which violate the Federal Election
Campaign Act, as amended, or 608, 610, 611, 613, 614, 615,
616, or 617 of Title 18? . . .
"Answer: UNRIPE FOR RESOLUTION
"(d) Does 2 U.S.C. 438 (c) violate such rights, in that it

empowers the Federal Election Commission to make rules under
the FECA in the manner specified therein? ...
"(e) Does 2 U.S.C. 456 violate such rights, in that it imposes a

temporary disqualification on any candidate for election to federal
office who is found by the Federal Election Commission to have
failed to file a report required by Title III of the Federal Election
Campaign Act, as amended? ...
"(f) Does 9008 of the Internal Revenue Code of 1954 violate

such rights, in that it empowers the Federal Election Commission
to authorize expenditures of the national committee of a party with
respect to presidential nominating conventions in excess of the
limits enumerated therein? ...
"Answer: NO"
[î] ERRATA: "244" should be "241".
[ Footnote 158 ] With respect to the Commission's power under 26

U.S.C. 9008 (d) (3) (1970 ed., Supp. IV) to authorize excessive
convention expenditures (question 8 (f)), the fact that appellants in the
Court of Appeals may have focused their attack primarily or even
exclusively upon the asserted lack of standards attendant to that power,
see n. 157, supra, does not foreclose them from challenging that power
in relation to Congress' method of appointment of the Commission's
members. Question 8 (f) asks whether vesting the Commission with this
power under 26 U.S.C. 9008 (1970 ed., Supp. IV) violates "such
rights," which by reference to question 8 includes "the rights of
[appellants] under the constitutional separation of powers." Since the
certified questions themselves provide our jurisdictional framework,
437h (b), the separation-of-powers aspect of appellants' attack on 26
U.S.C. 9008 (d) (3) (1970 ed., Supp. IV) is properly before this Court.

[ Footnote 159 ] The Federalist No. 47, p. 299 (G. P. Putnam's Sons
ed. 1908).
[ Footnote 160 ] Id., at 302-303 (emphasis in original).
[ Footnote 161 ] The Federalist No. 51, pp. 323-324 (G. P. Putnam's
Sons ed. 1908).
[ Footnote 162 ] "Officers of the United States" does not include all
employees of the United States, but there is no claim made that the
Commissioners are employees of the United States rather than officers.
Employees are lesser functionaries subordinate to officers of the United
States, see Auffmordt v. Hedden, 137 U.S. 310, 327 (1890); United
States v. Germaine, 99 U.S. 508 (1879), whereas the Commissioners,
appointed for a statutory term, are not subject to the control or direction
of any other executive, judicial, or legislative authority.
[ Footnote 163 ] Rule II of the Rules of the House of Representatives,

the earliest form of which was adopted in 1789, provides for the election
by the House, at the commencement of each Congress, of a Clerk,
Sergeant at Arms, Doorkeeper, Postmaster, and Chaplain, each of
whom in turn is given appointment power over the employees of his
department. Jefferson's Manual and Rules of the House of
Representatives 635-636. While there is apparently no equivalent rule
on the Senate side, one of the first orders of business at the first session
of the Senate, April 1789, was to elect a Secretary and a Doorkeeper.
Senate Journal 10 (1st & 2d Congress 1789-1793).
[ Footnote 164 ] 2 U.S.C. 60-1 (b).
[ Footnote 165 ] Appellee Commission has relied for analogous support

on the existence of the Comptroller General, who as a "legislative
officer" had significant duties under the 1971 Act. 308, 86 Stat. 16. But
irrespective of Congress' designation, cf. 31 U.S.C. 65 (d), the
Comptroller General is appointed by the President in conformity with the
Appointments Clause. 31 U.S.C. 42.
[ Footnote 166 ] 2 M. Farrand, The Records of the Federal Convention

of 1787, pp. 74, 76 (1911); The Federalist No. 48, pp. 308-310 (G. P.
Putnam's Sons ed. 1908) (J. Madison); The Federalist No. 71, pp.
447-448 (G. P. Putnam's Sons ed. 1908) (A. Hamilton). See generally
Watson, Congress Steps Out: A Look at Congressional Control of the
Executive, 63 Calif. L. Rev. 983, 1029-1048 (1975).
[ Footnote 167 ] J. Madison, Notes of Debates in the Federal

Convention of 1787, p. 385 (Ohio Univ. Press ed. 1966).
[ Footnote 168 ] Id., at 472 (emphasis added).
[ Footnote 169 ] "Col. Mason in opposition to Mr. Read's motion

desired it might be considered to whom the money would belong; if to
the people, the legislature representing the people ought to appoint the
keepers of it." Ibid.
[ Footnote 172 ] Id., at 571-573.

[ Footnote 174 ] "The Times, Places and Manner of holding Elections

for Senators and Representatives, shall be prescribed in each State by
the Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of chusing Senators."
[ Footnote 175 ] Since in future legislation that may be enacted in

response to today's decision Congress might choose not to confer one
or more of the powers under discussion to a properly appointed agency,
our assumption is arguendo only. Considerations of ripeness prevent us
from deciding, for example, whether such an agency could under 456
disqualify a candidate for federal election consistently with Art. I, 5, cl.
1. With respect to this and other powers discussed infra, this page and
138-141, we need pass only upon their nature in relation to the
Appointments Clause, and not upon their validity vel non.
[ Footnote 176 ] Before a rule or regulation promulgated by the

Commission under 438 (a) (10) may go into effect, it must be
transmitted either to the Senate or House of Representatives together
with "a detailed explanation and justification of such rule or regulation."
438 (c) (1). If the House of Congress to which the rule is required to be
transmitted disapproves the proposed regulation within the specified
period of time, it may not be promulgated by the Commission.
Appellants make a separate attack on this qualification of the
Commission's rulemaking authority, which is but the most recent episode
in a long tug of war between the Executive and Legislative Branches of
the Federal Government respecting the permissible extent of legislative
involvement in rulemaking under statutes which have already been
enacted. The history of these episodes is described in Ginnane, The
Control of Federal Administration by Congressional Resolutions and
Committees, 66 Harv. L. Rev. 569 (1953); in Newman & Keaton,
Congress and the Faithful Execution of Laws -- Should Legislators
Supervise Administrators?, 41 Calif. L. Rev. 565 (1953); and in
Watson, supra, n. 166. Because of our holding that the manner of
appointment of the members of the Commission precludes them from
exercising the rulemaking powers in question, we have no occasion to
address this separate challenge of appellants.
[ Footnote 177 ] The subsidiary questions certified by the District Court

relating to the composition of the Federal Election Commission, together
with our answers thereto, are as follows:
Question 8 (a). Does 2 U.S.C. 437c (a) (1970 ed., Supp. IV) violate
[the rights of one or more of the plaintiffs under the constitutional
separation of powers, the First, Fourth, Fifth, Sixth, or Ninth
Amendment, Art. I, 2, cl. 6, Art. I, 5, cl. 1, or Art. III] by the method of
appointment of the Federal Election Commission?
With respect to the powers referred to in Questions 8 (b)-8 (f), the

method of appointment violates Art. II, 2, cl. 2, of the Constitution.
Question 8 (b). Do 2 U.S.C. 437d and 437g (1970 ed., Supp. IV)
violate such rights, in that they entrust administration and enforcement of
the FECA to the Federal Election Commission?
Question 8 (c). Does 2 U.S.C. 437g (a) (1970 ed., Supp. IV) violate
such rights, in that it empowers the Federal Election Commission and the
Attorney General to bring civil action (including proceedings for
injunctions) against any person who has engaged or [424 U.S. 1, 142] who
may engage in acts or practices which violate the Federal Election

Campaign Act, as amended, or 608, 610, 611, 613, 614, 615, 616, or
617 of Title 18 (1970 ed., Supp. IV)?
Question 8 (d). Does 2 U.S.C. 438 (c) (1970 ed., Supp. IV) violate
such rights in that it empowers the Federal Election Commission to make
rules under the FECA in the manner specified therein?
Question 8 (e). Does 2 U.S.C. 456 (1970 ed., Supp. IV) violate such
rights, in that it imposes a temporary disqualification on any candidate for
election to federal office who is found by the Federal Election
Commission to have failed to file a report required by Title III of the
Federal Election Campaign Act, as amended?
Question 8 (f). Does 9008 of the Internal Revenue Code of 1954 violate
such rights, in that it empowers the Federal Election Commission to
authorize expenditures of the national committee of a party with respect
to Presidential nominating conventions in excess of the limits enumerated
therein?
The Federal Election Commission as presently constituted may not

under Art. II, 2, cl. 2, of the Constitution exercise the powers referred to
in Questions 8 (b)-8 (f).
[ Footnote 178 ] We have not set forth specific answers to some of the
certified questions. Question 9, dealing with alleged vagueness in several
provisions, 171 U.S. App. D.C., at 252, 519 F.2d, at 901 (Appendix
A), is resolved in the opinion to the extent urged by the parties. We need
not respond to questions 3 (g), 3 (i), 4 (b), and 7 (f), id., at 250-251,
519 F.2d, at 899-900 (Appendix A), to resolve the issues presented.
[ Footnote * ] Based upon Federal Election Campaign Laws, compiled

by the Senate Library for the Subcommittee on Privileges and Elections
of the Senate Committee on Rules and Administration (1975).
[ Footnote 1a ] [424 U.S. 1, 218] So in original.
MR. CHIEF JUSTICE BURGER, concurring in part and dissenting in

part.
For reasons set forth more fully later, I dissent from those parts of the
Court's holding sustaining the statutory provisions (a) for disclosure of
small contributions, (b) for limitations on contributions, and (c) for public
financing of Presidential campaigns. In my view, the Act's disclosure
scheme is impermissibly broad and violative of the First Amendment as it
relates to reporting contributions in excess of $10 and $100. The
contribution limitations infringe on First Amendment liberties and suffer
from the same infirmities that the Court correctly sees in the expenditure
ceilings. The system for public financing of Presidential campaigns is, in
my judgment, an impermissible intrusion by the Government into the
traditionally private political process.
More broadly, the Court's result does violence to the intent of Congress
in this comprehensive scheme of campaign finance. By dissecting the Act
bit by bit, and casting off vital parts, the Court fails to recognize that the
whole of this Act is greater than the sum of its parts. [424 U.S. 1, 236]
Congress intended to regulate all aspects of federal campaign finances,
but what remains after today's holding leaves no more than a shadow of
what Congress contemplated. I question whether the residue leaves a
workable program.
(1)

DISCLOSURE PROVISIONS
Disclosure is, in principle, the salutary and constitutional remedy for most
of the ills Congress was seeking to alleviate. I therefore agree fully with
the broad proposition that public disclosure of contributions by
individuals and by entities -- particularly corporations and labor unions
-- is an effective means of revealing the type of political support that is
sometimes coupled with expectations of special favors or rewards. That
disclosure impinges on First Amendment rights is conceded by the
Court, ante, at 64-66, but given the objectives to which disclosure is
directed, I agree that the need for disclosure outweighs individual
constitutional claims.
Disclosure is, however, subject to First Amendment limitations which are

to be defined by looking to the relevant public interests. The legitimate
public interest is the elimination of the appearance and reality of
corrupting influences. Serious dangers to the very processes of
government justify disclosure of contributions of such dimensions
reasonably thought likely to purchase special favors. These fears have
been at the root of the Court's prior decisions upholding disclosure
requirements, and I therefore have no disagreement, for example, with
Burroughs v. United States, 290 U.S. 534 (1934).
The Court's theory, however, goes beyond permissible limits. Under the
Court's view, disclosure serves broad informational purposes, enabling
the public to be fully informed on matters of acute public interest. Forced
disclosure of one aspect of a citizen's political activity, [424 U.S. 1, 237]
under this analysis, serves the public right to know. This open-ended
approach is the only plausible justification for the otherwise irrationally
low ceilings of $10 and $100 for anonymous contributions. The burdens
of these low ceilings seem to me obvious, and the Court does not try to
question this. With commendable candor, the Court acknowledges:
"It is undoubtedly true that public disclosure of contributions to

candidates and political parties will deter some individuals who
otherwise might contribute." Ante, at 68.
Examples come readily to mind. Rank-and-file union members or rising

junior executives may now think twice before making even modest
contributions to a candidate who is disfavored by the union or
management hierarchy. Similarly, potential contributors may well decline
to take the obvious risks entailed in making a reportable contribution to
the opponent of a well-entrenched incumbent. This fact of political life
did not go unnoticed by the Congress:
"The disclosure provisions really have in fact made it difficult for

challengers to challenge incumbents." 120 Cong. Rec. 34392
(1974) (remarks of Sen. Long).
See Pollard v. Roberts, 283 F. Supp. 248 (ED Ark.), aff'd per curiam,
393 U.S. 14 (1968).
The public right to know ought not be absolute when its exercise reveals
private political convictions. Secrecy, like privacy, is not per se criminal.
On the contrary, secrecy and privacy as to political preferences and
convictions are fundamental in a free society. For example, one of the
great political reforms was the advent of the secret ballot as a universal
practice. Similarly, the enlightened labor legislation of our time has
enshrined the secrecy of choice of a bargaining representative for [424
U.S. 1, 238] workers. In other contexts, this Court has seen to it that

governmental power cannot be used to force a citizen to disclose his

private affiliations, NAACP v. Button, 371 U.S. 415 (1963), even
without a record reflecting any systematic harassment or retaliation, as in
Shelton v. Tucker, 364 U.S. 479 (1960). For me it is far too late in the
day to recognize an ill-defined "public interest" to breach the historic
safeguards guaranteed by the First Amendment.
We all seem to agree that whatever the legitimate public interest in this
area, proper analysis requires us to scrutinize the precise means
employed to implement that interest. The balancing test used by the
Court requires that fair recognition be given to competing interests. With
respect, I suggest the Court has failed to give the traditional standing to
some of the First Amendment values at stake here. Specifically, it has
failed to confine the particular exercise of governmental power within
limits reasonably required.
"In every case the power to regulate must be so exercised as not,

in attaining a permissible end, unduly to infringe the protected
freedom." Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).
"Unduly" must mean not more than necessary, and until today, the
Court has recognized this criterion in First Amendment cases:
"In the area of First Amendment freedoms, government has
the duty to confine itself to the least intrusive regulations
which are adequate for the purpose." Lamont v.
Postmaster General, 381 U.S. 301, 310 (1965)
(BRENNAN, J., concurring). (Emphasis added.)
Similarly, the Court has said:
"[E]ven though the governmental purpose be legitimate [424 U.S. 1,

239] and substantial, that purpose cannot be pursued by means
that broadly stifle fundamental personal liberties when the end can
be more narrowly achieved. The breadth of legislative abridgment
must be viewed in the light of less drastic means for achieving the
same basic purpose." Shelton v. Tucker, supra, at 488.
In light of these views,1 it seems to me that the threshold limits fixed at

$10 and $100 for anonymous contributions are constitutionally
impermissible on their face. As the Court's opinion notes, ante, at 83,
Congress gave little or no thought, one way or the other, to these limits,
but rather lifted figures out of a 65-year-old statute. 2 As we are all
painfully aware, the 1976 dollar is not what it used to be and is surely
not the dollar of 1910. Ten dollars in 1976 will, for example, purchase
only what $1.68 would buy in 1910. United States Dept. of Labor,
Handbook of Labor Statistics 1975, p. 313 (Dec. 1975). To argue that
a 1976 contribution of $10 or $100 entails a risk of corruption or its
appearance is simply too extravagant to be maintained. No public right
to know justifies the compelled disclosure of such contributions, at the
risk of discouraging them. There is, in short, no relation whatever
between the means used and the legitimate goal of ventilating possible
undue influence. Congress has used a shotgun to kill wrens as well as
hawks. [424 U.S. 1, 240]
In saying that the lines drawn by Congress are "not wholly without
rationality," the Court plainly fails to apply the traditional test:
"Precision of regulation must be the touchstone in an area so

closely touching on our most precious freedoms." NAACP v.
Button, 371 U.S. 415, 438 (1938).

See, e. g., Aptheker v. Secretary of State, 378 U.S. 500 (1964); United
States v. Robel, 389 U.S. 258 (1967); Lamont v. Postmaster General,
supra. The Court's abrupt departure3 from traditional standards is
wrong; surely a greater burden rests on Congress than merely to avoid
"irrationality" when regulating in the core area of the First Amendment.
Even taking the Court at its word, the particular dollar amounts fixed by
Congress that must be reported to the Commission fall short of meeting
the test of rationality when measured by the goals sought to be achieved.
Finally, no legitimate public interest has been shown in forcing the

disclosure of modest contributions that are the prime support of new,
unpopular, or unfashionable political causes. There is no realistic
possibility that such modest donations will have a corrupting influence
especially on parties that enjoy only "minor" status. Major parties would
not notice them; minor parties need them. Furthermore, as the Court
candidly recognizes, ante, at 70, minor parties and new parties tend to
be sharply ideological in character, and the public can readily discern
where such parties stand, without resorting to the indirect device of
recording the names of financial supporters. To hold, as the Court has,
that privacy must sometimes yield to congressional investigations of
alleged subversion, is quite different from making domestic political [424
U.S. 1, 241] partisans give up privacy. Cf. Eastland v. United States
Servicemen's Fund, 421 U.S. 491 (1975). In any event, the dangers to
First Amendment rights here are too great. Flushing out the names of
supporters of minority parties will plainly have a deterrent effect on
potential contributors, a consequence readily admitted by the Court,
ante, at 71, 83, and supported by the record. 4
I would therefore hold unconstitutional the provisions requiring reporting

of contributions of more than $10 and to make a public record of the
name, address, and occupation of a contributor of more than $100.
(2)
CONTRIBUTION AND EXPENDITURE LIMITS
I agree fully with that part of the Court's opinion that holds
unconstitutional the limitations the Act puts on campaign expenditures
which "place substantial and direct restrictions on the ability of
candidates, citizens, and associations to engage in protected political
expression, restrictions that the First Amendment cannot tolerate." Ante,
at 58-59. Yet when it approves similarly stringent limitations on
contributions, the Court ignores the reasons it finds so persuasive in the
context of expenditures. For me contributions and expenditures are two
sides of the same First Amendment coin.
By limiting campaign contributions, the Act restricts the amount of

money that will be spent on political activity [424 U.S. 1, 242] -- and does
so directly. Appellees argue, as the Court notes, that these limits will "act
as a brake on the skyrocketing cost of political campaigns," ante, at 26.
In treating campaign expenditure limitations, the Court says that the
"First Amendment denies government the power to determine that
spending to promote one's political views is wasteful, excessive, or
unwise." Ante, at 57. Limiting contributions, as a practical matter, will
limit expenditures and will put an effective ceiling on the amount of
political activity and debate that the Government will permit to take
place. The argument that the ceiling is not, after all, very low as matters
now stand gives little comfort for the future, since the Court elsewhere
notes the rapid inflation in the cost of political campaigning.5 Ante, at 57.
The Court attempts to separate the two communicative aspects of

political contributions -- the "moral" support that the gift itself conveys,
which the Court suggests is the same whether the gift is $10 or $10,000,
6 and the [424 U.S. 1, 243] fact that money translates into communication.
The Court dismisses the effect of the limitations on the second aspect of
contributions: "[T]he transformation of contributions into political debate
involves speech by someone other than the contributor." Ante, at 21. On
this premise -- that contribution limitations restrict only the speech of
"someone other than the contributor" - rests the Court's justification for
treating contributions differently from expenditures. The premise is
demonstrably flawed; the contribution limitations will, in specific
instances, limit exactly the same political activity that the expenditure
ceilings limit,7 and at least one of the "expenditure" [424 U.S. 1, 244]
limitations the Court finds objectionable operates precisely like the
"contribution" limitations.8
The Court's attempt to distinguish the communication inherent in political

contributions from the speech aspects of political expenditures simply
"will not wash." We do little but engage in word games unless we
recognize that people -- candidates and contributors -- spend money on
political activity because they wish to communicate ideas, and their
constitutional interest in doing so is precisely the same whether they or
someone else utters the words.
The Court attempts to make the Act seem less restrictive by casting the
problem as one that goes to freedom of association rather than freedom
of speech. I have long thought freedom of association and freedom of
expression were two peas from the same pod. The contribution
limitations of the Act impose a restriction on certain forms of
associational activity that are for the most part, as the Court recognizes,
ante, at 29, harmless in fact. And the restrictions are hardly incidental in
their effect upon particular campaigns. Judges are ill-equipped to gauge
the precise impact of legislation, but a law that impinges upon First
Amendment rights requires us to make the attempt. It is not simply
speculation to think that the limitations on contributions will foreclose
some candidacies.9 The limitations will also alter the nature of some
electoral contests drastically. 10 [424 U.S. 1, 245]
At any rate, the contribution limits are a far more severe restriction on
First Amendment activity than the sort of "chilling" legislation for which
the Court has shown such extraordinary concern in the past. See, e. g.,
Cohen v. California, 403 U.S. 15 (1971); see also cases reviewed in
Miller v. California, 413 U.S. 15 (1973); Redrup v. New York, 386
U.S. 767 (1967); Memoirs v. Massachusetts, 383 U.S. 413 (1966). If
such restraints can be justified at all, they must be justified by the very
strongest of state interests. With this much the Court clearly agrees; the
Court even goes so far as to note that legislation cutting into these
important interests must employ "means closely drawn to avoid
unnecessary abridgment of associational freedoms." Ante, at 25.
After a bow to the "weighty interests" Congress meant to serve, the

Court then forsakes this analysis in one sentence: "Congress was surely
entitled to conclude that disclosure was only a partial measure, and that
contribution ceilings were a necessary legislative concomitant to deal
with the reality or appearance of corruption ... ." Ante, at 28. In striking
down the limitations on campaign expenditures, the Court relies in part
on its conclusion that other means -- namely, disclosure and contribution
ceilings -- will adequately serve the statute's aim. It is not clear why the
same analysis is not also appropriate in weighing the need for
contribution ceilings in addition to disclosure requirements. Congress
may well be [424 U.S. 1, 246] entitled to conclude that disclosure was a
"partial measure," but I had not thought until today that Congress could

enact its conclusions in the First Amendment area into laws immune from
the most searching review by this Court.
Finally, it seems clear to me that in approving these limitations on

contributions the Court must rest upon the proposition that "pooling"
money is fundamentally different from other forms of associational or
joint activity. But see ante, at 66. I see only two possible ways in which
money differs from volunteer work, endorsements, and the like. Money
can be used to buy favors, because an unscrupulous politician can put it
to personal use; second, giving money is a less visible form of
associational activity. With respect to the first problem, the Act does not
attempt to do any more than the bribery laws to combat this sort of
corruption. In fact, the Act does not reach at all, and certainly the
contribution limits do not reach, forms of "association" that can be fully
as corrupt as a contribution intended as a quid pro quo -- such as the
eleventh-hour endorsement by a former rival, obtained for the promise
of a federal appointment. This underinclusiveness is not a constitutional
flaw, but it demonstrates that the contribution limits do not clearly focus
on this first distinction. To the extent Congress thought that the second
problem, the lesser visibility of contributions, required that money be
treated differently from other forms of associational activity, disclosure
laws are the simple and wholly efficacious answer; they make the
invisible apparent.
(3)
PUBLIC FINANCING
I dissent from Part III sustaining the constitutionality of the public

financing provisions of Subtitle H.
Since the turn of this century when the idea of Government [424 U.S. 1,
247] subsidies for political campaigns first was broached, there has been
no lack of realization that the use of funds from the public treasury to
subsidize political activity of private individuals would produce
substantial and profound questions about the nature of our democratic
society. The Majority Leader of the Senate, although supporting such
legislation in 1967, said that "the implications of these questions ... go to
the very heart and structure of the Government of the Republic."11 The
Solicitor General in his amicus curiae brief states that "the issues involved
here are of indisputable moment."12 He goes on to express his view that
public financing will have "profound effects in the way candidates
approach issues and each other." 13 Public financing, he notes, "affects
the role of the party in campaigns for office, changes the role of the
incumbent government vis-a-vis all parties, and affects the relative
strengths and strategies of candidates vis-a-vis each other and their
party's leaders."14
The Court chooses to treat this novel public financing of political activity
as simply another congressional appropriation whose validity is
"necessary and proper" to Congress' power to regulate and reform
elections and primaries, relying on United States v. Classic, 313 U.S.
299 (1941), and Burroughs v. United States, 290 U.S. 534 (1934). No
holding of this Court is directly in point, because no federal scheme
allocating public funds in a comparable manner has ever been before us.
The uniqueness of the plan is not relevant, of course, to whether
Congress has power to enact it. Indeed, I do not question the power of
Congress to regulate elections; nor do I [424 U.S. 1, 248] challenge the
broad proposition that the General Welfare Clause is a grant, not a
limitation, of power. M'Culloch v. Maryland, 4 Wheat. 316, 420
(1819); United States v. Butler, 297 U.S. 1, 66 (1936).

I would, however, fault the Court for not adequately analyzing and
meeting head on the issue whether public financial assistance to the
private political activity of individual citizens and parties is a legitimate
expenditure of public funds. The public monies at issue here are not
being employed simply to police the integrity of the electoral process or
to provide a forum for the use of all participants in the political dialogue,
as would, for example, be the case if free broadcast time were granted.
Rather, we are confronted with the Government's actual financing, out of
general revenues, a segment of the political debate itself. As Senator
Howard Baker remarked during the debate on this legislation:
"I think there is something politically incestuous about the

Government financing and, I believe, inevitably then regulating, the
day-to-day procedures by which the Government is selected ... .
"I think it is extraordinarily important that the Government not

control the machinery by which the public expresses the range of
its desires, demands, and dissent." 120 Cong. Rec. 8202 (1974).
If this "incest" affected only the issue of the wisdom of the plan, it would
be none of the concern of judges. But, in my view, the inappropriateness
of subsidizing, from general revenues, the actual political dialogue of the
people -- the process which begets the Government itself -- is as basic
to our national tradition as the separation of church and state also
deriving from the First Amendment, see Lemon v. Kurtzman, 403 U.S.
602, 612 (1971); Walz v. Tax Comm'n, 397 U.S. 664, 668 -669
(1970), [424 U.S. 1, 249] or the separation of civilian and military
authority, see Orloff v. Willoughby, 345 U.S. 83, 93 -94 (1953), neither
of which is explicit in the Constitution but both of which have developed
through case-by-case adjudication of express provisions of the
Constitution.
Recent history shows dangerous examples of systems with a close,

"incestuous" relationship between "government" and "politics"; the
Court's opinion simply dismisses possible dangers by noting that:
"Subtitle H is a congressional effort, not to abridge, restrict, or

censor speech, but rather to use public money to facilitate and
enlarge public discussion and participation in the electoral
process, goals vital to a self-governing people." Ante, at 92-93.
Congress, it reassuringly adds by way of a footnote, has expressed its

determination to avoid such a possibility.15 Ante, at 93 n. 126. But the
Court points to no basis for predicting that the historical pattern of
"varying measures of control and surveillance," Lemon v. Kurtzman,
supra, at 621, which usually accompany grants from Government will
not also follow in this case. 16 Up to now, the Court has always been
extraordinarily sensitive, when dealing with First Amendment rights, to
the risk that the "flag tends to follow the dollars." Yet, here, where
Subtitle H specifically requires the auditing of records of political parties
and candidates by Government inspectors,17 the Court shows [424 U.S. 1,
250] little sensitivity to the danger it has so strongly condemned in other
contexts. See, e. g., Everson v. Board of Education, 330 U.S. 1 (1947).
Up to now, this Court has scrupulously refrained, absent claims of
invidious discrimination,18 from entering the arena of intraparty disputes
concerning the seating of convention delegates. Graham v. Fong Eu, 403
F. Supp. 37 (ND Cal. 1975), summarily aff'd, 423 U.S. 1067 (1976);
Cousins v. Wigoda, 419 U.S. 477 (1975); O'Brien v. Brown, 409 U.S.
1 (1972). An obvious underlying basis for this reluctance is that delegate
selection and the management of political conventions have been

considered a strictly private political matter, not the business of

Government inspectors. But once the Government finances these
national conventions by the expenditure of millions of dollars from the
public treasury, we may be providing a springboard for later attempts to
impose a whole range of requirements on delegate selection and
convention activities. Does this foreshadow judicial decisions allowing
the federal courts to "monitor" these conventions to assure compliance
with court orders or regulations?
Assuming, arguendo, that Congress could validly appropriate public

money to subsidize private political activity, it has gone about the task in
Subtitle H in a manner which is not, in my view, free of constitutional
infirmity.19 I do not question that Congress has "wide discretion in the
manner of prescribing details of expenditures" in some contexts,
Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937). Here,
however, Congress has not itself appropriated a specific sum to attain
the ends of the Act but has delegated to a limited group [424 U.S. 1, 251]
of citizens - those who file tax returns -- the power to allocate general
revenue for the Act's purposes -- and of course only a small percentage
of that limited group has exercised the power. There is nothing to assure
that the "fund" will actually be adequate for the Act's objectives. Thus, I
find it difficult to see a rational basis for concluding that this scheme
would, in fact, attain the stated purposes of the Act when its own funding
scheme affords no real idea of the amount of the available funding.
I agree with MR. JUSTICE REHNQUIST that the scheme approved

by the Court today invidiously discriminates against minor parties.
Assuming, arguendo, the constitutionality of the overall scheme, there is
a legitimate governmental interest in requiring a group to make a
"preliminary showing of a significant modicum of support." Jenness v.
Fortson, 403 U.S. 431, 442 (1971). But the present system could
preclude or severely hamper access to funds before a given election by a
group or an individual who might, at the time of the election, reflect the
views of a major segment or even a majority of the electorate. The fact
that there have been few drastic realignments in our basic two-party
structure in 200 years is no constitutional justification for freezing the
status quo of the present major parties at the expense of such future
political movements. Cf. discussion, ante, at 73. When and if some
minority party achieves majority status, Congress can readily deal with
any problems that arise. In short, I see grave risks in legislation, enacted
by incumbents of the major political parties, which distinctly
disadvantages minor parties or independent candidates. This Court has,
until today, been particularly cautious when dealing with enactments that
tend to perpetuate those who control legislative power. See Reynolds v.
Sims, 377 U.S. 533, 570 (1964).
I would also find unconstitutional the system of [424 U.S. 1, 252] matching
grants which makes a candidate's ability to amass private funds the sole
criterion for eligibility for public funds. Such an arrangement can put at
serious disadvantage a candidate with a potentially large, widely diffused
-- but poor -- constituency. The ability of a candidate's supporters to
help pay for his campaign cannot be equated with their willingness to
cast a ballot for him. See Lubin v. Panish, 415 U.S. 709 (1974);
Bullock v. Carter, 405 U.S. 134 (1972).
(4)
I cannot join in the attempt to determine which parts of the Act can
survive review here. The statute as it now stands is unworkable and
inequitable.

I agree with the Court's holding that the Act's restrictions on

expenditures made "relative to a clearly identified candidate,"
independent of any candidate or his committee, are unconstitutional.
Ante, at 39-51. Paradoxically the Court upholds the limitations on
individual contributions, which embrace precisely the same sort of
expenditures "relative to a clearly identified candidate" if those
expenditures are "authorized or requested" by the "candidate or his
agents." Ante, at 24 n. 25. The Act as cut back by the Court thus places
intolerable pressure on the distinction between "authorized" and
"unauthorized" expenditures on behalf of a candidate; even those with
the most sanguine hopes for the Act might well concede that the
distinction cannot be maintained. As the Senate Report on the bill said:
"Whether campaigns are funded privately or publicly ... controls

are imperative if Congress is to enact meaningful limits on direct
contributions. Otherwise, wealthy individuals limited to a $3,000
direct contribution [$1,000 in the bill as finally enacted] could also
purchase one hundred thousand [424 U.S. 1, 253] dollars' worth of
advertisements for a favored candidate. Such a loophole would
render direct contribution limits virtually meaningless." S. Rep.
No. 93-689, p. 18 (1974).
Given the unfortunate record of past attempts to draw distinctions of this

kind, see ante, at 61-62, it is not too much to predict that the Court's
holding will invite avoidance, if not evasion, of the intent of the Act, with
"independent" committees undertaking "unauthorized" activities in order
to escape the limits on contributions. The Court's effort to blend First
Amendment principles and practical politics has produced a strange
offspring.
Moreover, the Act -- or so much as the Court leaves standing -- creates

significant inequities. A candidate with substantial personal resources is
now given by the Court a clear advantage over his less affluent
opponents, who are constrained by law in fundraising, because the
Court holds that the "First Amendment cannot tolerate" any restrictions
on spending. Ante, at 59. Minority parties, whose situation is difficult
enough under an Act that excludes them from public funding, are
prevented from accepting large single-donor contributions. At the same
time the Court sustains the provision aimed at broadening the base of
political support by requiring candidates to seek a greater number of
small contributors, it sustains the unrealistic disclosure thresholds of $10
and $100 that I believe will deter those hoped-for small contributions.
Minor parties must now compete for votes against two major parties
whose expenditures will be vast. Finally, the Act's distinction between
contributions in money and contributions in services remains, with only
the former being subject to any limits. As Judge Tamm put it in dissent
from the Court of Appeals' opinion:
"[T]he classification created only regulates certain [424 U.S. 1, 254]

types of disproportional influences. Under section 591 (e) (5),
services are excluded from contributions. This allows the
housewife to volunteer time that might cost well over $1000 to
hire on the open market, while limiting her neighbor who works
full-time to a regulated contribution. It enhances the
disproportional influence of groups who command large quantities
of these volunteer services and will continue to magnify this
inequity by not allowing for an inflation adjustment to the
contribution limit. It leads to the absurd result that a lawyer's
contribution of services to aid a candidate in complying with
FECA is exempt, but his first amendment activity is regulated if he
falls ill and hires a replacement." 171 U.S. App. D.C. 172, 266,

519 F.2d 821, 915 (1975).
One need not call problems of this order equal protection violations to
recognize that the contribution limitations of the Act create grave
inequities that are aggravated by the Court's interpretation of the Act.
The Court's piecemeal approach fails to give adequate consideration to

the integrated nature of this legislation. A serious question is raised,
which the Court does not consider:20 when central segments, key
operative provisions, of this Act are stricken, can what remains function
in anything like the way Congress intended? The incongruities are
obvious. The Commission is now eliminated, yet its very purpose was to
guide candidates and campaign workers -- and their accountants and
lawyers -- through an intricate statutory maze where a misstep can lead
to imprisonment. All candidates can now spend freely; affluent
candidates, after today, can spend their own money without limit; yet,
contributions for the ordinary [424 U.S. 1, 255] candidate are severely
restricted in amount -- and small contributors are deterred. I cannot
believe that Congress would have enacted a statutory scheme containing
such incongruous and inequitable provisions.
Although the statute contains a severability clause, 2 U.S.C. 454 (1970

ed., Supp. IV), such a clause is not an "inexorable command."21 Dorchy
v. Kansas, 264 U.S. 286, 290 (1924). The clause creates a rebuttable
presumption that "èliminating invalid parts, the legislature would have
been satisfied with what remained.'" Welsh v. United States, 398 U.S.
333, 364 (1970) (Harlan, J., concurring, quoting from Champlin Rfg.
Co. v. Commission, 286 U.S. 210, 235 (1932)). Here just as the
presumption of constitutionality of a statute has been overcome to the
point that major proportions and chapters of the Act have been declared
unconstitutional, for me the presumption of severability has been
rebutted. To invoke a severability clause to salvage parts of a
comprehensive, integrated statutory scheme, which parts, standing alone,
are unworkable and in many aspects unfair, exalts a formula at the
expense of the broad objectives of Congress.
Finally, I agree with the Court that the members of the Federal Election
Commission were unconstitutionally appointed. However, I disagree that
we should give blanket de facto validation to all actions of the
Commission undertaken until today. The issue is not before us and we
cannot know what acts we are ratifying. I would leave this issue to the
District Court to resolve if and when any challenges are brought.
In the past two decades the Court has frequently [424 U.S. 1, 256] spoken
of the broad coverage of the First Amendment, especially in the area of
political dialogue:
"[T]o assure unfettered interchange of ideas for the bringing about

of political and social changes desired by the people," Roth v.
United States, 354 U.S. 476, 484 (1957);
and:
"[T]here is practically universal agreement that a major purpose of

[the First] Amendment was to protect the free discussion of
governmental affairs ... [including] discussions of candidates ...,"
Mills v. Alabama, 384 U.S. 214, 218 (1966);
and again:
"[I]t can hardly be doubted that the constitutional guarantee [of

the First Amendment] has its fullest and most urgent application
precisely to the conduct of campaigns for political office." Monitor
Patriot Co. v. Roy, 401 U.S. 265, 272 (1971).
To accept this generalization one need not agree that the Amendment
has its "fullest and most urgent application" only in the political area, for
others would think religious freedom is on the same or even a higher
plane. But I doubt that the Court would tolerate for an instant a limitation
on contributions to a church or other religious cause; however grave an
"evil" Congress thought the limits would cure, limits on religious
expenditures would most certainly fall as well. To limit either
contributions or expenditures as to churches would plainly restrict "the
free exercise" of religion. In my view Congress can no more ration
political expression than it can ration religious expression; and limits on
political or religious contributions and expenditures effectively curb
expression in both areas. There are many prices we pay for the
freedoms secured by the First Amendment; the risk of undue [424 U.S. 1,
257] influence is one of them, confirming what we have long known:
Freedom is hazardous, but some restraints are worse.
[ Footnote 1 ] The particular verbalization has varied from case to case.

First Amendment analysis defies capture in a single, easy phrase. The
basic point of our inquiry, however expressed, is to determine whether
the Government has sought to achieve admittedly important goals by
means which demonstrably curtail our liberties to an unnecessary extent.
[ Footnote 2 ] The 1910 legislation required disclosure of the names of

recipients of expenditures in excess of $10.
[ Footnote 3 ] Ironically, the Court seems to recognize this principle

when dealing with the limitations on contributions. Ante, at 25.
[ Footnote 4 ] The record does not show systematic harassment of the

sort involved in NAACP v. Alabama, 357 U.S. 449 (1958). But
uncontradicted evidence was adduced with respect to actual
experiences of minor parties indicating a sensitivity on the part of
potential contributors to the prospect of disclosure. See, e. g., District
Court findings of fact, affidavits of Wertheimer ( 6) and Reed ( 8),
2B App. 736, 742. This evidence suffices when the governmental
interest in putting the spotlight on the sources of support for minor
parties or splinter groups is so tenuous.
[ Footnote 5 ] The Court notes that 94.9% of the funds raised by

congressional candidates in 1974 came in contributions of less than
$1,000, ante, at 26 n. 27, and suggests that the effect of the contribution
limitations will be minimal. This logic ignores the disproportionate
influence large contributions may have when they are made early in a
campaign; "seed money" can be essential, and the inability to obtain it
may effectively end some candidacies before they begin. Appellants
have excerpted from the record data on nine campaigns to which large,
initial contributions were critical. Brief for Appellants 132-138.
Campaigns such as these will be much harder, and perhaps impossible,
to mount under the Act.
[ Footnote 6 ] Whatever the effect of the limitation, it is clearly arbitrary

-- Congress has imposed the same ceiling on contributions to a New
York or California senatorial campaign that it has put on House races in
Alaska or Wyoming. Both the strength of support conveyed by the gift
of $1,000 and the gift's potential for corruptly influencing the recipient
will vary enormously from place to place. Seven Senators each spent
from $1,000,000 to $1,300,000 in their successful 1974 [424 U.S. 1, 243]

election campaigns. A great many congressional candidates spent less

than $25,000. 33 Cong. Quarterly 789-790 (1975). The same
contribution ceiling would seem to apply to each of these campaigns.
Congress accounted for these tremendous variations when it geared the
expenditure limits to voting population; but it imposed a flat ceiling on
contributions without focusing on the actual evil attacked or the actual
harm the restrictions will work.
[ Footnote 7 ] Suppose, for example, that a candidate's committee

authorizes a celebrity or elder statesman to make a radio or television
address on the candidate's behalf, for which the speaker himself plans to
pay. As the Court recognizes, ante, at 24 n. 25, the Act defines this
activity as a contribution and subjects it to the $1,000 limit on individual
contributions and the $5,000 limit on contributions by political
committees - effectively preventing the speech over any substantial radio
or television station. Whether the speech is considered an impermissible
"contribution" or an allowable "expenditure" turns, not on whether
speech by "someone other than the contributor" is involved, but on
whether the speech is "authorized" or not. The contribution limitations
directly restrict speech by the contributor himself. Of course, this
restraint can be avoided if the speaker makes his address without
consulting the candidate or his agents. Elsewhere I suggest that the
distinction between "independent" and "authorized" political activity is
unrealistic and simply cannot be maintained. For present purposes I wish
only to emphasize that the Act directly restricts, as a "contribution," what
is clearly speech by the "contributor" himself.
[ Footnote 8 ] The Court treats the Act's provisions limiting a

candidate's spending from his personal resources as expenditure limits,
as indeed the Act characterizes them, and holds them unconstitutional.
As MR. JUSTICE MARSHALL points out, post, at 287, by the
Court's logic these provisions could as easily be treated as limits on
contributions, since they limit what the candidate can give to his own
campaign.
[ Footnote 9 ] Candidates who must raise large initial contributions in

order to appeal for more funds to a broader audience will be
handicapped. See n. 5, supra. It is not enough to say that the
contribution ceilings [424 U.S. 1, 245] "merely ... require candidates ... to
raise funds from a greater number of persons," ante, at 22, where the
limitations will effectively prevent candidates without substantial personal
resources from doing just that.
[ Footnote 10 ] Under the Court's holding, candidates with personal

fortunes will be free to contribute to their own campaigns as much as
they like, since the Court chooses to view the Act's provisions in this
regard as unconstitutional "expenditure" limitations rather than
"contribution" limitations. See n. 8, supra.
[ Footnote 11 ] 113 Cong. Rec. 12165 (1967).
[ Footnote 12 ] Brief for Appellee Attorney General and for United

States as Amicus Curiae 93.
[ Footnote 15 ] Such considerations have never before influenced the

Court's evaluation of the risks of restraints on expression.

[ Footnote 16 ] The Court's opinion demonstrates one such intrusion.

While the Court finds that the Act's expenditure limitations
unconstitutionally inhibit a candidate's or a party's First Amendment
rights, it imposes, by invoking the severability clause of Subtitle H, such
limitations on qualifying for public funds.
[ Footnote 17 ] See, e. g., 26 U.S.C. 9003, 9007, 9033, 9038 (1970

ed., Supp. IV).
[ Footnote 18 ] Cf. Terry v. Adams, 345 U.S. 461 (1953); Smith v.

Allwright, 321 U.S. 649 (1944).
[ Footnote 19 ] See generally remarks of Senator Gore, 112 Cong.

Rec. 28783 (1966).
[ Footnote 20 ] The problem is considered only in the limited context of

Subtitle H.
[ Footnote 21 ] Section 454 provides that if a "provision" is invalid, the

entire Act will not be deemed invalid. More than a provision, more than
a few provisions, have been held invalid today. Section 454 probably
does not even reach such extensive invalidation.
MR. JUSTICE WHITE, concurring in part and dissenting in part.
I concur in the Court's answers to certified questions 1, 2, 3 (b), 3 (c), 3

(e), 3 (f), 3 (h), 5, 6, 7 (a), 7 (b), 7 (c), 7 (d), 8 (a), 8 (b), 8 (c), 8 (d), 8
(e), and 8 (f). I dissent from the answers to certified questions 3 (a), 3
(d), and 4 (a). I also join in Part III of the Court's opinion and in much of
Parts I-B, II, and IV.
It is accepted that Congress has power under the Constitution to

regulate the election of federal officers, including the President and the
Vice President. This includes the authority to protect the elective
processes against the "two great natural and historical enemies of all
republics, open violence and insidious corruption," Ex parte Yarbrough,
110 U.S. 651, 658 (1884); for "[i]f this government is anything more
than a mere aggregation of delegated agents of other States and
governments, each of which is superior to the general government, it
must have the power to protect the elections on which its existence
depends from violence and corruption," the latter being the consequence
of "the free use of money in elections, arising from the vast growth of
recent wealth ... ." Id., at 657-658, 667.
This teaching from the last century was quoted at length and reinforced
in Burroughs v. United States, 290 U.S. 534, 546 -548 (1934). In that
case the Court sustained the Federal Corrupt Practices Act of 1925,
Title III of the Act of Feb. 28, 1925, 43 Stat. 1070, which, among other
things, required political committees to keep [424 U.S. 1, 258] records and
file reports concerning all contributions and expenditures received and
made by political committees for the purposes of influencing the election
of candidates for federal office. The Court noted the conclusion of
Congress that public disclosure of contributions would tend to prevent
the corrupt use of money to influence elections; this, together with the
requirement "that the treasurer's statement shall include full particulars in
respect of expenditures," made it "plain that the statute as a whole is
calculated to discourage the making and use of contributions for
purposes of corruption." 290 U.S., at 548 . Congress clearly had the
power to further as it did that fundamental goal:

"The power of Congress to protect the election of President and

Vice President from corruption being clear, the choice of means
to that end presents a question primarily addressed to the
judgment of Congress. If it can be seen that the means adopted
are really calculated to attain the end, the degree of their
necessity, the extent to which they conduce to the end, the
closeness of the relationship between the means adopted and the
end to be attained, are matters for congressional determination
alone." Id., at 547-548.
Pursuant to this undoubted power of Congress to vindicate the strong

public interest in controlling corruption and other undesirable uses of
money in connection with election campaigns, the Federal Election
Campaign Act substantially broadened the reporting and disclosure
requirements that so long have been a part of the federal law. Congress
also concluded that limitations on contributions and expenditures were
essential if the aims of the Act were to be achieved fully. In another
major innovation, aimed at insulating candidates from the
time-consuming and entangling task of raising huge sums of [424 U.S. 1,
259] money, provision was made for public financing of political
campaigns for federal office. A Federal Election Commission (FEC) was
also created to administer the law.
The disclosure requirements and the limitations on contributions and

expenditures are challenged as invalid abridgments of the right of free
speech protected by the First Amendment. I would reject these
challenges. I agree with the Court's conclusion and much of its opinion
with respect to sustaining the disclosure provisions. I am also in
agreement with the Court's judgment upholding the limitations on
contributions. I dissent, however, from the Court's view that the
expenditure limitations of 18 U.S.C. 608 (c) and (e) (1970 ed., Supp.
IV) violate the First Amendment.
Concededly, neither the limitations on contributions nor those on

expenditures directly or indirectly purport to control the content of
political speech by candidates or by their supporters or detractors. What
the Act regulates is giving and spending money, acts that have First
Amendment significance not because they are themselves communicative
with respect to the qualifications of the candidate, but because money
may be used to defray the expenses of speaking or otherwise
communicating about the merits or demerits of federal candidates for
election. The act of giving money to political candidates, however, may
have illegal or other undesirable consequences: it may be used to secure
the express or tacit understanding that the giver will enjoy political favor
if the candidate is elected. Both Congress and this Court's cases have
recognized this as a mortal danger against which effective preventive and
curative steps must be taken.
Since the contribution and expenditure limitations are neutral as to the

content of speech and are not motivated by fear of the consequences of
the political speech [424 U.S. 1, 260] of particular candidates or of political
speech in general, this case depends on whether the nonspeech interests
of the Federal Government in regulating the use of money in political
campaigns are sufficiently urgent to justify the incidental effects that the
limitations visit upon the First Amendment interests of candidates and
their supporters.
Despite its seeming struggle with the standard by which to judge this
case, this is essentially the question the Court asks and answers in the
affirmative with respect to the limitations on contributions which

individuals and political committees are permitted to make to federal

candidates. In the interest of preventing undue influence that large
contributors would have or that the public might think they would have,
the Court upholds the provision that an individual may not give to a
candidate, or spend on his behalf if requested or authorized by the
candidate to do so, more than $1,000 in any one election. This limitation
is valid although it imposes a low ceiling on what individuals may deem
to be their most effective means of supporting or speaking on behalf of
the candidate -- i. e., financial support given directly to the candidate.
The Court thus accepts the congressional judgment that the evils of
unlimited contributions are sufficiently threatening to warrant restriction
regardless of the impact of the limits on the contributor's opportunity for
effective speech and in turn on the total volume of the candidate's
political communications by reason of his inability to accept large sums
from those willing to give.
The congressional judgment, which I would also accept, was that other
steps must be taken to counter the corrosive effects of money in federal
election campaigns. One of these steps is 608 (e), which, aside from
those funds that are given to the candidate or spent at his [424 U.S. 1, 261]
request or with his approval or cooperation, limits what a contributor
may independently spend in support or denigration of one running for
federal office. Congress was plainly of the view that these expenditures
also have corruptive potential; but the Court strikes down the provision,
strangely enough claiming more insight as to what may improperly
influence candidates than is possessed by the majority of Congress that
passed this bill and the President who signed it. Those supporting the bill
undeniably included many seasoned professionals who have been deeply
involved in elective processes and who have viewed them at close range
over many years.
It would make little sense to me, and apparently made none to

Congress, to limit the amounts an individual may give to a candidate or
spend with his approval but fail to limit the amounts that could be spent
on his behalf. Yet the Court permits the former while striking down the
latter limitation. No more than $1,000 may be given to a candidate or
spent at his request or with his approval or cooperation; but otherwise,
apparently, a contributor is to be constitutionally protected in spending
unlimited amounts of money in support of his chosen candidate or
candidates.
Let us suppose that each of two brothers spends $1 million on TV spot

announcements that he has individually prepared and in which he
appears, urging the election of the same named candidate in identical
words. One brother has sought and obtained the approval of the
candidate; the other has not. The former may validly be prosecuted
under 608 (e); under the Court's view, the latter may not, even though
the candidate could scarcely help knowing about and appreciating the
expensive favor. For constitutional purposes it is difficult to see the
difference between the two situations. I would take the word of those
who know -- that limiting [424 U.S. 1, 262] independent expenditures is
essential to prevent transparent and widespread evasion of the
contribution limits.
In sustaining the contribution limits, the Court recognizes the importance

of avoiding public misapprehension about a candidate's reliance on large
contributions. It ignores that consideration in invalidating 608 (e). In like
fashion, it says that Congress was entitled to determine that the criminal
provisions against bribery and corruption, together with the disclosure
provisions, would not in themselves be adequate to combat the evil and
that limits on contributions should be provided. Here, the Court rejects

the identical kind of judgment made by Congress as to the need for and
utility of expenditure limits. I would not do so.
The Court also rejects Congress' judgment manifested in 608 (c) that the
federal interest in limiting total campaign expenditures by individual
candidates justifies the incidental effect on their opportunity for effective
political speech. I disagree both with the Court's assessment of the
impact on speech and with its narrow view of the values the limitations
will serve.
Proceeding from the maxim that "money talks," the Court finds that the
expenditure limitations will seriously curtail political expression by
candidates and interfere substantially with their chances for election. The
Court concludes that the Constitution denies Congress the power to limit
campaign expenses; federal candidates -- and I would suppose state
candidates, too -- are to have the constitutional right to raise and spend
unlimited amounts of money in quest of their own election.
As an initial matter, the argument that money is speech and that limiting
the flow of money to the speaker violates the First Amendment proves
entirely too much. Compulsory bargaining and the right to strike, both
provided for or protected by federal law, inevitably have [424 U.S. 1, 263]
increased the labor costs of those who publish newspapers, which are in
turn an important factor in the recent disappearance of many daily
papers. Federal and state taxation directly removes from company
coffers large amounts of money that might be spent on larger and better
newspapers. The antitrust laws are aimed at preventing monopoly profits
and price fixing, which gouge the consumer. It is also true that general
price controls have from time to time existed and have been applied to
the newspapers or other media. But it has not been suggested, nor could
it be successfully, that these laws, and many others, are invalid because
they siphon off or prevent the accumulation of large sums that would
otherwise be available for communicative activities.
In any event, as it should be unnecessary to point out, money is not

always equivalent to or used for speech, even in the context of political
campaigns. I accept the reality that communicating with potential voters
is the heart of an election campaign and that widespread communication
has become very expensive. There are, however, many expensive
campaign activities that are not themselves communicative or remotely
related to speech. Furthermore, campaigns differ among themselves.
Some seem to spend much less money than others and yet communicate
as much as or more than those supported by enormous bureaucracies
with unlimited financing. The record before us no more supports the
conclusion that the communicative efforts of congressional and
Presidential candidates will be crippled by the expenditure limitations
than it supports the contrary. The judgment of Congress was that
reasonably effective campaigns could be conducted within the limits
established by the Act and that the communicative efforts of these
campaigns would not seriously suffer. In this posture [424 U.S. 1, 264] of
the case, there is no sound basis for invalidating the expenditure
limitations, so long as the purposes they serve are legitimate and
sufficiently substantial, which in my view they are.
In the first place, expenditure ceilings reinforce the contribution limits and
help eradicate the hazard of corruption. The Court upholds the overall
limit of $25,000 on an individual's political contributions in a single
election year on the ground that it helps reinforce the limits on gifts to a
single candidate. By the same token, the expenditure limit imposed on
candidates plays its own role in lessening the chance that the contribution
ceiling will be violated. Without limits on total expenditures, campaign

costs will inevitably and endlessly escalate. Pressure to raise funds will
constantly build and with it the temptation to resort in "emergencies" to
those sources of large sums, who, history shows, are sufficiently
confident of not being caught to risk flouting contribution limits. Congress
would save the candidate from this predicament by establishing a
reasonable ceiling on all candidates. This is a major consideration in
favor of the limitation. It should be added that many successful
candidates will also be saved from large, overhanging campaign debts
which must be paid off with money raised while holding public office and
at a time when they are already preparing or thinking about the next
campaign. The danger to the public interest in such situations is
self-evident.
Besides backing up the contribution provisions, which are aimed at

preventing untoward influence on candidates that are elected,
expenditure limits have their own potential for preventing the corruption
of federal elections themselves. For many years the law has required the
disclosure of expenditures as well as contributions. As Burroughs
indicates, the corrupt use of money by candidates [424 U.S. 1, 265] is as
much to be feared as the corrosive influence of large contributions.
There are many illegal ways of spending money to influence elections.
One would be blind to history to deny that unlimited money tempts
people to spend it on whatever money can buy to influence an election.
On the assumption that financing illegal activities is low on the campaign
organization's priority list, the expenditure limits could play a substantial
role in preventing unethical practices. There just would not be enough of
"that kind of money" to go around.
I have little doubt in addition that limiting the total that can be spent will
ease the candidate's understandable obsession with fundraising, and so
free him and his staff to communicate in more places and ways
unconnected with the fundraising function. There is nothing objectionable
-- indeed it seems to me a weighty interest in favor of the provision -- in
the attempt to insulate the political expression of federal candidates from
the influence inevitably exerted by the endless job of raising increasingly
large sums of money. I regret that the Court has returned them all to the
treadmill.
It is also important to restore and maintain public confidence in federal

elections. It is critical to obviate or dispel the impression that federal
elections are purely and simply a function of money, that federal offices
are bought and sold or that political races are reserved for those who
have the facility -- and the stomach -- for doing whatever it takes to
bring together those interests, groups, and individuals that can raise or
contribute large fortunes in order to prevail at the polls.
The ceiling on candidate expenditures represents the considered

judgment of Congress that elections are to be decided among candidates
none of whom has overpowering advantage by reason of a huge
campaign war chest. At least so long as the ceiling placed upon the
candidates [424 U.S. 1, 266] is not plainly too low, elections are not to turn
on the difference in the amounts of money that candidates have to spend.
This seems an acceptable purpose and the means chosen a
commonsense way to achieve it. The Court nevertheless holds that a
candidate has a constitutional right to spend unlimited amounts of money,
mostly that of other people, in order to be elected. The holding perhaps
is not that federal candidates have the constitutional right to purchase
their election, but many will so interpret the Court's conclusion in this
case. I cannot join the Court in this respect.
I also disagree with the Court's judgment that 608 (a), which limits the

amount of money that a candidate or his family may spend on his

campaign, violates the Constitution. Although it is true that this provision
does not promote any interest in preventing the corruption of candidates,
the provision does, nevertheless, serve salutary purposes related to the
integrity of federal campaigns. By limiting the importance of personal
wealth, 608 (a) helps to assure that only individuals with a modicum of
support from others will be viable candidates. This in turn would tend to
discourage any notion that the outcome of elections is primarily a
function of money. Similarly, 608 (a) tends to equalize access to the
political arena, encouraging the less wealthy, unable to bankroll their
own campaigns, to run for political office.
As with the campaign expenditure limits, Congress was entitled to

determine that personal wealth ought to play a less important role in
political campaigns than it has in the past. Nothing in the First
Amendment stands in the way of that determination.
For these reasons I respectfully dissent from the Court's answers to

certified questions 3 (a), 3 (d), and 4 (a). [424 U.S. 1, 267]
II
I join the answers in Part IV of the Court's opinion, ante, at 141-142, n.

177, to the questions certified by the District Court relating to the
composition and powers of the FEC, i. e., questions 8 (a), 8 (b), 8 (c),
8 (d) (with the qualifications stated infra, at 282-286), 8 (e), and 8 (f). I
also agree with much of that part of the Court's opinion, including the
conclusions that these questions are properly before us and ripe for
decision, that the FEC's past acts are de facto valid, that the Court's
judgment should be stayed, and that the FEC may function de facto
while the stay is in effect.
The answers to the questions turn on whether the FEC is illegally

constituted because its members were not selected in the manner
required by Art. II, 2, cl. 2, the Appointments Clause. It is my view that
with one exception Congress could endow a properly constituted
commission with the powers and duties it has given the FEC.1
Section 437c creates an eight-member FEC. Two members, the

Secretary of the Senate and the Clerk of the House of Representatives,
are ex officio members [424 U.S. 1, 268] without the right to vote or to
hold an FEC office.2 Of the remaining six, two are appointed by the
President pro tempore of the Senate upon the recommendation of the
majority and minority leaders of that body; two are similarly appointed
by the Speaker of the House; and two are appointed by the President of
the United States. The appointment of each of these six members is
subject to confirmation by a majority of both Houses of Congress. 437c
(a) (1). Each member is appointed for a term of years; none can be an
elected or appointed officer or employee of any branch of the
Government at the time of his appointment. 437c (a) (2), (3). The FEC
is empowered to elect its own officers, 437c (a) (5), and to appoint a
staff director and general counsel. 437c (f). Decisions are by a majority
vote. 437c (c).
It is apparent that none of the members of the FEC is selected in a

manner Art. II specifies for the appointment of officers of the United
States. The Appointments Clause provides:
"[The President] shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other

Officers of the United States, whose Appointments are not herein

otherwise provided for, and which shall be established by Law:
but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in
the Courts of Law, or in the Heads of Departments."3
Although two of the members of the FEC are initially selected by the
President, his nominations are subject to confirmation by both Houses of
Congress. Neither [424 U.S. 1, 269] he, the head of any department, nor
the Judiciary has any voice in the selection of the remaining members of
the FEC. The challenge to the FEC, therefore, is that its members are
officers of the United States the mode of whose appointment was
required to, but did not, conform to the Appointments Clause. That
challenge is well taken.
The Appointments Clause applies only to officers of the United States

whose appointment is not "otherwise provided for" in the Constitution.
Senators and Congressmen are officers of the United States, but the
Constitution expressly provides the mode of their selection.4 The
Constitution also expressly provides that each House of Congress is to
appoint its own officers.5 But it is not contended here that FEC
members are officers of either House selected pursuant to these express
provisions, if for no other reason, perhaps, than that none of the
Commissioners was selected in the manner specified by these provisions
-- none of them was finally selected by either House acting alone as Art.
I authorizes.
The appointment power provided in Art. II also applies only to officers,

as distinguished from employees,6 of the United States, but there is no
claim the Commissioners are employees of the United States rather than
officers. That the Commissioners are among those officers of the United
States referred to in the Appointments Clause of Art. II is evident from
the breadth of their [424 U.S. 1, 270] assigned duties and the nature and
importance of their assigned functions.
The functions and duties of the FEC relate to three different aspects of
the election laws: First, the provisions of the Criminal Code, 18 U.S.C.
608-617 (1970 ed., Supp. IV), which establish major substantive
limitations on political contributions and expenditures by individuals,
political organizations, and candidates; second, the reporting and
disclosure provisions contained in 2 U.S.C. 431-437b (1970 ed., Supp.
IV), these sections requiring the filing of detailed reports of political
contributions and expenditures; and third, the provisions of 26 U.S.C.
9001-9042 (1970 ed., Supp. IV) with respect to the public financing of
Presidential primary and general election campaigns. From the
"representative examples of [the FEC's] various powers" the Court
describes, ante, at 109-113, it is plain that the FEC is the primary
agency for the enforcement and administration of major parts of the
election laws. It does not replace or control the executive agencies with
respect to criminal prosecutions, but within the wide zone of its authority
the FEC is independent of executive as well as congressional control
except insofar as certain of its regulations must be laid before and not be
disapproved by Congress. 438 (c); 26 U.S.C. 9009 (c), 9039 (c)
(1970 ed., Supp. IV). With duties and functions such as these, members
of the FEC are plainly "officers of the United States" as that term is used
in Art. II, 2, cl. 2.
It is thus not surprising that the FEC, in defending the legality of its
members' appointments, does not deny that they are "officers of the
United States" as that term is used in the Appointments Clause of Art.
II.7 Instead, [424 U.S. 1, 271] for reasons the Court outlines, ante, at

131-132, 133-134, its position appears to be that even if its members

are officers of the United States, Congress may nevertheless appoint a
majority of the FEC without participation by the President.8 This
position that Congress may itself appoint the members of a body that is
to administer a wide-ranging statute will not withstand examination in
light of either the purpose and history of the Appointments Clause or of
prior cases in this Court.
The language of the Appointments Clause was not mere inadvertence.

The matter of the appointment of officers of the new Federal
Government was repeatedly debated by the Framers, and the final
formulation of the Clause arrived at only after the most careful debate
and consideration of its place in the overall design of government. The
appointment power was a major building block fitted into the
constitutional structure designed to avoid the accumulation or exercise of
arbitrary power by the Federal Government. The basic approach was
that official power should be divided among the Executive, Legislative,
and Judicial Departments. The separation-of-powers principle was
implemented by a series of provisions, among which was the knowing
decision that Congress was to have no power whatsoever to appoint
federal officers, except for the power of each House to appoint its own
officers serving in the strictly legislative [424 U.S. 1, 272] processes and for
the confirming power of the Senate alone.
The decision to give the President the exclusive power to initiate

appointments was thoughtful and deliberate. The Framers were
attempting to structure three departments of government so that each
would have affirmative powers strong enough to resist the encroachment
of the others. A fundamental tenet was that the same persons should not
both legislate and administer the laws.9 From the very outset, provision
was made to prohibit members of Congress from holding office in
another branch of the Government while also serving in Congress. There
was little if any dispute about this incompatibility provision which
survived in Art. I, 6, of the Constitution as finally ratified.10 Today, no
person may serve in Congress and at the same time be Attorney
General, Secretary of State, a member of the judiciary, a United States
attorney, or a member of the Federal Trade Commission or the National
Labor Relations Board.
Early in the 1787 Convention it was also proposed that members of

Congress be absolutely ineligible during the term for which they were
elected, and for a period thereafter, for appointment to any state or
federal office. 11 But to meet substantial opposition to so stringent a
provision, ineligibility for state office was first eliminated, 12 and under
the language ultimately adopted, Congressmen [424 U.S. 1, 273] were
disqualified from being appointed only to those offices which were
created, or for which the emoluments were increased, during their term
of office.13 Offices not in this category could be filled by
Representatives or Senators, but only upon resignation.
Immediately upon settling the ineligibility provision, the Framers returned

to the appointment power which they had several times before debated
and postponed for later consideration.14 From the outset, there had
been no dispute that the Executive alone should appoint, and not merely
nominate, purely executive officers,15 but at one stage judicial officers
were to be selected by the entire Congress.16 This provision was
subsequently changed to lodge the power to choose judges in the
Senate, 17 which was later also given the power to appoint ambassadors
and other public ministers.18 But following resolution of the dispute over
the ineligibility provision, which served both to prevent members of
Congress from appointing themselves to federal office and to limit their

being appointed to federal office, it was determined that the appointment

of all principal officers, whether executive or not, should originate with
the President and that the Senate should have only the power of advice
and consent.19 Inferior officers [424 U.S. 1, 274] could be otherwise
appointed, but not by Congress itself. 20 This allocation of the
appointment power, in which for the first time the Executive had the
power to initiate appointment to all principal offices and the Senate was
empowered to advise and consent to nominations by the Executive,21
was made possible by adoption of the ineligibility provisions and was
formulated as part of the fundamental compromises with respect to the
composition of the Senate, the respective roles of the House and Senate,
and the placement of the election of the President in the electoral college.
Under Art. II as finally adopted, law enforcement authority was not to

be lodged in elected legislative officials subject to political pressures.
Neither was the Legislative Branch to have the power to appoint those
who were to enforce and administer the law. Also, the appointment
power denied Congress and vested in the President was not limited to
purely executive officers but reached officers performing purely judicial
functions as well as all other officers of the United States.
I thus find singularly unpersuasive the proposition that because the FEC
is implementing statutory policies with respect to the conduct of
elections, which policies Congress has the power to propound, its
members may be appointed by Congress. One might as well argue that
the exclusive and plenary power of Congress over interstate commerce
authorizes Congress to appoint the members of the Interstate Commerce
Commission and of many other regulatory commissions; that its exclusive
power to provide for patents and copyrights would permit the
administration of the patent laws to be carried out by a congressional
committee; or that the exclusive power of the Federal Government to
establish post offices authorizes [424 U.S. 1, 275] Congress itself or the
Speaker of the House and the President pro tempore of the Senate to
appoint postmasters and to enforce the postal laws.
Congress clearly has the power to create federal offices and to define
the powers and duties of those offices, Myers v. United States, 272
U.S. 52, 128 -129 (1926), but no case in this Court even remotely
supports the power of Congress to appoint an officer of the United
States aside from those officers each House is authorized by Art. I to
appoint to assist in the legislative processes.
In Myers, a postmaster of the first class was removed by the President

prior to the expiration of his statutory four-year term. Challenging the
President's power to remove him contrary to the statute, he sued for his
salary. The challenge was rejected here. The Court said that under the
Constitution the power to appoint the principal officers of the Executive
Branch was an inherent power of the President:
"[T]he reasonable implication, even in the absence of express

words, was that as part of his executive power [the President]
should select those who were to act for him under his direction in
the execution of the laws." Id., at 117.
Further, absent express limitation in the Constitution, the President was

to have unrestricted power to remove those administrative officers
essential to him in discharging his duties. These fundamental rules were
to extend to those bureau and department officers with power to issue
regulations and to discharge duties of a quasi-judicial nature -- those
members of "executive tribunal whose decisions after hearing affect
interests of individuals." Id., at 135. As for inferior officers such as the

plaintiff postmaster, the same principles were to govern if Congress

chose to place the appointment in the President with the advice and
consent of the Senate, as [424 U.S. 1, 276] was the case in Myers. Under
the Appointments Clause, Congress could -- but did not in the Myers
case - permit the appointment of inferior officers by the heads of
departments, in which event, the Court said, Congress would have the
authority to establish a term of office and limit the reasons for their
removal. But in no circumstance could Congress participate in the
removal:
"[T]he Court never has held, nor reasonably could hold, although
it is argued to the contrary on behalf of the appellant, that the
excepting clause enables Congress to draw to itself, or to either
branch of it, the power to remove or the right to participate in the
exercise of that power. To do this would be to go beyond the
words and implications of that clause and to infringe the
constitutional principle of the separation of governmental powers."
Id., at 161.
Humphrey's Executor v. United States, 295 U.S. 602 (1935), limited

the reach of the Myers case. There the President attempted to remove a
member of the Federal Trade Commission prior to the expiration of his
statutory term and for reasons not specified in the statute. The Court
ruled that the Presidential removal power vindicated in Myers related
solely to "purely executive officers," 295 U.S., at 628 , from whom the
Court sharply distinguished officers such as the members of the Federal
Trade Commission who were to be free from political dominance and
control, whose duties are "neither political nor executive, but
predominantly quasi-judicial and quasi-legislative." Id., at 624. Contrary
to the dicta in Myers, such an officer was thought to occupy "no place in
the executive department," to exercise "no part of the executive power
vested by the Constitution in the President," 295 U.S., at 628 , and to
be immune from removal by the President except on terms specified by
Congress. The Commissioners were described as being [424 U.S. 1, 277]
in part an administrative body carrying out legislative policies and in part
an agency of the Judiciary, ibid.; such a body was intended to be
"independent of executive authority, except in its selection, and free to
exercise its judgment without the leave or hindrance of any other official
or any department of the government." Id., at 625-626. (Emphasis in
original.)
The holding in Humphrey's Executor was confirmed in Wiener v. United

States, 357 U.S. 349 (1958), but the Court did not question what
Humphrey's Executor had expressly recognized -- that members of
independent agencies are not independent of the Executive with respect
to their appointments. Nor did either Wiener or Humphrey's Executor
suggest that Congress could not only create the independent agency,
specify its duties, and control the grounds for removal of its members but
could also itself appoint or remove them without the participation of the
Executive Branch of the Government. To have so held would have been
contrary to the Appointments Clause as the Myers case recognized.
It is said that historically Congress has used its own officers to receive
and file the reports of campaign expenditures and contributions as
required by law and that this Court should not interfere with this
practice. But the Act before us creates a separate and independent
campaign commission with members, some nominated by the President,
who have specified terms of office, are not subject to removal by
Congress, and are free from congressional control in their day-to-day
functions. The FEC, it is true, is the designated authority with which
candidates and political committees must file reports of contributions and

expenditures, as required by the Act. But the FEC may also make rules
and regulations with respect to the disclosure requirements, may
investigate reported violations, issue subpoenas, hold its own hearings
[424 U.S. 1, 278] and institute civil enforcement proceedings in its own
name. Absent a request by the FEC, it would appear that the Attorney
General has no role in the civil enforcement of the reporting and
disclosure requirements. The FEC may also issue advisory opinions with
respect to the legality of any particular activities so as to protect those
persons who in good faith have conducted themselves in reliance on the
FEC's opinion. These functions go far beyond mere information
gathering, and there is no long history of lodging such enforcement
powers in congressional appointees.
Nor do the FEC's functions stop with policing the reporting and
disclosure requirements of the Act. The FEC is given express power to
administer, obtain compliance with, and "to formulate general policy" 22
with respect to 18 U.S.C. 608-617, so much so that the Act expressly
provides that "[t]he Commission has primary jurisdiction with respect to
the civil enforcement of such provisions." 23 Following its own
proceedings the FEC may request the Attorney General to bring civil
enforcement proceedings, a request which the Attorney General must
honor.24 And good-faith conduct taken in accordance [424 U.S. 1, 279]
with the FEC's advisory opinions as to whether any transaction or
activity would violate any of these criminal provisions "shall be presumed
to be in compliance with" these sections. 25 437f (b). Finally, the FEC
has the central role in administering and enforcing the provisions [424 U.S.
1, 280] of Title 26 contemplating the public financing of political
campaigns.26
It is apparent that the FEC is charged with the enforcement of the

election laws in major respects. Indeed, except for the conduct of
criminal proceedings, it would appear that the FEC has the entire
responsibility for enforcement of the statutes at issue here. By no stretch
of the imagination can its various functions in this respect be considered
mere adjuncts to the legislative process or to the powers of Congress to
judge the election and qualifications of its own members.
It is suggested, without accounting for the President's role in appointing

some of its members, that the FEC would be willing to forgo its civil
enforcement powers and that absent these functions, it is left with nothing
that purely legislative officers may not do. The difficulty is that the statute
invests the FEC not only with the authority but with the duties that
unquestionably make its members officers of the United States, fully as
much as the members of other commissions charged with the major
responsibility for administering statutes. What is more, merely forgoing
its authority to bring suit would still leave the FEC with the power to
issue rules and regulations, its advisory opinion authority, and primary
duties to enforce the Act. Absent notice and hearing by the FEC and a
request on its part, it would not appear that the Executive Branch of the
Government would have any authority under the statute to institute civil
enforcement proceedings with respect to the reporting and disclosure
requirements or the relevant provisions of Titles 18 and 26.
There is no doubt that the development of the administrative [424 U.S. 1,

281] agency in response to modern legislative and administrative need
has placed severe strain on the separation-of-powers principle in its
pristine formulation. See Kilbourn v. Thompson, 103 U.S. 168, 191
(1881). Any notion that the Constitution bans any admixture of powers
that might be deemed legislative, executive, and judicial has had to give
way. The independent agency has survived attacks from various
directions: that it exercises invalidly delegated legislative power, Sunshine

Coal Co. v. Adkins, 310 U.S. 381 (1940); that it invalidly exercises
judicial power, ibid.; and that its functions are so executive in nature that
its members must be subject to Presidential control, Humphrey's
Executor v. United States, 295 U.S. 602 (1935). Until now, however, it
has not been insisted that the commands of the Appointments Clause
must also yield to permit congressional appointments of members of a
major agency. With the Court, I am not convinced that we should create
a broad exception to the requirements of that Clause that all officers of
the United States be appointed in accordance with its terms. The
provision applies to all officers, however their duties may be classified;
and even if some of the FEC's functions, such as rulemaking, are purely
legislative, I know of no authority for the congressional appointment of
its own agents to make binding rules and regulations necessary to or
advisable for the administration and enforcement of a major statute
where the President has not participated either in the appointment of
each of the administrators or in the fashioning of the rules or regulations
which they propound.
I do not dispute the legislative power of Congress coercively to gather

and make available for public inspection massive amounts of information
relevant to the legislative process. Its own officers may, as they have [424
U.S. 1, 282] done for years, receive and file contribution and expenditure
reports of candidates and political committees. Arguably, the
Commissioners, although not properly appointed by the President,
should at least be able to perform this function. But the members of the
FEC are appointed for definite terms of office, are not removable by the
President or by Congress, and even if their duties were to be severely
limited, they would appear to remain Art. II officers. In any event, the
task of gathering and publishing campaign finance information has been
one of the specialties of the officers of the respective Houses, and these
same officers under the present law continue to receive such information
and to act as custodians for the FEC, at least with respect to the Senate
and House political campaigns. They are also instructed to cooperate
with the FEC. 438 (d).
For these reasons I join in the Court's answers to certified questions 8

(a), 8 (b), 8 (c), 8 (e) and 8 (f), and with the following reservations to
question 8 (d).
Question 8 (d) asks whether 438 (c) violates the constitutional rights of
one or more of the plaintiffs in that "it empowers the Federal Election
Commission to make rules under the F. E. C. A. in the manner specified
therein." Section 438 (c) imposes certain preconditions to the
effectiveness of "any rule or regulation under this section ...," but does
not itself authorize the issuance of rules or regulations. That authorization
is to be found in 438 (a) (10), which includes among the duties of the
FEC the task of prescribing "rules and regulations to carry out the
provisions of this subchapter, in accordance with the provisions of
subsection (c)." The "subchapter" referred to is the subchapter dealing
with federal election campaigns and the reports of contributions and
expenditures required to be filed with the FEC.27 Subsection [424 U.S. 1,
283] (c), which is the provision expressly mentioned in question 8 (d),
requires that any rule or regulation prescribed by the FEC under 438
shall be transmitted to the Senate or the House, or to both as thereafter
directed. After 30 legislative days,28 the rule or regulation will become
effective unless (1) either House has disapproved the rule if it relates to
reports by Presidential candidates or their supporting committees; (2)
the House has disapproved it if it relates to reports to be filed by House
candidates or their committees; or (3) the Senate has disapproved it if
the rule relates to reports by Senate candidates or their related
committees.

By expressly referring to subsection (c), question 8 (d) appears to focus

on the disapproval requirement; but the Court's answer is not responsive
in these terms. Rather, the Court expressly disclaims holding that the
FEC's rules and regulations are invalid because of the requirement that
they are subject to disapproval by one or both Houses of Congress.
Ante, at 140 n. 176. As I understand it, the FEC's rules and regulations,
whether or not issued in compliance with 438 (c), are invalid because
the members of the FEC have not been appointed in accordance with
Art. II. To the extent that this is the basis for the Court's answer to the
question, I am in agreement.
If the FEC members had been nominated by the President and

confirmed by the Senate as provided in Art. II, [424 U.S. 1, 284] nothing in
the Constitution would prohibit Congress from empowering the
Commission to issue rules and regulations without later participation by,
or consent of, the President or Congress with respect to any particular
rule or regulation or initially to adjudicate questions of fact in accordance
with a proper interpretation of the statute. Sunshine Coal Co. v. Adkins,
310 U.S. 381 (1940); RFC v. Bankers Trust Co., 318 U.S. 163
(1943); Humphrey's Executor v. United States, 295 U.S. 602 (1935).
The President must sign the statute creating the rulemaking authority of
the agency or it must have been passed over his veto, and he must have
nominated the members of the agency in accordance with Art. II; but
agency regulations issued in accordance with the statute are not subject
to his veto even though they may be substantive in character and have
the force of law.
I am also of the view that the otherwise valid regulatory power of a

properly created independent agency is not rendered constitutionally
infirm, as violative of the President's veto power, by a statutory provision
subjecting agency regulations to disapproval by either House of
Congress. For a bill to become law it must pass both Houses and be
signed by the President or be passed over his veto. Also, "Every Order,
Resolution, or Vote to which the Concurrence of the Senate and House
of Representatives may be necessary . . ." is likewise subject to the veto
power.29 Under 438 (c) the FEC's regulations are subject to
disapproval; but for a regulation to become effective, neither House
need approve it, pass it, or take any action at all with respect to it. The
regulation becomes effective by nonaction. This no more invades the
President's powers than does a regulation not required to be laid before
Congress. Congressional influence over the substantive content of
agency regulation may be enhanced, [424 U.S. 1, 285] but I would not view
the power of either House to disapprove as equivalent to legislation or to
an order, resolution, or vote requiring the concurrence of both Houses.
30
In terms of the substantive content of regulations and the degree of

congressional influence over agency lawmaking, I do not suggest that
there is no difference between the situation where regulations are subject
to disapproval by Congress and the situation where the agency need not
run the congressional gantlet. But the President's veto power, which
gives him an important role in the legislative process, was obviously not
considered an inherently executive function. Nor was its principal aim to
provide another check against poor legislation. The major purpose of the
veto power appears to have been to shore up the Executive Branch and
to provide it with some bargaining and survival power against what the
Framers feared would be the overweening power of legislators. As
Hamilton said the veto power was to provide a defense against the
legislative department's intrusion on the rights and powers of other
departments; without such power, "the legislative and executive powers

might speedily come to be blended in the same hands." 31
I would be much more concerned if Congress purported to usurp the

functions of law enforcement, to control the outcome of particular
adjudications, or to pre-empt the President's appointment power; but in
the [424 U.S. 1, 286] light of history and modern reality, the provision for
congressional disapproval of agency regulations does not appear to
transgress the constitutional design, at least where the President has
agreed to legislation establishing the disapproval procedure or the
legislation has been passed over his veto. It would be considerably
different if Congress itself purported to adopt and propound regulations
by the action of both Houses. But here no action of either House is
required for the agency rule to go into effect, and the veto power of the
President does not appear to be implicated.
[ Footnote 1 ] That is, if the FEC were properly constituted, I would

answer questions 8 (b), 8 (c), 8 (d) (see infra, at 282-286), and 8 (f) in
the negative. With respect to question 8 (e), I reserve judgment on the
validity of 2 U.S.C. 456 (1970 ed., Supp. IV) which empowers the
FEC to disqualify a candidate for failure to file certain reports. Of
course, to the extent that the Court invalidates the expenditure limitations
of the FECA, Part I-C, ante, at 39-59, the FEC, however appointed,
would be powerless to enforce those provisions.
Unless otherwise indicated, all statutory citations in this part of the

opinion are to the Federal Election Campaign Act of 1971, 301-311, 86
Stat. 11, as amended by the Federal Election Campaign Act
Amendments of 1974, 201-407, 88 Stat. 1272, 2 U.S.C. 431 et seq.
(1970 ed., Supp. IV).
[ Footnote 2 ] References to the "Commissioners," the "FEC," or its

"members" do not include these two ex officio members.
[ Footnote 3 ] U.S. Const., Art. II, 2, cl. 2.
[ Footnote 4 ] Id., Art. I, 2, 3, and the Seventeenth Amendment.
[ Footnote 5 ] "The House of Representatives shall chuse their Speaker

and other Officers ... ." U.S. Const., Art. I, 2, cl. 5.
"The Vice President of the United States shall be President of the

Senate, but ... [t]he Senate shall chuse their other Officers, and
also a President pro tempore, in the Absence of the Vice
President, or when he shall exercise the Office of President of the
United States." 3, cls. 4, 5.
[ Footnote 6 ] The distinction appears ante, at 126 n. 162.
[ Footnote 7 ] Indeed the FEC attacks as "erroneous" appellants'

statement that the Court of Appeals ruled that "the FEC commissioners
are [424 U.S. 1, 271] not officers of the United States. Rather, it held that
the grant of power to the President to appoint civil officers of the United
States is not to be read as preclusive of Congressional authority to
appoint such officers to aid in the discharge of Congressional
responsibilities." Brief for Appellee Federal Election Commission 16 n.
19 (hereafter FEC Brief).
[ Footnote 8 ] How Congress may both appoint officers itself and

condition appointment of the President's nominees on confirmation by a
majority of both Houses of Congress is not explained.

[ Footnote 9 ] Watson, Congress Steps Out: A Look at Congressional

Control of the Executive, 63 Calif. L. Rev. 983, 1042-1043 (1975).
[ Footnote 10 ] U.S. Const., Art. I, 6, cl. 2, provides in part:
"[N]o Person holding any Office under the United States, shall be
a Member of either House during his Continuance in Office."
See 1 M. Farrand, The Records of the Federal Convention of 1787, pp.

379-382 (1911) (hereafter Farrand); 2 Farrand 483.
[ Footnote 11 ] 1 Farrand 20.
[ Footnote 12 ] Id., at 210-211, 217, 219, 221, 222, 370, 375-377,

379-382, 383, 384, 419, 429, 435; 2 Farrand 180.
[ Footnote 13 ] Id., at 487. As ratified, the Ineligibility Clause provides:
"No Senator or Representative shall, during the Time for which he

was elected, be appointed to any civil Office under the Authority
of the United States, which shall have been created, or the
Emoluments whereof shall have been encreased during such time
... ." U.S. Const., Art. I, 6, cl. 2.
[ Footnote 14 ] 1 Farrand 116, 120, 224, 233; 2 Farrand 37-38,

41-44, 71-72, 116, 138.
[ Footnote 15 ] 1 Farrand 63, 67.
[ Footnote 16 ] Id., at 21-22.
[ Footnote 17 ] Id., at 224, 233.
[ Footnote 18 ] 2 Farrand 183, 383, 394.
[ Footnote 21 ] C. Warren, The Making of the Constitution 641-642

(1947).
[ Footnote 22 ] 437d (a) (9).
[ Footnote 23 ] 437c (b).
[ Footnote 24 ] Section 437g (a) (7) provides:
"Whenever in the judgment of the Commission, after affording due

notice and an opportunity for a hearing, any person has engaged
or is about to engage in any acts or practices which constitute or
will constitute a violation of any [relevant] provision ... upon
request by the Commission the Attorney General on behalf of the
United States shall institute a civil action for relief ... ." (Emphasis
supplied.)
The FEC argues that "`there is no showing in this case of a convincing

legislative history that would enable us to conclude that "shall" was
intended to be the "language of command."'" FEC Brief 62 n. 52,
quoting 171 U.S. App. D.C. 172, 244 n. 191, [424 U.S. 1, 279] 519 F.2d
821, 893 n. 191 (1975). The contention is that the FEC's enforcement

power is not exclusive, because the Attorney General retains the

traditional discretion to decline to institute legal proceedings. However
this may be, the FEC's civil enforcement responsibilities are substantial.
Moreover it is authorized under 26 U.S.C. 9010, 9040 (1970 ed.,
Supp. IV), to appear in and to defend actions brought in the Court of
Appeals for the District of Columbia Circuit under 9011, 9041, to
review the FEC's actions under Chapters 95 and 96 of Title 26, and to
appear in district court to seek recovery of amounts repayable to the
Treasury under 9007, 9008, 9038.
[ Footnote 25 ] Although the FEC resists appellants' attack on its

position that it has "no general substantive rulemaking authority with
regard to Title 18 spending and contribution limitations" (FEC Brief 49),
it agrees "that there is inevitably some interplay between Title 2 and Title
18." (Id., at 55.) It seeks to minimize the importance of the interplay by
noting that its definitions of what is to be disclosed and reported would
not be binding in judicial proceedings to determine whether substantive
provisions of the Act had been violated, but would simply be extended a
measure of deference as administrative interpretations. Appellants' reply
is the practical one that, whether the FEC's power is substantive or not,
persons violating its regulations do so at their peril. To illustrate the
extent to which the FEC's regulations implicate the provisions of Title
18, appellants point to the FEC's interim guidelines for the New
Hampshire and Tennessee special elections, 40 Fed. Reg. 40668,
43660 (1975), and its regulations, rejected by the Senate, providing that
funds contributed to and expended from the "office accounts" of
Members of Congress were contributions or expenditures "subject to
the limitations of 18 U.S.C. 608, 610, 611, 613, 614 and 615." See
notice of proposed rulemaking, id., at 32951. Unless the FEC's
regulations are to be given no weight in criminal proceedings, it seems
plain that through those regulations the FEC will have a significant role in
the implementation and enforcement of criminal statutes.
[ Footnote 26 ] The FEC itself cannot fashion coercive relief by, for
example, issuing cease-and-desist orders. To obtain such relief it must
apply to the courts itself or through the Attorney General.
[ Footnote 27 ] The same preconditions are imposed with respect to

regulations [424 U.S. 1, 283] issued under the public financing provisions of
the election laws. 26 U.S.C. 9009 and 9039 (1970 ed., Supp. IV). No
such requirement appears to exist with respect to the FEC's power to
make "policy" with respect to the enforcement of the criminal provisions
in Title 18 or with respect to any power it may have to issue rules and
regulations dealing with the civil enforcement of those provisions. See
also 439a.
[ Footnote 28 ] Section 438 (c) (4) defines "legislative day." See also 26
U.S.C. 9009 (c) (3), 9039 (c) (3) (1970 ed., Supp. IV).
[ Footnote 29 ] U.S. Const., Art. I, 7, cl. 3.
[ Footnote 30 ] Surely the challengers to the provision for congressional

disapproval do not mean to suggest that the FEC's regulations must
become effective despite the disapproval of one House or the other.
Disapproval nullifies the suggested regulation and prevents the
occurrence of any change in the law. The regulation is void. Nothing
remains on which the veto power could operate. It is as though a bill
passed in one House and failed in another.
[ Footnote 31 ] The Federalist No. 73, pp. 468-469 (Wright ed. 1961).

MR. JUSTICE MARSHALL, concurring in part and dissenting in part.
I join in all of the Court's opinion except Part I-C-2, which deals with 18
U.S.C. 608 (a) (1970 ed., Supp. IV). That section limits the amount a
candidate may spend from his personal funds, or family funds under his
control, in connection with his campaigns during any calendar year. See
ante, at 51-52, n. 57. The Court invalidates 608 (a) as violative of the
candidate's First Amendment rights. "[T]he First Amendment," the Court
explains, "simply cannot tolerate 608 (a)'s restriction upon the freedom
of a candidate to speak without legislative limit on behalf of his own
candidacy." Ante, at 54. I disagree.
To be sure, 608 (a) affects the candidate's exercise of his First

Amendment rights. But unlike the other expenditure limitations contained
in the Act and invalidated by the Court -- the limitation on independent
expenditures relative to a clearly identified candidate, 608 (e), and the
limitations on overall candidate expenditures, 608 (c) -- the limitations
on expenditures by candidates from personal resources contained in 608
(a) need never prevent the speaker from spending another [424 U.S. 1, 287]
dollar to communicate his ideas. Section 608 (a) imposes no overall
limit on the amount a candidate can spend; it simply limits the
"contribution" a candidate may make to his own campaign. The
candidate remains free to raise an unlimited amount in contributions from
others. So long as the candidate does not contribute to his campaign
more than the amount specified in 608 (a), and so long as he does not
accept contributions from others in excess of the limitations imposed by
608 (b), he is free to spend without limit on behalf of his campaign.
It is significant, moreover, that the ceilings imposed by 608 (a) on

candidate expenditures from personal resources are substantially higher
than the $1,000 limit imposed by 608 (e) on independent expenditures
by noncandidates. Presidential and Vice Presidential candidates may
contribute $50,000 of their own money to their campaigns, Senate
candidates $35,000, and most House candidates $25,000. Those
ceilings will not affect most candidates. But they will admittedly limit the
availability of personal funds for some candidates, and the question is
whether that limitation is justified.
The Court views "[t]he ancillary interest in equalizing the relative financial
resources of candidates" as the relevant rationale for 608 (a), and deems
that interest insufficient to justify 608 (a). Ante, at 54. In my view the
interest is more precisely the interest in promoting the reality and
appearance of equal access to the political arena. Our ballot-access
decisions serve as a reminder of the importance of the general interest in
promoting equal access among potential candidates. See, e. g., Lubin v.
Panish, 415 U.S. 709 (1974); Bullock v. Carter, 405 U.S. 134 (1972).
While admittedly those cases dealt with barriers to entry different from
those we consider here, the barriers to which 608 (a) is directed [424 U.S.
1, 288] are formidable ones, and the interest in removing them substantial.
One of the points on which all Members of the Court agree is that
money is essential for effective communication in a political campaign. It
would appear to follow that the candidate with a substantial personal
fortune at his disposal is off to a significant "headstart." Of course, the
less wealthy candidate can potentially overcome the disparity in
resources through contributions from others. But ability to generate
contributions may itself depend upon a showing of a financial base for
the campaign or some demonstration of pre-existing support, which in
turn is facilitated by expenditures of substantial personal sums. Thus the
wealthy candidate's immediate access to a substantial personal fortune
may give him an initial advantage that his less wealthy opponent can

never overcome. And even if the advantage can be overcome, the

perception that personal wealth wins elections may not only discourage
potential candidates without significant personal wealth from entering the
political arena, but also undermine public confidence in the integrity of
the electoral process.1
The concern that candidacy for public office not become, or appear to
become, the exclusive province of the wealthy assumes heightened
significance when one considers the impact of 608 (b), which the Court
today upholds. That provision prohibits contributions from individuals
and groups to candidates in excess of $1,000, and contributions from
political committees in excess of $5,000. While the limitations on
contributions are neutral in the sense that [424 U.S. 1, 289] all candidates
are foreclosed from accepting large contributions, there can be no
question that large contributions generally mean more to the candidate
without a substantial personal fortune to spend on his campaign. Large
contributions are the less wealthy candidate's only hope of countering the
wealthy candidate's immediate access to substantial sums of money.
With that option removed, the less wealthy candidate is without the
means to match the large initial expenditures of money of which the
wealthy candidate is capable. In short, the limitations on contributions
put a premium on a candidate's personal wealth.
In view of 608 (b)'s limitations on contributions, then, 608 (a) emerges

not simply as a device to reduce the natural advantage of the wealthy
candidate, but as a provision providing some symmetry to a regulatory
scheme that otherwise enhances the natural advantage of the wealthy. 2
Regardless of whether the goal of equalizing access would justify a
legislative limit on personal candidate expenditures standing by itself, I
think it clear that that goal justifies 608 (a)'s limits when they are
considered in conjunction with the remainder of the [424 U.S. 1, 290] Act. I
therefore respectfully dissent from the Court's invalidation of 608 (a).
[ Footnote 1 ] "In the Nation's seven largest States in 1970, 11 of the 15

major senatorial candidates were millionaires. The four who were not
millionaires lost their bid for election." 117 Cong. Rec. 42065 (1971)
(remarks of Rep. Macdonald).
[ Footnote 2 ] Of course, 608 (b)'s enhancement of the wealthy

candidate's natural advantage does not require its invalidation. As the
Court demonstrates, 608 (b) is fully justified by the governmental interest
in limiting the reality and appearance of corruption. Ante, at 26-29.
In addition to 608 (a), 608 (c), which limits overall candidate

expenditures in a campaign, also provides a check on the advantage of
the wealthy candidate. But we today invalidate that section, which unlike
608 (a) imposes a flat prohibition on candidate expenditures above a
certain level, and which is less tailored to the interest in equalizing access
than 608 (a). The effect of invalidating both 608 (c) and 608 (a) is to
enable the wealthy candidate to spend his personal resources without
limit, while his less wealthy opponent is forced to make do with
whatever amount he can accumulate through relatively small
contributions.
MR. JUSTICE BLACKMUN, concurring in part and dissenting in part.
I am not persuaded that the Court makes, or indeed is able to make, a

principled constitutional distinction between the contribution limitations,
on the one hand, and the expenditure limitations, on the other, that are
involved here. I therefore do not join Part I-B of the Court's opinion or
those portions of Part I-A that are consistent with Part I-B. As to those,

I dissent.
I also dissent, accordingly, from the Court's responses to certified

questions 3 (b), (c), and (h). I would answer those questions in the
affirmative.
I do join the remainder of the Court's opinion and its answers to the
other certified questions.
MR. JUSTICE REHNQUIST, concurring in part and dissenting in part.
I concur in Parts I, II, and IV of the Court's opinion. I concur in so much

of Part III of the Court's opinion as holds that the public funding of the
cost of a Presidential election campaign is a permissible exercise of
congressional authority under the power to tax and spend granted by
Art. I, but dissent from Part III-B-1 of the Court's opinion, which holds
that certain aspects of the statutory treatment of minor parties and
independent candidates are constitutionally valid. I state as briefly as
possible my reasons for so doing.
The limits imposed by the First and Fourteenth Amendments on

governmental action may vary in their stringency depending on the
capacity in which the government is acting. The government as
proprietor, Adderley v. Florida, 385 U.S. 39 (1966), is, I believe, [424
U.S. 1, 291] permitted to affect putatively protected interests in a manner
in which it might not do if simply proscribing conduct across the board.
Similarly, the government as employer, Pickering v. Board of Education,
391 U.S. 563 (1968), and CSC v. Letter Carriers, 413 U.S. 548
(1973), may prescribe conditions of employment which might be
constitutionally unacceptable if enacted into standards of conduct made
applicable to the entire citizenry.
For the reasons stated in the dissenting opinion of Mr. Justice Jackson in
Beauharnais v. Illinois, 343 U.S. 250, 288 -295 (1952), and by Mr.
Justice Harlan in his dissenting opinion in Roth v. United States, 354
U.S. 476, 500 -503 (1957), I am of the opinion that not all of the
strictures which the First Amendment imposes upon Congress are
carried over against the States by the Fourteenth Amendment, but rather
that it is only the "general principle" of free speech, Gitlow v. New York,
268 U.S. 652, 672 (1925) (Holmes J., dissenting), that the latter
incorporates. See Palko v. Connecticut, 302 U.S. 319, 324 -325
(1937).
Given this view, cases which deal with state restrictions on First
Amendment freedoms are not fungible with those which deal with
restrictions imposed by the Federal Government, and cases which deal
with the government as employer or proprietor are not fungible with
those which deal with the government as a lawmaker enacting criminal
statutes applying to the population generally. The statute before us was
enacted by Congress, not with the aim of managing the Government's
property nor of regulating the conditions of Government employment,
but rather with a view to the regulation of the citizenry as a whole. The
case for me, then, presents the First Amendment interests of the
appellants at their strongest, and the legislative authority of Congress in
the position where it is most vulnerable to First Amendment attacks. [424
U.S. 1, 292]
While this approach undoubtedly differs from some of the underlying

assumptions in the opinion of the Court, opinions are written not to
explore abstract propositions of law but to decide concrete cases. I
therefore join in all of the Court's opinion except Part III-B-1, which

sustains, against appellants' First and Fifth Amendment challenges, the

disparities found in the congressional plan for financing general
Presidential elections between the two major parties, on the one hand,
and minor parties and candidacies on the other.
While I am not sure that I agree with the Court's comment, ante, at 95,
that "public financing is generally less restrictive of access to the electoral
process than the ballot-access regulations dealt with in prior cases," in
any case that is not, under my view, an adequate answer to appellants'
claim. The electoral laws relating to ballot access which were examined
in Lubin v. Panish, 415 U.S. 709, 716 (1974); American Party of Texas
v. White, 415 U.S. 767, 780 (1974); and Storer v. Brown, 415 U.S.
724, 729 730 (1974), all arose out of state efforts to regulate minor
party candidacies and the actual physical size of the ballot. If the States
are to afford a republican form of government, they must by definition
provide for general elections and for some standards as to the contents
of the official ballots which will be used at those elections. The decision
of the state legislature to enact legislation embodying such regulations is
therefore not in any sense an optional one; there must be some
standards, however few, which prescribe the contents of the official
ballot if the popular will is to be translated into a choice among
candidates. Dealing thus by necessity with these issues, the States have
strong interests in "limiting places on the ballot to those candidates who
demonstrate substantial popular support," ante, at 96. They have a like
interest in discouraging [424 U.S. 1, 293] "splintered parties and
unrestrained factionalism" which might proliferate the number of
candidates on a state ballot so as to make it virtually unintelligible to the
average voter. Storer v. Brown, supra, at 736.
Congress, on the other hand, while undoubtedly possessing the

legislative authority to undertake the task if it wished, is not obliged to
address the question of public financing of Presidential elections at all.
When it chooses to legislate in this area, so much of its action as may
arguably impair First Amendment rights lacks the same sort of mandate
of necessity as does a State's regulation of ballot access.
Congress, of course, does have an interest in not "funding hopeless

candidacies with large sums of public money," ante, at 96, and may for
that purpose legitimately require "`some preliminary showing of a
significant modicum of support,' Jenness v. Fortson, [ 403 U.S. 431,
442 (1971),] as an eligibility requirement for public funds." Ante, at 96.
But Congress in this legislation has done a good deal more than that. It
has enshrined the Republican and Democratic Parties in a permanently
preferred position, and has established requirements for funding
minor-party and independent candidates to which the two major parties
are not subject. Congress would undoubtedly be justified in treating the
Presidential candidates of the two major parties differently from
minor-party or independent Presidential candidates, in view of the long
demonstrated public support of the former. But because of the First
Amendment overtones of the appellants' Fifth Amendment equal
protection claim, something more than a merely rational basis for the
difference in treatment must be shown, as the Court apparently
recognizes. I find it impossible to subscribe to the Court's reasoning that
because no third party has posed a credible threat to the two major
parties in Presidential [424 U.S. 1, 294] elections since 1860, Congress
may by law attempt to assure that this pattern will endure forever.
I would hold that, as to general election financing, Congress has not

merely treated the two major parties differently from minor parties and
independents, but has discriminated in favor of the former in such a way
as to run afoul of the Fifth and First Amendments to the United States

Constitution. [424 U.S. 1, 295]

Buckley v. Valeo, 424 U.S. 1 (1976): Commentary by Jon Roland

This decision and opinion is seen differently, as a defeat by campaign finance reformers, and as a victory
for First Amendment supporters, but from the standpoint of original understanding, it is a major
departure from constitutional compliance. The Court sustained some parts of the Act and not others:
... we sustain the individual contribution limits, the disclosure and reporting provisions, and
the public financing scheme. We conclude, however, that the limitations on campaign
expenditures, on independent expenditures by individuals and groups, and on expenditures
by a candidate from his personal funds are constitutionally infirm. Finally, we hold that
most of the powers conferred by the Act upon the Federal Election Commission can be
exercised only by "Officers of the United States," appointed in conformity with Art. II, 2, cl.
2, of the Constitution, and therefore cannot be exercised by the Commission as presently
constituted.
However, the Constitution required them to strike the entire Act. Not one provision of it is constitutional.
The opinion gives a clue as to how the Court went wrong:
The constitutional power of Congress to regulate federal elections is well established and is
not questioned by any of the parties in this case. Thus, the critical constitutional questions
presented here go not to the basic power of Congress to legislate in this area, but to whether
the specific legislation that Congress has enacted interferes with First Amendment freedoms
or invidiously discriminates against nonincumbent candidates and minor parties in
contravention of the Fifth Amendment.
Actually, the constitutional power of Congress to regulate federal elections is extremely narrow, limited
to the actual conduct of the elections themselves. It does not extend to campaigning. The fact that none of
the parties challenged this point is testimony that no one was tending to general constitutional
compliance in this case. The Act most certainly does infringe on First Amendment rights. Moreover, it
not only discriminates against nonincumbent candidates and minor parties, but facilitiates suppression of
unpopular candidates and causes by their adversaries.
The Court got it right when they said:
... we have repeatedly found that compelled disclosure, in itself, can seriously infringe on
privacy of association and belief guaranteed by the First Amendment. ...
We long have recognized that significant encroachments on First Amendment rights of the
sort that compelled disclosure imposes cannot be justified by a mere showing of some
legitimate governmental interest.
The Court accepts the validity of the purposes of the Act, without adequate analysis or evidence that it
would actually operate to further those aims, and not be counterproductive:
First, disclosure provides the electorate with information "as to where political campaign
money comes from and how it is spent by the candidate" in order to aid the voters in
evaluating those who seek federal office. ...

Second, disclosure requirements deter actual corruption and avoid the appearance of
corruption by exposing large contributions and expenditures to the light of publicity. ...
Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an
essential means of gathering the data necessary to detect violations of the contribution
limitations....
The reality is that only political junkies who have already committed to one candidate or cause know or
care where the money comes from or how it is spent. Disclosure deters nothing except contributions from
individuals who don't want to be harassed. Actual corruption is not done in a way that disclosure
requirements can reveal.
The Court recognized, but failed to appreciate the importance, of its own precedent:
In NAACP v. Alabama the organization had "made an uncontroverted showing that on past
occasions revelation of the identity of its rank-and-file members [had] exposed these
members to economic reprisal, loss of employment, threat of physical coercion, and other
manifestations of public hostility," 357 U.S., at 462 , and the State was unable to show that
the disclosure it sought had a "substantial bearing" on the issues it sought to clarify, id., at
464. Under those circumstances, the Court held that "whatever interest the State may have in
[disclosure] has not been shown to be sufficient to overcome petitioner's constitutional
objections." Id., at 465. ...
The court left open the question of the application of the disclosure requirements to
candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v.
Alabama. No record of harassment on a similar scale was found in this case. We agree with
the Court of Appeals' conclusion that NAACP v. Alabama is inapposite where, as here, any
serious infringement on First Amendment rights brought about by the compelled disclosure
of contributors is highly speculative. ...
We are not unmindful that the damage done by disclosure to the associational interests of
the minor parties and their members and to supporters of independents could be significant.
These movements are less likely to have a sound financial base and thus are more vulnerable
to falloffs in contributions. In some instances fears of reprisal may deter contributions to the
point where the movement cannot survive. The public interest also suffers if that result
comes to pass, for there is a consequent reduction in the free circulation of ideas both within
and without the political arena. ...
There is nothing speculative about it. We have seen contributors exposed to traffic tickets, tax audits,
surveillance, wiretapping, more stringent regulatory enforcement, nuisance lawsuits, boycotts, threats
from suppliers or customers to withdraw business, loss of employment, vandalism, intimidation by
strangers or officials, harassment of friends and relatives, criminal prosecutions or threats thereof, and
death threats.
The Court based its constitutional ruling on the evidence offered, rather than on the argument from the
Constitution:
There could well be a case, similar to those before the Court in NAACP v. Alabama and

Bates, where the threat to the exercise of First Amendment rights is so serious and the state
interest furthered by disclosure so insubstantial that the Act's requirements cannot be
constitutionally applied. But no appellant in this case has tendered record evidence of the
sort proffered in NAACP v. Alabama. ...
An approach that requires minor parties to submit evidence that the disclosure requirements
cannot constitutionally be applied to them offers only an illusory safeguard, the argument
goes, because the "evils" of "chill and harassment ... are largely incapable of formal proof."
But the Court offered a way for groups to argue that they should be exempt from disclosure
requirements:
The evidence offered need show only a reasonable probability that the compelled disclosure
of a party's contributors' names will subject them to threats, harassment, or reprisals from
either Government officials or private parties. The proof may include, for example, specific
evidence of past or present harassment of members due to their associational ties, or of
harassment directed against the organization itself. A pattern of threats or specific
manifestations of public hostility may be sufficient. New parties that have no history upon
which to draw may be able to offer evidence of reprisals and threats directed against
individuals or organizations holding similar views.
The Court seems unclear on a fundamental principle of rights theory:
A right is not complete unless it can be exercised in secret, and every recognition of a right is a
recognition of the right to exercise it in secret. The reason for this is to protect the person not just from
oppressive action by government, but also from private parties and political factions. This means persons
have the rights to worship in secret; to speak and publish anonymously and in code; to peaceably
assemble in secret; to petition anonymously (although a legal representative might need to be revealed to
pursue the petition); to keep and bear arms in secret (although as militiamen may be required to maintain
minimal military arms and other equipment); to hold property in secret (although taxable or regulatable
commodities may be subject to inspection); and make financial transactions and contracts in secret (as
long as they are not to commit unlawful acts, and they may need to be disclosed to be enforced by
courts). Therefore, all legislative requirements for disclosure are unconstitutional. Disclosure may only
be done through commodity inspection or due process, and then must meet a standard such as probable
cause, and may be challenged for cause.
This general right of secrecy, sometimes called privacy, is balanced against the right of persons to know
what they need to know to make lawful and law enforcement decisions, but the threshold of public need
is high. It is established in the Sixth Amendment right to compulsory process for supporting testimony in
criminal cases, in the Fourth Amendment right to be secure in one's premises, effects, and
communications subject to a lawful search or arrest warrant, and in the Fifth Amendment right to not
testify against oneself. However, there is one area that, while firmly grounded in theory, is not well
established in current jurisprudence, and that is the right to protect others from unlawful demands for
disclosure. The mere procedural predicate for such a demand is not sufficient. The disclosure demand
must be constitutionally authorized. If it is not, one does not have a duty to comply with it, and likely the
duty to resist it, especially if one has probable cause to expect that disclosure would endanger innocent
persons.

The basis for all rights is not just an original claim to one's own enjoyment, but the social contract, which
is very real and which establishes the duty to defend the members of one's society from threats to their
rights, including one's own, as a member of the society. A duty entails the right to perform the duty, and
all of the rights recognized by the constitution are based on the duty to exercise such rights in defense of
the state and its constitution. The First Amendment may not have mentioned the duty to exercise the
rights it recognizes, but the Second Amendment does, and the duty is implicit in the First as well. That is,
we have a duty to worship, speak, publish, assemble, and petition in defense of the society. That does not
mean the right may not also be exercised for one's one private benefit and enjoyment, but there is an
implied state power to enforce the duty for every right except the rights to think, believe, and worship,
and there is an enforceable duty to acquire the knowledge and skills needed to perform the other duties.
The Court goes seriously astray on one point:
Appellants'"general welfare" contention erroneously treats the General Welfare Clause as a
limitation upon congressional power. It is rather a grant of power, the scope of which is
quite expansive, particularly in view of the enlargement of power by the Necessary and
Proper Clause.
Nonsense. The Founders were clear. It is a limitation, not a grant of power.

This decision and opinion is seen differently, as a defeat by campaign

finance reformers, and as a victory for First Amendment supporters, but
from the standpoint of original understanding, it is a major departure
from constitutional compliance. The Court sustained some parts of the
Act and not others:
... we sustain the individual contribution limits, the

disclosure and reporting provisions, and the public
financing scheme. We conclude, however, that the
limitations on campaign expenditures, on independent
expenditures by individuals and groups, and on
expenditures by a candidate from his personal funds are
constitutionally infirm. Finally, we hold that most of the
powers conferred by the Act upon the Federal Election
Commission can be exercised only by "Officers of the
United States," appointed in conformity with Art. II, 2, cl.
2, of the Constitution, and therefore cannot be exercised
by the Commission as presently constituted.
However, the Constitution required them to strike the entire Act. Not
one provision of it is constitutional.
The opinion gives a clue as to how the Court went wrong:
The constitutional power of Congress to regulate federal

elections is well established and is not questioned by any of
the parties in this case. Thus, the critical constitutional
questions presented here go not to the basic power of
Congress to legislate in this area, but to whether the
specific legislation that Congress has enacted interferes
with First Amendment freedoms or invidiously
discriminates against nonincumbent candidates and minor
parties in contravention of the Fifth Amendment.
Actually, the constitutional power of Congress to regulate federal

elections is extremely narrow, limited to the actual conduct of the
elections themselves. It does not extend to campaigning. The fact that
none of the parties challenged this point is testimony that no one was
tending to general constitutional compliance in this case. The Act most
certainly does infringe on First Amendment rights. Moreover, it not only
discriminates against nonincumbent candidates and minor parties, but
facilitiates suppression of unpopular candidates and causes by their
adversaries.
The Court got it right when they said:
... we have repeatedly found that compelled disclosure, in

itself, can seriously infringe on privacy of association and
belief guaranteed by the First Amendment. ...
We long have recognized that significant encroachments on

First Amendment rights of the sort that compelled
disclosure imposes cannot be justified by a mere showing
of some legitimate governmental interest.
The Court accepts the validity of the purposes of the Act, without
adequate analysis or evidence that it would actually operate to further

those aims, and not be counterproductive:
First, disclosure provides the electorate with information

"as to where political campaign money comes from and
how it is spent by the candidate" in order to aid the voters
in evaluating those who seek federal office. ...
Second, disclosure requirements deter actual corruption

and avoid the appearance of corruption by exposing large
contributions and expenditures to the light of publicity. ...
Third, and not least significant, recordkeeping, reporting,

and disclosure requirements are an essential means of
gathering the data necessary to detect violations of the
contribution limitations....
The reality is that only political junkies who have already committed to
one candidate or cause know or care where the money comes from or
how it is spent. Disclosure deters nothing except contributions from
individuals who don't want to be harassed. Actual corruption is not done
in a way that disclosure requirements can reveal.
The Court recognized, but failed to appreciate the importance, of its

own precedent:
In NAACP v. Alabama the organization had "made an

uncontroverted showing that on past occasions revelation
of the identity of its rank-and-file members [had] exposed
these members to economic reprisal, loss of employment,
threat of physical coercion, and other manifestations of
public hostility," 357 U.S., at 462 , and the State was
unable to show that the disclosure it sought had a
"substantial bearing" on the issues it sought to clarify, id., at
464. Under those circumstances, the Court held that
"whatever interest the State may have in [disclosure] has
not been shown to be sufficient to overcome petitioner's
constitutional objections." Id., at 465. ...
The court left open the question of the application of the

disclosure requirements to candidates (and parties) who
could demonstrate injury of the sort at stake in NAACP v.
Alabama. No record of harassment on a similar scale was
found in this case. We agree with the Court of Appeals'
conclusion that NAACP v. Alabama is inapposite where,
as here, any serious infringement on First Amendment
rights brought about by the compelled disclosure of
contributors is highly speculative. ...
We are not unmindful that the damage done by disclosure

to the associational interests of the minor parties and their
members and to supporters of independents could be
significant. These movements are less likely to have a
sound financial base and thus are more vulnerable to falloffs
in contributions. In some instances fears of reprisal may
deter contributions to the point where the movement
cannot survive. The public interest also suffers if that result
comes to pass, for there is a consequent reduction in the
free circulation of ideas both within and without the political
arena. ...
There is nothing speculative about it. We have seen contributors

exposed to traffic tickets, tax audits, surveillance, wiretapping, more

stringent regulatory enforcement, nuisance lawsuits, boycotts, threats
from suppliers or customers to withdraw business, loss of employment,
vandalism, intimidation by strangers or officials, harassment of friends
and relatives, criminal prosecutions or threats thereof, and death threats.
The Court based its constitutional ruling on the evidence offered, rather
than on the argument from the Constitution:
There could well be a case, similar to those before the

Court in NAACP v. Alabama and Bates, where the threat
to the exercise of First Amendment rights is so serious and
the state interest furthered by disclosure so insubstantial
that the Act's requirements cannot be constitutionally
applied. But no appellant in this case has tendered record
evidence of the sort proffered in NAACP v. Alabama. ...
An approach that requires minor parties to submit evidence

that the disclosure requirements cannot constitutionally be
applied to them offers only an illusory safeguard, the
argument goes, because the "evils" of "chill and harassment
... are largely incapable of formal proof."
But the Court offered a way for groups to argue that they should be
exempt from disclosure requirements:
The evidence offered need show only a reasonable

probability that the compelled disclosure of a party's
contributors' names will subject them to threats,
harassment, or reprisals from either Government officials or
private parties. The proof may include, for example,
specific evidence of past or present harassment of
members due to their associational ties, or of harassment
directed against the organization itself. A pattern of threats
or specific manifestations of public hostility may be
sufficient. New parties that have no history upon which to
draw may be able to offer evidence of reprisals and threats
directed against individuals or organizations holding similar
views.
The Court seems unclear on a fundamental principle of rights theory:
A right is not complete unless it can be exercised in secret, and every

recognition of a right is a recognition of the right to exercise it in
secret. The reason for this is to protect the person not just from
oppressive action by government, but also from private parties and political
factions. This means persons have the rights to worship in secret; to speak
and publish anonymously and in code; to peaceably assemble in secret; to
petition anonymously (although a legal representative might need to be
revealed to pursue the petition); to keep and bear arms in secret (although
as militiamen may be required to maintain minimal military arms and other
equipment); to hold property in secret (although taxable or regulatable
commodities may be subject to inspection); and make financial transactions
and contracts in secret (as long as they are not to commit unlawful acts,
and they may need to be disclosed to be enforced by courts). Therefore, all
legislative requirements for disclosure are unconstitutional. Disclosure may
only be done through commodity inspection or due process, and then must meet
a standard such as probable cause, and may be challenged for cause.
This general right of secrecy, sometimes called privacy, is balanced against

the right of persons to know what they need to know to make lawful and law

enforcement decisions, but the threshold of public need is high. It is

established in the Sixth Amendment right to compulsory process for
supporting testimony in criminal cases, in the Fourth Amendment right to be
secure in one's premises, effects, and communications subject to a lawful
search or arrest warrant, and in the Fifth Amendment right to not testify
against oneself. However, there is one area that, while firmly grounded in
theory, is not well established in current jurisprudence, and that is the
right to protect others from unlawful demands for disclosure. The mere
procedural predicate for such a demand is not sufficient. The disclosure
demand must be constitutionally authorized. If it is not, one does not have
a duty to comply with it, and likely the duty to resist it, especially if
one has probable cause to expect that disclosure would endanger innocent
persons.
The basis for all rights is not just an original claim to one's own
enjoyment, but the social contract, which is very real and which establishes
the duty to defend the members of one's society from threats to their
rights, including one's own, as a member of the society. A duty entails the
right to perform the duty, and all of the rights recognized by the
constitution are based on the duty to exercise such rights in defense of the
state and its constitution. The First Amendment may not have mentioned the
duty to exercise the rights it recognizes, but the Second Amendment does,
and the duty is implicit in the First as well. That is, we have a duty to
worship, speak, publish, assemble, and petition in defense of the society.
That does not mean the right may not also be exercised for one's one private
benefit and enjoyment, but there is an implied state power to enforce the
duty for every right except the rights to think, believe, and worship, and
there is an enforceable duty to acquire the knowledge and skills needed to
perform the other duties.
The Court goes seriously astray on one point:
Appellants'"general welfare" contention erroneously treats

the General Welfare Clause as a limitation upon
congressional power. It is rather a grant of power, the
scope of which is quite expansive, particularly in view of
the enlargement of power by the Necessary and Proper
Clause.
Nonsense. The Founders were clear. It is a limitation, not a grant of

power.

Lewis v. United States, 445 U.S. 55 (1980)
U.S. Supreme Court

LEWIS v. UNITED STATES, 445 U.S. 55 (1980)
LEWIS v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.
No. 78-1595.
Argued January 7, 1980.

Decided February 27, 1980.
Held:
Even though petitioner's extant prior state-court felony conviction may be subject to collateral attack
under Gideon v. Wainwright, 372 U.S. 335 , it could properly be used as a predicate for his subsequent
conviction for possession of a firearm in violation of 1202 (a) (1) of Title VII of the Omnibus Crime
Control and Safe Streets Act of 1968. Pp. 60-68.
(a) The plain meaning of 1202 (a) (1)'s sweeping language proscribing the possession of
firearms by any person who "has been convicted by a court of the United States or of a State
. . . of a felony," is that the fact of a felony conviction imposes firearm disability until the
conviction is vacated or the felon is relieved of his disability by some affirmative action.
Other provisions of the statute demonstrate and reinforce its broad sweep, and there is
nothing in 1202 (a) (1)'s legislative history to suggest that Congress was willing to allow a
defendant to question the validity of his prior conviction as a defense to a charge under 1202
(a) (1). Moreover, the fact that there are remedies available to a convicted felon — removal
of the firearm disability by a qualifying pardon or the Secretary of the Treasury's consent, as
specified in the Act, or a challenge to the prior conviction in an appropriate court proceeding
— suggests that Congress intended that the defendant clear his status before obtaining a
firearm, thereby fulfilling Congress' purpose to keep firearms away from persons classified
as potentially irresponsible and dangerous. Pp. 60-65.
(b) The firearm regulatory scheme at issue here is consonant with the concept of equal
protection embodied in the Due Process Clause of the Fifth Amendment, since Congress
could rationally conclude that any felony conviction, even an allegedly invalid one, is a
sufficient basis on which to prohibit the possession of a firearm. And use of an uncounseled
felony conviction as the basis for imposing a civil firearms disability, enforceable by
criminal sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109 ; United States v.
Tucker, 404 U.S. 443 ; and Loper v. Beto, 405 U.S. 473 . Pp. 65-67.
591 F.2d 978, affirmed. [445 U.S. 55, 56]
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART,
WHITE, REHNQUIST, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL and POWELL, JJ., joined, post, p. 68.

Andrew W. Wood argued the cause for petitioner. With him on the briefs was Neal P. Rutledge.
Andrew J. Levander argued the cause pro hac vice for the United States. With him on the brief were
Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Jerome
M. Feit, and Joel M. Gershowitz.
Opinion | Dissenting Opinion | Contents | Text Version

U.S. Supreme Court
LEWIS v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT.
No. 78-1595.
Argued January 7, 1980.

Decided February 27, 1980.
Held:
Even though petitioner's extant prior state-court felony conviction may

be subject to collateral attack under Gideon v. Wainwright, 372 U.S.
335, it could properly be used as a predicate for his subsequent
conviction for possession of a firearm in violation of 1202 (a) (1) of
Title VII of the Omnibus Crime Control and Safe Streets Act of 1968. Pp.
60-68.
(a) The plain meaning of 1202 (a) (1)'s sweeping language

proscribing the possession of firearms by any person who "has
been convicted by a court of the United States or of a State . . . of
a felony," is that the fact of a felony conviction imposes firearm
disability until the conviction is vacated or the felon is relieved of
his disability by some affirmative action. Other provisions of the
statute demonstrate and reinforce its broad sweep, and there is
nothing in 1202 (a) (1)'s legislative history to suggest that
Congress was willing to allow a defendant to question the validity
of his prior conviction as a defense to a charge under 1202 (a)
(1). Moreover, the fact that there are remedies available to a
convicted felon -- removal of the firearm disability by a qualifying
pardon or the Secretary of the Treasury's consent, as specified in
the Act, or a challenge to the prior conviction in an appropriate
court proceeding -- suggests that Congress intended that the
defendant clear his status before obtaining a firearm, thereby
fulfilling Congress' purpose to keep firearms away from persons
classified as potentially irresponsible and dangerous. Pp. 60-65.
(b) The firearm regulatory scheme at issue here is consonant with

the concept of equal protection embodied in the Due Process
Clause of the Fifth Amendment, since Congress could rationally
conclude that any felony conviction, even an allegedly invalid one,
is a sufficient basis on which to prohibit the possession of a
firearm. And use of an uncounseled felony conviction as the basis
for imposing a civil firearms disability, enforceable by criminal
sanction, is not inconsistent with Burgett v. Texas, 389 U.S. 109 ;
United States v. Tucker, 404 U.S. 443 ; and Loper v. Beto, 405
U.S. 473 . Pp. 65-67.
591 F.2d 978, affirmed. [445 U.S. 55, 56]
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.

J., and STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined. BRENNAN,
J., filed a dissenting opinion, in which MARSHALL and POWELL, JJ.,
joined, post, p. 68.
Andrew W. Wood argued the cause for petitioner. With him on the briefs
was Neal P. Rutledge.

Andrew J. Levander argued the cause pro hac vice for the United States.
With him on the brief were Solicitor General McCree, Assistant Attorney
General Heymann, Deputy Solicitor General Frey, Jerome M. Feit, and Joel
M. Gershowitz.


MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents the question whether a defendant's extant prior conviction, flawed because he was
without counsel, as required by Gideon v. Wainwright, 372 U.S. 335 (1963), may constitute the predicate
for a subsequent conviction under 1202 (a) (1), as amended, of Title VII of the Omnibus Crime Control
and Safe Streets Act of 1968, 18 U.S.C. App. 1202 (a) (1). [1]
I
In 1961, petitioner George Calvin Lewis, Jr., upon his plea of guilty, was convicted in a Florida state
court of a felony [445 U.S. 55, 57] for breaking and entering with intent to commit a misdemeanor. See Fla.
Stat. 810.05 (1961). He served a term of imprisonment. That conviction has never been overturned, nor
has petitioner ever received a qualifying pardon or permission from the Secretary of the Treasury to
possess a firearm. See 18 U.S.C. App. 1203 (2) and 18 U.S.C. 925 (c).
In January 1977, Lewis, on probable cause, was arrested in Virginia, and later was charged by indictment
with having knowingly received and possessed at that time a specified firearm, in violation of 18 U.S.C.
App. 1202 (a) (1). [2] He waived a jury and was given a bench trial. It was stipulated that the weapon in
question had been shipped in interstate commerce. The Government introduced in evidence an
exemplified copy of the judgment and sentence in the 1961 Florida felony proceeding. App. 10.
Shortly before the trial, petitioner's counsel informed the court that he had been advised that Lewis was
not represented by counsel in the 1961 Florida proceeding.[3] He claimed that under Gideon v.
Wainwright, supra, a violation of 1202 [445 U.S. 55, 58] (a) (1) could not be predicated on a prior
conviction obtained in violation of petitioner's Sixth and Fourteenth Amendment rights. The court
rejected that claim, ruling that the constitutionality of the outstanding Florida conviction was immaterial
with respect to petitioner's status under 1202 (a) (1) as a previously convicted felon at the time of his
arrest. Petitioner, accordingly, offered no evidence as to whether in fact he had been convicted in 1961
without the aid of counsel. We therefore assume, for present purposes, that he was without counsel at that
time.
On appeal, the United States Court of Appeals for the Fourth Circuit, by a divided vote, affirmed. 591
F.2d 978 (1979). It held that a defendant, purely as a defense to a prosecution under 1202 (a) (1), could
not attack collaterally an outstanding prior felony conviction, and that the statutory prohibition applied
irrespective of whether that prior conviction was subject to collateral attack. The Court of Appeals also
rejected Lewis' constitutional argument to the effect that the use of the prior conviction as a predicate for
his prosecution under 1202 (a) (1) violated his rights under the Fifth and Sixth Amendments.
Because of conflict among the Courts of Appeals,[4] we granted certiorari. 442 U.S. 939 (1979). [445 U.S.
55, 59]

II
Four cases decided by this Court provide the focus for petitioner's attack upon his conviction. The first,
and pivotal one, is Gideon v. Wainwright, supra, where the Court held that a state felony conviction
without counsel, and without a valid waiver of counsel, was unconstitutional under the Sixth and
Fourteenth Amendments. That ruling is fully retroactive. Kitchens v. Smith, 401 U.S. 847 (1971). [445
U.S. 55, 60]
The second case is Burgett v. Texas, 389 U.S. 109 (1967). There the Court held that a conviction invalid
under Gideon could not be used for enhancement of punishment under a State's recidivist statute. The
third is United States v. Tucker, 404 U.S. 443 (1972), where it was held that such a conviction could not
be considered by a court in sentencing a defendant after a subsequent conviction. And the fourth is Loper
v. Beto, 405 U.S. 473 (1972), where the Court disallowed the use of the conviction to impeach the
general credibility of the defendant. The prior conviction, the plurality opinion said, "lacked reliability."
Id., at 484, quoting Linkletter v. Walker, 381 U.S. 618, 639 , and n. 20 (1965).
We, of course, accept these rulings for purposes of the present case. Petitioner's position, however, is that
the four cases require a reversal of his conviction under 1202 (a) (1) on both statutory and constitutional
grounds.
III
The Court has stated repeatedly of late that in any case concerning the interpretation of a statute the
"starting point" must be the language of the statute itself. Reiter v. Sonotone Corp., 442 U.S. 330, 337
(1979). See also Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979); Southeastern Community
College v. Davis, 442 U.S. 397, 405 (1979). An examination of 1202 (a) (1) reveals that its proscription
is directed unambiguously at any person who "has been convicted by a court of the United States or of a
State . . . of a felony." No modifier is present, and nothing suggests any restriction on the scope of the
term "convicted." "Nothing on the face of the statute suggests a congressional intent to limit its coverage
to persons [whose convictions are not subject to collateral attack]." United States v. Culbert, 435 U.S.
371, 373 (1978); see United States v. Naftalin, 441 U.S. 768, 772 (1979). The statutory language is
sweeping, and its plain meaning is that the fact of a felony conviction imposes a firearm disability until
the conviction is vacated or the felon is [445 U.S. 55, 61] relieved of his disability by some affirmative
action, such as a qualifying pardon or a consent from the Secretary of the Treasury.[5] The obvious
breadth of the language may well reflect the expansive legislative approach revealed by Congress'
express findings and declarations, in 18 U.S.C. App. 1201,[6] concerning the problem of firearm abuse by
felons and certain specifically described persons.
Other provisions of the statute demonstrate and reinforce its broad sweep. Section 1203 enumerates
exceptions to [445 U.S. 55, 62] 1202 (a) (1) (a prison inmate who by reason of his duties has expressly been
entrusted with a firearm by prison authority; a person who has been pardoned and who has expressly
been authorized to receive, possess, or transport a firearm). In addition, 1202 (c) (2) defines "felony" to
exclude certain state crimes punishable by no more than two years' imprisonment. No exception,
however, is made for a person whose outstanding felony conviction ultimately might turn out to be
invalid for any reason. On its face, therefore, 1202 (a) (1) contains nothing by way of restrictive
language. It thus stands in contrast with other federal statutes that explicitly permit a defendant to

challenge, by way of defense, the validity or constitutionality of the predicate felony. See, e. g., 18
U.S.C. 3575 (e) (dangerous special offender) and 21 U.S.C. 851 (c) (2) (recidivism under the
Comprehensive Drug Abuse Prevention and Control Act of 1970).
When we turn to the legislative history of 1202 (a) (1), we find nothing to suggest that Congress was
willing to allow a defendant to question the validity of his prior conviction as a defense to a charge under
1202 (a) (1). The section was enacted as part of Title VII of the Omnibus Crime Control and Safe Streets
Acts of 1968, 82 Stat. 236. It was added by way of a floor amendment to the Act and thus was not a
subject of discussion in the legislative reports. See United States v. Batchelder, 442 U.S. 114, 120
(1979); Scarborough v. United States, 431 U.S. 563, 569-570 (1977); United States v. Bass, 404 U.S.
336, 344 , and n. 11 (1971). What little legislative history there is that is relevant reflects an intent to
impose a firearms disability on any felon based on the fact of conviction. Senator Long, who introduced
and directed the passage of Title VII, repeatedly stressed conviction, not a "valid" conviction, and not a
conviction not subject to constitutional challenge, as the criterion. For example, the Senator observed:
"So, under Title VII, every citizen could possess a gun [445 U.S. 55, 63] until the commission
of his first felony. Upon his conviction, however, Title VII would deny every assassin,
murderer, thief and burglar of the right to possess a firearm in the future except where he
has been pardoned by the President or a State Governor and had been expressedly
authorized by his pardon to possess a firearm." 114 Cong. Rec. 14773 (1968).
See also id., at 13868, 14774. Inasmuch as Senator Long was the sponsor and floor manager of the bill,
his statements are entitled to weight. Simpson v. United States, 435 U.S. 6, 13 (1978).
It is not without significance, furthermore, that Title VII, as well as Title IV of the Omnibus Act, was
enacted in response to the precipitous rise in political assassinations, riots, and other violent crimes
involving firearms, that occurred in this country in the 1960's. See e. g., S. Rep. No. 1097, 90th Cong., 2d
Sess., 76-78 (1968); H. R. Rep. No. 1577, 90th Cong., 2d Sess., 7 (1968); S. Rep. No. 1501, 90th Cong.,
2d Sess., 22-23 (1968). This Court, accordingly, has observed:
"The legislative history [of Title VII] in its entirety, while brief, further supports the view
that Congress sought to rule broadly — to keep guns out of the hands of those who have
demonstrated that `they may not be trusted to possess a firearm without becoming a threat to
society.'" Scarborough v. United States, 431 U.S., at 572 .
The legislative history, therefore, affords no basis for a loophole, by way of a collateral constitutional
challenge, to the broad statutory scheme enacted by Congress. Section 1202 (a) was a sweeping
prophylaxis, in simple terms, against misuse of firearms. There is no indication of any intent to require
the Government to prove the validity of the predicate conviction.
The very structure of the Omnibus Act's Title IV, enacted [445 U.S. 55, 64] simultaneously with Title VII,
reinforces this conclusion. Each Title prohibits categories of presumptively dangerous persons from
transporting or receiving firearms. See 18 U.S.C. 922 (g) and (h). Actually, with regard to the statutory
question at issue here, we detect little significant difference between Title IV and Title VII. Each seeks to
keep a firearm away from "any person . . . who has been convicted" of a felony, although the definition
of "felony" differs somewhat in the respective statutes. But to limit the scope of 922 (g) (1) and (h) (1) to
a validly convicted felon would be at odds with the statutory scheme as a whole. Those sections impose a
disability not only on a convicted felon but also on a person under a felony indictment, even if that

person subsequently is acquitted of the felony charge. Since the fact of mere indictment is a disabling
circumstance, a fortiori the much more significant fact of conviction must deprive the person of a right to
a firearm.
Finally, it is important to note that a convicted felon is not without relief. As has been observed above,
the Omnibus Act, in 1203 (2) and 925 (c), states that the disability may be removed by a qualifying
pardon or the Secretary's consent. Also, petitioner, before obtaining his firearm, could have challenged
his prior conviction in an appropriate proceeding in the Florida state courts. See Fla. Const., Art. 5, 5 (3);
L'Hommedieu v. State, 362 So.2d 72 (Fla. App. 1978); Weir v. State, 319 So.2d 80 (Fla. App. 1975). See
also United States v. Morgan, 346 U.S. 502 (1954).[7]
It seems fully apparent to us that the existence of these remedies, two of which are expressly contained in
the Omnibus Act itself, suggests that Congress clearly intended that the defendant clear his status before
obtaining a firearm, thereby fulfilling Congress' purpose "broadly to keep firearms away [445 U.S. 55,
65] from the persons Congress classified as potentially irresponsible and dangerous." Barrett v. United
States, 423 U.S. 212, 218 (1976).
With the face of the statute and the legislative history so clear, petitioner's argument that the statute
nevertheless should be construed so as to avoid a constitutional issue is inapposite. That course is
appropriate only when the statute provides a fair alternative construction. This statute could not be more
plain. Swain v. Pressley, 430 U.S. 372, 378 , and n. 11 (1977); United States v. Batchelder, 442 U.S., at
122 -123. Similarly, any principle of lenity, see Rewis v. United States, 401 U.S. 808, 812 (1971), has no
application. The touchstone of that principle is statutory ambiguity. Huddleston v. United States, 415
U.S. 814, 832 (1974); United States v. Batchelder, 442 U.S., at 121 -122. There is no ambiguity here.
We therefore hold that 1202 (a) (1) prohibits a felon from possessing a firearm despite the fact that the
predicate felony may be subject to collateral attack on constitutional grounds.
IV
The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied
in the Due Process Clause of the Fifth Amendment if there is "some `rational basis' for the statutory
distinctions made . . . or . . . they `have some relevance to the purpose for which the classification is
made.'" Marshall v. United States, 414 U.S. 417, 422 (1974), quoting from McGinnis v. Royster, 410
U.S. 263, 270 (1973), and Baxstrom v. Herold, 383 U.S. 107, 111 (1966). See Vance v. Bradley, 440
U.S. 93, 97 (1979).[8] [445 U.S. 55, 66]
Section 1202 (a) (1) clearly meets that test. Congress, as its expressed purpose in enacting Title VII
reveals, 18 U.S.C. App. 1201, was concerned that the receipt and possession of a firearm by a felon
constitutes a threat, among other things, to the continued and effective operation of the Government of
the United States. The legislative history of the gun control laws discloses Congress' worry about the
easy availability of firearms, especially to those persons who pose a threat to community peace. And
Congress focused on the nexus between violent crime and the possession of a firearm by any person with
a criminal record. 114 Cong. Rec. 13220 (1968) (remarks of Sen. Tydings); id., at 16298 (remarks of
Rep. Pollock). Congress could rationally conclude that any felony conviction, even an allegedly invalid
one, is a sufficient basis on which to prohibit the possession of a firearm. See, e. g., United States v.
Ransom, 515 F.2d 885, 891-892 (CA5 1975), cert. denied, 424 U.S. 944 (1976). This Court has

recognized repeatedly that a legislature constitutionally may prohibit a convicted felon from engaging in
activities far more fundamental than the possession of a firearm. See Richardson v. Ramirez, 418 U.S. 24
(1974) (disenfranchisement); De Veau v. Braisted, 363 U.S. 144 (1960) (proscription against holding
office in a waterfront labor organization); Hawker v. New York, 170 U.S. 189 (1898) (prohibition
against the practice of medicine).
We recognize, of course, that under the Sixth Amendment an uncounseled felony conviction cannot be
used for certain purposes. See Burgett, Tucker, and Loper, all supra. The Court, however, has never
suggested that an uncounseled conviction [445 U.S. 55, 67] is invalid for all purposes. See Scott v. Illinois,
440 U.S. 367 (1979); Loper v. Beto, 405 U.S., at 482 . n. 11 (plurality opinion).
Use of an uncounseled felony conviction as the basis for imposing a civil firearms disability, enforceable
by a criminal sanction, is not inconsistent with Burgett, Tucker, and Loper. In each of those cases, this
Court found that the subsequent conviction of sentence violated the Sixth Amendment because it
depended upon the reliability of a past uncounseled conviction. The federal gun laws, however, focus not
on reliability, but on the mere fact of conviction, or even indictment, in order to keep firearms away from
potentially dangerous persons. Congress' judgment that a convicted felon. even one whose conviction
was allegedly uncounseled, is among the class of persons who should be disabled from dealing in or
possessing firearms because of potential dangerousness is rational.[9] Enforcement of that essentially
civil disability through a criminal sanction does not "support guilt or enhance punishment." see Burgett,
389 U.S., at 115 , on the basis of a conviction that is unreliable when one considers Congress' broad
purpose. Moreover, unlike the situation in Burgett, the sanction imposed by 1202 (a) (1) attaches
immediately upon the defendant's first conviction.
Again, it is important to note that a convicted felon may challenge the validity of a prior conviction. or
otherwise remove his disability, before obtaining a firearm. We simply hold today that the firearms
prosecution does not open the predicate conviction to a new form of collateral attack. See Note, Prior
Convictions and the Gun Control Act of 1968. [445 U.S. 55, 68] 76 Colum. L. Rev. 326, 338-339 (1976).
Cf. Walker v. City of Birmingham, 388 U.S. 307 (1967).
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Footnotes
[Footnote 1] Section 1202 (a) reads in full:
"Any person who —
"(1) has been convicted by a court of the United States or of a State or any political subdivision
thereof of a felony, or
"(2) has been discharged from the Armed Forces under dishonorable conditions, or
"(3) has been adjudged by a court of the United States or of a State or any political subdivision
thereof of being mentally incompetent, or
"(4) having been a citizen of the United States has renounced his citizenship, or
"(5) being an alien is illegally or unlawfully in the United States, "and who receives, possesses, or
transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm

shall be fined not more than $10,000 or imprisoned for not more than two years, or both."
[Footnote 2] The indictment also charged petitioner with a violation of 18 U.S.C. 922 (h) (1). That statute
reads in pertinent part:
"It shall be unlawful for any person —
"(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
.....
"to receive any firearm . . . which has been shipped or transported in interstate . . . commerce."
Petitioner was acquitted on the 922 (h) (1) charge and it is not before us here.
[Footnote 3] Petitioner's counsel stated that a Florida attorney had advised him that the court records in
that State showed affirmatively that Lewis had no lawyer. He noted also that Lewis had been charged
with the same offense as had the defendant in Gideon v. Wainwright, 372 U.S. 335 (1963), and that
petitioner had been tried in the same State about six months before Gideon was tried. App. 2-3.
[Footnote 4] Compare United States v. Lufman, 457 F.2d 165 (CA7 1972) (use of an underlying felony
conviction unconstitutionally obtained to support a conviction under 1202 (a) (1) is reversible error),
with the Fourth Circuit's ruling in the present case, and with United States v. Maggard, 573 F.2d 926
(CA6 1978); and United States v. Graves, 554 F.2d 65 (CA3 1977) (en banc) (claim of constitutional
error in the underlying conviction may not be raised). The Ninth Circuit has distinguished between a
claim of constitutional invalidity in the underlying conviction, which it has held may be raised, and a
claim that the underlying conviction has been, or should be, reversed on other grounds. Compare United
States v. O'Neal, 545 F.2d 85 (1976), and United States v. Pricepaul, 540 F.2d 417 (1976), with United
States v. Liles, 432 F.2d 18 (1970). See also United States v. Herrell, 588 F.2d 711 (CA9 1978), cert.
denied, 440 U.S. 964 [445 U.S. 55, 59] (1979) (underlying conviction in a prosecution under 18 U.S.C.
922 (h) (1) may not be challenged on nonconstitutional grounds).
The identical issue that is presented in this case has also arisen in the context of challenges to convictions
under 18 U.S.C. 922 (g) (1) (proscribing shipping or transport of a firearm in interstate or foreign
commerce by a person under indictment for, or convicted of, a felony) and 922 (h) (1) (proscribing
receipt of a firearm shipped in interstate or foreign commerce by such a person). Compare United States
v. Scales, 599 F.2d 78 (CA5 1979); Dameron v. United States, 488 F.2d 724 (CA5 1974); Pasterchik v.
United States, 466 F.2d 1367 (CA9 1972); and United States v. DuShane, 435 F.2d 187 (CA2 1970)
(underlying conviction may be attacked as unconstitutional), with Barker v. United States, 579 F.2d
1219, 1226 (CA10 1978) (underlying conviction may not be so challenged in prosecution under 922 (h)
(1)).
The Courts of Appeals have treated the issue somewhat differently in prosecutions under 18 U.S.C. 922
(a) (6) (prohibiting the falsification of one's status as a convicted felon in purchasing a firearm).
Nonuniformity has prevailed nonetheless on the question whether a defendant charged with violating that
statute may challenge the constitutionality of the underlying felony conviction. Compare United States v.
O'Neal, supra, and United States v. Pricepaul, supra (permitting the challenge), with United States v.
Allen, 556 F.2d 720 (CA4 1977); United States v. Graves, supra; and Cassity v. United States, 521 F.2d
1320 (CA6 1975) (holding that the challenge may not be made). The Eighth Circuit has stated that it will
not permit a challenge to the constitutionality of the underlying conviction where the defendant is

charged under 922 (a) (6), while reserving the question under 1202 (a) (1) and 922 (g) (1) and (h) (1).
United States v. Edwards, 568 F.2d 68, 70-72, and n.3 (1977). See also United States v. Graves, 554
F.2d, at 83-88 (Garth, J., and Seitz, C. J., concurring in part and dissenting in part) (the Government need
not prove the validity of the underlying conviction in a prosecution brought under 922 (a) (6), but it must
do so in a prosecution under 1202 (a) (1)).
[Footnote 5] One might argue, of course, that the language is so sweeping that it includes in its
proscription even a person whose predicate conviction in the interim had been finally reversed on appeal
and thus no longer was outstanding. The Government, however, does not go so far, Tr. of Oral Arg.
29-30, 37-40, and though we have no need to pursue that extreme argument in this case, we reject it. We
are not persuaded that the mere possibility of making that argument renders the statute, as petitioner
suggests, unconstitutionally vague. And unlike the dissent, post, at 69, we view the language Congress
chose as consistent with the common-sense notion that a disability based upon one's status as a convicted
felon should cease only when the conviction upon which that status depends has been vacated.
We note, nonetheless, that the disability effected by 1202 (a) (1) would apply while a felony conviction
was pending on appeal. See Note, Prior Convictions and the Gun Control Act of 1968, 76 Colum. L. Rev.
326, 334, and n. 42 (1976).
[Footnote 6] "The Congress hereby finds and declares that the receipt, possession, or transportation of a
firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents,
aliens who are illegally in the country, and former citizens who have renounced their citizenship,
constitutes —
"(1) a burden on commerce or threat affecting the free flow of commerce,
"(2) a threat to the safety of the President of the United States and Vice President of the
United States,
"(3) an impediment or a threat to the exercise of free speech and the free exercise of a
religion guaranteed by the first amendment to the Constitution of the United States, and
"(4) a threat to the continued and effective operation of the Government of the United States
and of the government of each State guaranteed by article IV of the Constitution."
[Footnote 7] This being so, 1202 (a) (1) does not attach "what may amount to lifelong sanctions to a
mere finding of probable cause," as has been argued by one commentator. See Comment, 92 Harv. L.
Rev. 1790, 1795 (1979).
[Footnote 8] These legislative restrictions on the use of firearms are neither based upon constitutionally
suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v.
Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm
that does not have "some reasonable relationship to [445 U.S. 55, 66] the preservation or efficiency of a
well regulated militia"); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504
F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United
States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the latter three cases holding,
respectively, that 1202 (a) (1), 922 (g), and 922 (a) (6) do not violate the Second Amendment).
[Footnote 9] The dissent's assertion that Congress' judgment in this regard cannot rationally be supported,

post, at 72, is one we do not share. Moreover, such an assertion seems plainly inconsistent with the
deference that a reviewing court should give to a legislative determination that, in essence, predicts a
potential for future criminal behavior.
Syllabus | Dissenting Opinion | Contents | Text Version

MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents the question whether a defendant's extant prior

conviction, flawed because he was without counsel, as required by Gideon
v. Wainwright, 372 U.S. 335 (1963), may constitute the predicate for a
subsequent conviction under 1202 (a) (1), as amended, of Title VII of
the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. App.
1202 (a) (1). [1]
In 1961, petitioner George Calvin Lewis, Jr., upon his plea of guilty,
was convicted in a Florida state court of a felony [445 U.S. 55, 57] for
breaking and entering with intent to commit a misdemeanor. See Fla.
Stat. 810.05 (1961). He served a term of imprisonment. That conviction
has never been overturned, nor has petitioner ever received a qualifying
pardon or permission from the Secretary of the Treasury to possess a
firearm. See 18 U.S.C. App. 1203 (2) and 18 U.S.C. 925 (c).
In January 1977, Lewis, on probable cause, was arrested in Virginia, and

later was charged by indictment with having knowingly received and
possessed at that time a specified firearm, in violation of 18 U.S.C.
App. 1202 (a) (1). [2] He waived a jury and was given a bench trial. It
was stipulated that the weapon in question had been shipped in
interstate commerce. The Government introduced in evidence an
exemplified copy of the judgment and sentence in the 1961 Florida felony
proceeding. App. 10.
Shortly before the trial, petitioner's counsel informed the court that
he had been advised that Lewis was not represented by counsel in the
1961 Florida proceeding.[3] He claimed that under Gideon v. Wainwright,
supra, a violation of 1202 [445 U.S. 55, 58] (a) (1) could not be
predicated on a prior conviction obtained in violation of petitioner's
Sixth and Fourteenth Amendment rights. The court rejected that claim,
ruling that the constitutionality of the outstanding Florida conviction
was immaterial with respect to petitioner's status under 1202 (a) (1) as
a previously convicted felon at the time of his arrest. Petitioner,
accordingly, offered no evidence as to whether in fact he had been
convicted in 1961 without the aid of counsel. We therefore assume, for
present purposes, that he was without counsel at that time.
On appeal, the United States Court of Appeals for the Fourth Circuit, by
a divided vote, affirmed. 591 F.2d 978 (1979). It held that a defendant,
purely as a defense to a prosecution under 1202 (a) (1), could not
attack collaterally an outstanding prior felony conviction, and that the
statutory prohibition applied irrespective of whether that prior
conviction was subject to collateral attack. The Court of Appeals also
rejected Lewis' constitutional argument to the effect that the use of
the prior conviction as a predicate for his prosecution under 1202 (a)
(1) violated his rights under the Fifth and Sixth Amendments.
Because of conflict among the Courts of Appeals,[4] we granted

certiorari. 442 U.S. 939 (1979). [445 U.S. 55, 59]
II
Four cases decided by this Court provide the focus for petitioner's
attack upon his conviction. The first, and pivotal one, is Gideon v.
Wainwright, supra, where the Court held that a state felony conviction

without counsel, and without a valid waiver of counsel, was

unconstitutional under the Sixth and Fourteenth Amendments. That ruling
is fully retroactive. Kitchens v. Smith, 401 U.S. 847 (1971). [445 U.S.
55, 60]
The second case is Burgett v. Texas, 389 U.S. 109 (1967). There the
Court held that a conviction invalid under Gideon could not be used for
enhancement of punishment under a State's recidivist statute. The third
is United States v. Tucker, 404 U.S. 443 (1972), where it was held that
such a conviction could not be considered by a court in sentencing a
defendant after a subsequent conviction. And the fourth is Loper v.
Beto, 405 U.S. 473 (1972), where the Court disallowed the use of the
conviction to impeach the general credibility of the defendant. The
prior conviction, the plurality opinion said, "lacked reliability." Id.,
at 484, quoting Linkletter v. Walker, 381 U.S. 618, 639 , and n. 20
(1965).
We, of course, accept these rulings for purposes of the present case.
Petitioner's position, however, is that the four cases require a
reversal of his conviction under 1202 (a) (1) on both statutory and
constitutional grounds.
III
The Court has stated repeatedly of late that in any case concerning the
interpretation of a statute the "starting point" must be the language of
the statute itself. Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979).
See also Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979);
Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979). An
examination of 1202 (a) (1) reveals that its proscription is directed
unambiguously at any person who "has been convicted by a court of the
United States or of a State . . . of a felony." No modifier is present,
and nothing suggests any restriction on the scope of the term
"convicted." "Nothing on the face of the statute suggests a
congressional intent to limit its coverage to persons [whose convictions
are not subject to collateral attack]." United States v. Culbert, 435
U.S. 371, 373 (1978); see United States v. Naftalin, 441 U.S. 768, 772
(1979). The statutory language is sweeping, and its plain meaning is
that the fact of a felony conviction imposes a firearm disability until
the conviction is vacated or the felon is [445 U.S. 55, 61] relieved of
his disability by some affirmative action, such as a qualifying pardon
or a consent from the Secretary of the Treasury.[5] The obvious breadth
of the language may well reflect the expansive legislative approach
revealed by Congress' express findings and declarations, in 18 U.S.C.
App. 1201,[6] concerning the problem of firearm abuse by felons and
certain specifically described persons.
Other provisions of the statute demonstrate and reinforce its broad

sweep. Section 1203 enumerates exceptions to [445 U.S. 55, 62] 1202 (a)
(1) (a prison inmate who by reason of his duties has expressly been
entrusted with a firearm by prison authority; a person who has been
pardoned and who has expressly been authorized to receive, possess, or
transport a firearm). In addition, 1202 (c) (2) defines "felony" to
exclude certain state crimes punishable by no more than two years'
imprisonment. No exception, however, is made for a person whose
outstanding felony conviction ultimately might turn out to be invalid
for any reason. On its face, therefore, 1202 (a) (1) contains nothing by
way of restrictive language. It thus stands in contrast with other
federal statutes that explicitly permit a defendant to challenge, by way
of defense, the validity or constitutionality of the predicate felony.
See, e. g., 18 U.S.C. 3575 (e) (dangerous special offender) and 21

U.S.C. 851 (c) (2) (recidivism under the Comprehensive Drug Abuse
Prevention and Control Act of 1970).
When we turn to the legislative history of 1202 (a) (1), we find nothing
to suggest that Congress was willing to allow a defendant to question
the validity of his prior conviction as a defense to a charge under 1202
(a) (1). The section was enacted as part of Title VII of the Omnibus
Crime Control and Safe Streets Acts of 1968, 82 Stat. 236. It was added
by way of a floor amendment to the Act and thus was not a subject of
discussion in the legislative reports. See United States v. Batchelder,
442 U.S. 114, 120 (1979); Scarborough v. United States, 431 U.S. 563,
569-570 (1977); United States v. Bass, 404 U.S. 336, 344 , and n. 11
(1971). What little legislative history there is that is relevant
reflects an intent to impose a firearms disability on any felon based on
the fact of conviction. Senator Long, who introduced and directed the
passage of Title VII, repeatedly stressed conviction, not a "valid"
conviction, and not a conviction not subject to constitutional
challenge, as the criterion. For example, the Senator observed:
"So, under Title VII, every citizen could possess a gun [445 U.S. 55,
63] until the commission of his first felony. Upon his conviction,
however, Title VII would deny every assassin, murderer, thief and
burglar of the right to possess a firearm in the future except where
he has been pardoned by the President or a State Governor and
had been expressedly authorized by his pardon to possess a
firearm." 114 Cong. Rec. 14773 (1968).
See also id., at 13868, 14774. Inasmuch as Senator Long was the sponsor
and floor manager of the bill, his statements are entitled to weight.
Simpson v. United States, 435 U.S. 6, 13 (1978).
It is not without significance, furthermore, that Title VII, as well as

Title IV of the Omnibus Act, was enacted in response to the precipitous
rise in political assassinations, riots, and other violent crimes
involving firearms, that occurred in this country in the 1960's. See e.
g., S. Rep. No. 1097, 90th Cong., 2d Sess., 76-78 (1968); H. R. Rep. No.
1577, 90th Cong., 2d Sess., 7 (1968); S. Rep. No. 1501, 90th Cong., 2d
Sess., 22-23 (1968). This Court, accordingly, has observed:
"The legislative history [of Title VII] in its entirety, while brief,
further supports the view that Congress sought to rule broadly --
to keep guns out of the hands of those who have demonstrated
that `they may not be trusted to possess a firearm without
becoming a threat to society.'" Scarborough v. United States, 431
U.S., at 572 .
The legislative history, therefore, affords no basis for a loophole, by

way of a collateral constitutional challenge, to the broad statutory
scheme enacted by Congress. Section 1202 (a) was a sweeping prophylaxis,
in simple terms, against misuse of firearms. There is no indication of
any intent to require the Government to prove the validity of the
predicate conviction.
The very structure of the Omnibus Act's Title IV, enacted [445 U.S. 55,
64] simultaneously with Title VII, reinforces this conclusion. Each
Title prohibits categories of presumptively dangerous persons from
transporting or receiving firearms. See 18 U.S.C. 922 (g) and (h).
Actually, with regard to the statutory question at issue here, we detect
little significant difference between Title IV and Title VII. Each seeks
to keep a firearm away from "any person . . . who has been convicted" of
a felony, although the definition of "felony" differs somewhat in the

respective statutes. But to limit the scope of 922 (g) (1) and (h) (1)
to a validly convicted felon would be at odds with the statutory scheme
as a whole. Those sections impose a disability not only on a convicted
felon but also on a person under a felony indictment, even if that
person subsequently is acquitted of the felony charge. Since the fact of
mere indictment is a disabling circumstance, a fortiori the much more
significant fact of conviction must deprive the person of a right to a
firearm.
Finally, it is important to note that a convicted felon is not without

relief. As has been observed above, the Omnibus Act, in 1203 (2) and 925
(c), states that the disability may be removed by a qualifying pardon or
the Secretary's consent. Also, petitioner, before obtaining his firearm,
could have challenged his prior conviction in an appropriate proceeding
in the Florida state courts. See Fla. Const., Art. 5, 5 (3); L'Hommedieu
v. State, 362 So.2d 72 (Fla. App. 1978); Weir v. State, 319 So.2d 80
(Fla. App. 1975). See also United States v. Morgan, 346 U.S. 502
(1954).[7]
It seems fully apparent to us that the existence of these remedies, two

of which are expressly contained in the Omnibus Act itself, suggests
that Congress clearly intended that the defendant clear his status
before obtaining a firearm, thereby fulfilling Congress' purpose
"broadly to keep firearms away [445 U.S. 55, 65] from the persons
Congress classified as potentially irresponsible and dangerous." Barrett
v. United States, 423 U.S. 212, 218 (1976).
With the face of the statute and the legislative history so clear,
petitioner's argument that the statute nevertheless should be construed
so as to avoid a constitutional issue is inapposite. That course is
appropriate only when the statute provides a fair alternative
construction. This statute could not be more plain. Swain v. Pressley,
430 U.S. 372, 378 , and n. 11 (1977); United States v. Batchelder, 442
U.S., at 122 -123. Similarly, any principle of lenity, see Rewis v.
United States, 401 U.S. 808, 812 (1971), has no application. The
touchstone of that principle is statutory ambiguity. Huddleston v.
United States, 415 U.S. 814, 832 (1974); United States v. Batchelder,
442 U.S., at 121 -122. There is no ambiguity here.
We therefore hold that 1202 (a) (1) prohibits a felon from possessing a
firearm despite the fact that the predicate felony may be subject to
collateral attack on constitutional grounds.
IV
The firearm regulatory scheme at issue here is consonant with the

concept of equal protection embodied in the Due Process Clause of the
Fifth Amendment if there is "some `rational basis' for the statutory
distinctions made . . . or . . . they `have some relevance to the
purpose for which the classification is made.'" Marshall v. United
States, 414 U.S. 417, 422 (1974), quoting from McGinnis v. Royster, 410
U.S. 263, 270 (1973), and Baxstrom v. Herold, 383 U.S. 107, 111 (1966).
See Vance v. Bradley, 440 U.S. 93, 97 (1979).[8] [445 U.S. 55, 66]
Section 1202 (a) (1) clearly meets that test. Congress, as its expressed
purpose in enacting Title VII reveals, 18 U.S.C. App. 1201, was
concerned that the receipt and possession of a firearm by a felon
constitutes a threat, among other things, to the continued and effective
operation of the Government of the United States. The legislative
history of the gun control laws discloses Congress' worry about the easy
availability of firearms, especially to those persons who pose a threat

to community peace. And Congress focused on the nexus between violent

crime and the possession of a firearm by any person with a criminal
record. 114 Cong. Rec. 13220 (1968) (remarks of Sen. Tydings); id., at
16298 (remarks of Rep. Pollock). Congress could rationally conclude that
any felony conviction, even an allegedly invalid one, is a sufficient
basis on which to prohibit the possession of a firearm. See, e. g.,
United States v. Ransom, 515 F.2d 885, 891-892 (CA5 1975), cert. denied,
424 U.S. 944 (1976). This Court has recognized repeatedly that a
legislature constitutionally may prohibit a convicted felon from
engaging in activities far more fundamental than the possession of a
firearm. See Richardson v. Ramirez, 418 U.S. 24 (1974)
(disenfranchisement); De Veau v. Braisted, 363 U.S. 144 (1960)
(proscription against holding office in a waterfront labor
organization); Hawker v. New York, 170 U.S. 189 (1898) (prohibition
against the practice of medicine).
We recognize, of course, that under the Sixth Amendment an uncounseled

felony conviction cannot be used for certain purposes. See Burgett,
Tucker, and Loper, all supra. The Court, however, has never suggested
that an uncounseled conviction [445 U.S. 55, 67] is invalid for all
purposes. See Scott v. Illinois, 440 U.S. 367 (1979); Loper v. Beto, 405
U.S., at 482 . n. 11 (plurality opinion).
Use of an uncounseled felony conviction as the basis for imposing a

civil firearms disability, enforceable by a criminal sanction, is not
inconsistent with Burgett, Tucker, and Loper. In each of those cases,
this Court found that the subsequent conviction of sentence violated the
Sixth Amendment because it depended upon the reliability of a past
uncounseled conviction. The federal gun laws, however, focus not on
reliability, but on the mere fact of conviction, or even indictment, in
order to keep firearms away from potentially dangerous persons.
Congress' judgment that a convicted felon. even one whose conviction was
allegedly uncounseled, is among the class of persons who should be
disabled from dealing in or possessing firearms because of potential
dangerousness is rational.[9] Enforcement of that essentially civil
disability through a criminal sanction does not "support guilt or
enhance punishment." see Burgett, 389 U.S., at 115 , on the basis of a
conviction that is unreliable when one considers Congress' broad
purpose. Moreover, unlike the situation in Burgett, the sanction imposed
by 1202 (a) (1) attaches immediately upon the defendant's first
conviction.
Again, it is important to note that a convicted felon may challenge the

validity of a prior conviction. or otherwise remove his disability,
before obtaining a firearm. We simply hold today that the firearms
prosecution does not open the predicate conviction to a new form of
collateral attack. See Note, Prior Convictions and the Gun Control Act
of 1968. [445 U.S. 55, 68] 76 Colum. L. Rev. 326, 338-339 (1976). Cf.
Walker v. City of Birmingham, 388 U.S. 307 (1967).
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Footnotes
[Footnote 1] Section 1202 (a) reads in full:
"Any person who --

"(1) has been convicted by a court of the United States or of a State or
any political subdivision thereof of a felony, or

"(2) has been discharged from the Armed Forces under dishonorable
conditions, or
"(3) has been adjudged by a court of the United States or of a State or
any political subdivision thereof of being mentally incompetent, or
"(4) having been a citizen of the United States has renounced his
citizenship, or
"(5) being an alien is illegally or unlawfully in the United States, "and who
receives, possesses, or transports in commerce or affecting commerce,
after the date of enactment of this Act, any firearm shall be fined not
more than $10,000 or imprisoned for not more than two years, or both."
[Footnote 2] The indictment also charged petitioner with a violation of 18

U.S.C. 922 (h) (1). That statute reads in pertinent part:
"It shall be unlawful for any person --

"(1) who is under indictment for, or who has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one year;
. . . . .
"to receive any firearm . . . which has been shipped or transported in
interstate . . . commerce."
Petitioner was acquitted on the 922 (h) (1) charge and it is not before
us here.
[Footnote 3] Petitioner's counsel stated that a Florida attorney had

advised him that the court records in that State showed affirmatively
that Lewis had no lawyer. He noted also that Lewis had been charged with
the same offense as had the defendant in Gideon v. Wainwright, 372 U.S.
335 (1963), and that petitioner had been tried in the same State about
six months before Gideon was tried. App. 2-3.
[Footnote 4] Compare United States v. Lufman, 457 F.2d 165 (CA7 1972)
(use of an underlying felony conviction unconstitutionally obtained to
support a conviction under 1202 (a) (1) is reversible error), with the
Fourth Circuit's ruling in the present case, and with United States v.
Maggard, 573 F.2d 926 (CA6 1978); and United States v. Graves, 554 F.2d
65 (CA3 1977) (en banc) (claim of constitutional error in the underlying
conviction may not be raised). The Ninth Circuit has distinguished
between a claim of constitutional invalidity in the underlying
conviction, which it has held may be raised, and a claim that the
underlying conviction has been, or should be, reversed on other grounds.
Compare United States v. O'Neal, 545 F.2d 85 (1976), and United States
v. Pricepaul, 540 F.2d 417 (1976), with United States v. Liles, 432 F.2d
18 (1970). See also United States v. Herrell, 588 F.2d 711 (CA9 1978),
cert. denied, 440 U.S. 964 [445 U.S. 55, 59] (1979) (underlying
conviction in a prosecution under 18 U.S.C. 922 (h) (1) may not be
challenged on nonconstitutional grounds).
The identical issue that is presented in this case has also arisen in
the context of challenges to convictions under 18 U.S.C. 922 (g) (1)
(proscribing shipping or transport of a firearm in interstate or foreign
commerce by a person under indictment for, or convicted of, a felony)
and 922 (h) (1) (proscribing receipt of a firearm shipped in interstate
or foreign commerce by such a person). Compare United States v. Scales,
599 F.2d 78 (CA5 1979); Dameron v. United States, 488 F.2d 724 (CA5
1974); Pasterchik v. United States, 466 F.2d 1367 (CA9 1972); and United
States v. DuShane, 435 F.2d 187 (CA2 1970) (underlying conviction may be
attacked as unconstitutional), with Barker v. United States, 579 F.2d
1219, 1226 (CA10 1978) (underlying conviction may not be so challenged
in prosecution under 922 (h) (1)).

The Courts of Appeals have treated the issue somewhat differently in

prosecutions under 18 U.S.C. 922 (a) (6) (prohibiting the falsification
of one's status as a convicted felon in purchasing a firearm).
Nonuniformity has prevailed nonetheless on the question whether a
defendant charged with violating that statute may challenge the
constitutionality of the underlying felony conviction. Compare United
States v. O'Neal, supra, and United States v. Pricepaul, supra
(permitting the challenge), with United States v. Allen, 556 F.2d 720
(CA4 1977); United States v. Graves, supra; and Cassity v. United
States, 521 F.2d 1320 (CA6 1975) (holding that the challenge may not be
made). The Eighth Circuit has stated that it will not permit a challenge
to the constitutionality of the underlying conviction where the
defendant is charged under 922 (a) (6), while reserving the question
under 1202 (a) (1) and 922 (g) (1) and (h) (1). United States v.
Edwards, 568 F.2d 68, 70-72, and n.3 (1977). See also United States v.
Graves, 554 F.2d, at 83-88 (Garth, J., and Seitz, C. J., concurring in
part and dissenting in part) (the Government need not prove the validity
of the underlying conviction in a prosecution brought under 922 (a) (6),
but it must do so in a prosecution under 1202 (a) (1)).
[Footnote 5] One might argue, of course, that the language is so

sweeping that it includes in its proscription even a person whose
predicate conviction in the interim had been finally reversed on appeal
and thus no longer was outstanding. The Government, however, does not go
so far, Tr. of Oral Arg. 29-30, 37-40, and though we have no need to
pursue that extreme argument in this case, we reject it. We are not
persuaded that the mere possibility of making that argument renders the
statute, as petitioner suggests, unconstitutionally vague. And unlike
the dissent, post, at 69, we view the language Congress chose as
consistent with the common-sense notion that a disability based upon
one's status as a convicted felon should cease only when the conviction
upon which that status depends has been vacated.
We note, nonetheless, that the disability effected by 1202 (a) (1) would
apply while a felony conviction was pending on appeal. See Note, Prior
Convictions and the Gun Control Act of 1968, 76 Colum. L. Rev. 326, 334,
and n. 42 (1976).
[Footnote 6] "The Congress hereby finds and declares that the receipt,
possession, or transportation of a firearm by felons, veterans who are
discharged under dishonorable conditions, mental incompetents, aliens
who are illegally in the country, and former citizens who have renounced
their citizenship, constitutes --
"(1) a burden on commerce or threat affecting the free flow of

commerce,
"(2) a threat to the safety of the President of the United States and
Vice President of the United States,
"(3) an impediment or a threat to the exercise of free speech and

the free exercise of a religion guaranteed by the first amendment to
the Constitution of the United States, and
"(4) a threat to the continued and effective operation of the

Government of the United States and of the government of each
State guaranteed by article IV of the Constitution."
[Footnote 7] This being so, 1202 (a) (1) does not attach "what may
amount to lifelong sanctions to a mere finding of probable cause," as
has been argued by one commentator. See Comment, 92 Harv. L. Rev. 1790,

1795 (1979).
[Footnote 8] These legislative restrictions on the use of firearms are

neither based upon constitutionally suspect criteria, nor do they trench
upon any constitutionally protected liberties. See United States v.
Miller, 307 U.S. 174, 178 (1939) (the Second Amendment guarantees no
right to keep and bear a firearm that does not have "some reasonable
relationship to [445 U.S. 55, 66] the preservation or efficiency of a
well regulated militia"); United States v. Three Winchester 30-30
Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974);
United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United
States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the
latter three cases holding, respectively, that 1202 (a) (1), 922 (g),
and 922 (a) (6) do not violate the Second Amendment).
[Footnote 9] The dissent's assertion that Congress' judgment in this

regard cannot rationally be supported, post, at 72, is one we do not
share. Moreover, such an assertion seems plainly inconsistent with the
deference that a reviewing court should give to a legislative
determination that, in essence, predicts a potential for future criminal
behavior.


MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.
JUSTICE POWELL join, dissenting.
In disagreement with every other Court of Appeals that has addressed the issue,[1] the Court of Appeals
for the Fourth Circuit, held, by a divided vote, that an uncounseled and hence unconstitutional felony
conviction may form the predicate for conviction under 1202 (a) (1) of the Omnibus Crime Control and
Safe Streets Act of 1968. Today the Court affirms that judgment, but by an analysis that cannot be
squared with either the literal language of the statute or controlling decisions of this Court. I respectfully
dissent.
I
Two longstanding principles of statutory construction independently mandate reversal of petitioner's
conviction. The first is the precept that "when choice has to be made between two readings of what
conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require
that Congress should have spoken in language that is clear and definite." United States v. Universal C. I.
T. Credit Corp., 344 U.S. 218, 221 -222 (1952). The Court has repeatedly reaffirmed this "rule of lenity."
See, e. g., Simpson v. United States, 435 U.S. 6, 14 (1978); United States v. Bass, 404 U.S. 336, 347
-349 (1971); Rewis v. United States, 401 U.S. 808, 812 (1971); Ladner v. United States, 358 U.S. 169 ,
[445 U.S. 55, 69] 177 (1958); Bell v. United States, 349 U.S. 81 (1955). Indeed, the principle that
"ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity" has previously
been invoked in interpreting the very provision at issue in this case. See United States v. Bass, supra.
The Court declines to apply this established rule of construction in this case because, in its view, "[t]here
is no ambiguity here." Ante, at 65. In light of the gloss the Court places on the literal language of the
statute, I find this to be a curious conclusion. By its own terms, 1202 (a) (1) reaches "[a]ny person who
has been convicted . . . of a felony." The provision on its face admits of no exception to its sweeping
proscription. Yet despite the absence of any qualifying phrase, the Court concedes — as it must — that
the statute cannot be interpreted so as to include those persons whose predicate convictions have been
vacated or reversed on appeal. Ante, at 60-61, and n. 5.
It thus appears that the plain words of 1202 (a) (1) are not so clear after all, and we therefore must
determine the section's reach. Two alternative constructions are offered: The first is the Government's —
that 1202 (a) (1) may be read to permit only outstanding felony convictions to serve as the basis for
prosecution. Tr. of Oral Arg. 29-30. The second is petitioner's — that the predicate conviction must be
not only outstanding, but also constitutionally valid. Because either interpretation fairly comports with
the statutory language, surely the principle of lenity requires us to resolve any doubts against the harsher
alternative and to read the statute to prohibit the possession of firearms only by those who have been
constitutionally convicted of a felony.
The Court nevertheless adopts the Government's construction, relying on a supposed legislative resolve
to enact a sweeping measure against the misuse of firearms. But however expansive 1202 was meant to
be, we are not faithful to "our duty to protect the rights of the individual," Dalia v. United States, 441
U.S. 238, 263 (1979) (STEVENS, J., dissenting), [445 U.S. 55, 70] when we are so quick to ascribe to

Congress the intent to punish the possession of a firearm by a person whose predicate felony conviction
was obtained in violation of the right to the assistance of counsel, "one of the safeguards of the Sixth
Amendment deemed necessary to insure fundamental human rights of life and liberty." Johnson v.
Zerbst, 304 U.S. 458, 462 (1938). Petitioner has once already been imprisoned in violation of the
Constitution. In the absence of any clear congressional expression of its intent, I cannot accept a
construction of 1202 (a) (1) that reflects such an indifference to petitioner's plight and such a derogation
of the principles of Gideon v. Wainwright, 372 U.S. 335 (1963).[2] [445 U.S. 55, 71]
II
The second maxim of statutory construction that compels a narrow reading of 1202 (a) (1) is the
"cardinal principle" that "if a serious doubt of constitutionality is raised, . . . this Court will first ascertain
whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v.
Benson, 285 U.S. 22, 62 (1932). Accord, Schneider v. Smith, 390 U.S. 17, 26 (1968); United States v.
Rumely, 345 U.S. 41, 45 (1953); United States v. CIO, 335 U.S. 106, 120-121, and n. 20 (1948). And
doubts as to the constitutionality of a statute that could predicate criminal liability solely on the existence
of a previous uncounseled felony conviction are indeed serious, for a trilogy of this Court's decisions
would seem to prohibit precisely such a result.
Burgett v. Texas, 389 U.S. 109 (1967), held that a prior uncounseled felony conviction was void and thus
inadmissible in a prosecution under a Texas recidivist statute. Burgett stated: "To permit a conviction
obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or
enhance punishment for another offense . . . is to erode the principle of that case. Worse yet, since the
defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from
the deprivation of that Sixth Amendment right." Id., at 115 (citation omitted). United States v. Tucker,
404 U.S. 443 (1972), and Loper v. Beto, 405 U.S. 473 (1972), respectively prohibited the use of
uncounseled felony convictions as a factor to be considered in sentencing, and to impeach the defendant's
credibility.
Burgett and its progeny appear to control the result in this case. The clear teaching of those decisions is
that an uncounseled [445 U.S. 55, 72] felony conviction can never be used "to support guilt or enhance
punishment for another offense." Here, petitioner could not have been tried and convicted for violating
1202 (a) (1) in the absence of his previous felony conviction. It could not be plainer that his
constitutionally void conviction was therefore used "to support guilt" for the current offense. The Court's
bald assertion to the contrary is simply inexplicable.
The Court's attempt to distinguish Burgett, Tucker, and Loper on the ground that the validity of the
subsequent convictions or sentences in those cases depended on the reliability of the prior uncounseled
felony convictions, while in the present case the law focuses on the mere fact of the prior conviction, is
unconvincing. The fundamental rationale behind those decisions was the concern that according any
credibility to an uncounseled felony conviction would seriously erode the protections of the Sixth
Amendment. Congress' decision to include convicted felons within the class of persons prohibited from
possessing firearms can rationally be supported only if the historical fact of conviction is indeed a
reliable indicator of potential dangerousness. As we have so often said, denial of the right to counsel
impeaches "the very integrity of the fact-finding process." Linkletter v. Walker, 381 U.S. 618, 639
(1965). Accord, Lakeside v. Oregon, 435 U.S. 333, 341 (1978); Argersinger v. Hamlin, 407 U.S. 25, 31
(1972). And the absence of counsel impairs the reliability of a felony conviction just as much when used

to prove potential dangerousness as when used as direct proof of guilt. Cf. Loper v. Beto, supra, at 483
(opinion of STEWART, J.).
III
Finally, it is simply irrelevant that petitioner could have challenged the validity of his prior conviction in
appropriate proceedings in the state courts. Nor can the existence of such a remedy prohibit him from
raising the unconstitutionality of that conviction as a defense to the present charge. [445 U.S. 55, 73] In the
first place, neither Burgett nor Loper imposed any requirement that a defendant collaterally attack his
uncounseled conviction before he faces prosecution under 1202 (a) (1); in both cases the Court held the
use of the prior invalid convictions impermissible even though the defendants had taken no affirmative
steps to have them overturned. More to the point, however, where the very defect in the initial
proceedings was that the accused did not have the assistance of counsel in defending the felony charges
against him, it simply defies reason and sensibility to suggest that the defendant must be regarded as
having waived his defense to the 1202 (a) (1) prosecution because he failed first to retain counsel to seek
an extraordinary writ of coram nobis.
[Footnote 1] See, e. g., Dameron v. United States, 488 F.2d 724 (CA5 1974); United States v. Lufman,
457 F.2d 165 (CA7 1972); United States v. DuShane, 435 F.2d 187 (CA2 1970); United States v.
Thoresen, 428 F.2d 654 (CA9 1970). See generally Comment, 92 Harv. L. Rev. 1790 (1979).
[Footnote 2] As the Court has previously observed, 1202 "was hastily passed, with little discussion, no
hearings, and no report." United States v. Bass, 404 U.S. 336, 344 (1971). "In short, `the legislative
history of [the] Act hardly speaks with that clarity of purpose which Congress supposedly furnishes
courts in order to enable them to enforce its true will.'" Id., at 346 (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 483 (1951)). It is thus little wonder that the Court finds no explicit support in the
statute's legislative history for petitioner's construction.
Nor do the few signposts that do exist in the history and structure of Title VII point unambiguously to the
Court's conclusion. That Congress included provisions within the Omnibus Act whereby a convicted
felon could have his disability removed by a qualifying pardon or the Secretary's consent, see 1203 (2)
and 925 (c), does not mean that Congress intended them to be exclusive remedies. Indeed, these
provisions were clearly designed only to provide a mechanism for those persons with valid felony
convictions to seek relief from the prohibitions of 1202.
Similarly, a comparison between the scope of Title IV and Title VII is unenlightening on the question
before us. Simply because the former Title imposes a disability on any person under a felony indictment,
it by no means follows, a fortiori or otherwise, that Congress intended by the latter Title to impose a
somewhat harsher disability on those persons with unconstitutional felony convictions. Cf. ante, at 64.
Significantly, the restrictions attaching to an individual under indictment are necessarily temporary,
while those imposed on the basis of a previous conviction are indefinite in duration. Moreover, Congress'
failure to include persons "under indictment" within the proscriptions of 1202 more plausibly signals its
desire to demand a greater indication of potential dangerousness [445 U.S. 55, 71] than would be provided
by the mere fact of indictment — or, for that matter, by an uncounseled felony conviction. In fact, in a
slightly different context, Congress has expressly rejected the proposition that an invalid prior conviction
is a reliable indicator of "dangerousness." See 18 U.S.C. 3575 (e) (dangerous special offender). [445 U.S.
55, 74]

Syllabus | Opinion | Contents | Text Version

MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and

MR. JUSTICE POWELL join, dissenting.
In disagreement with every other Court of Appeals that has addressed the
issue,[1] the Court of Appeals for the Fourth Circuit, held, by a
divided vote, that an uncounseled and hence unconstitutional felony
conviction may form the predicate for conviction under 1202 (a) (1) of
the Omnibus Crime Control and Safe Streets Act of 1968. Today the Court
affirms that judgment, but by an analysis that cannot be squared with
either the literal language of the statute or controlling decisions of
this Court. I respectfully dissent.
Two longstanding principles of statutory construction independently

mandate reversal of petitioner's conviction. The first is the precept
that "when choice has to be made between two readings of what conduct
Congress has made a crime, it is appropriate, before we choose the
harsher alternative, to require that Congress should have spoken in
language that is clear and definite." United States v. Universal C. I.
T. Credit Corp., 344 U.S. 218, 221-222 (1952). The Court has repeatedly
reaffirmed this "rule of lenity." See, e. g., Simpson v. United States,
435 U.S. 6, 14 (1978); United States v. Bass, 404 U.S. 336, 347 -349
(1971); Rewis v. United States, 401 U.S. 808, 812 (1971); Ladner v.
United States, 358 U.S. 169 , [445 U.S. 55, 69] 177 (1958); Bell v.
United States, 349 U.S. 81 (1955). Indeed, the principle that "ambiguity
concerning the ambit of criminal statutes should be resolved in favor of
lenity" has previously been invoked in interpreting the very provision
at issue in this case. See United States v. Bass, supra.
The Court declines to apply this established rule of construction in

this case because, in its view, "[t]here is no ambiguity here." Ante, at
65. In light of the gloss the Court places on the literal language of
the statute, I find this to be a curious conclusion. By its own terms,
1202 (a) (1) reaches "[a]ny person who has been convicted . . . of a
felony." The provision on its face admits of no exception to its
sweeping proscription. Yet despite the absence of any qualifying phrase,
the Court concedes -- as it must -- that the statute cannot be
interpreted so as to include those persons whose predicate convictions
have been vacated or reversed on appeal. Ante, at 60-61, and n. 5.
It thus appears that the plain words of 1202 (a) (1) are not so clear
after all, and we therefore must determine the section's reach. Two
alternative constructions are offered: The first is the Government's --
that 1202 (a) (1) may be read to permit only outstanding felony
convictions to serve as the basis for prosecution. Tr. of Oral Arg.
29-30. The second is petitioner's -- that the predicate conviction must
be not only outstanding, but also constitutionally valid. Because either
interpretation fairly comports with the statutory language, surely the
principle of lenity requires us to resolve any doubts against the
harsher alternative and to read the statute to prohibit the possession
of firearms only by those who have been constitutionally convicted of a
felony.
The Court nevertheless adopts the Government's construction, relying on

a supposed legislative resolve to enact a sweeping measure against the
misuse of firearms. But however expansive 1202 was meant to be, we are
not faithful to "our duty to protect the rights of the individual,"
Dalia v. United States, 441 U.S. 238, 263 (1979) (STEVENS, J.,

dissenting), [445 U.S. 55, 70] when we are so quick to ascribe to

Congress the intent to punish the possession of a firearm by a person
whose predicate felony conviction was obtained in violation of the right
to the assistance of counsel, "one of the safeguards of the Sixth
Amendment deemed necessary to insure fundamental human rights of life
and liberty." Johnson v. Zerbst, 304 U.S. 458, 462 (1938). Petitioner
has once already been imprisoned in violation of the Constitution. In
the absence of any clear congressional expression of its intent, I
cannot accept a construction of 1202 (a) (1) that reflects such an
indifference to petitioner's plight and such a derogation of the
principles of Gideon v. Wainwright, 372 U.S. 335 (1963).[2] [445 U.S.
55, 71]
II
The second maxim of statutory construction that compels a narrow reading

of 1202 (a) (1) is the "cardinal principle" that "if a serious doubt of
constitutionality is raised, . . . this Court will first ascertain
whether a construction of the statute is fairly possible by which the
question may be avoided." Crowell v. Benson, 285 U.S. 22, 62 (1932).
Accord, Schneider v. Smith, 390 U.S. 17, 26 (1968); United States v.
Rumely, 345 U.S. 41, 45 (1953); United States v. CIO, 335 U.S. 106,
120-121, and n. 20 (1948). And doubts as to the constitutionality of a
statute that could predicate criminal liability solely on the existence
of a previous uncounseled felony conviction are indeed serious, for a
trilogy of this Court's decisions would seem to prohibit precisely such
a result.
Burgett v. Texas, 389 U.S. 109 (1967), held that a prior uncounseled
felony conviction was void and thus inadmissible in a prosecution under
a Texas recidivist statute. Burgett stated: "To permit a conviction
obtained in violation of Gideon v. Wainwright to be used against a
person either to support guilt or enhance punishment for another offense
. . . is to erode the principle of that case. Worse yet, since the
defect in the prior conviction was denial of the right to counsel, the
accused in effect suffers anew from the deprivation of that Sixth
Amendment right." Id., at 115 (citation omitted). United States v.
Tucker, 404 U.S. 443 (1972), and Loper v. Beto, 405 U.S. 473 (1972),
respectively prohibited the use of uncounseled felony convictions as a
factor to be considered in sentencing, and to impeach the defendant's
credibility.
Burgett and its progeny appear to control the result in this case. The
clear teaching of those decisions is that an uncounseled [445 U.S. 55,
72] felony conviction can never be used "to support guilt or enhance
punishment for another offense." Here, petitioner could not have been
tried and convicted for violating 1202 (a) (1) in the absence of his
previous felony conviction. It could not be plainer that his
constitutionally void conviction was therefore used "to support guilt"
for the current offense. The Court's bald assertion to the contrary is
simply inexplicable.
The Court's attempt to distinguish Burgett, Tucker, and Loper on the

ground that the validity of the subsequent convictions or sentences in
those cases depended on the reliability of the prior uncounseled felony
convictions, while in the present case the law focuses on the mere fact
of the prior conviction, is unconvincing. The fundamental rationale
behind those decisions was the concern that according any credibility to
an uncounseled felony conviction would seriously erode the protections
of the Sixth Amendment. Congress' decision to include convicted felons
within the class of persons prohibited from possessing firearms can

rationally be supported only if the historical fact of conviction is

indeed a reliable indicator of potential dangerousness. As we have so
often said, denial of the right to counsel impeaches "the very integrity
of the fact-finding process." Linkletter v. Walker, 381 U.S. 618, 639
(1965). Accord, Lakeside v. Oregon, 435 U.S. 333, 341 (1978);
Argersinger v. Hamlin, 407 U.S. 25, 31 (1972). And the absence of
counsel impairs the reliability of a felony conviction just as much when
used to prove potential dangerousness as when used as direct proof of
guilt. Cf. Loper v. Beto, supra, at 483 (opinion of STEWART, J.).
III
Finally, it is simply irrelevant that petitioner could have challenged

the validity of his prior conviction in appropriate proceedings in the
state courts. Nor can the existence of such a remedy prohibit him from
raising the unconstitutionality of that conviction as a defense to the
present charge. [445 U.S. 55, 73] In the first place, neither Burgett
nor Loper imposed any requirement that a defendant collaterally attack
his uncounseled conviction before he faces prosecution under 1202 (a)
(1); in both cases the Court held the use of the prior invalid
convictions impermissible even though the defendants had taken no
affirmative steps to have them overturned. More to the point, however,
where the very defect in the initial proceedings was that the accused
did not have the assistance of counsel in defending the felony charges
against him, it simply defies reason and sensibility to suggest that the
defendant must be regarded as having waived his defense to the 1202 (a)
(1) prosecution because he failed first to retain counsel to seek an
extraordinary writ of coram nobis.
[Footnote 1] See, e. g., Dameron v. United States, 488 F.2d 724 (CA5
1974); United States v. Lufman, 457 F.2d 165 (CA7 1972); United States
v. DuShane, 435 F.2d 187 (CA2 1970); United States v. Thoresen, 428 F.2d
654 (CA9 1970). See generally Comment, 92 Harv. L. Rev. 1790 (1979).
[Footnote 2] As the Court has previously observed, 1202 "was hastily

passed, with little discussion, no hearings, and no report." United
States v. Bass, 404 U.S. 336, 344 (1971). "In short, `the legislative
history of [the] Act hardly speaks with that clarity of purpose which
Congress supposedly furnishes courts in order to enable them to enforce
its true will.'" Id., at 346 (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 483 (1951)). It is thus little wonder that the Court finds
no explicit support in the statute's legislative history for
petitioner's construction.
Nor do the few signposts that do exist in the history and structure of
Title VII point unambiguously to the Court's conclusion. That Congress
included provisions within the Omnibus Act whereby a convicted felon
could have his disability removed by a qualifying pardon or the
Secretary's consent, see 1203 (2) and 925 (c), does not mean that
Congress intended them to be exclusive remedies. Indeed, these
provisions were clearly designed only to provide a mechanism for those
persons with valid felony convictions to seek relief from the
prohibitions of 1202.
Similarly, a comparison between the scope of Title IV and Title VII is

unenlightening on the question before us. Simply because the former
Title imposes a disability on any person under a felony indictment, it
by no means follows, a fortiori or otherwise, that Congress intended by
the latter Title to impose a somewhat harsher disability on those
persons with unconstitutional felony convictions. Cf. ante, at 64.
Significantly, the restrictions attaching to an individual under

indictment are necessarily temporary, while those imposed on the basis

of a previous conviction are indefinite in duration. Moreover, Congress'
failure to include persons "under indictment" within the proscriptions
of 1202 more plausibly signals its desire to demand a greater indication
of potential dangerousness [445 U.S. 55, 71] than would be provided by
the mere fact of indictment -- or, for that matter, by an uncounseled
felony conviction. In fact, in a slightly different context, Congress
has expressly rejected the proposition that an invalid prior conviction
is a reliable indicator of "dangerousness." See 18 U.S.C. 3575 (e)
(dangerous special offender). [445 U.S. 55, 74]

Lewis v. United States, 445 U.S. 55 (1980): Commentary

This case provides a good example of bad law. It appears to be the result of poor argument and a long
train of bad precedents that only confused the members of the Court and led them into tangles of
sophistry that could have been avoided by returning to constitutional basics.
The issue here is whether Congress has the power to disable the right to keep and bear arms for a class of
persons defined by having been convicted of a felony, or even only indicted on a felony charge, without a
specific order of a court of competent jurisdiction upon a due process hearing of the issue of whether to
disable that right, based on the conviction.
The members of the court seemed to have been divided mainly on the question of whether the person
convicted had adequate counsel, that is, on whether the original conviction was constitutional, and might
be overturned on appeal. That is not the issue, and to argue that issue is to be unclear on the fundamental
concepts of due process and the constitutional prohibitions against bills of attainder and ex post facto
laws.
Article I, Section 9, Clause 3, says:
No Bill of Attainder or ex post facto Law shall be passed.
No State shall ... pass any Bill of Attainder, ex post facto Law, ...
The Second Amendment to the Constitution for the United States says:
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
The Fifth Amendment says, in part:
No person shall be ... deprived of life, liberty, or property, without due process of law;
Finally, the Tenth Amendment says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.
To begin the argument, we first note that there is no provision of the Constitution or amendments to it
that say "the rights to life, limb, liberty, or property shall not be infringed". Does that mean that by due
process of law, all those rights except the right to keep and bear arms may be deprived? Logically, if the
Second Amendment had been ratified after the Fifth, it would indeed be an exception. But the ten
amendments of the Bill of Rights were ratified at more or less the same time, so is the right to keep and
bear arms an exception, or is it included within the rights of life, liberty, and property? For the moment
we will take the latter position, but leave the question open for later consideration.
That takes the argument to the Fifth Amendment. What rights are protected by it, what is due process,
what does it mean to deprive a person of such a right, and what is a person?

First we examine due process. It is a judicial proceeding, not a legislative or executive proceeding. It
begins with a petition to a court, and ends with an order granting or denying the petition, and perhaps
with the execution of the order. In between are procedures to insure that the legitimate interests of
everyone affected are protected from injustice. There are two main kinds of due process, a civil
proceeding and a criminal proceeding. What distinguishes them is the kind of right that can be lawfully
disabled by each. A civil proceeding may only disable a right to property. A criminal proceeding may
also disable the rights to life, limb, and liberty. For convenience, all constitutional rights are grouped into
those categories.
Something should be said about the "right to limb". It is mentioned only in the double jeopardy clause of
the Fifth Amendment, together with life. Most other references are to "life, liberty, and property", and the
Declaration of Independence used the somewhat more expansive phrase "pursuit of happiness" in place
of "property", although they were considered synonymous by the Lockean-Jeffersonian social contract
theory which is the basis for both the Declaration and the Constitution. "Limb" is a term of art, and the
"right to limb" is the right to not have corporal punishment inflicted on oneself. So a criminal proceeding
is one in which the petition is for death, imprisonment, corporal punishment, or deprivation of property
for the benefit of the state, and a civil proceeding is one in which the petition is only for deprivation of
property, either for the benefit of the state or for a private party.
So does this categorization cover everything that is sometimes referred to by the term "right"? No, these
are constitutional rights, which include natural rights arising from the state of nature, civil rights arising
from the social contract, and constitutional rights proper arising from the constitution. All of them are
rights against action by government, not against action by private parties, and not for a share of some
scarce resource. There can be no constitutional right for a sufficiency of some scarce resource, because a
constitutional right can only be an equal right, and the only rights that can be equal are the rights to not
have something done by government.
So what kind of right is the right to keep and bear arms? Life, liberty, or property? Actually, it is a
composite of rights of each category. First, it is an implied right of life. A right, to be meaningful, must
include the right to acquire and use the means to secure it, and that includes arms, for use in defense of
ones own life. Now the Second Amendment mentions the Militia. What is the purpose of that? It is
intended to recognize that a person has not just the right to defend himself, but the duty to defend others.
That duty arises out of the social contract to mutually defend one another against abuse of rights, and it
includes the duty not only to obey laws, but to help enforce them. Now liberty is also an implied right of
life, because we need liberty to preserve and defend it, although it is also a right in itself, because it
includes all those activities which make life worth living, that is, happiness. Property can be considered
an implied right of life and liberty, since it includes the right to acquire, keep, and use the means to
preserve and defend both, but it also a right in itself, since it includes the right to leave one's property to
those one cares about, one's family, friends, or others one favors. So the right to [acquire and] keep arms
[and ammunition] is a property right and the right to bear arms a liberty right, and both support the right
to life and other kinds of liberty and property. But the liberty right to bear arms would be meaningless
without the implied right to acquire and keep them.
By this argument, therefore, the disablement of the right to keep and bear arms is the disablement of a
liberty and perhaps a life right, and not just a property right, and as such can only lawfully be done by a
criminal proceeding, with all of its special protections, including the right to a unanimous jury verdict
and the standard of proof beyond a reasonable doubt.

Let us now turn to the prohibitions against bills of attainder and ex post facto laws. Established
precedents tend to define these terms narrowly, and discussion during the Federal Convention limited
them to criminal disablements, but examined more carefully, they are actually just a complementary way
to restate the requirement for due process in the Fifth Amendment, and include property as well as life
and liberty. The Fifth Amendment says constitutional rights may only be deprived by judicial due
process, and the prohibitions are against doing that by legislative process or executive process not based
on a court order. Together, they emphasize that any disablement of a constitutional right must be by
order of a court of competent jurisdiction upon petition and proof under due process protections of the
rights of the defendant.
So could persons be deprived of their arms, considered as property, if there was just compensation? Yes,
if there was some public need for the arms. But there is no power to prohibit such persons from acquiring
more arms, if they can afford them, without a court order pursuant to a due process proceeding, and to
disable the right to acquire arms, the proceeding would have to be criminal, not civil.
Returning to the issue in this case, how can Congress legislatively disable the right to keep and bear arms
for the class of persons defined as those having been convicted of a felony, or even just indicted for one?
It does so on the alleged authority of public safety, that is, a police power, and the power to regulate
interstate commerce. But does that work? No, it does not. If it could, it would make the rights to due
process and the complementary rights against bills of attainder and ex post facto laws meaningless.
First, there is no delegation of police powers to Congress, except within federal enclaves created under
Article I Section 8 Clause 17. Second, while "regulation" may be considered "prohibition" of some
modalities of something, the original meaning of the term is to make regular, and that implies there must
be some modalities that are permitted. It is not a power to prohibit all modalities, and contrary to the
opinion of CJ Marshall in McCulloch v. Maryland, 17 U.S. 316 (1819), the Constitution contains
delegations of limited powers, not spheres of action within which the power of Congress is unlimited.
Third, the original meaning of commerce included only commodities, and only the purchase or trade in
such commodities that begins in one state and terminates in another, or is between a state and a foreign
nation. It does not include trade within a state, and it does not include agriculture, hunting, mining,
manufacturing, possession, transport, or use of anything. And "commerce" certainly does not include
everything which has a substantial effect on commerce. That is simply ungrammatical. The power to
regulate is not the unlimited power to do whatever it takes to achieve a regulated outcome. That could be
used to authorize anything, even genocide. It is only the power to impose civil penalties on certain
modalities of trade in commodities. If normal methods of inspection and imposition of such civil
penalties are not sufficient to achieve a regulated outcome, then the government may not extend its
power to do other things intended to do so.
The final point needs to be made clear. The Founders distinguished between delegations of powers to
impose civil and criminal penalties, and considered the latter not to be an implied power of the former,
but a distinct power requiring a distinct delegation of constitutional authority.
What the legislative branch can do is prescribe the penalties to be imposed upon conviction of a crime.
Indeed it must prescribe some such penalties for it to be a crime.
To understand this point, let us conduct a thought experiment. Suppose someone petitions a criminal
court to prosecute an accused person for some offense, say, "parting one's hair on the left", and he seeks
the death penalty. The first thing he would have to do is get an indictment from a grand jury. Could he

get one? Of course. The grand jury is not supposed to return a bill of indictment on a charge that is not
authorized by a lawful penal statute, but they might be willing to indict a ham sandwich, so they might
do it anyway.
So the newly authorized prosecutor asks for a trial date, and the defendant's counsel moves for dismissal
on the grounds that there is no statute authorizing the charge. The judge is supposed to dismiss the case
on those grounds, but suppose he doesn't. Happens all the time. So it goes to trial, and the defendant
demands and gets a jury.
Now, could the jury convict the accused of parting his hair on the left? Sure it could. The accused admits
he parts his hair on the left. There are plenty of witnesses with evidence that he does so regularly. Now,
the jury is not supposed to find the defendant guilty of the offense, because, logically, to be guilty of an
offense requires not only that he did it as a matter of fact, but that what he did is an offense of the kind he
is being charged with doing, in other words, that it really is a criminal offense, an act which the
constitution authorizes the legislative branch to pass legislation to prohibit, with criminal penalties for
those convicted of doing it. So let's suppose the jury unanimously votes to convict anyway.
Now there is a verdict. The accused has been convicted. Has he been deprived of any rights by that
event? No. All the verdict does is authorize the judge, or the jury itself if it has the power to prescribe the
penalty, to set the penalty, and the judge to issue the sentencing order.
What does the sentencing order do? It does three things. First, it disables one or more rights. That is, it
restricts their exercise. In legal theory, constitutional rights are never "lost" or "terminated", but only
"disabled", and disabilities can be removed, whereas rights, since they don't come from government, but
pre-exist it, could not be restored if ever "lost". Second, it penalizes, or imposes a loss of life, limb,
liberty, or property that has been enabled by the disablement of the rights of the defendant. Third, it
authorizes and directs an official to carry out the penalty. These three components may be collapsed into
a few words, but an analysis of what a proper sentencing order does can always be resolved into these
three phases.
So let's return to our thought experiment. The jury has brought a verdict of guilty, and thereby authorized
the judge to issue a sentencing order. But the prosecutor has demanded the death penalty. Can the judge
impose that penalty, even though neither the offense or such a penalty is authorized by law? He is not
supposed to. He is limited to those penalties which the legislature has prescribed for that offense, and if
there are no penalties, there is no offense, even if the defendant has been "convicted".
So let's assume the judge has finally looked up the statute which the defendant is accused of violating,
and finds there is no such statute, or maybe it is only an administrative statute governing the proper
grooming for government employees, with the only penalty being to fire them. Since the defendant is not
a government employee, what does the judge do at this point? Sentence the defendant to death anyway?
He had better not, if he respects the law. Of course, some judges don't. But what he is supposed to do is
only impose the penalties authorized by statute, if any, regardless of what the prosecution is seeking.
So could the legislature prescribe as a penalty the disablement and deprivation of the right to keep and
bear arms, as the penalty for some offense, or even for all "felonies", or perhaps all "violent" felonies?
Yes it could. It could prescribe a penalty of, say, ten years in prison, and no right to keep and bear arms
for life. But suppose the judge, either through mercy or incompetence, sentenced the defendant to ten
years, but omitted to explicitly disable and deprive the right to keep and bear arms. If it's not in the

sentencing order, can some prosecutor come back on an appeal of the sentence and get the right to keep
and bear arms included in the sentence? In general, court rules and the law do not permit a sentence to be
revisited and increased in this way, or offer only limited time for doing so. At some point, the sentence is
final, and may not be further increased. If there was a mandatory sentence, and the judge did not impose
it, the only recourse is against the judge. Nothing further can be done to increase the penalties imposed
on the defendant.
So where does the notion come from that a defendant "loses all rights" upon conviction, rather than just
those rights disabled and deprived in the sentencing order? Incompetent legal thinking, aided by the lack
of political clout by convicted felons and a general public attitude of "let's get tough on crime", but it is
unconstitutional.
So now we can see what the statute that is the subject of this case does. It legislatively imposes a criminal
penalty (although it would make no difference if it was civil) on the class of persons convicted (or even
just indicted) of a crime, in many cases retroactively, without prescribing it as part of what is to be
imposed in the sentencing order. Logically, that is a violation of the requirement for due process and of
the prohibitions against bills of attainder and ex post facto laws. It makes no difference that persons
convicted or indicted for a crime might present a threat to public safety. So do law enforcement officials
acting without lawful authority.
There is also a fundamental constitutional problem with officials of one sovereign imposing a penalty,
either civil or criminal, based in whole or in part on the actions of officials of another sovereign. It is a
violation of federalism and the separation of powers. Each branch and level of government is accountable
solely to its own electors, and may not delegate authority to officials of another branch or level. In this
case, what happens if the federal government convicts and sentences someone of the offence of carrying
a firearm, on the basis of a conviction of a felony in a state court, and then the state offense is pardoned
or overturned on appeal? It simply does not work, constitutionally, for the decisions of a state court to
determine whether an act is a federal crime. That applies not only to state criminal proceedings, but to
things like protective orders, competency hearings and commitment orders, indictments, arrests, issuance
of licenses or permits, or any other official action.
This case should never have made it past the grand jury. The statute, and others like it, are
unconstitutional, as are most of the precedents that led to the decision and opinions on both sides in this
case.[1]
Notes:
1. See also Caron v. United States, 524 U.S. 308 (1998) and the commentary by Jon Roland at
http://www.constitution.org/ussc/524-308jr.htm.
Syllabus | Contents | Text Version


This case provides a good example of bad law. It appears to be the

result of poor argument and a long train of bad precedents that only
confused the members of the Court and led them into tangles of sophistry
that could have been avoided by returning to constitutional basics.
The issue here is whether Congress has the power to disable the right to
keep and bear arms for a class of persons defined by having been
convicted of a felony, or even only indicted on a felony charge, without
a specific order of a court of competent jurisdiction upon a due process
hearing of the issue of whether to disable that right, based on the
conviction.
The members of the court seemed to have been divided mainly on the
question of whether the person convicted had adequate counsel, that is,
on whether the original conviction was constitutional, and might be
overturned on appeal. That is not the issue, and to argue that issue is
to be unclear on the fundamental concepts of due process and the
constitutional prohibitions against bills of attainder and ex post facto
laws.
No Bill of Attainder or ex post facto Law shall be

passed.
No State shall ... pass any Bill of Attainder, ex post facto

Law, ...
A well regulated Militia, being necessary to the security

of a free State, the right of the people to keep and bear
Arms, shall not be infringed.
No person shall be ... deprived of life, liberty, or

property, without due process of law;
The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
To begin the argument, we first note that there is no provision of the

Constitution or amendments to it that say "the rights to life, limb,
liberty, or property shall not be infringed". Does that mean that by due
process of law, all those rights except the right to keep and bear arms
may be deprived? Logically, if the Second Amendment had been ratified
after the Fifth, it would indeed be an exception. But the ten amendments
of the Bill of Rights were ratified at more or less the same time, so is
the right to keep and bear arms an exception, or is it included within
the rights of life, liberty, and property? For the moment we will take
the latter position, but leave the question open for later

consideration.
That takes the argument to the Fifth Amendment. What rights are
protected by it, what is due process, what does it mean to deprive a
person of such a right, and what is a person?
First we examine due process. It is a judicial proceeding, not a

legislative or executive proceeding. It begins with a petition to a
court, and ends with an order granting or denying the petition, and
perhaps with the execution of the order. In between are procedures to
insure that the legitimate interests of everyone affected are protected
from injustice. There are two main kinds of due process, a civil
proceeding and a criminal proceeding. What distinguishes them is the
kind of right that can be lawfully disabled by each. A civil proceeding
may only disable a right to property. A criminal proceeding may also
disable the rights to life, limb, and liberty. For convenience, all
constitutional rights are grouped into those categories.
Something should be said about the "right to limb". It is mentioned only

in the double jeopardy clause of the Fifth Amendment, together with
life. Most other references are to "life, liberty, and property", and
the Declaration of Independence used the somewhat more expansive phrase
"pursuit of happiness" in place of "property", although they were
considered synonymous by the Lockean-Jeffersonian social contract theory
which is the basis for both the Declaration and the Constitution. "Limb"
is a term of art, and the "right to limb" is the right to not have
corporal punishment inflicted on oneself. So a criminal proceeding is
one in which the petition is for death, imprisonment, corporal
punishment, or deprivation of property for the benefit of the state, and
a civil proceeding is one in which the petition is only for deprivation
of property, either for the benefit of the state or for a private party.
So does this categorization cover everything that is sometimes referred

to by the term "right"? No, these are constitutional rights, which
include natural rights arising from the state of nature, civil rights
arising from the social contract, and constitutional rights proper
arising from the constitution. All of them are rights against action by
government, not against action by private parties, and not for a share
of some scarce resource. There can be no constitutional right for a
sufficiency of some scarce resource, because a constitutional right can
only be an equal right, and the only rights that can be equal are the
rights to not have something done by government.
So what kind of right is the right to keep and bear arms? Life, liberty,
or property? Actually, it is a composite of rights of each category.
First, it is an implied right of life. A right, to be meaningful, must
include the right to acquire and use the means to secure it, and that
includes arms, for use in defense of ones own life. Now the Second
Amendment mentions the Militia. What is the purpose of that? It is
intended to recognize that a person has not just the right to defend
himself, but the duty to defend others. That duty arises out of the
social contract to mutually defend one another against abuse of rights,
and it includes the duty not only to obey laws, but to help enforce
them. Now liberty is also an implied right of life, because we need
liberty to preserve and defend it, although it is also a right in
itself, because it includes all those activities which make life worth
living, that is, happiness. Property can be considered an implied right
of life and liberty, since it includes the right to acquire, keep, and
use the means to preserve and defend both, but it also a right in
itself, since it includes the right to leave one's property to those one
cares about, one's family, friends, or others one favors. So the right

to [acquire and] keep arms [and ammunition] is a property right and the
right to bear arms a liberty right, and both support the right to life
and other kinds of liberty and property. But the liberty right to bear
arms would be meaningless without the implied right to acquire and keep
them.
By this argument, therefore, the disablement of the right to keep and

bear arms is the disablement of a liberty and perhaps a life right, and
not just a property right, and as such can only lawfully be done by a
criminal proceeding, with all of its special protections, including the
right to a unanimous jury verdict and the standard of proof beyond a
reasonable doubt.
Let us now turn to the prohibitions against bills of attainder and ex

post facto laws. Established precedents tend to define these terms
narrowly, and discussion during the Federal Convention limited them to
criminal disablements, but examined more carefully, they are actually
just a complementary way to restate the requirement for due process in
the Fifth Amendment, and include property as well as life and liberty.
The Fifth Amendment says constitutional rights may only be deprived by
judicial due process, and the prohibitions are against doing that by
legislative process or executive process not based on a court order.
Together, they emphasize that any disablement of a constitutional right
must be by order of a court of competent jurisdiction upon petition and
proof under due process protections of the rights of the defendant.
So could persons be deprived of their arms, considered as property, if

there was just compensation? Yes, if there was some public need for the
arms. But there is no power to prohibit such persons from acquiring more
arms, if they can afford them, without a court order pursuant to a due
process proceeding, and to disable the right to acquire arms, the
proceeding would have to be criminal, not civil.
Returning to the issue in this case, how can Congress legislatively

disable the right to keep and bear arms for the class of persons defined
as those having been convicted of a felony, or even just indicted for
one? It does so on the alleged authority of public safety, that is, a
police power, and the power to regulate interstate commerce. But does
that work? No, it does not. If it could, it would make the rights to due
process and the complementary rights against bills of attainder and ex
post facto laws meaningless.
First, there is no delegation of police powers to Congress, except

within federal enclaves created under Article I Section 8 Clause 17.
Second, while "regulation" may be considered "prohibition" of some
modalities of something, the original meaning of the term is to make
regular, and that implies there must be some modalities that are
permitted. It is not a power to prohibit all modalities, and contrary to
the opinion of CJ Marshall in McCulloch v. Maryland, 17 U.S. 316 (1819),
the Constitution contains delegations of limited powers, not spheres of
action within which the power of Congress is unlimited. Third, the
original meaning of commerce included only commodities, and only the
purchase or trade in such commodities that begins in one state and
terminates in another, or is between a state and a foreign nation. It
does not include trade within a state, and it does not include
agriculture, hunting, mining, manufacturing, possession, transport, or
use of anything. And "commerce" certainly does not include everything
which has a substantial effect on commerce. That is simply
ungrammatical. The power to regulate is not the unlimited power to do
whatever it takes to achieve a regulated outcome. That could be used to
authorize anything, even genocide. It is only the power to impose civil

penalties on certain modalities of trade in commodities. If normal

methods of inspection and imposition of such civil penalties are not
sufficient to achieve a regulated outcome, then the government may not
extend its power to do other things intended to do so.
The final point needs to be made clear. The Founders distinguished

between delegations of powers to impose civil and criminal penalties,
and considered the latter not to be an implied power of the former, but
a distinct power requiring a distinct delegation of constitutional
authority.
What the legislative branch can do is prescribe the penalties to be

imposed upon conviction of a crime. Indeed it must prescribe some such
penalties for it to be a crime.
To understand this point, let us conduct a thought experiment. Suppose

someone petitions a criminal court to prosecute an accused person for
some offense, say, "parting one's hair on the left", and he seeks the
death penalty. The first thing he would have to do is get an indictment
from a grand jury. Could he get one? Of course. The grand jury is not
supposed to return a bill of indictment on a charge that is not
authorized by a lawful penal statute, but they might be willing to
indict a ham sandwich, so they might do it anyway.
So the newly authorized prosecutor asks for a trial date, and the
defendant's counsel moves for dismissal on the grounds that there is no
statute authorizing the charge. The judge is supposed to dismiss the
case on those grounds, but suppose he doesn't. Happens all the time. So
it goes to trial, and the defendant demands and gets a jury.
Now, could the jury convict the accused of parting his hair on the left?
Sure it could. The accused admits he parts his hair on the left. There
are plenty of witnesses with evidence that he does so regularly. Now, the
jury is not supposed to find the defendant guilty of the offense,
because, logically, to be guilty of an offense requires not only that he
did it as a matter of fact, but that what he did is an offense of the
kind he is being charged with doing, in other words, that it really is a
criminal offense, an act which the constitution authorizes the
legislative branch to pass legislation to prohibit, with criminal
penalties for those convicted of doing it. So let's suppose the jury
unanimously votes to convict anyway.
Now there is a verdict. The accused has been convicted. Has he been
deprived of any rights by that event? No. All the verdict does is
authorize the judge, or the jury itself if it has the power to prescribe
the penalty, to set the penalty, and the judge to issue the sentencing
order.
What does the sentencing order do? It does three things. First, it
disables one or more rights. That is, it restricts their exercise. In
legal theory, constitutional rights are never "lost" or "terminated",
but only "disabled", and disabilities can be removed, whereas rights,
since they don't come from government, but pre-exist it, could not be
restored if ever "lost". Second, it penalizes, or imposes a loss of
life, limb, liberty, or property that has been enabled by the
disablement of the rights of the defendant. Third, it authorizes and
directs an official to carry out the penalty. These three components may
be collapsed into a few words, but an analysis of what a proper
sentencing order does can always be resolved into these three phases.
So let's return to our thought experiment. The jury has brought a

verdict of guilty, and thereby authorized the judge to issue a

sentencing order. But the prosecutor has demanded the death penalty. Can
the judge impose that penalty, even though neither the offense or such a
penalty is authorized by law? He is not supposed to. He is limited to
those penalties which the legislature has prescribed for that offense,
and if there are no penalties, there is no offense, even if the
defendant has been "convicted".
So let's assume the judge has finally looked up the statute which the
defendant is accused of violating, and finds there is no such statute,
or maybe it is only an administrative statute governing the proper
grooming for government employees, with the only penalty being to fire
them. Since the defendant is not a government employee, what does the
judge do at this point? Sentence the defendant to death anyway? He had
better not, if he respects the law. Of course, some judges don't. But
what he is supposed to do is only impose the penalties authorized by
statute, if any, regardless of what the prosecution is seeking.
So could the legislature prescribe as a penalty the disablement and

deprivation of the right to keep and bear arms, as the penalty for some
offense, or even for all "felonies", or perhaps all "violent" felonies?
Yes it could. It could prescribe a penalty of, say, ten years in prison,
and no right to keep and bear arms for life. But suppose the judge,
either through mercy or incompetence, sentenced the defendant to ten
years, but omitted to explicitly disable and deprive the right to keep
and bear arms. If it's not in the sentencing order, can some prosecutor
come back on an appeal of the sentence and get the right to keep and
bear arms included in the sentence? In general, court rules and the law
do not permit a sentence to be revisited and increased in this way, or
offer only limited time for doing so. At some point, the sentence is
final, and may not be further increased. If there was a mandatory
sentence, and the judge did not impose it, the only recourse is against
the judge. Nothing further can be done to increase the penalties imposed
on the defendant.
So where does the notion come from that a defendant "loses all rights"
upon conviction, rather than just those rights disabled and deprived in
the sentencing order? Incompetent legal thinking, aided by the lack of
political clout by convicted felons and a general public attitude of
"let's get tough on crime", but it is unconstitutional.
So now we can see what the statute that is the subject of this case
does. It legislatively imposes a criminal penalty (although it would
make no difference if it was civil) on the class of persons convicted
(or even just indicted) of a crime, in many cases retroactively, without
prescribing it as part of what is to be imposed in the sentencing order.
Logically, that is a violation of the requirement for due process and of
the prohibitions against bills of attainder and ex post facto laws. It
makes no difference that persons convicted or indicted for a crime might
present a threat to public safety. So do law enforcement officials
There is also a fundamental constitutional problem with officials of one

sovereign imposing a penalty, either civil or criminal, based in whole
or in part on the actions of officials of another sovereign. It is a
violation of federalism and the separation of powers. Each branch and
level of government is accountable solely to its own electors, and may
not delegate authority to officials of another branch or level. In this
case, what happens if the federal government convicts and sentences
someone of the offence of carrying a firearm, on the basis of a
conviction of a felony in a state court, and then the state offense is

pardoned or overturned on appeal? It simply does not work,

constitutionally, for the decisions of a state court to determine
whether an act is a federal crime. That applies not only to state
criminal proceedings, but to things like protective orders, competency
hearings and commitment orders, indictments, arrests, issuance of
licenses or permits, or any other official action.
This case should never have made it past the grand jury. The statute,
and others like it, are unconstitutional, as are most of the precedents
that led to the decision and opinions on both sides in this case.[1]
Notes:
1. See also Caron v. United States, 524 U.S. 308 (1998) and the
commentary by Jon Roland at http://www.constitution.org/ussc/524-308jr.htm.

Brown v. Socialist Workers', 458 U.S. 87 (1982)
U.S. Supreme Court

BROWN v. SOCIALIST WORKERS '74 CAMPAIGN COMM., 459 U.S.
87 (1982)
BROWN ET AL. v. SOCIALIST WORKERS '74 CAMPAIGN COMMITTEE (OHIO) ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF OHIO
No. 81-776.
Argued October 4, 1982

Decided December 8, 1982
Held:
The disclosure provisions of the Ohio Campaign Expense Reporting Law requiring every candidate for
political office to report the names and addresses of campaign contributors and recipients of campaign
disbursements, cannot be constitutionally applied to appellee Socialist Workers Party (SWP), a minor
political party that historically has been the object of harassment by Government officials and private
parties. Pp. 91-102.
(a) The First Amendment prohibits a State from compelling disclosures by a minor political
party that will subject those persons identified to the reasonable probability of threats,
harassment, or reprisals. Buckley v. Valeo, 424 U.S. 1, 74. Moreover, minor parties must be
allowed sufficient flexibility in the proof of injury. Ibid. These principles for safeguarding
the First Amendment interests of minor parties and their members and supporters apply not
only to the compelled disclosure of campaign contributors but also to the compelled
disclosure of recipients of campaign disbursements. Pp. 91-98.
(b) Here, the District Court, in upholding appellees' challenge to the constitutionality of the
Ohio disclosure provisions, properly concluded that the evidence of private and Government
hostility toward the SWP and its members establishes a reasonable probability that
disclosing the names of contributors and recipients will subject them to threats, harassment,
and reprisals. Pp. 98-101.
Affirmed.
MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, and
POWELL, JJ., joined, and in Parts I, III, and IV of which BLACKMUN, J., joined. BLACKMUN, J., filed an
opinion concurring in part and concurring in the judgment, post, p. 102. O'CONNOR, J., filed an opinion
concurring in part and dissenting in part, in which REHNQUIST and STEVENS, JJ., joined, post, p. 107.
Gary Elson Brown, Assistant Attorney General of Ohio, argued the cause for appellants. With him on the
briefs [459 U.S. 87, 88] were William J. Brown, Attorney General, Thomas F. Staub, Assistant Attorney
General, and James R. Rishel.
Thomas D. Buckley, Jr., argued the cause for appellees. With him on the brief were Gordon J. Beggs,

Ben Sheerer, and Bruce Campbell.

JUSTICE MARSHALL delivered the opinion of the Court.
This case presents the question whether certain disclosure requirements of the Ohio Campaign Expense
Reporting Law, Ohio Rev. Code Ann. 3517.01 et seq. (1972 and Supp. 1981), can be constitutionally
applied to the Socialist Workers Party, a minor political party which historically has been the object of
harassment by government officials and private parties. The Ohio statute requires every political party to
report the names and addresses of campaign contributors and recipients of campaign disbursements. In
Buckley v. Valeo, 424 U.S. 1 (1976), this Court held that the First Amendment prohibits the government
from compelling disclosures by a minor political party that can show a "reasonable probability" that the
compelled disclosures will subject those identified to "threats, harassment, or reprisals." Id., at 74.
Employing this test, a three-judge District Court for the Southern District of Ohio held that the Ohio
statute is unconstitutional as applied to the Socialist Workers Party. We affirm.
I
The Socialist Workers Party (SWP) is a small political party with approximately 60 members in the State
of Ohio. The Party states in its constitution that its aim is "the abolition of capitalism and the
establishment of a workers' government to achieve socialism." As the District Court found, the SWP does
not advocate the use of violence. It seeks instead to achieve social change through the political process,
and its members regularly run for public office. The SWP's candidates have had little success at the polls.
In 1980, for example the Ohio SWP's candidate for the United States Senate received fewer than 77,000
votes, less than 1.9% of the total [459 U.S. 87, 89] vote. Campaign contributions and expenditures in Ohio
have averaged about $15,000 annually since 1974.
In 1974 appellees instituted a class action[1] in the District Court for the Northern District of Ohio
challenging the constitutionality of the disclosure provisions of the Ohio Campaign Expense Reporting
Law. The Ohio statute requires every candidate for political office to file a statement identifying each
contributor and each recipient of a disbursement of campaign funds. 3517.10.[2] The "object or
purpose"[3] [459 U.S. 87, 90] of each disbursement must also be disclosed. The lists of names and
addresses of contributors and recipients are open to public inspection for at least six years. Violations of
the disclosure requirements are punishable by fines of up to $1,000 for each day of violation. 3517.99.
On November 6, 1974, the District Court for the Northern District of Ohio entered a temporary
restraining order barring the enforcement of the disclosure requirements against the class pending a
determination of the merits.[4] The case was then transferred to the District Court for the Southern
District of Ohio, which entered an identical temporary restraining order in February 1975.[5]
Accordingly, since 1974 [459 U.S. 87, 91] appellees have not disclosed the names of contributors and
recipients but have otherwise complied with the statute. A three-judge District Court was convened
pursuant to 28 U.S.C. 2281. Following extensive discovery, the trial was held in February 1981. After
reviewing the "substantial evidence of both governmental and private hostility toward and harassment of
SWP members and supporters," the three-judge court concluded that under Buckley v. Valeo, 424 U.S. 1
(1976), the Ohio disclosure requirements are unconstitutional as applied to appellees.[6] We noted
probable jurisdiction. 454 U.S. 1122 (1981).

II
The Constitution protects against the compelled disclosure of political associations and beliefs. Such
disclosures "can seriously infringe on privacy of association and belief guaranteed by the First
Amendment." Buckley v. Valeo, supra, at 64, citing Gibson v. Florida Legislative Comm., 372 U.S. 539
(1963); NAACP v. Button, 371 U.S. 415 (1963); Shelton v. Tucker, 364 U.S. 479 (1960); Bates v. Little
Rock, 361 U.S. 516 (1960); NAACP v. Alabama, 357 U.S. 449 (1958). "Inviolability of privacy in group
association may in many circumstances be indispensable to preservation of freedom of association,
particularly where a group espouses dissident beliefs." NAACP v. Alabama, supra, at 462. The right to
privacy in one's political associations and beliefs will yield [459 U.S. 87, 92] only to a "`subordinating
interest of the State [that is] compelling,'" NAACP v. Alabama, supra, at 463 (quoting Sweezy v. New
Hampshire, 354 U.S. 234, 265 (1957) (opinion concurring in result)), and then only if there is a
"substantial relation between the information sought and [an] overriding and compelling state interest."
Gibson v. Florida Legislative Comm., supra, at 546.
In Buckley v. Valeo this Court upheld against a First Amendment challenge the reporting and disclosure
requirements imposed on political parties by the Federal Election Campaign Act of 1971. 2 U.S.C. 431 et
seq. 424 U.S., at 60 -74. The Court found three government interests sufficient in general to justify
requiring disclosure of information concerning campaign contributions and expenditures:[7] enhancement
of voters' knowledge about a candidate's possible allegiances and interests, deterrence of corruption, and
the enforcement of contribution limitations.[8] The Court stressed, however, that in certain circumstances
the balance of interests requires exempting minor political parties from compelled disclosures. The
government's interests in compelling disclosures are "diminished" in the case of minor parties. Id., at 70.
Minor party candidates "usually represent definite and publicized viewpoints" well known to the public,
and the improbability of their winning reduces the dangers of corruption and vote-buying. Ibid. At the
same time, the potential for impairing First Amendment interests is substantially greater: [459 U.S. 87, 93]
"We are not unmindful that the damage done by disclosure to the associational interests of
the minor parties and their members and to supporters of independents could be significant.
These movements are less likely to have a sound financial base and thus are more vulnerable
to falloffs in contributions. In some instances fears of reprisal may deter contributions to the
point where the movement cannot survive. The public interest also suffers if that result
comes to pass, for there is a consequent reduction in the free circulation of ideas both within
and without the political arena." Id., at 71 (footnotes omitted).
We concluded that in some circumstances the diminished government interests furthered by compelling
disclosures by minor parties does not justify the greater threat to First Amendment values.
Buckley v. Valeo set forth the following test for determining when the First Amendment requires
exempting minor parties from compelled disclosures:
"The evidence offered need show only a reasonable probability that the compelled
disclosure of a party's contributors' names will subject them to threats, harassment, or
reprisals from either Government officials or private parties." Id., at 74.
The Court acknowledged that "unduly strict requirements of proof could impose a heavy burden" on
minor parties. Ibid. Accordingly, the Court emphasized that "[m]inor parties must be allowed sufficient

flexibility in the proof of injury." Ibid.

"The proof may include, for example, specific evidence of past or present harassment of
members due to their associational ties, or of harassment directed against the organization
itself. A pattern of threats or specific manifestations of public hostility may be sufficient.
New parties that have no history upon which to draw may be [459 U.S. 87, 94] able to offer
evidence of reprisals and threats directed against individuals or organizations holding
similar views." Ibid.
Appellants concede that the Buckley test for exempting minor parties governs the disclosure of the
names of contributors, but they contend that the test has no application to the compelled disclosure of
names of recipients of campaign disbursements.[9] Appellants assert that the State has a substantial
interest in preventing the misuse of campaign funds.[10] They also argue that the disclosure of the names
of [459 U.S. 87, 95] recipients of campaign funds will have no significant impact on First Amendment
rights, because, unlike a contribution, the mere receipt of money for commercial services does not
affirmatively express political support.
We reject appellants' unduly narrow view of the minor-party exemption recognized in Buckley.
Appellants' attempt to limit the exemption to laws requiring disclosure of contributors is inconsistent
with the rationale for the exemption stated in Buckley. The Court concluded that the government
interests supporting disclosure are weaker in the case of minor parties, while the threat to First
Amendment values is greater. Both of these considerations apply not only to the disclosure of campaign
contributors but also to the disclosure of recipients of campaign disbursements.
Although appellants contend that requiring disclosure of recipients of disbursements is necessary to
prevent corruption, this Court recognized in Buckley that this concededly legitimate government interest
has less force in the context of minor parties. The federal law considered in Buckley, like the Ohio law at
issue here, required campaign committees to identify both campaign contributors and recipients of
campaign disbursements. 2 U.S.C. 432(c) and (d), and 434(a) and (b). We stated that "by exposing large
contributions and expenditures to the light of publicity," disclosure requirements "ten[d] to `prevent the
corrupt use of money to affect elections.'" Id., at 67 (emphasis added), quoting Burroughs v. United
States, 290 U.S. 534, 548 (1934). We concluded, however, that because minor party candidates are
unlikely to win elections, the government's general interest in "deterring the `buying' of elections" is
"reduced" in the case of minor parties. 424 U.S., at 70.[11] [459 U.S. 87, 96]
Moreover, appellants seriously understate the threat to First Amendment rights that would result from
requiring minor parties to disclose the recipients of campaign disbursements. [459 U.S. 87, 97]
Expenditures by a political party often consist of reimbursements, advances, or wages paid to party
members, campaign workers, and supporters, whose activities lie at the very core of the First
Amendment.[12] Disbursements may also go to persons who choose to express their support for an
unpopular cause by providing services rendered scarce by public hostility and suspicion.[13] Should their
involvement be publicized, these persons would be as vulnerable to threats, harassment, and reprisals as
are contributors whose connection with the party is solely financial.[14] Even individuals [459 U.S. 87, 98]
who receive disbursements for "merely" commercial transactions may be deterred by the public enmity
attending publicity, and those seeking to harass may disrupt commercial activities on the basis of
expenditure information.[15] Because an individual who enters into a transaction with a minor party
purely for commercial reasons lacks any ideological commitment to the party, such an individual may

well be deterred from providing services by even a small risk of harassment.[16] Compelled disclosure of
the names of such recipients of expenditures could therefore cripple a minor party's ability to operate
effectively and thereby reduce "the free circulation of ideas both within and without the political arena."
Buckley, 424 U.S., at 71 (footnotes omitted). See Sweezy v. New Hampshire, 354 U.S., at 250-251
(plurality opinion) ("Any interference with the freedom of a party is simultaneously an interference with
the freedom of its adherents").
We hold, therefore, that the test announced in Buckley for safeguarding the First Amendment interests of
minor parties and their members and supporters applies not only to the compelled disclosure of campaign
contributors but also to the compelled disclosure of recipients of campaign disbursements.
III
The District Court properly applied the Buckley test to the facts of this case. The District Court found
"substantial evidence [459 U.S. 87, 99] of both governmental and private hostility toward and harassment
of SWP members and supporters." Appellees introduced proof of specific incidents of private and
government hostility toward the SWP and its members within the four years preceding the trial. These
incidents, many of which occurred in Ohio and neighboring States, included threatening phone calls and
hate mail, the burning of SWP literature, the destruction of SWP members' property, police harassment
of a party candidate, and the firing of shots at an SWP office. There was also evidence that in the
12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party
membership. Although appellants contend that two of the Ohio firings were not politically motivated, the
evidence amply supports the District Court's conclusion that "private hostility and harassment toward
SWP members make it difficult for them to maintain employment."
The District Court also found a past history of Government harassment of the SWP. FBI surveillance of
the SWP was "massive" and continued until at least 1976. The FBI also conducted a counterintelligence
program against the SWP and the Young Socialist Alliance (YSA), the SWP's youth organization. One of
the aims of the "SWP Disruption Program" was the dissemination of information designed to impair the
ability of the SWP and YSA to function. This program included "disclosing to the press the criminal
records of SWP candidates, and sending anonymous letters to SWP members, supporters, spouses, and
employers."[17] Until at least 1976, the FBI employed various covert techniques to [459 U.S. 87, 100]
obtain information about the SWP, including information concerning the sources of its funds and the
nature of its expenditures. The District Court specifically found that the FBI had conducted surveillance
of the Ohio SWP and had interfered with its activities within the State.[18] Government surveillance was
not limited to the FBI. The United States Civil Service Commission also gathered information on the
SWP, the YSA, and their supporters, and the FBI routinely distributed its reports to Army, Navy and Air
Force Intelligence, the United States Secret Service, and the Immigration and Naturalization Service.
The District Court properly concluded that the evidence of private and Government hostility toward the
SWP and its members establishes a reasonable probability that disclosing the names of contributors and
recipients will subject them to threats, harassment, and reprisals.[19] There were numerous instances of
recent harassment of the SWP both in Ohio and [459 U.S. 87, 101] in other States.20 There was also
considerable evidence of past Government harassment. Appellants challenge the relevance of this
evidence of Government harassment in light of recent efforts to curb official misconduct.
Notwithstanding these efforts, the evidence suggests that hostility toward the SWP is ingrained and likely

to continue. All this evidence was properly relied on by the District Court. Buckley, 424 U.S., at 74.
IV
The First Amendment prohibits a State from compelling disclosures by a minor party that will subject
those persons identified to the reasonable probability of threats, harassment, or reprisals. Such
disclosures would infringe the [459 U.S. 87, 102] First Amendment rights of the party and its members and
supporters. In light of the substantial evidence of past and present hostility from private persons and
Government officials against the SWP, Ohio's campaign disclosure requirements cannot be
constitutionally applied to the Ohio SWP.
The judgment of the three-judge District Court for the Southern District of Ohio is affirmed.
It is so ordered.
Footnotes
[1] The plaintiff class as eventually certified includes all SWP candidates for political office in Ohio,
their campaign committees and treasurers, and people who contribute to or receive disbursements from
SWP campaign committees. The defendants are the Ohio Secretary of State and other state and local
officials who administer the disclosure law.
[2] Section 3517.10 provides in relevant part:
"(A) Every campaign committee, political committee, and political party which made or received a
contribution or made an expenditure in connection with the nomination or election of any candidate at
any election held in this state shall file, on a form prescribed under this section, a full, true, and itemized
statement, made under penalty of election falsification, setting forth in detail the contributions and
expenditures ...
"(B) Each statement required by division (A) of this section shall contain the following information: ...
"(4) A statement of contributions made or received, which shall include:
"(a) The month, day, and year of the contribution;
"(b) The full name and address of each person, including any chairman or treasurer thereof
if other than an individual, from whom contributions are received. The requirement of filing
the full address does not apply to any statement filed by a state or local committee of a
political party, to a finance committee of such committee, or to a committee recognized by a
state or local committee as its fund-raising auxiliary.
"(c) A description of the contribution received, if other than money;
"(d) The value in dollars and cents of the contribution;
"(e) All contributions and expenditures shall be itemized separately regardless of the amount
except a receipt of a contribution from a person in the sum of twenty-five dollars or less at
one social or fund-raising activity. An account of the total contributions from each such
social or fund-raising activity shall be listed separately, together with the expenses incurred
and [459 U.S. 87, 90] paid in connection with such activity. No continuing association which
makes a contribution from funds which are derived solely from regular dues paid by
members of the association shall be required to list the name or address of any members

who paid such dues.

"(5) A statement of expenditures which shall include:
"(a) The month, day, and year of expenditure;
"(b) The full name and address of each person to whom the expenditure was made,
including any chairman or treasurer thereof if a committee, association, or group of persons;
"(c) The object or purpose for which the expenditure was made;
"(d) The amount of each expenditure.
"(C) ...
"... All such statements shall be open to public inspection in the office where they are filed, and
shall be carefully preserved for a period of at least six years."
If the candidate is running for a statewide office, the statement shall be filed with the Ohio Secretary of
State; otherwise, the statement shall be filed with the appropriate county board of elections. 3517.11 (A).
[3] 3517.10(B)(5)(c).
[4] The order restrained various state officials from "applying to or enforcing against plaintiffs ... the
disclosure provisions of the Ohio Campaign Expense Reporting Law and the penalty provision of that
law, the effect of which will be to postpone the beginning of any possible period of violation of that law
by plaintiffs, ... until such time as the case is decided by the three judge panel, which is hereby
convened." (Citations omitted.)
[5] Apparently none of the parties throughout the 6-year period questioned whether the extended duration
of the temporary restraining order [459 U.S. 87, 91] conformed to the requirements of Rule 65(b) of the
Federal Rules of Civil Procedure.
[6] Because it invalidated the Ohio statute as applied to the Ohio SWP, the District Court did not decide
appellees' claim that the statute was facially invalid. The Ohio statute requires disclosure of contributions
and expenditures no matter how small the amount. Ohio Rev. Code Ann. 3517.10(B)(4)(e) (Supp. 1981).
Appellees contended that the absence of a monetary threshold rendered the statute facially invalid since
the compelled disclosure of nominal contributions and expenditures lacks a substantial nexus with any
claimed government interest. See Buckley v. Valeo, 424 U.S., at 82 -84.
The District Court's opinion is unreported.
[7] Title 2 U.S.C. 432, 434, and 438 (1976 ed., Supp. V) require each political committee to keep
detailed records of both contributions and expenditures, including the names of campaign contributors
and recipients of campaign disbursements, and to file reports with the Federal Election Commission
which are made available to the public.
[8] The government interest in enforcing limitations is completely inapplicable in this case, since the
Ohio law imposes no limitations on the amount of campaign contributions.
[9] We believe that the question whether the Buckley test applies to the compelled disclosure of
recipients of expenditures is properly before us. Throughout this litigation Ohio has maintained that it
can constitutionally require the SWP to disclose the names of both campaign contributors and recipients
of campaign expenditures. In invalidating both aspects of the Ohio statute as applied to the SWP, the

District Court necessarily held (1) that the Buckley standard, which permits flexible proof of the
reasonable probability of threats, harassment, or reprisals, applies to both contributions and expenditures,
and (2) that the evidence was sufficient to show a reasonable probability that disclosure would subject
both contributors and recipients to public hostility and harassment. In their jurisdictional statement,
appellants appealed from the entire judgment entered below and presented the following question for
review:
"Whether, under the standards set forth by this Court in Buckley v. Valeo, 424 U.S. 1
(1976), the provisions of Sections 3517.10 and 3517.11 of the Ohio Revised Code, which
require that the campaign committee of a candidate for public office file a report disclosing
the full names and addresses of persons making contributions to or receiving expenditures
from such committee, are consistent with the right of privacy of association guaranteed by
the First and Fourteenth Amendments of the Constitution of the United States when applied
to the committees of candidates of a minority party which can establish only isolated
instances of harassment directed toward the organization or its members within Ohio during
recent years." Juris. Statement i.
We think that the correctness of both holdings of the District Court is "fairly included" in the question
presented in the jurisdictional statement. This Court's Rule 15.1(a). See Procunier v. Navarette, 434 U.S.
555, 559 , n. 6 (1978) ("[O]ur power to decide is not limited by the precise terms of the question
presented").
[10] This is one of three government interests identified in Buckley. Appellants do not contend that the
other two interests, enhancing voters' ability [459 U.S. 87, 95] to evaluate candidates and enforcing
contribution limitations, support the disclosure of the names of recipients of campaign disbursements.
[11] The partial dissent suggests that the government interest in the disclosure of recipients of
expenditures is not significantly diminished in the case of minor political parties, since parties with little
likelihood of electoral success might nevertheless finance improper campaign activities merely to [459
U.S. 87, 96] gain recognition. Post, at 109-110. The partial dissent relies of JUSTICE WHITE's separate
opinion in Buckley, in which he pointed out that "unlimited money tempts people to spend it on whatever
money can buy to influence an election." 424 U.S., at 265 (emphasis in original).
An examination of the context in which JUSTICE WHITE made this observation indicates precisely why
the state interest here is insubstantial. JUSTICE WHITE was addressing the constitutionality of ceilings on
campaign expenditures applicable to all candidates. His point was that such ceilings "could play a
substantial role in preventing unethical practices." Ibid. In the case of minor parties, however, their
limited financial resources serve as a built-in expenditure ceiling which minimizes the likelihood that
they will expend substantial amounts of money to finance improper campaign activities. See id., at 71.
For example, far from having "unlimited money," the Ohio SWP has had an average of roughly $15,000
available each year to spend on its election efforts. Most of the limited resources of minor parties will
typically be needed to pay for the ordinary fixed costs of conducting campaigns, such as filing fees,
travel expenses, and the expenses incurred in publishing and distributing campaign literature and
maintaining offices. Thus JUSTICE WHITE's observation that "financing illegal activities is low on the
campaign organization's priority list," id., at 265, is particularly apposite in the case of minor parties. We
cannot agree, therefore, that minor parties are as likely as major parties to make significant expenditures
in funding dirty tricks or other improper campaign activities. See post, at 110. Moreover, the expenditure

by minor parties of even a substantial portion of their limited funds on illegal activities would be unlikely
to have a substantial impact.
Furthermore, the mere possibility that minor parties will resort to corrupt or unfair tactics cannot justify
the substantial infringement on First Amendment interests that would result from compelling the
disclosure of recipients of expenditures. In Buckley, we acknowledged the possibility that supporters of a
major party candidate might channel money into minor parties to divert votes from other major party
contenders, 424 U.S., at 70 , and that, as noted by the partial dissent, post, at 110, and n. 5, occasionally
minor parties may affect the outcomes of elections. We thus recognized that the distorting influence of
large contributors on elections may not be entirely absent in the context of minor parties. Nevertheless,
because we concluded that the government interest in disclosing contributors is substantially reduced in
the case of minor parties, we held that minor parties [459 U.S. 87, 97] are entitled to an exemption from
requirements that contributors be disclosed where they can show a reasonable probability of harassment.
424 U.S., at 70 . Because we similarly conclude that the government interest in requiring the disclosure
of recipients of expenditures is substantially reduced in the case of minor parties, we hold that the
minor-party exemption recognized in Buckley applies to compelled disclosure of expenditures as well.
[12] For example, the expenditure statements filed by the SWP contain a substantial percentage of entries
designated as per diem, travel expenses, room rental, and so on. The Ohio statute makes it particularly
easy to identify these individuals since it requires disclosure of the purpose of the disbursements as well
as the identity of the recipients. Ohio Rev. Code Ann. 3517.10(B)(5)(c) (Supp. 1981).
[13] "`[F]inancial transactions can reveal much about a person's activities, associations, and beliefs.'"
Buckley v. Valeo, 424 U.S., at 66 , quoting California Bankers Assn. v. Shultz, 416 U.S. 21, 78 -79
(1974) (POWELL, J., concurring). The District Court found that the Federal Bureau of Investigation (FBI)
at least until 1976 routinely investigated the financial transactions of the SWP and kept track of the
payees of SWP checks.
[14] The fact that some or even many recipients of campaign expenditures may not be exposed to the risk
of public hostility does not detract from the serious threat to the exercise of First Amendment rights of
those who are so exposed. We cannot agree with the partial dissent's assertion that disclosures of
disbursements paid to campaign workers and supporters will not increase the probability that they will be
subjected to harassment and hostility. Post, at 111-112. Apart from the fact that individuals may work for
a candidate in a variety of ways without publicizing their involvement, the application of a disclosure
requirement results in a dramatic increase in public exposure. Under Ohio law a person's affiliation with
the party will be recorded in a document that must be kept open to inspection [459 U.S. 87, 98] by any one
who wishes to examine it for a period of at least six years. Ohio Rev. Code Ann. 3517.10(C) (Supp.
1981). The preservation of unorthodox political affiliations in public records substantially increases the
potential for harassment above and beyond the risk that an individual faces simply as a result of having
worked for an unpopular party at one time.
[15] See, e. g., Socialist Workers Party v. Attorney General, 458 F. Supp. 895, 904 (SDNY 1978) (FBI
interference with SWP travel arrangements and speaker hall rental), vacated on other grounds, 596 F.2d
58 (CA2), cert. denied, 444 U.S. 903 (1979).
[16] Moreover, it would be hard to think of many instances in which the state interest in preventing
vote-buying and improper campaign activities [459 U.S. 87, 99] would be furthered by the disclosure of

payments for routine commercial services.

[17] The District Court was quoting from Part I of the Final Report of Special Master Judge Breitel in
Socialist Workers Party v. Attorney General of the United States, 73 Civ. 3160 (TPG) (SNDY, Feb. 4,
1980), detailing the United States Government's admissions concerning the existence and nature of the
Government surveillance of the SWP.
[18] The District Court also found the following:
"The Government possesses about 8,000,000 documents relating to the SWP, YSA ... and
their members... . Since 1960 the FBI has had about 300 informants who were members of
the SWP and/or YSA and 1,000 nonmember informants. Both the Cleveland and Cincinnati
FBI filed offices had one or more SWP or YSA member informants. Approximately 21 of
the SWP member informants held local branch offices. Three informants even ran for
elective office as SWP candidates. The 18 informants whose files were disclosed to Judge
Breitel received total payments of $358,648.38 for their services and expenses." (Footnotes
omitted.)
[19] After reviewing the evidence and the applicable law, the District Court concluded: "[T]he totality of
the circumstances establishes that, in Ohio, public disclosure that a person is a member of or has made a
contribution to the SWP would create a reasonable probability that he or she would be subjected to
threats, harassment or reprisals." The District Court then enjoined the compelled disclosures of either
contributors' or recipients' names. Although the District Court did not expressly refer in the quoted
passage to disclosure of the names of recipients of campaign disbursements, it is evident from the
opinion that the District Court was addressing both contributors and recipients.
[20] Some of the recent episodes of threats, harassment, and reprisals against the SWP and its members
occurred outside of Ohio. Anti-SWP occurrences in places such as Chicago (SWP office vandalized) and
Pittsburgh (shot fired at SWP building) are certainly relevant to the determination of the public's attitude
toward the SWP in Ohio. In Buckley we stated that "[n]ew parties that have no history upon which to
draw may ... offer evidence of reprisals and threats directed against individuals or organizations holding
similar views." 424 U.S., at 74 . Surely the Ohio SWP may offer evidence of the experiences of other
chapters espousing the same political philosophy. See 1980 Illinois Socialist Workers Campaign v. State
of Illinois Board of Elections, 531 F. Supp. 915, 921 (ND Ill. 1981).
Appellants point to the lack of direct evidence linking the Ohio statute's disclosure requirements to the
harassment of campaign contributors or recipients of disbursements. In Buckley, however, we rejected
such "unduly strict requirements of proof" in favor of "flexibility in the proof of injury." 424 U.S., at 74 .
We thus rejected requiring a minor party to "come forward with witnesses who are too fearful to
contribute but not too fearful to testify about their fear" or prove that "chill and harassment [are] directly
attributable to the specific disclosure from which the exemption is sought." Ibd. We think that these
considerations are equally applicable to the proof required to establish a reasonable probability that
recipients will be subjected to threats and harassment if their names are disclosed. While the partial
dissent appears to agree, post, at 112-113, n. 7, its "separately focused inquiry," post, at 112, and n. 7, in
reality requires evidence of chill and harassment directly attributable to the expenditure-disclosure
requirement.
JUSTICE BLACKMUN, concurring in part and concurring in the judgment.

I join Parts I, III, and IV of the Court's opinion and agree with much of what is said in Part II. But I
cannot agree, with the Court or with the partial dissent, that we should reach the issue whether a standard
of proof different from that applied to disclosure of campaign contributions should be applied to
disclosure of campaign disbursements. See ante, at 94, n. 9; post, at 112-113, n. 7.[1] Appellants did not
suggest in the District Court that different standards might apply. Nor was the issue raised in appellants'
jurisdictional statement or in their brief on the merits in this Court. Consequently, I would merely assume
for purposes of our present decision - as appellants apparently have assumed throughout this litigation
and as the District Court clearly assumed – that the flexible proof rule of Buckley v. Valeo, 424 U.S. 1
(1976), applies equally to forced disclosure of contributions and to forced disclosure of expenditures. I
would leave for another day, when the issue is squarely presented, considered by the courts below, and
adequately briefed here, the significant question that now divides the Court.
This Court's Rule 15.1(a) states: "Only the questions set forth in the jurisdictional statement or fairly
included therein [459 U.S. 87, 103] will be considered by the Court." Appellants' jurisdictional statement
presented a single question:
"Whether, under the standards set forth by this Court in Buckley v. Valeo, 424 U.S. 1
(1976), the provisions of Sections 3517.10 and 3517.11 of the Ohio Revised Code, which
require that the campaign committee of a candidate for public office file a report disclosing
the full names and addresses of persons making contributions to or receiving expenditures
from such committee, are consistent with the right of privacy of association guaranteed by
the First and Fourteenth Amendments of the Constitution of the United States when applied
to the committees of candidates of a minority party which can establish only isolated
instances of harassment directed toward the organization or its members within Ohio during
recent years." Juris. Statement i.
The question assumes the applicability of Buckley to the entire case, and asks this Court to decide only
whether the evidence presented to and facts found by the District Court were sufficient to support that
court's conclusion that the Buckley test was satisfied.
Absent extraordinary circumstances, this Court does not decide issues beyond those it has agreed to
review. Mayor v. Educational Equality League, 415 U.S. 605, 623 (1974); United States v. Bass, 404
U.S. 336, 339, n. 4 (1971); General Talking Pictures Co. v. Western Electric Co., 304 U.S. 175, 178-179
(1938). According to the Court, however, the issue whether the flexible standard of proof established in
Buckley applies to recipients of expenditures is "fairly included' in the question presented." Ante, at 94,
n. 9. But appellants' failure to present the issue was not a mere oversight in phrasing that question. That
appellants did not invoke this Court's jurisdiction to review specifically the proper standard for disclosure
of campaign expenditures is also apparent from appellants' arguments in their jurisdictional statement
and their brief on the merits. In their jurisdictional [459 U.S. 87, 104] statement, under the heading "The
Question is Substantial," appellants stated:
"The standards governing the resolution of actions involving challenges to reporting
requirements by minority parties were set forth by this Court in the case of Buckley v.
Valeo, 424 U.S. 1 (1976). In Buckley the Court held that in order to receive relief from
reporting requirements such as those at issue in this action a minority party must establish
`... a reasonable probability that the compelled disclosure of a party's contributors' names

will subject them to threats, harassment or reprisals from either Government officials or
private parties.' 424 U.S. at 74." Juris. Statement 10.
Appellants went on to state that the flexible standard of proof of injury established in Buckley applied to
"disclosure requirements." Juris. Statement 12-13. Similar assertions are found in appellants' brief on the
merits. See Brief for Appellants 12 ("Summary of Argument"); id., at 18 ("While refusing to grant
minority parties a blanket exemption from financial disclosure requirements, the Court in Buckley
established a standard under which they may obtain relief ...").
Thus, appellants' exclusive theme in the initial presentation of their case here was that the District Court
erred in finding that the Buckley standard was satisfied. They did not suggest that the standard was
inapplicable, or applied differently, to campaign expenditure requirements. It was not until their reply
brief, submitted eight years after this suit was instituted and at a time when appellees had no opportunity
to respond in writing, that appellants sought to inject this new issue into the case. See Irvine v.
California, 347 U.S. 128, 129 (1954) (plurality opinion of Jackson, J.). In my view, it simply cannot be
said that it was "fairly included" in the jurisdictional statement.
Moreover, "[w]here issues are neither raised before nor considered [by the court below], this Court will
not ordinarily [459 U.S. 87, 105] consider them." Adickes v. S. H. Kress & Co., 398 U.S. 144, 147, n. 2
(1970); Lawn v. United States, 355 U.S. 339, 362-363, n. 16 (1958). The District Court did not address
the question whether some standard other than that developed in Buckley should apply to disclosure of
campaign expenditures. The reason for this was that appellants conceded in the District Court, as they
concede here, that the "flexibility in the proof of injury" applicable to disclosure of contributors governed
the entire case. In their post-trial memorandum, for example, appellants did not even hint that a different
standard should govern disclosure of the identities of recipients of expenditures. Instead, they quoted the
Buckley test and granted that "evidence of past harassment may be presented by plaintiffs in cases such
as the instant one." Defendants' Post-Trial Memorandum 4-5.
This case presents no extraordinary circumstances justifying deviation from this Court's Rule 15.1(a) and
its long-established practice respecting issues not presented below. We have deviated from the Rule
when jurisdictional issues have been omitted by the parties and lower courts, see, e. g., United States v.
Storer Broadcasting Co., 351 U.S. 192, 197 (1956), or when the Court has noticed "plain error" not
assigned, see Carpenters v. United States, 330 U.S. 395, 412 (1947). Obviously, the issue that divides the
Court from the partial dissent is not jurisdictional. Nor, as the Court's opinion persuasively demonstrates,
is application of the Buckley test to disclosure of campaign disbursements "plain error." Indeed, I
consider it quite possible that, after full consideration, the Court would adopt the Buckley standard in this
context for the reasons stated by the Court. I also consider it quite possible that, after full consideration,
the Court might wish to revise the Buckley standard as applied to campaign disbursements – perhaps to
take account of the different types of expenditures covered and their differing impacts on associational
rights, or perhaps along the lines suggested in the partial dissent. But this significant constitutional [459
U.S. 87, 106] decision should not be made until the question is properly presented so that the record
includes data and arguments adequate to inform the Court's judgment.
The Court's apparent reliance on Procunier v. Navarette, 434 U.S. 555, 560 , n. 6 (1978), does not
provide a rationale for deciding this issue at this time. The petitioner there had included in his petition for
certiorari all the questions we eventually decided. Notwithstanding the fact that the Court limited its
grant of the petition to a single question, the parties fully briefed the questions on which review had been

denied. Deciding those questions, therefore, was neither unwise nor unfair. In this case, in contrast,
appellants affirmatively excluded the point at issue in their jurisdictional statement and in their brief on
the merits. By failing to raise it until their reply brief, appellants prevented appellees from responding to
the argument in writing. There can be no question that, as the Court observes, "òur power to decide is
not limited by the precise terms of the question presented.'" Ante, at 94, n. 9 (quoting Procunier v.
Navarette, 434 U.S., at 560 , n. 6) (emphasis supplied). But Rule 15.1(a) is designed, as a prudential
matter, to prevent the possibility that such tactics will result in ill-considered decisions. It is cases like
this one that show the wisdom of the Rule.
Thus, for purposes of this case, I would assume, as appellants' jurisdictional statement and brief on the
merits assume, that the Buckley standard applies to campaign expenditures just as it applies to
contributions.[2] Appellees [459 U.S. 87, 107] presented "specific evidence of past or present harassment of
members due to their associational ties, or of harassment directed against the organization itself,"
sufficient under the rule in Buckley to establish a "reasonable probability" that the Ohio law would
trigger "threats, harassment, or reprisals" against contributors. 424 U.S., at 74 . On this basis, I would
affirm the judgment of the District Court in its entirety.
Footnotes
[1] Although the partial dissent agrees that this issue is not properly presented and therefore that the
question should not be decided, post, at 112, n. 7, its result and reasoning endorse a different standard of
proof. See n. 2, infra.
[2] The partial dissent says it agrees that "this is not the appropriate case to determine whether a different
test or standard of proof should be employed in determining the constitutional validity of required
disclosure of expenditures." Post, at 112, n. 7. If that is so, however, appellees' proof, which the partial
dissent agrees established a reasonable probability of threats, harassment, or reprisals against
contributors, likewise allowed the District Court to find a reasonable probability of threats, harassment,
or reprisals against recipients of expenditures. The Buckley standard permits proof that a particular
disclosure creates the requisite likelihood of harassment to be based on a showing of harassment directed
at members of [459 U.S. 87, 107] the party or at the organization itself. 424 U.S., at 74 . Thus, I do not
understand how the partial dissent's "separately focused inquiry" can "plainly require a different result,"
post, at 113, n. 7, or how it possibly can lead to the conclusion that "appellees did not carry their burden
of production and persuasion insofar as they challenge the expenditure disclosure provisions," post, at
115 – unless, despite the partial dissent's uncertain disclaimer, post, at 113, n. 7, its "separate focus"
alters Buckley's "reasonable probability" and "flexible proof" standards in the context of expenditures.
JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join, concurring in part
and dissenting in part.
I concur in the judgment that the Socialist Workers Party (SWP) has sufficiently demonstrated a
reasonable probability that disclosure of contributors will subject those persons to threats, harassment, or
reprisals, and thus under Buckley v. Valeo, 424 U.S. 1 (1976), the State of Ohio cannot constitutionally
compel the disclosure. Further, I agree that the broad concerns of Buckley apply to the required
disclosure of recipients of campaign expenditures. But, as I view the record presented here, the SWP has
failed to carry its burden of showing that there is a reasonable probability that disclosure of recipients of

expenditures will subject the recipients themselves or the SWP to threats, harassment, or reprisals.
Moreover, the strong public interest in fair and honest elections outweighs any damage done to the
associational rights of the party and its members by application of the State's expenditure disclosure law.
[459 U.S. 87, 108]
Buckley upheld the validity of the Federal Election Campaign Act of 1971, which requires the disclosure
of names of both contributors to a campaign and recipients of expenditures from the campaign. Buckley
recognized three major governmental interests in disclosure requirements: deterrence of corruption;
enhancement of voters' knowledge about a candidate's possible allegiances and interests; and provision of
the data and means necessary to detect violations of any statutory limitations on contributions or
expenditures. The precise challenge that the Buckley Court faced, however, was the overbreadth of the
Act's requirements "insofar as they apply to contributions to minor parties and independent candidates."
Id., at 68-69 (emphasis added).1 Since the appellants in Buckley did not challenge the application to
minor parties of requirements of disclosure of expenditures, the Court had no occasion to consider
directly the First Amendment interests of a minor political party in preventing disclosure of expenditures,
much less to weigh them against the governmental interests in disclosure. The test adopted by Buckley,
quoted by the majority, ante, at 93, reflects this limitation, for it contemplates only assessing possible
harassment of contributors, without a word about considering the harassment of recipients of
expenditures if their names are disclosed or any effects this harassment may have on the party.
This is not to say that Buckley provides no guidance for resolving this claim. I agree with the majority
that appellants [459 U.S. 87, 109] have overstated their argument in declaring that Buckley has no
application to the disclosure of recipients of expenditures. Certainly, Buckley enunciates the general
governmental interest in regulating minor parties, who, although unlikely to win, can often affect the
outcome of an election. 424 U.S., at 70 . Buckley also emphasizes the sensitive associational rights of
minor parties.
Nevertheless, there are important differences between disclosure of contributors and disclosure of
recipients of campaign expenditures - differences that the Buckley Court had no occasion to address, but
that compel me to conclude that the balance should not necessarily be calibrated identically. First, unlike
the government's interest in disclosure of contributions, its interest in disclosure of expenditures does not
decrease significantly for small parties. The Court in Buckley recognized that knowing the identity of
contributors would not significantly increase the voters' ability to determine the political ideology of the
minor-party candidate, for the stance of the minor-party candidate is usually well known. Ibid.[2] Nor
would identifying a minor party's contributors further the interest in preventing the "buying" of a
candidate, because of the improbability of the minor-party candidate's winning the election. Ibid. Thus,
these two major government interests in disclosure of contributions are significantly reduced for minor
parties.[3]
In sharp contrast, however, the governmental interest in disclosure of expenditures remains significant
for minor parties. The purpose of requiring parties to disclose expenditures is to deter improper
influencing of voters. Corruption [459 U.S. 87, 110] of the electoral process can take many forms: the
actual buying of votes; the use of "slush funds;" dirty tricks; and bribes of poll watches and other election
officials. Certainly, a "persuasive" campaign worker on election day can corral voters for his minor-party
candidate with even a modest "slush fund."[4] Even though such improper practices are unlikely to be so
successful as to attract enough votes to elect the minor-party candidate, a minor party, whose short-term
goal is merely recognition, may be as tempted to resort to impressible methods as are major parties, and

the resulting deflection of votes can determine the outcome of the election of other candidates.[5] The
requirement of a full and verifiable report of expenditures is important in deterring such practices, for
otherwise the party could hide the improper transactions through an accounting sleight of hand.[6]
On the other side of the balance, disclosure of recipients of expenditures will have a lesser impact on a
minority party's First Amendment interests than will disclosure of contributors. [459 U.S. 87, 111] As the
majority states, ante, at 91, the First Amendment interest here is "[t]he right to privacy in one's political
associations and beliefs." We have never drawn sharp distinctions between members and contributors,
Buckley, 424 U.S., at 66 . As we recognized in Buckley, the privacy rights of contributors are especially
sensitive, since many seek to express their political views privately through their pocketbook rather than
publicly through other means. Disclosure of contributors directly implicates the contributors'
associational rights.
The impact on privacy interests arising from disclosure of expenditures is of a quite different – and
generally lesser – dimension. Many expenditures of the minority party will be for quite mundane
purposes to persons not intimately connected with the organization. Payments for such things as office
supplies, telephone service, bank charges, printing and photography costs would generally fall in this
category. The likelihood that such business transactions would dry up if disclosed is remote at best.
Unlike silent contributors, whom disclosure would reveal to the public as supporters of the party's
ideological positions, persons providing business services to a minor party are not generally perceived by
the public as supporting the party's ideology, and thus are unlikely to be harassed if their names are
disclosed. Consequently, the party's associational interests are unlikely to be affected by disclosure of
recipients of such expenditures.
Other recipients of expenditures may have closer ideological ties to the party. The majority suggests that
campaign workers receiving per diem, travel, or room expenses may fit in this category. Ante, at 97, n.
12. It is certainly conceivable that such persons may be harassed or threatened for their conduct. Laws
requiring disclosure of recipients of expenditures, however, are not likely to contribute to this
harassment. Once an individual has openly shown his close ties to the organization by campaigning for it,
disclosure of receipt of expenditures is unlikely to increase the degree of [459 U.S. 87, 112] harassment so
significantly as to deter the individual from campaigning for the party. Further, in striking the balance,
the governmental concerns are greatest precisely for the actions of campaign workers that might
improperly influence voters. Thus, whatever marginal deterrence that may arise from disclosure of
expenditures is outweighed by the heightened governmental interest.
In sum, the heightened governmental interest in disclosure of expenditures and the reduced marginal
deterrent effect on associational interests demand a separately focused inquiry into whether there exists a
reasonable probability that disclosure will subject recipients or the party itself to threats, harassment, or
reprisals.[7] [459 U.S. 87, 113]
II
Turning to the evidence in this case, it is important to remember that, even though proof requirements
must be flexible, Buckley, supra, at 74, the minor party carries the burden of production and persuasion
to show that its First Amendment interests outweigh the governmental interests. Additionally, the
application of the Buckley standard to the historical evidence is most properly characterized as a mixed
question of law and fact, for which we normally assess the record independently to determine if it

supports the conclusion of unconstitutionality as applied.[8]

Here, there is no direct evidence of harassment of either contributors or recipients of expenditures.
Rather, as the majority accurately represents it, the evidence concerns harassment and reprisals of visible
party members, including violence at party headquarters and loss of jobs. I concur in the majority's
conclusion that this evidence, viewed in its entirety, supports the conclusion that there will be a
reasonable probability of harassment of contributors if their names are disclosed. This evidence is
sufficiently linked to disclosure of contributors in large part because any person publicly known to
support the SWP's unpopular ideological position may suffer the reprisals that this record shows active
party members suffer, and the disclosure of contributors may lead the public to presume these people
support the party's ideology. [459 U.S. 87, 114]
In contrast, the record, read in its entirety, does not suggest that disclosure of recipients of expenditures
would lead to harassment of recipients or reprisals to the party or its members. Appellees gave no
breakdown of the types of expenditures they thought would lead to harassment if disclosed. The record
does contain the expenditure statements of the SWP, which itemize each expenditure with its purpose
while usually omitting the name and address of the recipient. The majority of expenditures, both in
number and dollar amount, are for business transactions such as office supplies, food, printing,
photographs, telephone service, and books. There is virtually no evidence that disclosure of the recipients
of these expenditures will impair the SWP's ability to obtain needed services.[9] Even if we assume that a
portion [459 U.S. 87, 115] of expenditures went to temporary campaign workers or others whom the public
might identify as supporting the party's ideology,[10] these persons have already publicly demonstrated
their support by their campaign work. There is simply no basis for inferring that such persons would
thereafter be harassed or threatened or otherwise deterred from working for the party by virtue of
inclusion of their names in later expenditure reports, or that if any such remote danger existed, it would
outweigh the concededly important governmental interests in disclosure of recipients of expenditures.
It is plain that appellees did not carry their burden of production and persuasion insofar as they challenge
the expenditure disclosure provisions. I would therefore uphold the constitutionality of those portions of
the Ohio statute that require the SWP to disclose the recipients of expenditures.[11]
Footnotes
[1] Of course, the plaintiffs in Buckley challenged many aspects of the federal Act, including expenditure
limitations and the disclosure requirements for independent contributions and expenditures. The Court
upheld all disclosure requirements, including disclosure of independent expenditures "for
communications that expressly advocate the election or defeat of a clearly identified candidate." 424
U.S., at 80 . The plaintiffs in Buckley did not challenge, however, the federal requirement that all
political parties, including minor political parties, disclose the recipients of their expenditures.
[2] Certainly, that is true in this instance. The general political stance of the SWP and its candidates is
readily discernible from the most cursory glance at its constitution or literature.
[3] The majority is obviously correct in noting that the third governmental interest articulated in Buckley
– using disclosures to police limitations on contributions and expenditures – has no application to either
contributions or expenditures in Ohio, since the Ohio statute sets no limitations on them.

[4] As JUSTICE WHITE noted in partial dissent in Buckley, 424 U.S., at 264-265, citing Burroughs v.
United States, 290 U.S. 534 (1934):
"[T]he corrupt use of money by candidates is as much to be feared as the corrosive influence
of large contributions. There are many illegal ways of spending money to influence
elections. One would be blind to history to deny that unlimited money tempts people to
spend it on whatever money can buy to influence an election." (Emphasis in original.)
[5] Certainly the SWP could have this effect. For example, appellants noted at oral argument that the
SWP candidate in the 1974 Ohio gubernatorial election received some 95,000 votes. The Republican
candidate's margin of victory over the Democratic candidate was only some 13,500 votes. Tr. of Oral
Arg. 18. The impact of minor parties on elections in the United States is well documented. See generally
W. Hesseltine, Third-Party Movements in the United States (1962).
[6] I therefore disagree with the majority's suggestion, ante, at 98-99, n. 16, that the government interest
in deterring corruption is not furthered by disclosure of all expenditures, including those for commercial
services. Even if improprieties are unlikely to occur in expenditures for commercial services, full and
verifiable disclosure is needed to ensure that other, improper expenditures are not hidden in commercial
accounts.
[7] According to the majority, "the question whether the Buckley test applies to the compelled disclosure
of recipients of expenditures is properly before us." Ante, at 94, n. 9. The majority declares that, in
answering this question, "the District Court necessarily held (1) that the Buckley standard, which permits
flexible proof of the reasonable probability of threats, harassment, or reprisals, applies to both
contributions and expenditures, and (2) that the evidence was sufficient to show a reasonable probability
that disclosure would subject both contributors and recipients to public hostility and harassment." Ibid.
(emphasis added).
JUSTICE BLACKMUN, ante, at 102, however, more accurately characterizes the District Court's action as
assuming that the Buckley standard applies to disclosure of expenditures and holding the evidence
sufficient to meet this standard. The District Court's assumption is understandable, since appellants did
not question it below. Thus, this is not the appropriate case to determine whether a different test or
standard of proof should be employed in determining the constitutional validity of required disclosure of
expenditures.
Even assuming the general applicability of the Buckley standard, though, the question presented here
requires us to inquire whether the evidence of harassment establishes a "reasonable probability" that the
Ohio law would trigger "threats, harassment, or reprisals" against recipients of expenditures that in turn
may harm the party's associational interests. This inquiry is necessarily distinct from the inquiry whether
the evidence establishes a reasonable probability that disclosure would trigger threats, harassment, or
reprisals against contributors. Although the proof requirements guiding this separate inquiry remain
flexible, and direct proof [459 U.S. 87, 113] of harm from disclosure is not required, ultimately the party
must prove that the harm to it from disclosure of recipients outweighs the governmental interest in
disclosure. This separately focused inquiry does not necessarily alter Buckley's "reasonable probability"
test or "flexible proof" standard. It does, however, plainly require a different result.
[8] See Pullman-Standard v. Swint, 456 U.S. 273, 289 , n. 19 (1982). The majority does not clearly
articulate the standard of review it is applying. By determining that the District Court "properly

concluded" that the evidence established a reasonable probability of harassment, ante, at 100, the
majority seems to apply an independent-review standard.
[9] The District Court admitted Exhibit 129 into the record, which is a certified copy of findings of fact
made by the Federal Election Commission pursuant to a 1977 court order in Socialist Workers 1974
National Campaign Committee v. Jennings, No. 74-1338 (DC, stipulated judgment entered Jan. 3, 1979).
The FEC in that case analyzed affidavits submitted by SWP members and other documentary evidence of
public and private harassment of SWP members. In finding No. 126, the FEC accepted the SWP's
proposed finding that in 1971 a landlady in San Francisco rejected the application of two SWP members
for an apartment, because the FBI had visited the landlady and warned her of the dangers of the SWP. In
finding No. 127, the FEC accepted the SWP's proposed finding that in 1974 a landlady in Chicago
evicted a SWP member from her apartment. The landlady explained, "they told me all about you,"
refusing to identify who "they" were.
These two incidents are, of course, remote in time and place, and do not suggest that the party itself has
had difficulty in finding office space. Nor do they suggest that the general public is likely to engage in
similar activity. Moreover, the FBI's actions against the SWP have long been ended, see Final Report of
the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep.
No. 94-755, Vol. 4-5, pp. 3-4 (1976), and Congress has since instituted more rigorous oversight of FBI
and other intelligence activities, see 50 U.S.C. 413 (1976 ed., Supp. IV). An inference from these two
incidents that disclosure of recipients of expenditures would increase any difficulty the party might have
in obtaining office space would be tenuous, and is plainly outweighed by the "substantial public interest
in disclosure," Buckley, 424 U.S., at 72.
[10] As the majority notes, ante, at 97, n. 12, some entries in the expenditure forms are designated as per
diem, travel expenses, and room rental. At least until 1978, the expenditure statements gave the names of
persons receiving per diem funds from the SWP. Apparently, party treasurers and party candidates
received per diem payments. There is no evidence that filing these statements with the Ohio Secretary of
State caused any harassment of the named persons, and indeed it is highly unlikely that this disclosure
would increase the exposure of persons already so publicly identified with the party.
[11] In holding a state statute unconstitutional as applied, a court must sever and apply constitutional
portions unless the legislature would not have intended to have applied "`those provisions which are
within its power, independently of that which is not ...,'" Buckley, supra, at 108 (severing constitutional
portions of Federal Election Campaign Act after holding other portions unconstitutional on their face),
quoting Champlin Refining Co. v. Corporation Comm'n of Okla., 286 U.S. 210, 234 (1932). Clearly, the
expenditure disclosure requirements of the Ohio statute should be severed and applied even though the
contribution disclosure requirements cannot be applied in this instance, for the two requirements are
analytically and practically distinct. [459 U.S. 87, 116]

U.S. Supreme Court
BROWN v. SOCIALIST WORKERS '74 CAMPAIGN

COMM., 459 U.S. 87 (1982)
BROWN ET AL. v. SOCIALIST WORKERS '74 CAMPAIGN

COMMITTEE (OHIO) ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF OHIO
No. 81-776.

Decided December 8, 1982
Held:
The disclosure provisions of the Ohio Campaign Expense Reporting Law

requiring every candidate for political office to report the names and
addresses of campaign contributors and recipients of campaign disbursements,
cannot be constitutionally applied to appellee Socialist Workers Party
(SWP), a minor political party that historically has been the object of
harassment by Government officials and private parties. Pp. 91-102.
(a) The First Amendment prohibits a State from compelling

disclosures by a minor political party that will subject those
persons identified to the reasonable probability of threats,
harassment, or reprisals. Buckley v. Valeo, 424 U.S. 1, 74.
Moreover, minor parties must be allowed sufficient flexibility
in the proof of injury. Ibid. These principles for safeguarding
the First Amendment interests of minor parties and their
members and supporters apply not only to the compelled
disclosure of campaign contributors but also to the compelled
disclosure of recipients of campaign disbursements. Pp.
91-98.
(b) Here, the District Court, in upholding appellees' challenge

to the constitutionality of the Ohio disclosure provisions,
properly concluded that the evidence of private and
Government hostility toward the SWP and its members
establishes a reasonable probability that disclosing the names
of contributors and recipients will subject them to threats,
harassment, and reprisals. Pp. 98-101.
Affirmed.
MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J.,
and BRENNAN, WHITE, and POWELL, JJ., joined, and in Parts I, III, and IV of
which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in
part and concurring in the judgment, post, p. 102. O'CONNOR, J., filed an
opinion concurring in part and dissenting in part, in which REHNQUIST and
STEVENS, JJ., joined, post, p. 107.
Gary Elson Brown, Assistant Attorney General of Ohio, argued the cause for
appellants. With him on the briefs [459 U.S. 87, 88] were William J. Brown,
Attorney General, Thomas F. Staub, Assistant Attorney General, and James R.
Rishel.
Thomas D. Buckley, Jr., argued the cause for appellees. With him on the
brief were Gordon J. Beggs, Ben Sheerer, and Bruce Campbell.
JUSTICE MARSHALL delivered the opinion of the Court.

This case presents the question whether certain disclosure requirements of

the Ohio Campaign Expense Reporting Law, Ohio Rev. Code Ann. 3517.01 et seq.
(1972 and Supp. 1981), can be constitutionally applied to the Socialist
Workers Party, a minor political party which historically has been the
object of harassment by government officials and private parties. The Ohio
statute requires every political party to report the names and addresses of
campaign contributors and recipients of campaign disbursements. In Buckley
v. Valeo, 424 U.S. 1 (1976), this Court held that the First Amendment
prohibits the government from compelling disclosures by a minor political
party that can show a "reasonable probability" that the compelled
disclosures will subject those identified to "threats, harassment, or
reprisals." Id., at 74. Employing this test, a three-judge District Court
for the Southern District of Ohio held that the Ohio statute is
unconstitutional as applied to the Socialist Workers Party. We affirm.
The Socialist Workers Party (SWP) is a small political party with

approximately 60 members in the State of Ohio. The Party states in its
constitution that its aim is "the abolition of capitalism and the
establishment of a workers' government to achieve socialism." As the
District Court found, the SWP does not advocate the use of violence. It
seeks instead to achieve social change through the political process, and
its members regularly run for public office. The SWP's candidates have had
little success at the polls. In 1980, for example the Ohio SWP's candidate
for the United States Senate received fewer than 77,000 votes, less than
1.9% of the total [459 U.S. 87, 89] vote. Campaign contributions and
expenditures in Ohio have averaged about $15,000 annually since 1974.
In 1974 appellees instituted a class action[1] in the District Court for the
Northern District of Ohio challenging the constitutionality of the
disclosure provisions of the Ohio Campaign Expense Reporting Law. The Ohio
statute requires every candidate for political office to file a statement
identifying each contributor and each recipient of a disbursement of
campaign funds. 3517.10.[2] The "object or purpose"[3] [459 U.S. 87, 90]
of each disbursement must also be disclosed. The lists of names and
addresses of contributors and recipients are open to public inspection for
at least six years. Violations of the disclosure requirements are punishable
by fines of up to $1,000 for each day of violation. 3517.99.
On November 6, 1974, the District Court for the Northern District of Ohio
entered a temporary restraining order barring the enforcement of the
disclosure requirements against the class pending a determination of the
merits.[4] The case was then transferred to the District Court for the
Southern District of Ohio, which entered an identical temporary restraining
order in February 1975.[5] Accordingly, since 1974 [459 U.S. 87, 91]
appellees have not disclosed the names of contributors and recipients but
have otherwise complied with the statute. A three-judge District Court was
convened pursuant to 28 U.S.C. 2281. Following extensive discovery, the
trial was held in February 1981. After reviewing the "substantial evidence
of both governmental and private hostility toward and harassment of SWP
members and supporters," the three-judge court concluded that under Buckley
v. Valeo, 424 U.S. 1 (1976), the Ohio disclosure requirements are
unconstitutional as applied to appellees.[6] We noted probable jurisdiction.
454 U.S. 1122 (1981).
II
The Constitution protects against the compelled disclosure of political

associations and beliefs. Such disclosures "can seriously infringe on

privacy of association and belief guaranteed by the First Amendment."

Buckley v. Valeo, supra, at 64, citing Gibson v. Florida Legislative Comm.,
372 U.S. 539 (1963); NAACP v. Button, 371 U.S. 415 (1963); Shelton v.
Tucker, 364 U.S. 479 (1960); Bates v. Little Rock, 361 U.S. 516 (1960);
NAACP v. Alabama, 357 U.S. 449 (1958). "Inviolability of privacy in group
association may in many circumstances be indispensable to preservation of
freedom of association, particularly where a group espouses dissident
beliefs." NAACP v. Alabama, supra, at 462. The right to privacy in one's
political associations and beliefs will yield [459 U.S. 87, 92] only to a
"`subordinating interest of the State [that is] compelling,'" NAACP v.
Alabama, supra, at 463 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 265
(1957) (opinion concurring in result)), and then only if there is a
"substantial relation between the information sought and [an] overriding and
compelling state interest." Gibson v. Florida Legislative Comm., supra, at
546.
In Buckley v. Valeo this Court upheld against a First Amendment challenge

the reporting and disclosure requirements imposed on political parties by
the Federal Election Campaign Act of 1971. 2 U.S.C. 431 et seq. 424 U.S., at
60 -74. The Court found three government interests sufficient in general to
justify requiring disclosure of information concerning campaign
contributions and expenditures:[7] enhancement of voters' knowledge about a
candidate's possible allegiances and interests, deterrence of corruption,
and the enforcement of contribution limitations.[8] The Court stressed,
however, that in certain circumstances the balance of interests requires
exempting minor political parties from compelled disclosures. The
government's interests in compelling disclosures are "diminished" in the
case of minor parties. Id., at 70. Minor party candidates "usually represent
definite and publicized viewpoints" well known to the public, and the
improbability of their winning reduces the dangers of corruption and
vote-buying. Ibid. At the same time, the potential for impairing First
Amendment interests is substantially greater: [459 U.S. 87, 93]
"We are not unmindful that the damage done by disclosure to

the associational interests of the minor parties and their
members and to supporters of independents could be
significant. These movements are less likely to have a sound
financial base and thus are more vulnerable to falloffs in
contributions. In some instances fears of reprisal may deter
contributions to the point where the movement cannot
survive. The public interest also suffers if that result comes to
pass, for there is a consequent reduction in the free
circulation of ideas both within and without the political
arena." Id., at 71 (footnotes omitted).
We concluded that in some circumstances the diminished government interests

furthered by compelling disclosures by minor parties does not justify the
greater threat to First Amendment values.
Buckley v. Valeo set forth the following test for determining when the First
Amendment requires exempting minor parties from compelled disclosures:
"The evidence offered need show only a reasonable

probability that the compelled disclosure of a party's
contributors' names will subject them to threats, harassment,
or reprisals from either Government officials or private
parties." Id., at 74.
The Court acknowledged that "unduly strict requirements of proof could

impose a heavy burden" on minor parties. Ibid. Accordingly, the Court
emphasized that "[m]inor parties must be allowed sufficient flexibility in

the proof of injury." Ibid.
"The proof may include, for example, specific evidence of

past or present harassment of members due to their
associational ties, or of harassment directed against the
organization itself. A pattern of threats or specific
manifestations of public hostility may be sufficient. New
parties that have no history upon which to draw may be [459
U.S. 87, 94] able to offer evidence of reprisals and threats
directed against individuals or organizations holding similar
views." Ibid.
Appellants concede that the Buckley test for exempting minor parties governs
the disclosure of the names of contributors, but they contend that the test
has no application to the compelled disclosure of names of recipients of
campaign disbursements.[9] Appellants assert that the State has a
substantial interest in preventing the misuse of campaign funds.[10] They
also argue that the disclosure of the names of [459 U.S. 87, 95] recipients
of campaign funds will have no significant impact on First Amendment rights,
because, unlike a contribution, the mere receipt of money for commercial
services does not affirmatively express political support.
We reject appellants' unduly narrow view of the minor-party exemption

recognized in Buckley. Appellants' attempt to limit the exemption to laws
requiring disclosure of contributors is inconsistent with the rationale for
the exemption stated in Buckley. The Court concluded that the government
interests supporting disclosure are weaker in the case of minor parties,
while the threat to First Amendment values is greater. Both of these
considerations apply not only to the disclosure of campaign contributors but
also to the disclosure of recipients of campaign disbursements.
Although appellants contend that requiring disclosure of recipients of

disbursements is necessary to prevent corruption, this Court recognized in
Buckley that this concededly legitimate government interest has less force
in the context of minor parties. The federal law considered in Buckley, like
the Ohio law at issue here, required campaign committees to identify both
campaign contributors and recipients of campaign disbursements. 2 U.S.C.
432(c) and (d), and 434(a) and (b). We stated that "by exposing large
contributions and expenditures to the light of publicity," disclosure
requirements "ten[d] to `prevent the corrupt use of money to affect
elections.'" Id., at 67 (emphasis added), quoting Burroughs v. United
States, 290 U.S. 534, 548 (1934). We concluded, however, that because minor
party candidates are unlikely to win elections, the government's general
interest in "deterring the `buying' of elections" is "reduced" in the case
of minor parties. 424 U.S., at 70.[11] [459 U.S. 87, 96]
Moreover, appellants seriously understate the threat to First Amendment

rights that would result from requiring minor parties to disclose the
recipients of campaign disbursements. [459 U.S. 87, 97] Expenditures by a
political party often consist of reimbursements, advances, or wages paid to
party members, campaign workers, and supporters, whose activities lie at the
very core of the First Amendment.[12] Disbursements may also go to persons
who choose to express their support for an unpopular cause by providing
services rendered scarce by public hostility and suspicion.[13] Should their
involvement be publicized, these persons would be as vulnerable to threats,
harassment, and reprisals as are contributors whose connection with the
party is solely financial.[14] Even individuals [459 U.S. 87, 98] who
receive disbursements for "merely" commercial transactions may be deterred
by the public enmity attending publicity, and those seeking to harass may
disrupt commercial activities on the basis of expenditure information.[15]
Because an individual who enters into a transaction with a minor party

purely for commercial reasons lacks any ideological commitment to the party,
such an individual may well be deterred from providing services by even a
small risk of harassment.[16] Compelled disclosure of the names of such
recipients of expenditures could therefore cripple a minor party's ability
to operate effectively and thereby reduce "the free circulation of ideas
both within and without the political arena." Buckley, 424 U.S., at 71
(footnotes omitted). See Sweezy v. New Hampshire, 354 U.S., at 250-251
(plurality opinion) ("Any interference with the freedom of a party is
simultaneously an interference with the freedom of its adherents").
We hold, therefore, that the test announced in Buckley for safeguarding the
First Amendment interests of minor parties and their members and supporters
applies not only to the compelled disclosure of campaign contributors but
also to the compelled disclosure of recipients of campaign disbursements.
III
The District Court properly applied the Buckley test to the facts of this
case. The District Court found "substantial evidence [459 U.S. 87, 99] of
both governmental and private hostility toward and harassment of SWP members
and supporters." Appellees introduced proof of specific incidents of private
and government hostility toward the SWP and its members within the four
years preceding the trial. These incidents, many of which occurred in Ohio
and neighboring States, included threatening phone calls and hate mail, the
burning of SWP literature, the destruction of SWP members' property, police
harassment of a party candidate, and the firing of shots at an SWP office.
There was also evidence that in the 12-month period before trial 22 SWP
members, including 4 in Ohio, were fired because of their party membership.
Although appellants contend that two of the Ohio firings were not
politically motivated, the evidence amply supports the District Court's
conclusion that "private hostility and harassment toward SWP members make it
difficult for them to maintain employment."
The District Court also found a past history of Government harassment of the
SWP. FBI surveillance of the SWP was "massive" and continued until at least
1976. The FBI also conducted a counterintelligence program against the SWP
and the Young Socialist Alliance (YSA), the SWP's youth organization. One of
the aims of the "SWP Disruption Program" was the dissemination of
information designed to impair the ability of the SWP and YSA to function.
This program included "disclosing to the press the criminal records of SWP
candidates, and sending anonymous letters to SWP members, supporters,
spouses, and employers."[17] Until at least 1976, the FBI employed various
covert techniques to [459 U.S. 87, 100] obtain information about the SWP,
including information concerning the sources of its funds and the nature of
its expenditures. The District Court specifically found that the FBI had
conducted surveillance of the Ohio SWP and had interfered with its
activities within the State.[18] Government surveillance was not limited to
the FBI. The United States Civil Service Commission also gathered
information on the SWP, the YSA, and their supporters, and the FBI routinely
distributed its reports to Army, Navy and Air Force Intelligence, the United
States Secret Service, and the Immigration and Naturalization Service.
The District Court properly concluded that the evidence of private and
Government hostility toward the SWP and its members establishes a reasonable
probability that disclosing the names of contributors and recipients will
subject them to threats, harassment, and reprisals.[19] There were numerous
instances of recent harassment of the SWP both in Ohio and [459 U.S. 87,
101] in other States.20 There was also considerable evidence of past
Government harassment. Appellants challenge the relevance of this evidence
of Government harassment in light of recent efforts to curb official
misconduct. Notwithstanding these efforts, the evidence suggests that

hostility toward the SWP is ingrained and likely to continue. All this
evidence was properly relied on by the District Court. Buckley, 424 U.S., at
74.
IV
The First Amendment prohibits a State from compelling disclosures by a minor

party that will subject those persons identified to the reasonable
probability of threats, harassment, or reprisals. Such disclosures would
infringe the [459 U.S. 87, 102] First Amendment rights of the party and its
members and supporters. In light of the substantial evidence of past and
present hostility from private persons and Government officials against the
SWP, Ohio's campaign disclosure requirements cannot be constitutionally
applied to the Ohio SWP.
The judgment of the three-judge District Court for the Southern District of
Ohio is affirmed.
It is so ordered.
Footnotes
[1] The plaintiff class as eventually certified includes all SWP candidates
for political office in Ohio, their campaign committees and treasurers, and
people who contribute to or receive disbursements from SWP campaign
committees. The defendants are the Ohio Secretary of State and other state
and local officials who administer the disclosure law.
[2] Section 3517.10 provides in relevant part:
"(A) Every campaign committee, political committee, and political party

which made or received a contribution or made an expenditure in connection
with the nomination or election of any candidate at any election held in
this state shall file, on a form prescribed under this section, a full,
true, and itemized statement, made under penalty of election falsification,
setting forth in detail the contributions and expenditures ... "(B) Each
statement required by division (A) of this section shall contain the
following information: ... "(4) A statement of contributions made or
received, which shall include: "(a) The month, day, and year of the
contribution; "(b) The full name and address of each person, including any
chairman or treasurer thereof if other than an individual, from whom
contributions are received. The requirement of filing the full address does
not apply to any statement filed by a state or local committee of a
political party, to a finance committee of such committee, or to a committee
recognized by a state or local committee as its fund-raising auxiliary. "(c)
A description of the contribution received, if other than money; "(d) The
value in dollars and cents of the contribution; "(e) All contributions and
expenditures shall be itemized separately regardless of the amount except a
receipt of a contribution from a person in the sum of twenty-five dollars or
less at one social or fund-raising activity. An account of the total
contributions from each such social or fund-raising activity shall be listed
separately, together with the expenses incurred and [459 U.S. 87, 90] paid
in connection with such activity. No continuing association which makes a
contribution from funds which are derived solely from regular dues paid by
members of the association shall be required to list the name or address of
any members who paid such dues. "(5) A statement of expenditures which shall
include: "(a) The month, day, and year of expenditure; "(b) The full name
and address of each person to whom the expenditure was made, including any
chairman or treasurer thereof if a committee, association, or group of
persons; "(c) The object or purpose for which the expenditure was made; "(d)
The amount of each expenditure. "(C) ... "... All such statements shall be

open to public inspection in the office where they are filed, and shall be
carefully preserved for a period of at least six years."
If the candidate is running for a statewide office, the statement shall be

filed with the Ohio Secretary of State; otherwise, the statement shall be
filed with the appropriate county board of elections. 3517.11 (A).
[3] 3517.10(B)(5)(c).
[4] The order restrained various state officials from "applying to or

enforcing against plaintiffs ... the disclosure provisions of the Ohio
Campaign Expense Reporting Law and the penalty provision of that law, the
effect of which will be to postpone the beginning of any possible period of
violation of that law by plaintiffs, ... until such time as the case is
decided by the three judge panel, which is hereby convened." (Citations
omitted.)
[5] Apparently none of the parties throughout the 6-year period questioned
whether the extended duration of the temporary restraining order [459 U.S.
87, 91] conformed to the requirements of Rule 65(b) of the Federal Rules
of Civil Procedure.
[6] Because it invalidated the Ohio statute as applied to the Ohio SWP, the
District Court did not decide appellees' claim that the statute was facially invalid. The
Ohio statute requires disclosure
of contributions and expenditures no matter how small the amount. Ohio Rev.
Code Ann. 3517.10(B)(4)(e) (Supp. 1981). Appellees contended that the
absence of a monetary threshold rendered the statute facially invalid since
the compelled disclosure of nominal contributions and expenditures lacks a
substantial nexus with any claimed government interest. See Buckley v.
Valeo, 424 U.S., at 82 -84.
The District Court's opinion is unreported.
[7] Title 2 U.S.C. 432, 434, and 438 (1976 ed., Supp. V) require each
political committee to keep detailed records of both contributions and
expenditures, including the names of campaign contributors and recipients of
campaign disbursements, and to file reports with the Federal Election
Commission which are made available to the public.
[8] The government interest in enforcing limitations is completely

inapplicable in this case, since the Ohio law imposes no limitations on the
amount of campaign contributions.
[9] We believe that the question whether the Buckley test applies to the
compelled disclosure of recipients of expenditures is properly before us.
Throughout this litigation Ohio has maintained that it can constitutionally
require the SWP to disclose the names of both campaign contributors and
recipients of campaign expenditures. In invalidating both aspects of the
Ohio statute as applied to the SWP, the District Court necessarily held (1)
that the Buckley standard, which permits flexible proof of the reasonable
probability of threats, harassment, or reprisals, applies to both
contributions and expenditures, and (2) that the evidence was sufficient to
show a reasonable probability that disclosure would subject both
contributors and recipients to public hostility and harassment. In their
jurisdictional statement, appellants appealed from the entire judgment
entered below and presented the following question for review:
"Whether, under the standards set forth by this Court in

Buckley v. Valeo, 424 U.S. 1 (1976), the provisions of
Sections 3517.10 and 3517.11 of the Ohio Revised Code,

which require that the campaign committee of a candidate for

public office file a report disclosing the full names and
addresses of persons making contributions to or receiving
expenditures from such committee, are consistent with the
right of privacy of association guaranteed by the First and
Fourteenth Amendments of the Constitution of the United
States when applied to the committees of candidates of a
minority party which can establish only isolated instances of
harassment directed toward the organization or its members
within Ohio during recent years." Juris. Statement i.
We think that the correctness of both holdings of the District Court is

"fairly included" in the question presented in the jurisdictional statement.
This Court's Rule 15.1(a). See Procunier v. Navarette, 434 U.S. 555, 559 ,
n. 6 (1978) ("[O]ur power to decide is not limited by the precise terms of
the question presented").
[10] This is one of three government interests identified in Buckley.

Appellants do not contend that the other two interests, enhancing voters'
ability [459 U.S. 87, 95] to evaluate candidates and enforcing contribution
limitations, support the disclosure of the names of recipients of campaign
disbursements.
[11] The partial dissent suggests that the government interest in the
disclosure of recipients of expenditures is not significantly diminished in
the case of minor political parties, since parties with little likelihood of
electoral success might nevertheless finance improper campaign activities
merely to [459 U.S. 87, 96] gain recognition. Post, at 109-110. The
partial dissent relies of JUSTICE WHITE's separate opinion in Buckley, in
which he pointed out that "unlimited money tempts people to spend it on
whatever money can buy to influence an election." 424 U.S., at 265 (emphasis
in original).
An examination of the context in which JUSTICE WHITE made this observation

indicates precisely why the state interest here is insubstantial. JUSTICE
WHITE was addressing the constitutionality of ceilings on campaign
expenditures applicable to all candidates. His point was that such ceilings
"could play a substantial role in preventing unethical practices." Ibid. In
the case of minor parties, however, their limited financial resources serve
as a built-in expenditure ceiling which minimizes the likelihood that they
will expend substantial amounts of money to finance improper campaign
activities. See id., at 71. For example, far from having "unlimited money,"
the Ohio SWP has had an average of roughly $15,000 available each year to
spend on its election efforts. Most of the limited resources of minor
parties will typically be needed to pay for the ordinary fixed costs of
conducting campaigns, such as filing fees, travel expenses, and the expenses
incurred in publishing and distributing campaign literature and maintaining
offices. Thus JUSTICE WHITE's observation that "financing illegal activities
is low on the campaign organization's priority list," id., at 265, is
particularly apposite in the case of minor parties. We cannot agree,
therefore, that minor parties are as likely as major parties to make
significant expenditures in funding dirty tricks or other improper campaign
activities. See post, at 110. Moreover, the expenditure by minor parties of
even a substantial portion of their limited funds on illegal activities
would be unlikely to have a substantial impact.
Furthermore, the mere possibility that minor parties will resort to corrupt
or unfair tactics cannot justify the substantial infringement on First
Amendment interests that would result from compelling the disclosure of
recipients of expenditures. In Buckley, we acknowledged the possibility that
supporters of a major party candidate might channel money into minor parties

to divert votes from other major party contenders, 424 U.S., at 70 , and
that, as noted by the partial dissent, post, at 110, and n. 5, occasionally
minor parties may affect the outcomes of elections. We thus recognized that
the distorting influence of large contributors on elections may not be
entirely absent in the context of minor parties. Nevertheless, because we
concluded that the government interest in disclosing contributors is
substantially reduced in the case of minor parties, we held that minor
parties [459 U.S. 87, 97] are entitled to an exemption from requirements
that contributors be disclosed where they can show a reasonable probability
of harassment. 424 U.S., at 70 . Because we similarly conclude that the
government interest in requiring the disclosure of recipients of
expenditures is substantially reduced in the case of minor parties, we hold
that the minor-party exemption recognized in Buckley applies to compelled
disclosure of expenditures as well.
[12] For example, the expenditure statements filed by the SWP contain a
substantial percentage of entries designated as per diem, travel expenses,
room rental, and so on. The Ohio statute makes it particularly easy to
identify these individuals since it requires disclosure of the purpose of
the disbursements as well as the identity of the recipients. Ohio Rev. Code
Ann. 3517.10(B)(5)(c) (Supp. 1981).
[13] "`[F]inancial transactions can reveal much about a person's activities,

associations, and beliefs.'" Buckley v. Valeo, 424 U.S., at 66 , quoting
California Bankers Assn. v. Shultz, 416 U.S. 21, 78 -79 (1974) (POWELL, J.,
concurring). The District Court found that the Federal Bureau of
Investigation (FBI) at least until 1976 routinely investigated the financial
transactions of the SWP and kept track of the payees of SWP checks.
[14] The fact that some or even many recipients of campaign expenditures may
not be exposed to the risk of public hostility does not detract from the
serious threat to the exercise of First Amendment rights of those who are so
exposed. We cannot agree with the partial dissent's assertion that
disclosures of disbursements paid to campaign workers and supporters will
not increase the probability that they will be subjected to harassment and
hostility. Post, at 111-112. Apart from the fact that individuals may work
for a candidate in a variety of ways without publicizing their involvement,
the application of a disclosure requirement results in a dramatic increase
in public exposure. Under Ohio law a person's affiliation with the party
will be recorded in a document that must be kept open to inspection [459
U.S. 87, 98] by any one who wishes to examine it for a period of at least
six years. Ohio Rev. Code Ann. 3517.10(C) (Supp. 1981). The preservation of
unorthodox political affiliations in public records substantially increases
the potential for harassment above and beyond the risk that an individual
faces simply as a result of having worked for an unpopular party at one
time.
[15] See, e. g., Socialist Workers Party v. Attorney General, 458 F. Supp.
895, 904 (SDNY 1978) (FBI interference with SWP travel arrangements and
speaker hall rental), vacated on other grounds, 596 F.2d 58 (CA2), cert.
denied, 444 U.S. 903 (1979).
[16] Moreover, it would be hard to think of many instances in which the

state interest in preventing vote-buying and improper campaign activities
[459 U.S. 87, 99] would be furthered by the disclosure of payments for
routine commercial services.
[17] The District Court was quoting from Part I of the Final Report of
Special Master Judge Breitel in Socialist Workers Party v. Attorney General
of the United States, 73 Civ. 3160 (TPG) (SNDY, Feb. 4, 1980), detailing the
United States Government's admissions concerning the existence and nature of

the Government surveillance of the SWP.
[18] The District Court also found the following:
"The Government possesses about 8,000,000 documents

relating to the SWP, YSA ... and their members... . Since
1960 the FBI has had about 300 informants who were
members of the SWP and/or YSA and 1,000 nonmember
informants. Both the Cleveland and Cincinnati FBI filed
offices had one or more SWP or YSA member informants.
Approximately 21 of the SWP member informants held local
branch offices. Three informants even ran for elective office
as SWP candidates. The 18 informants whose files were
disclosed to Judge Breitel received total payments of
$358,648.38 for their services and expenses." (Footnotes
omitted.)
[19] After reviewing the evidence and the applicable law, the District Court
concluded: "[T]he totality of the circumstances establishes that, in Ohio,
public disclosure that a person is a member of or has made a contribution to
the SWP would create a reasonable probability that he or she would be
subjected to threats, harassment or reprisals." The District Court then
enjoined the compelled disclosures of either contributors' or recipients'
names. Although the District Court did not expressly refer in the quoted
passage to disclosure of the names of recipients of campaign disbursements,
it is evident from the opinion that the District Court was addressing both
contributors and recipients.
[20] Some of the recent episodes of threats, harassment, and reprisals

against the SWP and its members occurred outside of Ohio. Anti-SWP
occurrences in places such as Chicago (SWP office vandalized) and Pittsburgh
(shot fired at SWP building) are certainly relevant to the determination of
the public's attitude toward the SWP in Ohio. In Buckley we stated that
"[n]ew parties that have no history upon which to draw may ... offer
evidence of reprisals and threats directed against individuals or
organizations holding similar views." 424 U.S., at 74. Surely the Ohio SWP
may offer evidence of the experiences of other chapters espousing the same
political philosophy. See 1980 Illinois Socialist Workers Campaign v. State
of Illinois Board of Elections, 531 F. Supp. 915, 921 (ND Ill. 1981).
Appellants point to the lack of direct evidence linking the Ohio statute's
disclosure requirements to the harassment of campaign contributors or
recipients of disbursements. In Buckley, however, we rejected such "unduly
strict requirements of proof" in favor of "flexibility in the proof of
injury." 424 U.S., at 74 . We thus rejected requiring a minor party to "come
forward with witnesses who are too fearful to contribute but not too fearful
to testify about their fear" or prove that "chill and harassment [are]
directly attributable to the specific disclosure from which the exemption is
sought." Ibd. We think that these considerations are equally applicable to
the proof required to establish a reasonable probability that recipients
will be subjected to threats and harassment if their names are disclosed.
While the partial dissent appears to agree, post, at 112-113, n. 7, its
"separately focused inquiry," post, at 112, and n. 7, in reality requires
evidence of chill and harassment directly attributable to the
expenditure-disclosure requirement.
JUSTICE BLACKMUN, concurring in part and concurring in the judgment.
I join Parts I, III, and IV of the Court's opinion and agree with much of
what is said in Part II. But I cannot agree, with the Court or with the
partial dissent, that we should reach the issue whether a standard of proof

different from that applied to disclosure of campaign contributions should

be applied to disclosure of campaign disbursements. See ante, at 94, n. 9;
post, at 112-113, n. 7.[1] Appellants did not suggest in the District Court
that different standards might apply. Nor was the issue raised in
appellants' jurisdictional statement or in their brief on the merits in this
Court. Consequently, I would merely assume for purposes of our present
decision - as appellants apparently have assumed throughout this litigation
and as the District Court clearly assumed -- that the flexible proof rule of
Buckley v. Valeo, 424 U.S. 1 (1976), applies equally to forced disclosure of
contributions and to forced disclosure of expenditures. I would leave for
another day, when the issue is squarely presented, considered by the courts
below, and adequately briefed here, the significant question that now
divides the Court.
This Court's Rule 15.1(a) states: "Only the questions set forth in the
jurisdictional statement or fairly included therein [459 U.S. 87, 103] will
be considered by the Court." Appellants' jurisdictional statement presented
a single question:
"Whether, under the standards set forth by this Court in

Buckley v. Valeo, 424 U.S. 1 (1976), the provisions of
Sections 3517.10 and 3517.11 of the Ohio Revised Code,
which require that the campaign committee of a candidate for
public office file a report disclosing the full names and
addresses of persons making contributions to or receiving
expenditures from such committee, are consistent with the
right of privacy of association guaranteed by the First and
Fourteenth Amendments of the Constitution of the United
States when applied to the committees of candidates of a
minority party which can establish only isolated instances of
harassment directed toward the organization or its members
within Ohio during recent years." Juris. Statement i.
The question assumes the applicability of Buckley to the entire case, and
asks this Court to decide only whether the evidence presented to and facts
found by the District Court were sufficient to support that court's
conclusion that the Buckley test was satisfied.
Absent extraordinary circumstances, this Court does not decide issues beyond
those it has agreed to review. Mayor v. Educational Equality League, 415
U.S. 605, 623 (1974); United States v. Bass, 404 U.S. 336, 339, n. 4 (1971);
General Talking Pictures Co. v. Western Electric Co., 304 U.S. 175, 178-179
(1938). According to the Court, however, the issue whether the flexible
standard of proof established in Buckley applies to recipients of
expenditures is "fairly included' in the question presented." Ante, at 94,
n. 9. But appellants' failure to present the issue was not a mere oversight
in phrasing that question. That appellants did not invoke this Court's
jurisdiction to review specifically the proper standard for disclosure of
campaign expenditures is also apparent from appellants' arguments in their
jurisdictional statement and their brief on the merits. In their
jurisdictional [459 U.S. 87, 104] statement, under the heading "The
Question is Substantial," appellants stated:
"The standards governing the resolution of actions involving

challenges to reporting requirements by minority parties were
set forth by this Court in the case of Buckley v. Valeo, 424
U.S. 1 (1976). In Buckley the Court held that in order to
receive relief from reporting requirements such as those at
issue in this action a minority party must establish `... a
reasonable probability that the compelled disclosure of a
party's contributors' names will subject them to threats,

harassment or reprisals from either Government officials or

private parties.' 424 U.S. at 74." Juris. Statement 10.
Appellants went on to state that the flexible standard of proof of injury

established in Buckley applied to "disclosure requirements." Juris.
Statement 12-13. Similar assertions are found in appellants' brief on the
merits. See Brief for Appellants 12 ("Summary of Argument"); id., at 18
("While refusing to grant minority parties a blanket exemption from
financial disclosure requirements, the Court in Buckley established a
standard under which they may obtain relief ...").
Thus, appellants' exclusive theme in the initial presentation of their case

here was that the District Court erred in finding that the Buckley standard
was satisfied. They did not suggest that the standard was inapplicable, or
applied differently, to campaign expenditure requirements. It was not until
their reply brief, submitted eight years after this suit was instituted and
at a time when appellees had no opportunity to respond in writing, that
appellants sought to inject this new issue into the case. See Irvine v.
California, 347 U.S. 128, 129 (1954) (plurality opinion of Jackson, J.). In
my view, it simply cannot be said that it was "fairly included" in the
jurisdictional statement.
Moreover, "[w]here issues are neither raised before nor considered [by the
court below], this Court will not ordinarily [459 U.S. 87, 105] consider
them." Adickes v. S. H. Kress & Co., 398 U.S. 144, 147, n. 2 (1970); Lawn v.
United States, 355 U.S. 339, 362-363, n. 16 (1958). The District Court did
not address the question whether some standard other than that developed in
Buckley should apply to disclosure of campaign expenditures. The reason for
this was that appellants conceded in the District Court, as they concede
here, that the "flexibility in the proof of injury" applicable to disclosure
of contributors governed the entire case. In their post-trial memorandum,
for example, appellants did not even hint that a different standard should
govern disclosure of the identities of recipients of expenditures. Instead,
they quoted the Buckley test and granted that "evidence of past harassment
may be presented by plaintiffs in cases such as the instant one."
Defendants' Post-Trial Memorandum 4-5.
This case presents no extraordinary circumstances justifying deviation from

this Court's Rule 15.1(a) and its long-established practice respecting
issues not presented below. We have deviated from the Rule when
jurisdictional issues have been omitted by the parties and lower courts,
see, e. g., United States v. Storer Broadcasting Co., 351 U.S. 192, 197
(1956), or when the Court has noticed "plain error" not assigned, see
Carpenters v. United States, 330 U.S. 395, 412 (1947). Obviously, the issue
that divides the Court from the partial dissent is not jurisdictional. Nor,
as the Court's opinion persuasively demonstrates, is application of the
Buckley test to disclosure of campaign disbursements "plain error." Indeed,
I consider it quite possible that, after full consideration, the Court would
adopt the Buckley standard in this context for the reasons stated by the
Court. I also consider it quite possible that, after full consideration, the
Court might wish to revise the Buckley standard as applied to campaign
disbursements -- perhaps to take account of the different types of
expenditures covered and their differing impacts on associational rights, or
perhaps along the lines suggested in the partial dissent. But this
significant constitutional [459 U.S. 87, 106] decision should not be made
until the question is properly presented so that the record includes data
and arguments adequate to inform the Court's judgment.
The Court's apparent reliance on Procunier v. Navarette, 434 U.S. 555, 560 ,
n. 6 (1978), does not provide a rationale for deciding this issue at this
time. The petitioner there had included in his petition for certiorari all

the questions we eventually decided. Notwithstanding the fact that the Court
limited its grant of the petition to a single question, the parties fully
briefed the questions on which review had been denied. Deciding those
questions, therefore, was neither unwise nor unfair. In this case, in
contrast, appellants affirmatively excluded the point at issue in their
jurisdictional statement and in their brief on the merits. By failing to
raise it until their reply brief, appellants prevented appellees from
responding to the argument in writing. There can be no question that, as the
Court observes, "òur power to decide is not limited by the precise terms of
the question presented.'" Ante, at 94, n. 9 (quoting Procunier v. Navarette,
434 U.S., at 560 , n. 6) (emphasis supplied). But Rule 15.1(a) is designed,
as a prudential matter, to prevent the possibility that such tactics will
result in ill-considered decisions. It is cases like this one that show the
wisdom of the Rule.
Thus, for purposes of this case, I would assume, as appellants'

jurisdictional statement and brief on the merits assume, that the Buckley
standard applies to campaign expenditures just as it applies to
contributions.[2] Appellees [459 U.S. 87, 107] presented "specific evidence
of past or present harassment of members due to their associational ties, or
of harassment directed against the organization itself," sufficient under
the rule in Buckley to establish a "reasonable probability" that the Ohio
law would trigger "threats, harassment, or reprisals" against contributors.
424 U.S., at 74 . On this basis, I would affirm the judgment of the District
Court in its entirety.
Footnotes
[1] Although the partial dissent agrees that this issue is not properly
presented and therefore that the question should not be decided, post, at
112, n. 7, its result and reasoning endorse a different standard of proof.
See n. 2, infra.
[2] The partial dissent says it agrees that "this is not the appropriate
case to determine whether a different test or standard of proof should be
employed in determining the constitutional validity of required disclosure
of expenditures." Post, at 112, n. 7. If that is so, however, appellees'
proof, which the partial dissent agrees established a reasonable probability
of threats, harassment, or reprisals against contributors, likewise allowed
the District Court to find a reasonable probability of threats, harassment,
or reprisals against recipients of expenditures. The Buckley standard
permits proof that a particular disclosure creates the requisite likelihood
of harassment to be based on a showing of harassment directed at members of
[459 U.S. 87, 107] the party or at the organization itself. 424 U.S., at 74
. Thus, I do not understand how the partial dissent's "separately focused
inquiry" can "plainly require a different result," post, at 113, n. 7, or
how it possibly can lead to the conclusion that "appellees did not carry
their burden of production and persuasion insofar as they challenge the
expenditure disclosure provisions," post, at 115 -- unless, despite the
partial dissent's uncertain disclaimer, post, at 113, n. 7, its "separate
focus" alters Buckley's "reasonable probability" and "flexible proof"
standards in the context of expenditures.
JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST and JUSTICE STEVENS join,
concurring in part and dissenting in part.
I concur in the judgment that the Socialist Workers Party (SWP) has
sufficiently demonstrated a reasonable probability that disclosure of
contributors will subject those persons to threats, harassment, or
reprisals, and thus under Buckley v. Valeo, 424 U.S. 1 (1976), the State of
Ohio cannot constitutionally compel the disclosure. Further, I agree that

the broad concerns of Buckley apply to the required disclosure of recipients

of campaign expenditures. But, as I view the record presented here, the SWP
has failed to carry its burden of showing that there is a reasonable
probability that disclosure of recipients of expenditures will subject the
recipients themselves or the SWP to threats, harassment, or reprisals.
Moreover, the strong public interest in fair and honest elections outweighs
any damage done to the associational rights of the party and its members by
application of the State's expenditure disclosure law. [459 U.S. 87, 108]
Buckley upheld the validity of the Federal Election Campaign Act of 1971,
which requires the disclosure of names of both contributors to a campaign
and recipients of expenditures from the campaign. Buckley recognized three
major governmental interests in disclosure requirements: deterrence of
corruption; enhancement of voters' knowledge about a candidate's possible
allegiances and interests; and provision of the data and means necessary to
detect violations of any statutory limitations on contributions or
expenditures. The precise challenge that the Buckley Court faced, however,
was the overbreadth of the Act's requirements "insofar as they apply to
contributions to minor parties and independent candidates." Id., at 68-69
(emphasis added).1 Since the appellants in Buckley did not challenge the
application to minor parties of requirements of disclosure of expenditures,
the Court had no occasion to consider directly the First Amendment interests
of a minor political party in preventing disclosure of expenditures, much
less to weigh them against the governmental interests in disclosure. The
test adopted by Buckley, quoted by the majority, ante, at 93, reflects this
limitation, for it contemplates only assessing possible harassment of
contributors, without a word about considering the harassment of recipients
of expenditures if their names are disclosed or any effects this harassment
may have on the party.
This is not to say that Buckley provides no guidance for resolving this
claim. I agree with the majority that appellants [459 U.S. 87, 109] have
overstated their argument in declaring that Buckley has no application to
the disclosure of recipients of expenditures. Certainly, Buckley enunciates
the general governmental interest in regulating minor parties, who, although
unlikely to win, can often affect the outcome of an election. 424 U.S., at
70 . Buckley also emphasizes the sensitive associational rights of minor
parties.
Nevertheless, there are important differences between disclosure of

contributors and disclosure of recipients of campaign expenditures -
differences that the Buckley Court had no occasion to address, but that
compel me to conclude that the balance should not necessarily be calibrated
identically. First, unlike the government's interest in disclosure of
contributions, its interest in disclosure of expenditures does not decrease
significantly for small parties. The Court in Buckley recognized that
knowing the identity of contributors would not significantly increase the
voters' ability to determine the political ideology of the minor-party
candidate, for the stance of the minor-party candidate is usually well
known. Ibid.[2] Nor would identifying a minor party's contributors further
the interest in preventing the "buying" of a candidate, because of the
improbability of the minor-party candidate's winning the election. Ibid.
Thus, these two major government interests in disclosure of contributions
are significantly reduced for minor parties.[3]
In sharp contrast, however, the governmental interest in disclosure of

expenditures remains significant for minor parties. The purpose of requiring
parties to disclose expenditures is to deter improper influencing of voters.
Corruption [459 U.S. 87, 110] of the electoral process can take many forms:
the actual buying of votes; the use of "slush funds;" dirty tricks; and
bribes of poll watches and other election officials. Certainly, a

"persuasive" campaign worker on election day can corral voters for his
minor-party candidate with even a modest "slush fund."[4] Even though such
improper practices are unlikely to be so successful as to attract enough
votes to elect the minor-party candidate, a minor party, whose short-term
goal is merely recognition, may be as tempted to resort to impressible
methods as are major parties, and the resulting deflection of votes can
determine the outcome of the election of other candidates.[5] The
requirement of a full and verifiable report of expenditures is important in
deterring such practices, for otherwise the party could hide the improper
transactions through an accounting sleight of hand.[6]
On the other side of the balance, disclosure of recipients of expenditures

will have a lesser impact on a minority party's First Amendment interests
than will disclosure of contributors. [459 U.S. 87, 111] As the majority
states, ante, at 91, the First Amendment interest here is "[t]he right to
privacy in one's political associations and beliefs." We have never drawn
sharp distinctions between members and contributors, Buckley, 424 U.S., at
66 . As we recognized in Buckley, the privacy rights of contributors are
especially sensitive, since many seek to express their political views
privately through their pocketbook rather than publicly through other means.
Disclosure of contributors directly implicates the contributors'
associational rights.
The impact on privacy interests arising from disclosure of expenditures is

of a quite different -- and generally lesser -- dimension. Many expenditures
of the minority party will be for quite mundane purposes to persons not
intimately connected with the organization. Payments for such things as
office supplies, telephone service, bank charges, printing and photography
costs would generally fall in this category. The likelihood that such
business transactions would dry up if disclosed is remote at best. Unlike
silent contributors, whom disclosure would reveal to the public as
supporters of the party's ideological positions, persons providing business
services to a minor party are not generally perceived by the public as
supporting the party's ideology, and thus are unlikely to be harassed if
their names are disclosed. Consequently, the party's associational interests
are unlikely to be affected by disclosure of recipients of such
expenditures.
Other recipients of expenditures may have closer ideological ties to the

party. The majority suggests that campaign workers receiving per diem,
travel, or room expenses may fit in this category. Ante, at 97, n. 12. It is
certainly conceivable that such persons may be harassed or threatened for
their conduct. Laws requiring disclosure of recipients of expenditures,
however, are not likely to contribute to this harassment. Once an individual
has openly shown his close ties to the organization by campaigning for it,
disclosure of receipt of expenditures is unlikely to increase the degree of
[459 U.S. 87, 112] harassment so significantly as to deter the individual
from campaigning for the party. Further, in striking the balance, the
governmental concerns are greatest precisely for the actions of campaign
workers that might improperly influence voters. Thus, whatever marginal
deterrence that may arise from disclosure of expenditures is outweighed by
the heightened governmental interest.
In sum, the heightened governmental interest in disclosure of expenditures

and the reduced marginal deterrent effect on associational interests demand
a separately focused inquiry into whether there exists a reasonable
probability that disclosure will subject recipients or the party itself to
threats, harassment, or reprisals.[7] [459 U.S. 87, 113]
II

Turning to the evidence in this case, it is important to remember that, even

though proof requirements must be flexible, Buckley, supra, at 74, the minor
party carries the burden of production and persuasion to show that its First
Amendment interests outweigh the governmental interests. Additionally, the
application of the Buckley standard to the historical evidence is most
properly characterized as a mixed question of law and fact, for which we
normally assess the record independently to determine if it supports the
conclusion of unconstitutionality as applied.[8]
Here, there is no direct evidence of harassment of either contributors or

recipients of expenditures. Rather, as the majority accurately represents
it, the evidence concerns harassment and reprisals of visible party members,
including violence at party headquarters and loss of jobs. I concur in the
majority's conclusion that this evidence, viewed in its entirety, supports
the conclusion that there will be a reasonable probability of harassment of
contributors if their names are disclosed. This evidence is sufficiently
linked to disclosure of contributors in large part because any person
publicly known to support the SWP's unpopular ideological position may
suffer the reprisals that this record shows active party members suffer, and
the disclosure of contributors may lead the public to presume these people
support the party's ideology. [459 U.S. 87, 114]
In contrast, the record, read in its entirety, does not suggest that
disclosure of recipients of expenditures would lead to harassment of
recipients or reprisals to the party or its members. Appellees gave no
breakdown of the types of expenditures they thought would lead to harassment
if disclosed. The record does contain the expenditure statements of the SWP,
which itemize each expenditure with its purpose while usually omitting the
name and address of the recipient. The majority of expenditures, both in
number and dollar amount, are for business transactions such as office
supplies, food, printing, photographs, telephone service, and books. There
is virtually no evidence that disclosure of the recipients of these
expenditures will impair the SWP's ability to obtain needed services.[9]
Even if we assume that a portion [459 U.S. 87, 115] of expenditures went to
temporary campaign workers or others whom the public might identify as
supporting the party's ideology,[10] these persons have already publicly
demonstrated their support by their campaign work. There is simply no basis
for inferring that such persons would thereafter be harassed or threatened
or otherwise deterred from working for the party by virtue of inclusion of
their names in later expenditure reports, or that if any such remote danger
existed, it would outweigh the concededly important governmental interests
in disclosure of recipients of expenditures.
It is plain that appellees did not carry their burden of production and
persuasion insofar as they challenge the expenditure disclosure provisions.
I would therefore uphold the constitutionality of those portions of the Ohio
statute that require the SWP to disclose the recipients of expenditures.[11]
Footnotes
[1] Of course, the plaintiffs in Buckley challenged many aspects of the

federal Act, including expenditure limitations and the disclosure
requirements for independent contributions and expenditures. The Court
upheld all disclosure requirements, including disclosure of independent
expenditures "for communications that expressly advocate the election or
defeat of a clearly identified candidate." 424 U.S., at 80 . The plaintiffs
in Buckley did not challenge, however, the federal requirement that all
political parties, including minor political parties, disclose the
recipients of their expenditures.
[2] Certainly, that is true in this instance. The general political stance

of the SWP and its candidates is readily discernible from the most cursory
glance at its constitution or literature.
[3] The majority is obviously correct in noting that the third governmental
interest articulated in Buckley -- using disclosures to police limitations
on contributions and expenditures -- has no application to either
contributions or expenditures in Ohio, since the Ohio statute sets no
limitations on them.
[4] As JUSTICE WHITE noted in partial dissent in Buckley, 424 U.S., at

264-265, citing Burroughs v. United States, 290 U.S. 534 (1934):
"[T]he corrupt use of money by candidates is as much to be

feared as the corrosive influence of large contributions. There
are many illegal ways of spending money to influence
elections. One would be blind to history to deny that
unlimited money tempts people to spend it on whatever
money can buy to influence an election." (Emphasis in
original.)
[5] Certainly the SWP could have this effect. For example, appellants noted
at oral argument that the SWP candidate in the 1974 Ohio gubernatorial
election received some 95,000 votes. The Republican candidate's margin of
victory over the Democratic candidate was only some 13,500 votes. Tr. of
Oral Arg. 18. The impact of minor parties on elections in the United States
is well documented. See generally W. Hesseltine, Third-Party Movements in
the United States (1962).
[6] I therefore disagree with the majority's suggestion, ante, at 98-99, n.

16, that the government interest in deterring corruption is not furthered by
disclosure of all expenditures, including those for commercial services.
Even if improprieties are unlikely to occur in expenditures for commercial
services, full and verifiable disclosure is needed to ensure that other,
improper expenditures are not hidden in commercial accounts.
[7] According to the majority, "the question whether the Buckley test
applies to the compelled disclosure of recipients of expenditures is
properly before us." Ante, at 94, n. 9. The majority declares that, in
answering this question, "the District Court necessarily held (1) that the
Buckley standard, which permits flexible proof of the reasonable probability
of threats, harassment, or reprisals, applies to both contributions and
expenditures, and (2) that the evidence was sufficient to show a reasonable
probability that disclosure would subject both contributors and recipients
to public hostility and harassment." Ibid. (emphasis added).
JUSTICE BLACKMUN, ante, at 102, however, more accurately characterizes the

District Court's action as assuming that the Buckley standard applies to
disclosure of expenditures and holding the evidence sufficient to meet this
standard. The District Court's assumption is understandable, since
appellants did not question it below. Thus, this is not the appropriate case
to determine whether a different test or standard of proof should be
employed in determining the constitutional validity of required disclosure
of expenditures.
Even assuming the general applicability of the Buckley standard, though, the
question presented here requires us to inquire whether the evidence of
harassment establishes a "reasonable probability" that the Ohio law would
trigger "threats, harassment, or reprisals" against recipients of
expenditures that in turn may harm the party's associational interests. This
inquiry is necessarily distinct from the inquiry whether the evidence
establishes a reasonable probability that disclosure would trigger threats,

harassment, or reprisals against contributors. Although the proof

requirements guiding this separate inquiry remain flexible, and direct proof
[459 U.S. 87, 113] of harm from disclosure is not required, ultimately the
party must prove that the harm to it from disclosure of recipients outweighs
the governmental interest in disclosure. This separately focused inquiry
does not necessarily alter Buckley's "reasonable probability" test or
"flexible proof" standard. It does, however, plainly require a different
result.
[8] See Pullman-Standard v. Swint, 456 U.S. 273, 289 , n. 19 (1982). The
majority does not clearly articulate the standard of review it is applying.
By determining that the District Court "properly concluded" that the
evidence established a reasonable probability of harassment, ante, at 100,
the majority seems to apply an independent-review standard.
[9] The District Court admitted Exhibit 129 into the record, which is a
certified copy of findings of fact made by the Federal Election Commission
pursuant to a 1977 court order in Socialist Workers 1974 National Campaign
Committee v. Jennings, No. 74-1338 (DC, stipulated judgment entered Jan. 3,
1979). The FEC in that case analyzed affidavits submitted by SWP members and
other documentary evidence of public and private harassment of SWP members.
In finding No. 126, the FEC accepted the SWP's proposed finding that in 1971
a landlady in San Francisco rejected the application of two SWP members for
an apartment, because the FBI had visited the landlady and warned her of the
dangers of the SWP. In finding No. 127, the FEC accepted the SWP's proposed
finding that in 1974 a landlady in Chicago evicted a SWP member from her
apartment. The landlady explained, "they told me all about you," refusing to
identify who "they" were.
These two incidents are, of course, remote in time and place, and do not
suggest that the party itself has had difficulty in finding office space.
Nor do they suggest that the general public is likely to engage in similar
activity. Moreover, the FBI's actions against the SWP have long been ended,
see Final Report of the Select Committee to Study Governmental Operations
with Respect to Intelligence Activities, S. Rep. No. 94-755, Vol. 4-5, pp.
3-4 (1976), and Congress has since instituted more rigorous oversight of FBI
and other intelligence activities, see 50 U.S.C. 413 (1976 ed., Supp. IV).
An inference from these two incidents that disclosure of recipients of
expenditures would increase any difficulty the party might have in obtaining
office space would be tenuous, and is plainly outweighed by the "substantial
public interest in disclosure," Buckley, 424 U.S., at 72.
[10] As the majority notes, ante, at 97, n. 12, some entries in the
expenditure forms are designated as per diem, travel expenses, and room
rental. At least until 1978, the expenditure statements gave the names of
persons receiving per diem funds from the SWP. Apparently, party treasurers
and party candidates received per diem payments. There is no evidence that
filing these statements with the Ohio Secretary of State caused any
harassment of the named persons, and indeed it is highly unlikely that this
disclosure would increase the exposure of persons already so publicly
identified with the party.
[11] In holding a state statute unconstitutional as applied, a court must

sever and apply constitutional portions unless the legislature would not
have intended to have applied "`those provisions which are within its power,
independently of that which is not ...,'" Buckley, supra, at 108 (severing
constitutional portions of Federal Election Campaign Act after holding other
portions unconstitutional on their face), quoting Champlin Refining Co. v.
Corporation Comm'n of Okla., 286 U.S. 210, 234 (1932). Clearly, the
expenditure disclosure requirements of the Ohio statute should be severed
and applied even though the contribution disclosure requirements cannot be

applied in this instance, for the two requirements are analytically and
practically distinct. [459 U.S. 87, 116]

Brown v. Socialist Workers', 458 U.S. 87 (1982): Commentary

This case represents a significant further erosion of the bad precedent set in Buckley v. Valeo, 424 U.S. 1
(1976), which left open a defense against disclosure — evidence that the party required to disclosure
confronts a significant risk of harassment of itself or its supporters. The holding in this case was that the
Socialist Workers' Party had a history of being harassed, and that, being a minor party, its First
Amendment rights of nondisclosure outweighed the interests of the people in obtaining disclosure that
might inhibit corruption.
This case has several significant implications. First, it would relieve any minor party of disclosure
requirements, because any of them could be subject to harassment. However, second, by treating minor
parties differently than major parties, the statute would be in conflict with the constitutional requirement
of equal protection of the law. Furthermore, it can be shown by evidence that in situations where one of
the major parties has an advantage in holding key positions in government or private enterprise, it is
likely that supporters of the opposing major party, if they can be identified as such, as disclosure of their
support would do, would be subject to discrimination in hiring, promotion, or contracting. Therefore,
third, the disclosure requirements are unconstitutional for major parties and persons or committees
affiliated with them as well, and therefore are unconstitutional for anyone.
In none of these cases has there been evidence offered in support of the theory that disclosure inhibits
corruption or facilitates the detection of it. The theory has been accepted by legislatures and the courts as
plausible, but the only evidence that anyone can offer as to how such disclosures are actually used by
anyone are for harvesting lists of potential donors to solicit and for harassment of supporters of opposing
candidates or policies. The hope that ordinary voters would be informed by such disclosures in the way
they cast their votes has not been realized. Voters don't read disclosure reports. Only political insiders do,
and they tend to use the information less to fight corruption than to find opportunities for it.
Political reformers who supported campaign disclosure statutes should have been more suspicious when
they got support from elected officials for the adoption of disclosure legislation. As usual, the reform that
seems most simple and direct turns out to have the opposite effect from that which was intended.
The precedent in Buckley was further eroded in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334
(1995).

This case represents a significant further erosion of the bad precedent set
in Buckley v. Valeo, 424 U.S. 1 (1976), which left open a defense against
disclosure -- evidence that the party required to disclosure confronts a
significant risk of harassment of itself or its supporters. The holding in
this case was that the Socialist Workers' Party had a history of being
harassed, and that, being a minor party, its First Amendment rights of
nondisclosure outweighed the interests of the people in obtaining disclosure
that might inhibit corruption.
This case has several significant implications. First, it would relieve any
minor party of disclosure requirements, because any of them could be subject
to harassment. However, second, by treating minor parties differently than
major parties, the statute would be in conflict with the constitutional
requirement of equal protection of the law. Furthermore, it can be shown by
evidence that in situations where one of the major parties has an advantage
in holding key positions in government or private enterprise, it is likely
that supporters of the opposing major party, if they can be identified as
such, as disclosure of their support would do, would be subject to
discrimination in hiring, promotion, or contracting. Therefore, third, the
disclosure requirements are unconstitutional for major parties and persons
or committees affiliated with them as well, and therefore are
unconstitutional for anyone.
In none of these cases has there been evidence offered in support of the
theory that disclosure inhibits corruption or facilitates the detection of
it. The theory has been accepted by legislatures and the courts as
plausible, but the only evidence that anyone can offer as to how such
disclosures are actually used by anyone are for harvesting lists of
potential donors to solicit and for harassment of supporters of opposing
candidates or policies. The hope that ordinary voters would be informed by
such disclosures in the way they cast their votes has not been realized.
Voters don't read disclosure reports. Only political insiders do, and they
tend to use the information less to fight corruption than to find
opportunities for it.
Political reformers who supported campaign disclosure statutes should have

been more suspicious when they got support from elected officials for the
adoption of disclosure legislation. As usual, the reform that seems most
simple and direct turns out to have the opposite effect from that which was
intended.
The precedent in Buckley was further eroded in McIntyre v. Ohio Elections

Comm'n, 514 U.S. 334 (1995).

Hafer v. Melo, 502 U.S. 21 (1991)
U.S. Supreme Court

HAFER v. MELO, 502 U.S. 21 (1991)
502 U.S. 21
BARBARA HAFER, PETITIONER v. JAMES C. MELO, JR., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 90-681

Decided November 5, 1991
After petitioner Hafer, the newly elected Auditor General of Pennsylvania, discharged respondents from
their jobs in her office, they sued her for, inter alia, monetary damages under 42 U.S.C. 1983. The
District Court dismissed the latter claims under Will v. Michigan Dept. of State Police, 491 U.S. 58, 71,
in which the Court held that state officials "acting in their official capacities" are outside the class of
"persons" subject to liability under 1983. In reversing this ruling, the Court of Appeals found that
respondents sought damages from Hafer in her personal capacity and held that, because she acted under
color of state law, respondents could maintain a 1983 individual-capacity suit against her.
Held:
State officers may be held personally liable for damages under 1983 based upon actions taken in their
official capacities. Pp. 3-10.
● (a) The above-quoted language from Will does not establish that Hafer may not be held personally
liable under 1983 because she "act[ed]" in her official capacity. The claims considered in Will
were official-capacity claims, and the phrase "acting in their official capacities" is best understood
as a reference to the capacity in which the state officer is sued, not the capacity in which the officer
inflicts the alleged injury. Pp. 3-5.
● (b) State officials, sued in their individual capacities, are "persons" within the meaning of 1983.
Unlike official-capacity defendants - who are not "persons" because they assume the identity of the
government that employs them, Will, supra, at 71 - officers sued in their personal capacity come to
the court as individuals, and thus fit comfortably within the statutory term "person," cf. 491 U.S.,
at 71, n. 10. Moreover, 1983's authorization of suits to redress deprivations of civil rights by
persons acting "under color of" state law means that Hafer may be liable for discharging
respondents precisely because of her authority as Auditor General. Her assertion that acts that are
both within the official's authority and necessary to the performance of governmental functions
(including the employment decisions at issue) should be considered acts of the State that cannot
give rise to a personal-capacity action is unpersuasive. That contention ignores this Court's holding
that 1983 was enacted to enforce provisions of the Fourteenth Amendment against those who carry
a badge of a State and represent it in some capacity, [502 U.S. 21, 22] whether they act in
accordance with their authority or misuse it. Scheuer v. Rhodes, 416 U.S. 232, 243. Furthermore,
Hafer's theory would absolutely immunize state officials from personal liability under 1983 solely

Hafer v. Melo, 502 U.S. 21 (1991)
by virtue of the "official" nature of their acts, in contravention of this Court's immunity decisions.
See, e.g., Scheuer, supra. Pp. 27-29.
● (c) The Eleventh Amendment does not bar 1983 personal-capacity suits against state officials in
federal court. Id., at 237, 238. Will's language concerning suits against state officials cannot be
read as establishing the limits of liability under the Amendment, since Will arose from a suit in
state court, and considered the Amendment only because the fact that Congress did not intend to
override state immunity when it enacted 1983 was relevant to statutory construction. 491 U.S., at
66. Although imposing personal liability on state officers may hamper their performance of public
duties, such concerns are properly addressed within the framework of this Court's personal
immunity jurisprudence. Pp. 29-31.
912 F.2d 628 (CA3 1990), affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except
THOMAS, J., who took no part in the consideration or decision of the case.
Jerome R. Richter argued the cause for petitioner. With him on the briefs was Goncer M. Krestal.
William Goldstein argued the cause for respondents. With him on the brief was Edward H. Rubenstone.
*
[ Footnote *] Richard Ruda filed a brief for the National Association of Counties et al. as amici curiae
urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by
Andrew J. Pincus, John A. Powell, and Steven R. Shapiro; for the American Federation of Labor and
Gongress of Industrial Organizations by Robert M. Weinberg, Walter Kamiat, and Laurence Gold; for
Kenneth W. Fultz by Cletus P. Lyman; and for Nancy Haberstroh by Stephen R. Kaplan.
JUSTICE O'CONNOR delivered the opinion of the Court.
In Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), we held that state officials "acting in their
official capacities" are outside the class of "persons" subject to liability [502 U.S. 21, 23] under 42 U.S.C.
1983. 491 U.S., at 71. Petitioner takes this language to mean that 1988 does not authorize suits against
state officers for damages arising from official acts. We reject this reading of Will, and hold that state
officials sued in their individual capacities are "persons" for purposes of 1983.
I
In 1988, petitioner Barbara Hafer sought election to the post of Auditor General of Pennsylvania.
Respondents allege that, during the campaign, United States Attorney James West gave Hafer a list of 21
employees in the Auditor General's Office who secured their jobs through payments to a former
employee of the office. App. 10. They further allege that Hafer publicly promised to fire all employees
on the list if elected. Ibid
Hafer won the election. Shortly after becoming Auditor General, she dismissed 18 employees, including
named respondent James Melo, Jr., on the basis that they "bought" their jobs. Melo and seven other
terminated employees sued Hafer and West in Federal District Court. They asserted state and federal

Hafer v. Melo, 502 U.S. 21 (1991)
claims, including a claim under 1983, and sought monetary damages. Carl Gurley and the remaining
respondents in this case also lost their jobs with the Auditor General soon after Hafer took office. These
respondents allege that Hafer discharged them because of their Democratic political affiliation and
support for her opponent in the 1988 election. Id., at 28, 35, 40. They too filed suit against Hafer, seeking
monetary damages and reinstatement under 1983.
After consolidating the Melo and Gurley actions, the District Court dismissed all claims. In relevant part,
the court held that the 1983 claims against Hafer were barred because, under Will, she could not be held
liable for employment decisions made in her official capacity as Auditor General. [502 U.S. 21, 24]
The Court of Appeals for the Third Circuit reversed this portion of the District Court's decision. 912 F.2d
628 (1990). As to claims for reinstatement brought against Hafer in her official capacity, the court rested
on our statement in Will that state officials sued for injunctive relief in their official capacities are
"persons" subject to liability under 1983. See Will, supra, at 71, n. 10. Turning to respondents' monetary
claims, the court found that six members of the Gurley group had expressly sought damages from Hafer
in her personal capacity. The remaining plaintiffs "although not as explicit, signified a similar intent."
912 F.2d, at 636. * The court found this critical. While Hafer's power to hire and fire derived from her
position as Auditor General, it said, a suit for damages based on the exercise of this authority could be
brought against Hafer in her personal capacity. Because Hafer acted under color of state law, respondents
could maintain a 1983 individual-capacity suit against her.
We granted certiorari, 498 U.S. 1118 (1991), to address the question whether state officers may be held
personally liable for damages under 1983 based upon actions taken in their official capacities. [502 U.S.
21, 25]
II
In Kentucky v. Graham, 473 U.S. 159 (1985), the Court sought to eliminate lingering confusion about
the distinction between personal- and official-capacity suits. We emphasized that official-capacity suits
"`generally represent only another way of pleading an action against an entity of which an officer is an
agent.'" Id., at 165 (quoting Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690, n. 55
(1978)). A suit against a state official in her official capacity therefore should be treated as a suit against
the State. 473 U.S., at 166. Indeed, when an official sued in this capacity in federal court dies or leaves
office, her successor automatically assumes her role in the litigation. See Fed.Rule Civ.Proc. 25(d)(1);
Fed.Rule App. Proc. 43(c)(1); this Court's Rule 35.3. Because the real party in interest in an
official-capacity suit is the governmental entity, and not the named official, "the entity's `policy or
custom' must have played a part in the violation of federal law." Graham, supra, at 166 (quoting Monell,
supra, at 694). For the same reason, the only immunities available to the defendant in an official-capacity
action are those that the governmental entity possesses. 473 U.S., at 167.
Personal-capacity suits, on the other hand, seek to impose individual liability upon a government officer
for actions taken under color of state law. Thus, "[o]n the merits, to establish personal liability in a 1983
action, it is enough to show that the official, acting under color of state law, caused the deprivation of a
federal right." Id., at 166. While the plaintiff in a personal-capacity suit need not establish a connection to
governmental "policy or custom," officials sued in their personal capacities, unlike those sued in their
official capacities, may assert personal immunity defenses such as objectively reasonable reliance on

Hafer v. Melo, 502 U.S. 21 (1991)
existing law. Id., at 166-167.

Our decision in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), turned in part on these
differences between [502 U.S. 21, 26] personal- and official-capacity actions. The principal issue in Will
was whether States are "persons" subject to suit under 1983. Section 1983 provides, in relevant part:
● "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured. . . ."
The Court held that interpreting the words "[e]very person" to exclude the States accorded with the most
natural reading of the law, with its legislative history, and with the rule that Congress must clearly state
its intention to alter "`the federal balance'" when it seeks to do so. Will, supra, at 65 (quoting United
States v. Bass, 404 U.S. 336, 349 (1971)).
The Court then addressed the related question whether state officials, sued for monetary relief in their
official capacities, are persons under 1983. We held that they are not. Although "state officials literally
are persons," an official-capacity suit against a state officer "is not a suit against the official, but rather is
a suit against the official's office. As such, it is no different from a suit against the State itself." 491 U.S.,
at 71 (citation omitted).
Summarizing our holding, we said: "[N]either a State nor its officials acting in their official capacities are
`persons' under 1983." Ibid. Hafer relies on this recapitulation for the proposition that she may not be
held personally liable under 1983 for discharging respondents, because she "act[ed]" in her official
capacity as Auditor General of Pennsylvania. Of course, the claims considered in Will were
official-capacity claims; the phrase "acting in their official capacities" is best understood as a reference to
the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged
injury. To the extent that Will [502 U.S. 21, 27] allows the construction Hafer suggests, however, we now
eliminate that ambiguity.
A
Will itself make clear that the distinction between official-capacity suits and personal-capacity suits is
more than "a mere pleading device." Ibid. State officers sued for damages in their official capacity are
not "persons" for purposes of the suit, because they assume the identity of the government that employs
them. Ibid. By contrast, officers sued in their personal capacity come to court as individuals. A
government official in the role of personal-capacity defendant thus fits comfortably within the statutory
term "person." Cf. id., at 71, n. 10 ("[A] state official in his or her official capacity, when sued for
injunctive relief, would be a person under 1983 because òfficial-capacity actions for prospective relief
are not treated as actions against the State'") (quoting Graham, 473 U.S., at 167, n. 14).
Hafer seeks to overcome the distinction between official- and personal-capacity suits by arguing that
1983 liability turns not on the capacity in which state officials are sued, but on the capacity in which they
acted when injuring the plaintiff. Under Will, she asserts, state officials may not be held liable in their
personal capacity for actions they take in their official capacity. Although one Court of Appeals has
endorsed this view, see Cowan v. University of Louisville School of Medicine, 900 F.2d 936, 942-943
(CA6 1990), we find it both unpersuasive as an interpretation of 1983 and foreclosed by our prior

Hafer v. Melo, 502 U.S. 21 (1991)
decisions.
Through 1983, Congress sought "to give a remedy to parties deprived of constitutional rights, privileges
and immunities by an official's abuse of his position." Monroe v. Pape, 365 U.S. 167, 172 (1961).
Accordingly, it authorized suits to redress deprivations of civil rights by persons acting "under color of
any [state] statute, ordinance, regulation, custom, or usage." 42 U.S.C. 1983. The requirement of action
under color of state law means that Hafer may be liable for [502 U.S. 21, 28] discharging respondents
precisely because of her authority as Auditor General. We cannot accept the novel proposition that this
same official authority insulates Hafer from suit.
In an effort to limit the scope of her argument, Hafer distinguishes between two categories of acts taken
under color of state law: those outside the official's authority or not essential to the operation of state
government, and those both within the official's authority and necessary to the performance of
governmental functions. Only the former group, she asserts, can subject state officials to personal
liability under 1983; the latter group (including the employment decisions at issue in this case) should be
considered acts of the State that cannot give rise to a personal-capacity action.
The distinction Hafer urges finds no support in the broad language of 1983. To the contrary, it ignores
our holding that Congress enacted 1983 "to enforce provisions of the Fourteenth Amendment against
those who carry a badge of authority of a State and represent it in some capacity, whether they act in
accordance with their authority or misuse it." Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) (quoting
Monroe v. Pape, supra, at 171-172). Because of that intent, we have held that, in 1983 actions, the
statutory requirement of action "under color of" state law is just as broad as the Fourteenth Amendment's
"state action" requirement. Lugar v. Edmondson Oil Co., 457 U.S. 922, 929 (1982).
Furthermore, Hafer's distinction cannot be reconciled with our decisions regarding immunity of
government officers otherwise personally liable for acts done in the course of their official duties. Her
theory would absolutely immunize state officials from personal liability for acts within their authority
and necessary to fulfilling governmental responsibilities. Yet our cases do not extend absolute immunity
to all officers who engage in necessary official acts. Rather, immunity from suit under 1983 is
"predicated upon a considered inquiry into the immunity historically accorded the relevant [502 U.S. 21,
29] official at common law and the interests behind it," Imbler v. Pachtman, 424 U.S. 409, 421 (1976),
and officials seeking absolute immunity must show that such immunity is justified for the governmental
function at issue, Burns v. Reed, 500 U.S. 478, 486-487 (1991).
This Court has refused to extend absolute immunity beyond a very limited class of officials, including
the President of the United States, legislators carrying out their legislative functions, and judges carrying
out their judicial functions, "whose special functions or constitutional status requires complete protection
from suit." Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). State executive officials are not entitled to
absolute immunity for their official actions. Scheuer v. Rhodes, supra. In several instances, moreover, we
have concluded that no more than a qualified immunity attaches to administrative employment decisions,
even if the same official has absolute immunity when performing other functions. See Forrester v. White,
484 U.S. 219 (1988) (dismissal of court employee by state judge); Harlow v. Fitzgerald, supra,
(discharge of Air Force employee, allegedly orchestrated by senior White House aides) (Bivens action);
Davis v. Passman, 442 U.S. 228 (1979) (dismissal of congressional aide) (Bivens action). That Hafer
may assert personal immunity within the framework of these cases in no way supports her argument

Hafer v. Melo, 502 U.S. 21 (1991)
here.
B
Hafer further asks us to read Will's language concerning suits against state officials as establishing the
limits of liability under the Eleventh Amendment. She asserts that imposing personal liability on
officeholders may infringe on state sovereignty by rendering government less effective; thus, she argues,
the Eleventh Amendment forbids personal-capacity suits against state officials in federal court. [502 U.S.
21, 30]
Most certainly, Will's holding does not rest directly on the Eleventh Amendment. Whereas the Eleventh
Amendment bars suits in federal court "by private parties seeking to impose a liability which must be
paid from public funds in the state treasury," Edelman v. Jordan, 415 U.S. 651, 663 (1974), Will arose
from a suit in state court. We considered the Eleventh Amendment in Will only because the fact that
Congress did not intend to override state immunity when it enacted 1983 was relevant to statutory
construction: "Given that a principal purpose behind the enactment of 1983 was to provide a federal
forum for civil rights claims," Congress' failure to authorize suits against States in federal courts
suggested that it also did not intend to authorize such claims in state courts. 491 U.S., at 66.
To the extent that Hafer argues from the Eleventh Amendment itself, she makes a claim that failed in
Scheuer v. Rhodes, supra. In Scheuer, personal representatives of the estates of three students who died
at Kent State University in May, 1970, sought damages from the Governor of Ohio and other state
officials. The District Court dismissed their complaints on the theory that the suits, although brought
against state officials in their personal capacities, were in substance actions against the State of Ohio, and
therefore barred by the Eleventh Amendment.
We rejected this view. "[S]ince Ex parte Young, 209 U.S. 123 (1908)," we said, "it has been settled that
the Eleventh Amendment provides no shield for a state official confronted by a claim that he had
deprived another of a federal right under the color of state law." Scheuer, supra, at 237. While the
doctrine of Ex parte Young does not apply where a plaintiff seeks damages from the public treasury,
damages awards against individual defendants in federal courts "are a permissible remedy in some
circumstances notwithstanding the fact that they hold public office." 416 U.S., at 238. That is, the
Eleventh Amendment does not erect a barrier [502 U.S. 21, 31] against suits to impose "individual and
personal liability" on state officials under 1983. Ibid.
To be sure, imposing personal liability on state officers may hamper their performance of public duties.
But such concerns are properly addressed within the framework of our personal immunity jurisprudence.
See Forrester v. White, supra, at 223. Insofar as respondents seek damages against Hafer personally, the
Eleventh Amendment does not restrict their ability to sue in federal court.
We hold that state officials, sued in their individual capacities, are "persons" within the meaning of 1983.
The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal
liability under 1983 solely by virtue of the "official" nature of their acts.
The judgment of the Court of Appeals is
Affirmed.

Hafer v. Melo, 502 U.S. 21 (1991)
JUSTICE THOMAS took no part in the consideration or decision of this case.

[Footnote *] The Third Circuit looked to the proceedings below to determine whether certain respondents
brought their claims for damages against Hafer in her official capacity or her personal capacity. 912 F.2d
628, 635-636 (1990). Several other Courts of Appeals adhere to this practice. See Conner v. Reinhard,
847 F.2d 384, 394, n. 8 (CA7), cert. denied, 488 U.S. 856 (1988); Houston v. Reich, 932 F.2d 883, 885
(CA10 1991); Lundgren v. McDaniel, 814 F.2d 600, 603-604 (CA11 1987). Still others impose a more
rigid pleading requirement. See Wells v. Brown, 891 F.2d 591, 592 (CA6 1989) ( 1983 plaintiff must
specifically plead that suit for damages is brought against state official in individual capacity); Nix v.
Norman, 879 F.2d 429, 431 (CA8 1989) (same). Because this issue is not properly before us, we simply
reiterate the Third Circuit's view that "[i]t is obviously preferable for the plaintiff to be specific in the
first instance to avoid any ambiguity." 912 F.2d, at 636, n. 7. See this Court's Rule 14.1(a) ("Only the
questions set forth in the petition, or fairly included therein, will be considered by the Court"). [502 U.S.
21, 32]

U.S. Supreme Court
HAFER v. MELO, 502 U.S. 21 (1991)
502 U.S. 21
BARBARA HAFER, PETITIONER v. JAMES C. MELO, JR.,

ET AL.
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 90-681

Decided November 5, 1991
After petitioner Hafer, the newly elected Auditor General of

Pennsylvania, discharged respondents from their jobs in her office, they
sued her for, inter alia, monetary damages under 42 U.S.C. 1983. The
District Court dismissed the latter claims under Will v. Michigan Dept.
of State Police, 491 U.S. 58, 71 , in which the Court held that state
officials "acting in their official capacities" are outside the class of
"persons" subject to liability under 1983. In reversing this ruling, the
Court of Appeals found that respondents sought damages from Hafer in her
personal capacity and held that, because she acted under color of state
law, respondents could maintain a 1983 individual-capacity suit against
her.
Held:
State officers may be held personally liable for damages under 1983
based upon actions taken in their official capacities. Pp. 3-10.
(a) The above-quoted language from Will does not establish that
Hafer may not be held personally liable under 1983 because she
"act[ed]" in her official capacity. The claims considered in Will
were official-capacity claims, and the phrase "acting in their
official capacities" is best understood as a reference to the
capacity in which the state officer is sued, not the capacity in
which the officer inflicts the alleged injury. Pp. 3-5.
(b) State officials, sued in their individual capacities, are

"persons" within the meaning of 1983. Unlike official-capacity
defendants - who are not "persons" because they assume the identity
of the government that employs them, Will, supra, at 71 - officers
sued in their personal capacity come to the court as individuals,
and thus fit comfortably within the statutory term "person," cf.
491 U.S., at 71 , n. 10. Moreover, 1983's authorization of suits to
redress deprivations of civil rights by persons acting "under color
of" state law means that Hafer may be liable for discharging
respondents precisely because of her authority as Auditor General.
Her assertion that acts that are both within the official's
authority and necessary to the performance of governmental
functions (including the employment decisions at issue) should be
considered acts of the State that cannot give rise to a
personal-capacity action is unpersuasive. That contention ignores
this Court's holding that 1983 was enacted to enforce provisions of
the Fourteenth Amendment against those who carry a badge of a State
and represent it in some capacity, [502 U.S. 21, 22] whether they
act in accordance with their authority or misuse it. Scheuer v.
Rhodes, 416 U.S. 232, 243 . Furthermore, Hafer's theory would

absolutely immunize state officials from personal liability under

1983 solely by virtue of the "official" nature of their acts, in
contravention of this Court's immunity decisions. See, e.g.,
Scheuer, supra. Pp. 27-29.
(c) The Eleventh Amendment does not bar 1983 personal-capacity

suits against state officials in federal court. Id., at 237, 238.
Will's language concerning suits against state officials cannot be
read as establishing the limits of liability under the Amendment,
since Will arose from a suit in state court, and considered the
Amendment only because the fact that Congress did not intend to
override state immunity when it enacted 1983 was relevant to
statutory construction. 491 U.S., at 66 . Although imposing
personal liability on state officers may hamper their performance
of public duties, such concerns are properly addressed within the
framework of this Court's personal immunity jurisprudence. Pp.
29-31.
912 F.2d 628 (CA3 1990), affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which all other
Members joined, except THOMAS, J., who took no part in the
consideration or decision of the case.
Jerome R. Richter argued the cause for petitioner. With him on the
briefs was Goncer M. Krestal.
William Goldstein argued the cause for respondents. With him on the
brief was Edward H. Rubenstone. *
[ Footnote * ] Richard Ruda filed a brief for the National Association

of Counties et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American
Civil Liberties Union et al. by Andrew J. Pincus, John A. Powell, and
Steven R. Shapiro; for the American Federation of Labor and
Gongress of Industrial Organizations by Robert M. Weinberg, Walter
Kamiat, and Laurence Gold; for Kenneth W. Fultz by Cletus P.
Lyman; and for Nancy Haberstroh by Stephen R. Kaplan.
JUSTICE O'CONNOR delivered the opinion of the Court.
In Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), we held

that state officials "acting in their official capacities" are outside
the class of "persons" subject to liability [502 U.S. 21, 23] under 42
U.S.C. 1983. 491 U.S., at 71 . Petitioner takes this language to mean
that 1988 does not authorize suits against state officers for damages
arising from official acts. We reject this reading of Will, and hold
that state officials sued in their individual capacities are "persons"
for purposes of 1983.
In 1988, petitioner Barbara Hafer sought election to the post of

Auditor General of Pennsylvania. Respondents allege that, during the
campaign, United States Attorney James West gave Hafer a list of 21
employees in the Auditor General's Office who secured their jobs
through payments to a former employee of the office. App. 10. They
further allege that Hafer publicly promised to fire all employees on the
list if elected. Ibid

Hafer won the election. Shortly after becoming Auditor General, she
dismissed 18 employees, including named respondent James Melo, Jr.,
on the basis that they "bought" their jobs. Melo and seven other
terminated employees sued Hafer and West in Federal District Court.
They asserted state and federal claims, including a claim under 1983,
and sought monetary damages. Carl Gurley and the remaining
respondents in this case also lost their jobs with the Auditor General
soon after Hafer took office. These respondents allege that Hafer
discharged them because of their Democratic political affiliation and
support for her opponent in the 1988 election. Id., at 28, 35, 40. They
too filed suit against Hafer, seeking monetary damages and
reinstatement under 1983.
After consolidating the Melo and Gurley actions, the District Court
dismissed all claims. In relevant part, the court held that the 1983
claims against Hafer were barred because, under Will, she could not be
held liable for employment decisions made in her official capacity as
Auditor General. [502 U.S. 21, 24]
The Court of Appeals for the Third Circuit reversed this portion of the
District Court's decision. 912 F.2d 628 (1990). As to claims for
reinstatement brought against Hafer in her official capacity, the court
rested on our statement in Will that state officials sued for injunctive
relief in their official capacities are "persons" subject to liability
under 1983. See Will, supra, at 71, n. 10. Turning to respondents'
monetary claims, the court found that six members of the Gurley group
had expressly sought damages from Hafer in her personal capacity. The
remaining plaintiffs "although not as explicit, signified a similar
intent." 912 F.2d, at 636. * The court found this critical. While
Hafer's power to hire and fire derived from her position as Auditor
General, it said, a suit for damages based on the exercise of this
authority could be brought against Hafer in her personal capacity.
Because Hafer acted under color of state law, respondents could maintain
a 1983 individual-capacity suit against her.
We granted certiorari, 498 U.S. 1118 (1991), to address the question

whether state officers may be held personally liable for damages under
1983 based upon actions taken in their official capacities. [502 U.S. 21,
25]
II
In Kentucky v. Graham, 473 U.S. 159 (1985), the Court sought to

eliminate lingering confusion about the distinction between personal-
and official-capacity suits. We emphasized that official-capacity suits
"`generally represent only another way of pleading an action against an
entity of which an officer is an agent.'" Id., at 165 (quoting Monell v.
New York City Dept. of Social Servs., 436 U.S. 658, 690 , n. 55 (1978)).
A suit against a state official in her official capacity therefore
should be treated as a suit against the State. 473 U.S., at 166 .
Indeed, when an official sued in this capacity in federal court dies or
leaves office, her successor automatically assumes her role in the
litigation. See Fed.Rule Civ.Proc. 25(d)(1); Fed.Rule App. Proc.
43(c)(1); this Court's Rule 35.3. Because the real party in interest in
an official-capacity suit is the governmental entity, and not the named
official, "the entity's `policy or custom' must have played a part in
the violation of federal law." Graham, supra, at 166 (quoting Monell,
supra, at 694). For the same reason, the only immunities available to
the defendant in an official-capacity action are those that the
governmental entity possesses. 473 U.S., at 167 .

Personal-capacity suits, on the other hand, seek to impose individual

liability upon a government officer for actions taken under color of
state law. Thus, "[o]n the merits, to establish personal liability in a
1983 action, it is enough to show that the official, acting under color
of state law, caused the deprivation of a federal right." Id., at 166.
While the plaintiff in a personal-capacity suit need not establish a
connection to governmental "policy or custom," officials sued in their
personal capacities, unlike those sued in their official capacities, may
assert personal immunity defenses such as objectively reasonable
reliance on existing law. Id., at 166-167.
Our decision in Will v. Michigan Dept. of State Police, 491 U.S. 58

(1989), turned in part on these differences between [502 U.S. 21, 26]
personal- and official-capacity actions. The principal issue in Will was
whether States are "persons" subject to suit under 1983. Section 1983
provides, in relevant part:
"Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State ... subjects, or
causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured... ."
The Court held that interpreting the words "[e]very person" to exclude
the States accorded with the most natural reading of the law, with its
legislative history, and with the rule that Congress must clearly state
its intention to alter "`the federal balance'" when it seeks to do so.
Will, supra, at 65 (quoting United States v. Bass, 404 U.S. 336, 349
(1971)).
The Court then addressed the related question whether state officials,
sued for monetary relief in their official capacities, are persons under
1983. We held that they are not. Although "state officials literally are
persons," an official-capacity suit against a state officer "is not a
suit against the official, but rather is a suit against the official's
office. As such, it is no different from a suit against the State
itself." 491 U.S., at 71 (citation omitted).
Summarizing our holding, we said: "[N]either a State nor its officials

acting in their official capacities are `persons' under 1983." Ibid.
Hafer relies on this recapitulation for the proposition that she may not
be held personally liable under 1983 for discharging respondents,
because she "act[ed]" in her official capacity as Auditor General of
Pennsylvania. Of course, the claims considered in Will were
official-capacity claims; the phrase "acting in their official
capacities" is best understood as a reference to the capacity in which
the state officer is sued, not the capacity in which the officer
inflicts the alleged injury. To the extent that Will [502 U.S. 21, 27]
allows the construction Hafer suggests, however, we now eliminate that
ambiguity.
Will itself make clear that the distinction between official-capacity

suits and personal-capacity suits is more than "a mere pleading device."
Ibid. State officers sued for damages in their official capacity are not
"persons" for purposes of the suit, because they assume the identity of
the government that employs them. Ibid. By contrast, officers sued in
their personal capacity come to court as individuals. A government
official in the role of personal-capacity defendant thus fits

comfortably within the statutory term "person." Cf. id., at 71, n. 10

("[A] state official in his or her official capacity, when sued for
injunctive relief, would be a person under 1983 because
òfficial-capacity actions for prospective relief are not treated as
actions against the State'") (quoting Graham, 473 U.S., at 167 , n. 14).
Hafer seeks to overcome the distinction between official- and

personal-capacity suits by arguing that 1983 liability turns not on the
capacity in which state officials are sued, but on the capacity in which
they acted when injuring the plaintiff. Under Will, she asserts, state
officials may not be held liable in their personal capacity for actions
they take in their official capacity. Although one Court of Appeals has
endorsed this view, see Cowan v. University of Louisville School of
Medicine, 900 F.2d 936, 942-943 (CA6 1990), we find it both unpersuasive
as an interpretation of 1983 and foreclosed by our prior decisions.
Through 1983, Congress sought "to give a remedy to parties deprived of

constitutional rights, privileges and immunities by an official's abuse
of his position." Monroe v. Pape, 365 U.S. 167, 172 (1961). Accordingly,
it authorized suits to redress deprivations of civil rights by persons
acting "under color of any [state] statute, ordinance, regulation,
custom, or usage." 42 U.S.C. 1983. The requirement of action under color
of state law means that Hafer may be liable for [502 U.S. 21, 28]
discharging respondents precisely because of her authority as Auditor
General. We cannot accept the novel proposition that this same official
authority insulates Hafer from suit.
In an effort to limit the scope of her argument, Hafer distinguishes

between two categories of acts taken under color of state law: those
outside the official's authority or not essential to the operation of
state government, and those both within the official's authority and
necessary to the performance of governmental functions. Only the former
group, she asserts, can subject state officials to personal liability
under 1983; the latter group (including the employment decisions at
issue in this case) should be considered acts of the State that cannot
give rise to a personal-capacity action.
The distinction Hafer urges finds no support in the broad language of

1983. To the contrary, it ignores our holding that Congress enacted
1983 "to enforce provisions of the Fourteenth Amendment against
those who carry a badge of authority of a State and represent it in
some capacity, whether they act in accordance with their authority or
misuse it." Scheuer v. Rhodes, 416 U.S. 232, 243 (1974) (quoting
Monroe v. Pape, supra, at 171-172). Because of that intent, we have
held that, in 1983 actions, the statutory requirement of action "under
color of" state law is just as broad as the Fourteenth Amendment's
"state action" requirement. Lugar v. Edmondson Oil Co., 457 U.S.
922, 929 (1982).
Furthermore, Hafer's distinction cannot be reconciled with our decisions

regarding immunity of government officers otherwise personally liable
for acts done in the course of their official duties. Her theory would
absolutely immunize state officials from personal liability for acts
within their authority and necessary to fulfilling governmental
responsibilities. Yet our cases do not extend absolute immunity to all
officers who engage in necessary official acts. Rather, immunity from
suit under 1983 is "predicated upon a considered inquiry into the
immunity historically accorded the relevant [502 U.S. 21, 29] official
at common law and the interests behind it," Imbler v. Pachtman, 424 U.S.
409, 421 (1976), and officials seeking absolute immunity must show that
such immunity is justified for the governmental function at issue, Burns

v. Reed, 500 U.S. 478, 486-487 (1991).
This Court has refused to extend absolute immunity beyond a very limited
class of officials, including the President of the United States,
legislators carrying out their legislative functions, and judges
carrying out their judicial functions, "whose special functions or
constitutional status requires complete protection from suit." Harlow v.
Fitzgerald, 457 U.S. 800, 807 (1982). State executive officials are not
entitled to absolute immunity for their official actions. Scheuer v.
Rhodes, supra. In several instances, moreover, we have concluded that no
more than a qualified immunity attaches to administrative employment
decisions, even if the same official has absolute immunity when
performing other functions. See Forrester v. White, 484 U.S. 219 (1988)
(dismissal of court employee by state judge); Harlow v. Fitzgerald,
supra, (discharge of Air Force employee, allegedly orchestrated by
senior White House aides) (Bivens action); Davis v. Passman, 442 U.S.
228 (1979) (dismissal of congressional aide) (Bivens action). That Hafer
may assert personal immunity within the framework of these cases in no
way supports her argument here.
Hafer further asks us to read Will's language concerning suits against

state officials as establishing the limits of liability under the
Eleventh Amendment. She asserts that imposing personal liability on
officeholders may infringe on state sovereignty by rendering government
less effective; thus, she argues, the Eleventh Amendment forbids
personal-capacity suits against state officials in federal court. [502
U.S. 21, 30]
Most certainly, Will's holding does not rest directly on the Eleventh
Amendment. Whereas the Eleventh Amendment bars suits in federal court
"by private parties seeking to impose a liability which must be paid
from public funds in the state treasury," Edelman v. Jordan, 415 U.S.
651, 663 (1974), Will arose from a suit in state court. We considered
the Eleventh Amendment in Will only because the fact that Congress did
not intend to override state immunity when it enacted 1983 was relevant
to statutory construction: "Given that a principal purpose behind the
enactment of 1983 was to provide a federal forum for civil rights
claims," Congress' failure to authorize suits against States in federal
courts suggested that it also did not intend to authorize such claims in
state courts. 491 U.S., at 66 .
To the extent that Hafer argues from the Eleventh Amendment itself, she
makes a claim that failed in Scheuer v. Rhodes, supra. In Scheuer,
personal representatives of the estates of three students who died at
Kent State University in May, 1970, sought damages from the Governor of
Ohio and other state officials. The District Court dismissed their
complaints on the theory that the suits, although brought against state
officials in their personal capacities, were in substance actions
against the State of Ohio, and therefore barred by the Eleventh
Amendment.
We rejected this view. "[S]ince Ex parte Young, 209 U.S. 123 (1908)," we
said, "it has been settled that the Eleventh Amendment provides no
shield for a state official confronted by a claim that he had deprived
another of a federal right under the color of state law." Scheuer,
supra, at 237. While the doctrine of Ex parte Young does not apply where
a plaintiff seeks damages from the public treasury, damages awards
against individual defendants in federal courts "are a permissible
remedy in some circumstances notwithstanding the fact that they hold

public office." 416 U.S., at 238 . That is, the Eleventh Amendment does
not erect a barrier [502 U.S. 21, 31] against suits to impose
"individual and personal liability" on state officials under 1983. Ibid.
To be sure, imposing personal liability on state officers may hamper

their performance of public duties. But such concerns are properly
addressed within the framework of our personal immunity jurisprudence.
See Forrester v. White, supra, at 223. Insofar as respondents seek
damages against Hafer personally, the Eleventh Amendment does not
restrict their ability to sue in federal court.
We hold that state officials, sued in their individual capacities, are

"persons" within the meaning of 1983. The Eleventh Amendment does not
bar such suits, nor are state officers absolutely immune from personal
liability under 1983 solely by virtue of the "official" nature of their
acts.
The judgment of the Court of Appeals is
Affirmed.
JUSTICE THOMAS took no part in the consideration or decision of

this case.
[ Footnote * ] The Third Circuit looked to the proceedings below to

determine whether certain respondents brought their claims for damages
against Hafer in her official capacity or her personal capacity. 912
F.2d 628, 635-636 (1990). Several other Courts of Appeals adhere to this
practice. See Conner v. Reinhard, 847 F.2d 384, 394, n. 8 (CA7), cert.
denied, 488 U.S. 856 (1988); Houston v. Reich, 932 F.2d 883, 885 (CA10
1991); Lundgren v. McDaniel, 814 F.2d 600, 603-604 (CA11 1987). Still
others impose a more rigid pleading requirement. See Wells v. Brown, 891
F.2d 591, 592 (CA6 1989) ( 1983 plaintiff must specifically plead that
suit for damages is brought against state official in individual
capacity); Nix v. Norman, 879 F.2d 429, 431 (CA8 1989) (same). Because
this issue is not properly before us, we simply reiterate the Third
Circuit's view that "[i]t is obviously preferable for the plaintiff to
be specific in the first instance to avoid any ambiguity." 912 F.2d, at
636, n. 7. See this Court's Rule 14.1(a) ("Only the questions set forth
in the petition, or fairly included therein, will be considered by the
Court"). [502 U.S. 21, 32]

Hafer v. Melo, 502 U.S. 21 (1991): Commentary by Jon Roland
Hafer v. Melo, 502 U.S. 21 (1991)

The twisted opinion in this rightly-decided case illustrates the perverse logic that courts must use to
maintain consistency with wrongly-decided, poorly-argued precedents, and with political agendas that
seek to violate the protections of the Constitution. The court in this case attempts to make an untenable
distinction between suing a state official, acting in his official capacity for damages payable by the
state,[1] and a state official, acting in his individual capacity "under color of law" for damages payable
only by himself,[2] on the grounds that in his official capacity he is not a "person" under the intent of the
statute establishing 42 U.S.C. 1983, when sued for damages, yet is a "person" when suing for injunctive
relief.[3]
The twist arises from the question of how Congress through 42 U.S.C. 1983, sought "to give a remedy to
parties deprived of constitutional rights, privileges and immunities by an official's abuse of his
position."[4] by limiting monetary relief to the personal assets of the official but extending injunctive
relief to the office, and therefore on how the "personhood" of an entity can depend on the kind of relief
sought. This flies in the face of longstanding holdings that officials are "persons" when they appear as
plaintiffs in suits against other officials or individual nonofficials, and the resulting asymmetry is
inconsistent with "equal protection of the laws".[5]
The distinction is plausible if the tortious action of the official was done without the knowledge or
consent of the State, in which case its liability might reasonably be thus shielded. The problem arises
when the State had knowledge, and consented or acquiesced in the action, or even adopted statutes or
policies, unconstitutional under either the U.S. Constitution or its own state constitution, which the
official was enforcing. The Supreme Court invokes the Eleventh Amendment to justify denying its
jurisdiction over a case of an citizen suing his own state for damages,[6] when by the clear language and
legislative intent of the Eleventh, only actions by persons not citizens of the state were barred from the
jurisdiction of Union courts. Jurisdiction over actions by citizens against their own states was omitted
from the original Constitution,[7] but was clearly intended to be authorized by the 14th Amendment.[8]
The Court in this case argues that while Congress might have constitutional authority to thus extend the
jurisdiction of federal courts, it did not exercise such authority in the enactment of what is represented by
42 U.S.C. 1983, and lacking such enactment, the jurisdictional authority of the 14th Amendment was not
self-executing as to the Supreme Court, a position that has become established, but was denied by first
Supreme Court Chief Justice John Jay, one of the authors of the Federalist. The Supreme Court has
either original or appellate jurisdiction in "all cases, in Law and Equity, arising under this Constitution,
and Laws of the United States, ...."[9] The language does not restrict that jurisdiction to questions covered
by statutes, and when properly ratified, an amendment "shall be valid to all Intents and Purposes, as Part
of this Constitution, ..."[10]
It is a valid proposition that there is no constitutional authority for the Union courts to require that a state
accept a petition against it for damages in its own courts, but in that event it was the clear intent of the
14th Amendment that the Union courts should be able to accept original jurisdiction, without an enabling
federal statute, and they have done so in other cases where there was an issue of a right recognized by the
U.S. Constitution and infringed by a state, whether by the act of an official, in either his official or
private capacity, or by statute.[11]

The invalidity of the doctrine of "sovereign immunity" has been effectively argued by Wolfgram.[12]
1. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71; see also United States v. Bass, 404 U.S. 336, 349 (1971).
2. Scheuer v. Rhodes, 416 U.S. 232, 243.
3. Kentucky v. Graham, 473 U.S. 159 (1985); see also Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690,
n. 55 (1978).
4. Monroe v. Pape, 365 U.S. 167, 172 (1961).
5. U.S. Const., 14th Amend., Sec. 1.
6. Edelman v. Jordan, 415 U.S. 651, 663 (1974).
7. U.S. Const., Art. III Sec.2 Cl. 1.
8. Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms: 1866-1876, Westport, CT:
Praeger, 1998.
10. U.S. Const., Art. V.
11. Cite pending.
12. John Wolfgram, "How the Judiciary Stole the Right of Petition", 31 U. West L.A. L. Rev. [page] (Summer 2000).
This article is taken from http://www.constitution.org/ussc/502-021jr.htm
Text Version | Contents | Home | Constitution Society


Hafer v. Melo, 502 U.S. 21 (1991)
The twisted opinion in this rightly-decided case illustrates the perverse

logic that courts must use to maintain consistency with wrongly-decided,
poorly-argued precedents, and with political agendas that seek to violate
the protections of the Constitution. The court in this case attempts to make
an untenable distinction between suing a state official, acting in his
official capacity for damages payable by the state,[1] and a state official,
acting in his individual capacity "under color of law" for damages payable
only by himself,[2] on the grounds that in his official capacity he is not a
"person" under the intent of the statute establishing 42 U.S.C. 1983, when
sued for damages, yet is a "person" when suing for injunctive relief.[3]
The twist arises from the question of how Congress through 42 U.S.C. 1983,
sought "to give a remedy to parties deprived of constitutional rights,
privileges and immunities by an official's abuse of his position."[4] by
limiting monetary relief to the personal assets of the official but
extending injunctive relief to the office, and therefore on how the
"personhood" of an entity can depend on the kind of relief sought. This
flies in the face of longstanding holdings that officials are "persons" when
they appear as plaintiffs in suits against other officials or individual
nonofficials, and the resulting asymmetry is inconsistent with "equal
protection of the laws".[5]
The distinction is plausible if the tortious action of the official was done
without the knowledge or consent of the State, in which case its liability
might reasonably be thus shielded. The problem arises when the State had
knowledge, and consented or acquiesced in the action, or even adopted
statutes or policies, unconstitutional under either the U.S. Constitution or
its own state constitution, which the official was enforcing. The Supreme
Court invokes the Eleventh Amendment to justify denying its jurisdiction
over a case of an citizen suing his own state for damages,[6] when by the
clear language and legislative intent of the Eleventh, only actions by
persons not citizens of the state were barred from the jurisdiction of Union
courts. Jurisdiction over actions by citizens against their own states was
omitted from the original Constitution,[7] but was clearly intended to be
authorized by the 14th Amendment.[8] The Court in this case argues that
while Congress might have constitutional authority to thus extend the
jurisdiction of federal courts, it did not exercise such authority in the
enactment of what is represented by 42 U.S.C. 1983, and lacking such
enactment, the jurisdictional authority of the 14th Amendment was not
self-executing as to the Supreme Court, a position that has become
established, but was denied by first Supreme Court Chief Justice John Jay,
one of the authors of the Federalist. The Supreme Court has either original
or appellate jurisdiction in "all cases, in Law and Equity, arising under
this Constitution, and Laws of the United States, ...."[9] The language does
not restrict that jurisdiction to questions covered by statutes, and when
properly ratified, an amendment "shall be valid to all Intents and Purposes,
as Part of this Constitution, ..."[10]
It is a valid proposition that there is no constitutional authority for the

Union courts to require that a state accept a petition against it for
damages in its own courts, but in that event it was the clear intent of the
14th Amendment that the Union courts should be able to accept original
jurisdiction, without an enabling federal statute, and they have done so in
other cases where there was an issue of a right recognized by the U.S.
Constitution and infringed by a state, whether by the act of an official, in
either his official or private capacity, or by statute.[11]

The invalidity of the doctrine of "sovereign immunity" has been effectively

argued by Wolfgram.[12]
1. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71; see also United
States v. Bass, 404 U.S. 336, 349 (1971).
2. Scheuer v. Rhodes, 416 U.S. 232, 243.
3. Kentucky v. Graham, 473 U.S. 159 (1985); see also Monell v. New York City
Dept. of Social Servs., 436 U.S. 658, 690, n. 55 (1978).
4. Monroe v. Pape, 365 U.S. 167, 172 (1961).
5. U.S. Const., 14th Amend., Sec. 1.
6. Edelman v. Jordan, 415 U.S. 651, 663 (1974).
8. Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to

Bear Arms: 1866-1876, Westport, CT: Praeger, 1998.
10. U.S. Const., Art. V.
11. Cite pending.
12. John Wolfgram, "How the Judiciary Stole the Right of Petition", 31 U.
West L.A. L. Rev. [page] (Summer 2000).
This article is taken from http://www.constitution.org/ussc/502-021jr.htm

Staples v. United States, 511 U.S. 600 (1994)
U.S. Supreme Court

STAPLES v. UNITED STATES, 511 U.S. 600 (1994)
HAROLD E. STAPLES, III, PETITIONER v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 92-1441
Argued November 30, 1993

Decided May 23, 1994
The National Firearms Act criminalizes possession of an unregistered "firearm," 26 U.S.C. 5861(d),
including a "machinegun," 5845(a)(6), which is defined as a weapon that automatically fires more than
one shot with a single pull of the trigger, 5845(b). Petitioner Staples was charged with possessing an
unregistered machinegun in violation of 5861(d) after officers searching his home seized a
semiautomatic rifle - i.e., a weapon that normally fires only one shot with each trigger pull - that had
apparently been modified for fully automatic fire. At trial, Staples testified that the rifle had never fired
automatically while he possessed it, and that he had been ignorant of any automatic firing capability. He
was convicted after the District Court rejected his proposed jury instruction under which, to establish a
5861(d) violation, the Government would have been required to prove beyond a reasonable doubt that
Staples knew that the gun would fire fully automatically. The Court of Appeals affirmed, concluding that
the Government need not prove a defendant's knowledge of a weapon's physical properties to obtain a
conviction under 5861(d).
Held:
To obtain a 5861(d) conviction, the Government should have been required to prove beyond a reasonable
doubt that Staples knew that his rifle had the characteristics that brought it within the statutory definition
of a machinegun. Pp. 4-19.
● (a) The common law rule requiring mens rea as an element of a crime informs interpretation of
5861(d) in this case. Because some indication of congressional intent, express or implied, is
required to dispense with mens rea, 5861(d)'s silence on the element of knowledge required for a
conviction does not suggest Page II that Congress intended to dispense with a conventional mens
rea requirement, which would require that the defendant know the facts making his conduct illegal.
Pp. 4-5.
● (b) The Court rejects the Government's argument that the Act fits within the Court's line of
precedent concerning "public welfare" or "regulatory" offenses, and thus that the presumption
favoring mens rea does not apply in this case. In cases concerning public welfare offenses, the
Court has inferred from silence a congressional intent to dispense with conventional mens rea
requirements in statutes that regulate potentially harmful or injurious items. In such cases, the
Court has reasoned that, as long as a defendant knows that he is dealing with a dangerous device of
a character that places him in responsible relation to a public danger, he should be alerted to the
probability of strict regulation, and is placed on notice that he must determine at his peril whether
his conduct comes within the statute's inhibition. See, e.g., United States v. Balint, 258 U.S. 250;

United States v. Freed, 401 U.S. 601. Guns, however, do not fall within the category of dangerous
devices as it has been developed in public welfare offense cases. In contrast to the selling of
dangerous drugs at issue in Balint or the possession of hand grenades considered in Freed, private
ownership of guns in this country has enjoyed a long tradition of being entirely lawful conduct.
Thus, the destructive potential of guns in general cannot be said to put gun owners sufficiently on
notice of the likelihood of regulation to justify interpreting 5861(d) as dispensing with proof of
knowledge of the characteristics that make a weapon a "firearm" under the statute. The
Government's interpretation potentially would impose criminal sanctions on a class of persons
whose mental state - ignorance of the characteristics of weapons in their possession - makes their
actions entirely innocent. Had Congress intended to make outlaws of such citizens, it would have
spoken more clearly to that effect. Pp. 5-16.
● (c) The potentially harsh penalty attached to violation of 5861(d) - up to 10 years' imprisonment -
confirms the foregoing reading of the Act. Where, as here, dispensing with mens rea would require
the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further
factor tending to suggest that Congress did not intend to eliminate a mens rea requirement. Pp.
16-19.
● (d) The holding here is a narrow one that depends on a common sense evaluation of the nature of
the particular device Congress has subjected to regulation, the expectations that individuals may
legitimately have in dealing with that device, and the penalty Page III attached to a violation. It
does not set forth comprehensive criteria for distinguishing between crimes that require a mental
element and crimes that do not. Pp. 19-21.
971 F.2d 608, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA,
KENNEDY, and SOUTER, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment, in
which O'CONNOR, J., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J.,
joined. [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 1]
JUSTICE THOMAS delivered the opinion of the Court.
The National Firearms Act makes it unlawful for any person to possess a machinegun that is not properly
registered with the Federal Government. Petitioner contends that, to convict him under the Act, the
Government should have been required to prove beyond a reasonable doubt that he knew the weapon he
possessed had the characteristics that brought it within the statutory definition of a machinegun. We
agree, and accordingly reverse the judgment of the Court of Appeals.
I
The National Firearms Act (Act), 26 U.S.C. 5801-5872, imposes strict registration requirements on
statutorily defined "firearms." The Act includes within the term "firearm" a machinegun, 5845(a)(6), and
further defines a machinegun as "any weapon which shoots . . . or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single function of the trigger. 5845(b).
Thus, any fully automatic weapon is a "firearm" within the meaning [ STAPLES v. UNITED STATES, 511
U.S. 600 (1994) , 2] of the Act. 1 Under the Act, all firearms must be registered in the National Firearms
Registration and Transfer Record maintained by the Secretary of the Treasury. 5841. Section 5861(d)

makes it a crime, punishable by up to 10 years in prison, see 5871, for any person to possess a firearm
that is not properly registered.
Upon executing a search warrant at petitioner's home, local police and agents of the Bureau of Alcohol,
Tobacco and Firearms (BATF) recovered, among other things, an AR-15 assault rifle. The AR-15 is the
civilian version of the military's M-16 rifle, and is, unless modified, a semiautomatic weapon. The M-16,
in contrast, is a selective fire rifle that allows the operator, by rotating a selector switch, to choose
semiautomatic or automatic fire. Many M-16 parts are interchangeable with those in the AR-15, and can
be used to convert the AR-15 into an automatic weapon. No doubt to inhibit such conversions, the AR-15
is manufactured with a metal stop on its receiver that will prevent an M-16 selector switch, if installed,
from rotating to the fully automatic position. The metal stop on petitioner's rifle, however, had been filed
away, and the rifle had been assembled with an M-16 selector switch and several other M-16 internal
parts, including a hammer, disconnector, and trigger. Suspecting that the AR-15 had been modified to be
capable of fully automatic fire, BATF agents seized the weapon. Petitioner subsequently was indicted for
unlawful [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 3] possession of an unregistered machinegun
in violation of 5861(d).
At trial, BATF agents testified that, when the AR-15 was tested, it fired more than one shot with a single
pull of the trigger. It was undisputed that the weapon was not registered as required by 5861(d).
Petitioner testified that the rifle had never fired automatically when it was in his possession. He insisted
that the AR-15 had operated only semiautomatically, and even then imperfectly, often requiring manual
ejection of the spent casing and chambering of the next round. According to petitioner, his alleged
ignorance of any automatic firing capability should have shielded him from criminal liability for his
failure to register the weapon. He requested the District Court to instruct the jury that, to establish a
violation of 5861(d), the Government must prove beyond a reasonable doubt that the defendant "knew
that the gun would fire fully automatically." 1 App. to Brief for Appellant in No. 91-5033 (CA10), p. 42.
The District Court rejected petitioner's proposed instruction and instead charged the jury as follows:
● "The Government need not prove the defendant knows he's dealing with a weapon possessing
every last characteristic [which subjects it] 2 to the regulation. It would be enough to prove he
knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of
regulation." Tr. 465.
Petitioner was convicted and sentenced to five years' probation and a $5,000 fine.
The Court of Appeals affirmed. Relying on its decision in United States v. Mittleider, 835 F.2d 769
(CA10 [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 4] 1987), cert. denied, 485 U.S. 980 (1988), the
court concluded that the Government need not prove a defendant's knowledge of a weapon's physical
properties to obtain a conviction under 5861(d). 971 F.2d 608, 612-613 (CA10 1992). We granted
certiorari, 508 U.S. ___ (1993), to resolve a conflict in the Courts of Appeals concerning the mens rea
required under 5861(d).
II

A
Whether or not 5861(d) requires proof that a defendant knew of the characteristics of his weapon that
made it a "firearm" under the Act is a question of statutory construction. As we observed in Liparota v.
United States, 471 U.S. 419 (1985), "[t]he definition of the elements of a criminal offense is entrusted to
the legislature, particularly in the case of federal crimes, which are solely creatures of statute." Id., at 424
(citing United States v. Hudson, 7 Cranch 32 (1812)). Thus, we have long recognized that determining
the mental state required for commission of a federal crime requires "construction of the statute and . . .
inference of the intent of Congress." United States v. Balint, 258 U.S. 250, 253 (1922). See also Liparota,
supra, at 423.
The language of the statute, the starting place in our inquiry, see Connecticut Nat. Bank v. Germain, 503
U.S. ___, ___ (1992) (slip op., at 5), provides little explicit guidance in this case. Section 5861(d) is
silent concerning the mens rea required for a violation. It states simply that "[i]t shall be unlawful for any
person . . . to receive or possess a firearm which is not registered to him in the National Firearms
Registration and Transfer Record." 26 U.S.C. 5861(d). Nevertheless, silence on this point, by itself, does
not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which
would require that the defendant know the facts that make his conduct [ STAPLES v. UNITED STATES, 511
U.S. 600 (1994) , 5] illegal. See Balint, supra, at 251 (stating that traditionally, "scienter" was a necessary
element in every crime). See also n. 3, infra. On the contrary, we must construe the statute in light of the
background rules of the common law, see United States v. United States Gypsum Co., 438 U.S. 422,
436-437 (1978), in which the requirement of some mens rea for a crime is firmly embedded. As we have
observed, "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence." Id., at 436 (internal quotation marks omitted). See also
Morissette v. United States, 342 U.S. 246, 250 (1952) ("The contention that an injury can amount to a
crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent
in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the
normal individual to choose between good and evil").
There can be no doubt that this established concept has influenced our interpretation of criminal statutes.
Indeed, we have noted that the common law rule requiring mens rea has been "followed in regard to
statutory crimes even where the statutory definition did not in terms include it." Balint, supra, at 251-252.
Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea
generally are disfavored, Liparota, supra, at 426, and have suggested that some indication of
congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.
Cf. United States Gypsum, supra, at 438; Morissette, supra, at 263.
According to the Government, however, the nature and purpose of the National Firearms Act suggest that
the presumption favoring mens rea does not apply to this case. The Government argues that Congress
intended the Act to regulate and restrict the circulation of dangerous weapons. Consequently, in the
Government's [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 6] view, this case fits in a line of
precedent concerning what we have termed "public welfare" or "regulatory" offenses, in which we have
understood Congress to impose a form of strict criminal liability through statutes that do not require the
defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred
from silence that Congress did not intend to require proof of mens rea to establish an offense.

For example, in Balint, supra, we concluded that the Narcotic Act of 1914, which was intended in part to
minimize the spread of addictive drugs by criminalizing undocumented sales of certain narcotics,
required proof only that the defendant knew that he was selling drugs, not that he knew the specific items
he had sold were "narcotics" within the ambit of the statute. See Balint, supra, at 254. Cf. United States v.
Dotterweich, 320 U.S. 277, 281 (1943) (stating in dicta that a statute criminalizing the shipment of
adulterated or misbranded drugs did not require knowledge that the items were misbranded or
adulterated). As we explained in Dotterweich, Balint dealt with "a now familiar type of legislation
whereby penalties serve as effective means of regulation. Such legislation dispenses with the
conventional requirement for criminal conduct-awareness of some wrongdoing." Id., at 280-281. See also
Morissette, supra, at 252-256.
Such public welfare offenses have been created by Congress, and recognized by this Court, in "limited
circumstances." United States Gypsum, 438 U.S., at 437. Typically, our cases recognizing such offenses
involve statutes that regulate potentially harmful or injurious items. Cf. United States v. International
Minerals & Chemical Corp., 402 U.S. 558, 564-565 (1971) (characterizing Balint and similar cases as
involving statutes regulating "dangerous or deleterious devices or products or obnoxious waste
materials"). In [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 7] such situations, we have reasoned that
as long as a defendant knows that he is dealing with a dangerous device of a character that places him "in
responsible relation to a public danger," Dotterweich, supra, at 281, he should be alerted to the
probability of strict regulation, and we have assumed that in such cases Congress intended to place the
burden on the defendant to "ascertain at his peril whether [his conduct] comes within the inhibition of the
statute." Balint, supra, at 254. Thus, we essentially have relied on the nature of the statute and the
particular character of the items regulated to determine whether congressional silence concerning the
mental element of the offense should be interpreted as dispensing with conventional mens rea
requirements. See generally Morissette, supra, at 252-260. 3 [ STAPLES v. UNITED STATES, 511 U.S. 600
(1994) , 8]
B
The Government argues that 5861(d) defines precisely the sort of regulatory offense described in Balint.
In this view, all guns, whether or not they are statutory "firearms," are dangerous devices that put gun
owners on notice that they must determine at their hazard whether their weapons come within the scope
of the Act. On this understanding, the District Court's instruction in this case was correct, because a
conviction can rest simply on proof that a defendant knew he possessed a "firearm" in the ordinary sense
of the term.
The Government seeks support for its position from our decision in United States v. Freed, 401 U.S. 601
(1971), which involved a prosecution for possession of unregistered grenades under 5861(d). 4 The
defendant knew that the items in his possession were grenades, and we concluded that 5861(d) did not
require the Government to prove the defendant also knew that the grenades were unregistered. Id., at 609.
To be sure, in deciding that mens rea was not required with respect to that element of the offense, we
suggested that the Act is a regulatory measure in the interest of the public safety, which may well be
premised on the theory that one would hardly be surprised to learn that possession of hand grenades is
not an innocent act. Ibid. Grenades, we explained, "are highly dangerous offensive weapons, no less
dangerous than the narcotics involved in United States v. Balint." Ibid. But that reasoning provides little
support for dispensing with mens rea in this case. [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 9]

As the Government concedes, Freed did not address the issue presented here. In Freed, we decided only
that 5861(d) does not require proof of knowledge that a firearm is unregistered. The question presented
by a defendant who possesses a weapon that is a "firearm" for purposes of the Act, but who knows only
that he has a "firearm" in the general sense of the term, was not raised or considered. And our
determination that a defendant need not know that his weapon is unregistered suggests no conclusion
concerning whether 5861(d) requires the defendant to know of the features that make his weapon a
statutory "firearm"; different elements of the same offense can require different mental states. See
Liparota, 471 U.S., at 423, n. 5; United States v. Bailey, 444 U.S. 394, 405-406 (1980). See also W.
LaFave & A. Scott, Handbook on Criminal Law 194-195 (1972). Moreover, our analysis in Freed
likening the Act to the public welfare statute in Balint rested entirely on the assumption that the
defendant knew that he was dealing with hand grenades - that is, that he knew he possessed a particularly
dangerous type of weapon (one within the statutory definition of a "firearm"), possession of which was
not entirely "innocent" in and of itself. 401 U.S., at 609. The predicate for that analysis is eliminated
when, as in this case, the very question to be decided is whether the defendant must know of the
particular characteristics that make his weapon a statutory firearm.
Notwithstanding these distinctions, the Government urges that Freed's logic applies because guns, no less
than grenades, are highly dangerous devices that should alert their owners to the probability of
regulation. But the gap between Freed and this case is too wide to bridge. In glossing over the distinction
between grenades and guns, the Government ignores the particular care we have taken to avoid
construing a statute to dispense with mens rea where doing so would "criminalize [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 10] a broad range of apparently innocent conduct." Liparota, 471 U.S., at
426. In Liparota, we considered a statute that made unlawful the unauthorized acquisition or possession
of food stamps. We determined that the statute required proof that the defendant knew his possession of
food stamps was unauthorized, largely because dispensing with such a mens rea requirement would have
resulted in reading the statute to outlaw a number of apparently innocent acts. Ibid. Our conclusion that
the statute should not be treated as defining a public welfare offense rested on the common sense
distinction that a "food stamp can hardly be compared to a hand grenade." Id., at 433.
Neither, in our view, can all guns be compared to hand grenades. Although the contrast is certainly not as
stark as that presented in Liparota, the fact remains that there is a long tradition of widespread lawful gun
ownership by private individuals in this country. Such a tradition did not apply to the possession of hand
grenades in Freed or to the selling of dangerous drugs that we considered in Balint. See also International
Minerals, 402 U.S., at 563-565; Balint, 258 U.S., at 254. In fact, in Freed we construed 5861(d) under the
assumption that "one would hardly be surprised to learn that possession of hand grenades is not an
innocent act." Freed, supra, at 609. Here, the Government essentially suggests that we should interpret
the section under the altogether different assumption that "one would hardly be surprised to learn that
owning a gun is not an innocent act." That proposition is simply not supported by common experience.
Guns in general are not "deleterious devices or products or obnoxious waste materials," International
Minerals, supra, at 565, that put their owners on notice that they stand "in responsible relation to a public
danger." Dotterweich, 320 U.S., at 281.
The Government protests that guns, unlike food stamps, but like grenades and narcotics, are potentially [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 11] harmful devices. 5 Under this view, it seems that
Liparota's concern for criminalizing ostensibly innocuous conduct is inapplicable whenever an item is
sufficiently dangerous - that is, dangerousness alone should alert an individual to probable regulation and

justify treating a statute that regulates the dangerous device as dispensing with mens rea. But that an item
is "dangerous," in some general sense, does not necessarily suggest, as the Government seems to assume,
that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and
generally available that we would not consider them to alert individuals to the likelihood of strict
regulation. As suggested above, despite their potential for harm, guns generally can be owned in perfect
innocence. Of course, we might surely classify certain categories of guns - no doubt including the
machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to regulation - as
items the ownership of which would have the same quasi-suspect [ STAPLES v. UNITED STATES, 511 U.S.
600 (1994) , 12] character we attributed to owning hand grenades in Freed. But precisely because guns
falling outside those categories traditionally have been widely accepted as lawful possessions, their
destructive potential, while perhaps even greater than that of some items we would classify along with
narcotics and hand grenades, cannot be said to put gun owners sufficiently on notice of the likelihood of
regulation to justify interpreting 5861(d) as not requiring proof of knowledge of a weapon's
characteristics. 6 [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 13]
On a slightly different tack, the Government suggests that guns are subject to an array of regulations at
the federal, state, and local levels that put gun owners on notice that they must determine the
characteristics of their weapons and comply with all legal requirements. 7 But regulation in itself is not
sufficient to place gun ownership in the category of the sale of narcotics in Balint. The food stamps at
issue in Liparota were subject to comprehensive regulations, yet we did not understand the statute there
to dispense with a mens [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 14] rea requirement. Moreover,
despite the overlay of legal restrictions on gun ownership, we question whether regulations on guns are
sufficiently intrusive that they impinge upon the common experience that owning a gun is usually licit
and blameless conduct. Roughly 50 per cent of American homes contain at least one firearm of some
sort, 8 and in the vast majority of States, buying a shotgun or rifle is a simple transaction that would not
alert a person to regulation any more than would buying a car. 9
If we were to accept as a general rule the Government's suggestion that dangerous and regulated items
place their owners under an obligation to inquire at their peril into compliance with regulations, we
would undoubtedly reach some untoward results. Automobiles, for example, might also be termed
"dangerous" devices and are highly regulated at both the state and federal levels. Congress might see fit
to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime
to operate a vehicle without a properly functioning emission control system. But we probably would
hesitate to conclude on the basis of silence that Congress intended a prison term to apply to [ STAPLES v.
UNITED STATES, 511 U.S. 600 (1994) , 15] a car owner whose vehicle's emissions levels, wholly
unbeknownst to him, began to exceed legal limits between regular inspection dates.
Here, there can be little doubt that, as in Liparota, the Government's construction of the statute
potentially would impose criminal sanctions on a class of persons whose mental state - ignorance of the
characteristics of weapons in their possession - makes their actions entirely innocent. 10 The
Government does not dispute the contention that virtually any semiautomatic weapon may be converted,
either by internal modification or, in some cases, simply by wear and tear, into a machinegun within the
meaning of the Act. Cf. United States v. Anderson, 885 F.2d 1248, 1251, 1253-1254 (CA5 1989) (en
banc). Such a gun may give no externally visible indication that it is fully automatic. See United States v.
Herbert, 698 F.2d 981, 986 (CA9), cert. denied, 464 U.S. 821 (1983). But in the Government's view, any
person who has purchased what he believes to be a semiautomatic rifle or handgun, or who simply has

inherited a gun from a relative and left it untouched in an attic or basement, can be subject to
imprisonment, despite absolute ignorance of the gun's firing capabilities, if the gun turns out to be an
automatic.
We concur in the Fifth Circuit's conclusion on this point: "It is unthinkable to us that Congress intended
to subject such law-abiding, well-intentioned citizens to a possible ten-year term of imprisonment if . . .
what they genuinely and reasonably believed was a conventional semiautomatic [weapon] turns out to
have worn down into or been secretly modified to be a fully automatic weapon. Anderson, supra, at
1254. As we noted in Morissette, the "purpose and obvious effect of doing away [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 16] with the requirement of a guilty intent is to ease the prosecution's path to
conviction." 342 U.S., at 263. 11 We are reluctant to impute that purpose to Congress where, as here, it
would mean easing the path to convicting persons whose conduct would not even alert them to the
probability of strict regulation in the form of a statute such as 5861(d).
C
The potentially harsh penalty attached to violation of 5861(d)-up to 10 years' imprisonment-confirms our
reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration
in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases
that first defined the concept of the public welfare offense almost uniformly involved statutes that
provided for only light penalties such as fines or short jail sentences, not imprisonment in the state
penitentiary. See, e.g., Commonwealth v. Raymond, 97 Mass. 567 (1867) (fine of up to $200 or six
months in jail, or both); Commonwealth [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 17] v. Farren,
91 Mass. 489 (1864) (fine); People v. Snowberger, 113 Mich. 86, 71 N. W. 497 (1897) (fine of up to
$500 or incarceration in county jail). 12
As commentators have pointed out, the small penalties attached to such offenses logically complemented
the absence of a mens rea requirement: in a system that generally requires a "vicious will" to establish a
crime, 4 W. Blackstone, Commentaries *21, imposing severe punishments for offenses that require no
mens rea would seem incongruous. See Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 70 (1933).
Indeed, some courts justified the absence of mens rea in part on the basis that the offenses did not bear
the same punishments as "infamous crimes," Tenement House Dept. v. McDevitt, 215 N.Y. 160, 168,
109 N.E. 88, 90 (1915) (Cardozo, J.), and questioned whether imprisonment was compatible with the
reduced culpability required for such regulatory offenses. See, e. g., People ex rel. Price v. Sheffield
Farms-Slawson-Decker Co., 225 N.Y. 25, 32-33, 121 N.E. 474, 477 (1918) (Cardozo, J.); id., at 35, 121
N.E., at 478 (Crane, J., concurring) (arguing that imprisonment for a crime that requires no mens rea
would stretch the law regarding acts mala prohibita beyond its limitations). 13 Similarly, commentators [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 18] collecting the early cases have argued that offenses
punishable by imprisonment cannot be understood to be public welfare offenses, but must require mens
rea. See R. Perkins, Criminal Law 793-798 (2d ed. 1969) (suggesting that the penalty should be the
starting point in determining whether a statute describes a public welfare offense); Sayre, supra, at 72
("Crimes punishable with prison sentences . . . ordinarily require proof of a guilty intent"). 14
In rehearsing the characteristics of the public welfare offense, we, too, have included in our consideration
the punishments imposed and have noted that "penalties commonly are relatively small, and conviction
does no grave damage to an offender's reputation." Morissette, 342 U.S., at 256. 15 We have even

recognized that it was "[u]nder such considerations" that courts have construed statutes to dispense with
mens rea. Ibid.
Our characterization of the public welfare offense in Morissette hardly seems apt, however, for a crime
that is a felony, as is violation of 5861(d). 16 After all, "felony" is, as we noted in distinguishing certain
common law crimes from public welfare offenses, "às bad a [ STAPLES v. UNITED STATES, 511 U.S. 600
(1994) , 19] word as you can give to man or thing.'" Morissette, supra, at 260 (quoting 2 F. Pollock & F.
Maitland, History of English Law 465 (2d ed. 1899)). Close adherence to the early cases described above
might suggest that punishing a violation as a felony is simply incompatible with the theory of the public
welfare offense. In this view, absent a clear statement from Congress that mens rea is not required, we
should not apply the public welfare offense rationale to interpret any statute defining a felony offense as
dispensing with mens rea. But see Balint, supra.
We need not adopt such a definitive rule of construction to decide this case, however. Instead, we note
only that where, as here, dispensing with mens rea would require the defendant to have knowledge only
of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did
not intend to eliminate a mens rea requirement. In such a case, the usual presumption that a defendant
must know the facts that make his conduct illegal should apply.
III
In short, we conclude that the background rule of the common law favoring mens rea should govern
interpretation of 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for
the element of 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been
required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the
Act. 17 [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 20]
We emphasize that our holding is a narrow one. As in our prior cases, our reasoning depends upon a
common sense evaluation of the nature of the particular device or substance Congress has subjected to
regulation and the expectations that individuals may legitimately have in dealing with the regulated
items. In addition, we think that the penalty attached to 5861(d) suggests that Congress did not intend to
eliminate a mens rea requirement for violation of the section. As we noted in Morissette, "[N]either this
Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth
comprehensive criteria for distinguishing between crimes that require a mental element and crimes that
do not." 342 U.S., at 260. We attempt no definition here, either. We note only that our holding depends
critically on our view that if Congress had intended to make outlaws of gun owners who were wholly
ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it
would have spoken more clearly to that effect. Cf. United States v. Harris, 959 F.2d 246, 261 (CADC),
cert. denied, 506 U.S. ___ (1992). [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 21]
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the case remanded for
further proceedings consistent with this opinion.
So ordered.

Footnotes
[ Footnote 1] As used here, the terms "automatic" and "fully automatic" refer to a weapon that fires
repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will
automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons
are "machineguns" within the meaning of the Act. We use the term "semiautomatic" to designate a
weapon that fires only one shot with each pull of the trigger, and which requires no manual manipulation
by the operator to place another round in the chamber after each round is fired.
[ Footnote 2] In what the parties regard as a mistranscription, the transcript contains the word
"suggested" instead of "which subjects it."
[ Footnote 3] By interpreting such public welfare offenses to require at least that the defendant know that
he is dealing with some dangerous or deleterious substance, we have avoided construing criminal statutes
to impose a rigorous form of strict liability. See, e.g., United States v. International Minerals & Chemical
Corp., 402 U.S. 558, 563-564 (1971) (suggesting that if a person shipping acid mistakenly thought that
he was shipping distilled water, he would not violate a statute criminalizing undocumented shipping of
acids). True strict liability might suggest that the defendant need not know even that he was dealing with
a dangerous item. Nevertheless, we have referred to public welfare offenses as "dispensing with" or
"eliminating" a mens rea requirement or "mental element," see, e.g., Morissette, 342 U.S., at 250, 263;
United States v. Dotterweich, 320 U.S. 277, 281 (1943), and have described them as strict liability
crimes, United States v. United States Gypsum Co., 438 U.S. 422, 437 (1978). While use of the term
"strict liability" is really a misnomer, we have interpreted statutes defining public welfare offenses to
eliminate the requirement of mens rea; that is, the requirement of a "guilty mind" with respect to an
element of a crime. Under such statutes we have not required that the defendant know the facts that make
his conduct fit the definition of the offense. Generally speaking, such knowledge is necessary to establish
mens rea, as is reflected in the maxim ignorantia facti excusat. See generally J. Hawley & M. McGregor,
Criminal Law 26-30 (1899); R. Perkins, Criminal Law 785-786 (2d ed. 1969); G. Williams, Criminal
Law: The General Part [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 8] 113-174 (1953). Cf. Regina
v. Tolson, 23 Q.B. 168, 187 (1889) (Stephen, J.) ("[I]t may, I think, be maintained that in every case
knowledge of fact [when not appearing in the statute] is to some extent an element of criminality as much
as competent age and sanity").
[ Footnote 4] A grenade is a "firearm" under the Act. 26 U.S.C. 5845(a)(8), 5845(f)(1)(B).
[ Footnote 5] The dissent's assertions to the contrary notwithstanding, the Government's position,
"[a]ccurately identified," post, at 10, is precisely that "guns in general" are dangerous items. The
Government, like the dissent, cites Sipes v. United States, 321 F.2d 174, 179 (CA8), cert. denied, 375
U.S. 913 (1963), for the proposition that a defendant's knowledge that the item he possessed "was a gun"
is sufficient for a conviction under 5861(d). Brief for United States 21. Indeed, the Government argues
that "guns" should be placed in the same category as the misbranded drugs in Dotterweich and the
narcotics in Balint because "òne would hardly be surprised to learn,' Freed, 401 U.S. at 609, that there
are laws that affect one's rights of gun ownership." Brief for United States 22. The dissent relies upon the
Government's repeated contention that the statute requires knowledge that "the item at issue was highly
dangerous and of a type likely to be subject to regulation." Id., at 9. But that assertion merely patterns the
general language we have used to describe the mens rea requirement in public welfare offenses and

amounts to no more than an assertion that the statute should be treated as defining a public welfare
offense.
[ Footnote 6] The dissent asserts that the question is not whether all guns are deleterious devices, but
whether a gun "such as the one possessed by petitioner," post, at 10 (which the dissent characterizes as a
"semiautomatic weapon that [is] readily convertible into a machinegun," post, at 1, 11, 19), is such a
device. If the dissent intends to suggest that the category of readily convertible semi-automatics provides
the benchmark for defining the knowledge requirement for 5861(d), it is difficult to see how it derives
that class of weapons as a standard. As explained above, see n. 5, supra, the Government's argument has
nothing to do with this ad hoc category of weapons. And the statute certainly does not suggest that any
significance should attach to readily convertible semiautomatics, for that class bears no relation to the
definitions in the Act. Indeed, in the absence of any definition, it is not at all clear what the contours of
this category would be. The parties assume that virtually all semiautomatics may be converted into
automatics, and limiting the class to those "readily" convertible provides no real guidance concerning the
required mens rea. In short, every owner of a semiautomatic rifle or handgun would potentially meet
such a mens rea test.
But the dissent apparently does not conceive of the mens rea requirement in terms of specific categories
of weapons at all, and rather views it as a more fluid concept that does not require delineation of any
concrete elements of knowledge that will apply consistently from case to case. The dissent sees no need
to define a class of items the knowing possession of which satisfies the mens rea element of the offense,
for in the dissent's view the exact content of the knowledge requirement can be left to the jury in each
case. As long as the jury concludes that the item in a given case is "sufficiently dangerous to alert [the
defendant] to the likelihood of regulation," post, at 15, the knowledge requirement is satisfied. See also [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 13] post, at 1, 18, 19. But the mens rea requirement
under a criminal statute is a question of law, to be determined by the court. Our decisions suggesting that
public welfare offenses require that the defendant know that he stands in "responsible relation to a public
danger," Dotterweich, 320 U.S., at 281, in no way suggest that what constitutes a public danger is a jury
question. It is for courts, through interpretation of the statute, to define the mens rea required for a
conviction. That task cannot be reduced to setting a general "standard," post, at 13, that leaves it to the
jury to determine, based presumably on the jurors' personal opinions, whether the items involved in a
particular prosecution are sufficiently dangerous to place a person on notice of regulation.
Moreover, as our discussion above should make clear, to determine as a threshold matter whether a
particular statute defines a public welfare offense, a court must have in view some category of dangerous
and deleterious devices that will be assumed to alert an individual that he stands in "responsible relation
to a public danger." Dotterweich, supra, at 281. The truncated mens rea requirement we have described
applies precisely because the court has determined that the statute regulates in a field where knowing
possession of some general class of items should alert individuals to probable regulation. Under the
dissent's approach, however, it seems that every regulatory statute potentially could be treated as a public
welfare offense as long as the jury - not the court - ultimately determines that the specific items involved
in a prosecution were sufficiently dangerous.
[ Footnote 7] See, e.g., 18 U.S.C. 921-928 (1988 ed. and Supp IV) (requiring licensing of manufacturers,
importers, and dealers of guns and regulating the sale, possession, and interstate transportation of certain
guns).

[ Footnote 8] See U.S. Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice
Statistics 209, Table 2.58 (1992).
[ Footnote 9] For example, as of 1990, 39 States allowed adult residents, who are not felons or mentally
infirm, to purchase a rifle or shotgun simply with proof of identification (and in some cases a
simultaneous application for a permit). See U.S. Dept. of Justice, Bureau of Justice Statistics, Identifying
Persons, Other Than Felons, Ineligible to Purchase Firearms 114, Exh. B.4 (1990); U.S. Congress, Office
of Technology Assessment, Automated Record Checks of Firearm Purchasers 27 (July 1991). See also
M. Cooper, Reassessing the Nation's Gun Laws, Editorial Research Reports 158, 160 (Jan.-Mar. 1991)
(table) (suggesting the total is forty-one States); Dept. of Treasury, Bureau of Alcohol, Tobacco and
Firearms, State Laws and Published Ordinances-Firearms (19th ed. 1989).
[ Footnote 10] We, of course, express no view concerning the inferences a jury may have drawn
regarding petitioner's knowledge from the evidence in this case.
[ Footnote 11] The Government contends that Congress intended precisely such an aid to obtaining
convictions, because requiring proof of knowledge would place too heavy a burden on the Government
and obstruct the proper functioning of 5861(d). Cf. United States v. Balint, 258 U.S. 250, 254 (1922)
(difficulty of proving knowledge suggests Congress did not intend to require mens rea). But knowledge
can be inferred from circumstantial evidence, including any external indications signaling the nature of
the weapon. And firing a fully automatic weapon would make the regulated characteristics of the weapon
immediately apparent to its owner. In short, we are confident that when the defendant knows of the
characteristics of his weapon that bring it within the scope of the Act, the Government will not face great
difficulty in proving that knowledge. Of course, if Congress thinks it necessary to reduce the
Government's burden at trial to ensure proper enforcement of the Act, it remains free to amend 5861(d)
by explicitly eliminating a mens rea requirement.
[ Footnote 12] Leading English cases developing a parallel theory of regulatory offenses similarly
involved violations punishable only by fine or short term incarceration. See, e.g., Regina v. Woodrow, 15
M. & W. 404, 153 Eng.Rep. 907 (Ex. 1846) (fine of 200 for adulterated tobacco); Hobbs v. Winchester
Corp., 1910. 2 K.B. 471 (maximum penalty of three months' imprisonment for sale of unwholesome
meat).
[ Footnote 13] Cf. Regina v. Tolson, 23 Q.B., at 177 (Wills, J.) (In determining whether a criminal statute
dispenses with mens rea, "the nature and extent of the penalty attached to the offence may reasonably be
considered. There is nothing that need shock any mind in the payment of a small pecuniary penalty by a
person who has unwittingly done something detrimental to the public interest").
[ Footnote 14] But see, e.g., State v. Lindberg, 125 Wash. 51, 215 P. 41 (1923) (applying the public
welfare offense rationale to a felony).
[ Footnote 15] See also United States Gypsum, 438 U.S., at 442, n. 18 (noting that an individual violation
of the Sherman Antitrust Act is a felony punishable by three years in prison or a fine not exceeding
$100,000 and stating that "[t]he severity of these sanctions provides further support for our conclusion
that the [Act] should not be construed as creating strict liability crimes"). Cf. Holdridge v. United States,
282 F.2d 302, 310 (CA8 1960) (BLACKMUN, J.) ("[W]here a federal criminal statute omits mention of
intent and . . . where the penalty is relatively small, where conviction does not gravely besmirch, [and]

where the statutory crime is not one taken over from the common law, . . . the statute can be construed as
one not requiring criminal intent").
[ Footnote 16] Title 18 U.S.C. 3559 makes any crime punishable by more than one year in prison a
felony.
[ Footnote 17] In reaching our conclusion, we find it unnecessary to rely on the rule of lenity, under
which an ambiguous criminal statute is to be construed in favor of the accused. That maxim of
construction "is reserved for cases where, `[a]fter "seiz[ing] every thing from which aid can be derived,"'
the Court is `left with an ambiguous statute.'" Smith v. United States, 507 U.S. ___, ___ (1993) (slip op.,
at 16) [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 20] (quoting United States v. Bass, 404 U.S. 336,
347 (1971), in turn quoting United States v. Fisher, 2 Cranch 358, 386 (1805)). See also United States v.
R.L.C., 503 U.S. ___, ___ (1992) (THOMAS, J., concurring in part and concurring in the judgment);
Chapman v. United States, 500 U.S. 453, 463 (1991) (rule of lenity inapplicable unless there is a
"`grievous ambiguity or uncertainty'" in the statute). Here, the background rule of the common law
favoring mens rea and the substantial body of precedent we have developed construing statutes that do
not specify a mental element provide considerable interpretive tools from which we can "seize aid," and
they do not leave us with the ultimate impression that 5861(d) is "grievous[ly]" ambiguous. Certainly, we
have not concluded in the past that statutes silent with respect to mens rea are ambiguous. See, e.g.,
Balint, supra. [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 1]
JUSTICE GINSBURG, with whom JUSTICE O'CONNOR joins, concurring in the judgment.
The statute petitioner Harold E. Staples is charged with violating, 26 U.S.C. 5861(d), makes it a crime
for any person to "receive or possess a firearm which is not registered to him." Although the word
"knowingly" does not appear in the statute's text, courts generally assume that Congress, absent a
contrary indication, means to retain a mens rea requirement. Ante, at 5; see Liparota v. United States, 471
U.S. 419, 426 (1985); United States v. United States Gypsum Co., 438 U.S. 422, 437-438 (1978). 1 Thus,
our holding in United States v. Freed, 401 U.S. 601 (1971), that 5861(d) does not require proof of
knowledge that the firearm is unregistered, rested on the premise that the defendant indeed knew the
items he possessed were hand grenades. Id., at 607; id., at 612 (BRENNAN, J., concurring in judgment)
("The Government and the Court agree [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 2] that the
prosecutor must prove knowing possession of the items and also knowledge that the items possessed
were hand grenades.").
Conviction under 5861(d), the Government accordingly concedes, requires proof that Staples
"knowingly" possessed the machinegun. Brief for United States 23. The question before us is not whether
knowledge of possession is required, but what level of knowledge suffices: (1) knowledge simply of
possession of the object; (2) knowledge, in addition, that the object is a dangerous weapon; (3)
knowledge, beyond dangerousness, of the characteristics that render the object subject to regulation, for
example, awareness that the weapon is a machinegun. 2
Recognizing that the first reading effectively dispenses with mens rea, the Government adopts the
second, contending that it avoids criminalizing "apparently innocent conduct," Liparota, supra, at 426,
because, under the second reading, "a defendant who possessed what he thought was a toy or a violin
case, but which in fact was a machinegun, could not be convicted." Brief for United States 23. The
Government, however, does not take adequate account of the "widespread lawful gun ownership"

Congress and the States have allowed to persist in this country. See United States v. Harris, 959 F.2d
246, 261 (CADC) (per curiam), cert. denied, 506 U.S. ___ (1992). Given the notable lack of
comprehensive regulation, "mere unregistered possession of certain types of [regulated weapons] - often
[difficult to [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 3] distinguish] from other, [nonregulated]
types," has been held inadequate to establish the requisite knowledge. See 959 F.2d, at 261.
The Nation's legislators chose to place under a registration requirement only a very limited class of
firearms, those they considered especially dangerous. The generally "dangerous" character of all guns,
the Court therefore observes, ante, at 11-12, did not suffice to give individuals in Staples' situation cause
to inquire about the need for registration. Compare United States v. Balint, 258 U.S. 250 (1922)
(requiring reporting of sale of strictly regulated narcotics, opium and cocaine). Only the third reading,
then, suits the purpose of the mens rea requirement - to shield people against punishment for apparently
innocent activity. 3
The indictment in Staples' case charges that he "knowingly received and possessed firearms." App. to
Brief for Appellant in No. 91-5033 (CA10), p. 1. 4 [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 4]
"Firearms" has a circumscribed statutory definition. See 26 U.S.C. 5845(a). The "firear[m]" the
Government contends Staples possessed in violation of 5861(d) is a machinegun. See 5845(a)(6). The
indictment thus effectively charged that Staples knowingly possessed a machinegun. "Knowingly
possessed" logically means "possessed and knew that he possessed." The Government can reconcile the
jury instruction 5 with the indictment only on the implausible assumption that the term "firear[m]" has
two different meanings when used once in the same charge - simply "gun" when referring to what
petitioner knew, and "machinegun" when referring to what he possessed. See Cunningham, Levi, Green,
& Kaplan, Plain Meaning and Hard Cases, 103 Yale L. J. 1561, 1576-1577 (1994); cf. Ratzlaf v. United
States, 510 U.S. ___ (1994) (slip op., at 8) (construing statutory term to bear same meaning "each time it
is called into play"). [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 5]
For these reasons, I conclude that conviction under 5861(d) requires proof that the defendant knew he
possessed not simply a gun, but a machinegun. The indictment in this case, but not the jury instruction,
properly described this knowledge requirement. I therefore concur in the Court's judgment.
[ Footnote 1] Contrary to the dissent's suggestion, we have not confined the presumption of mens rea to
statutes codifying traditional common law offenses, but have also applied the presumption to offenses
that are "entirely a creature of statute," post, at 3, such as those at issue in Liparota, Gypsum, and, most
recently, Posters `N' Things v. United States, 511 U.S. ___ (1994) (slip op., at 10).
[ Footnote 2] Some Courts of Appeals have adopted a variant of the third reading, holding that the
Government must show that the defendant knew the gun was a machinegun, but allowing inference of
the requisite knowledge where a visual inspection of the gun would reveal that it has been converted into
an automatic weapon. See United States v. O'Mara, 963 F.2d 1288, 1291 (CA9 1992); United States v.
Anderson, 885 F.2d 1248, 1251 (CA5 1989) (en banc).
[ Footnote 3] The mens rea presumption requires knowledge only of the facts that make the defendant's
conduct illegal, lest it conflict with the related presumption, "deeply rooted in the American legal
system," that, ordinarily, "ignorance of the law or a mistake of law is no defense to criminal
prosecution." Cheek v. United States, 498 U.S. 192, 199 (1990). Cf. Freed, 401 U.S., at 612
(BRENNAN, J., concurring in judgment) ("If the ancient maxim that ìgnorance of the law is no excuse'

has any residual validity, it indicates that the ordinary intent requirement - mens rea - of the criminal law
does not require knowledge that an act is illegal, wrong, or blameworthy."). The maxim explains why
some "innocent" actors - for example, a defendant who knows he possesses a weapon with all of the
characteristics that subject it to registration, but was unaware of the registration requirement, or thought
the gun was registered - may be convicted under 5861(d), see post, at 17. Knowledge of whether the gun
was registered is so closely related to knowledge of the registration requirement that requiring the
Government to prove the former would in effect require it to prove knowledge of the law. Cf. Freed,
supra, at 612-614 (BRENNAN, J., concurring in judgment).
[ Footnote 4] The indictment charged Staples with possession of two unregistered [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 4] machineguns, but the jury found him guilty of knowingly possessing only
one of them. Tr. 477.
[ Footnote 5] The trial court instructed the jury:
● "[A] person is knowingly in possession of a thing if his possession occurred voluntarily and
intentionally and not because of mistake or accident or other innocent reason. The purpose of
adding the word "knowingly" is to insure that no one can be convicted of possession of a firearm
he did not intend to possess. The Government need not prove the defendant knows he's dealing
with a weapon possessing every last characteristic [which subjects it] to the regulation. It would be
enough to prove he knows that he is dealing with a dangerous device of a type as would alert one
to the likelihood of regulation. If he has such knowledge and if the particular item is, in fact,
regulated, then that person acts at his peril. Mere possession of an unregistered firearm is a
violation of the law of the United States, and it is not necessary for the Government to prove that
the defendant knew that the weapon in his possession was a firearm within the meaning of the
statute, only that he knowingly possessed the firearm." Tr. 465. [ STAPLES v. UNITED STATES, 511
U.S. 600 (1994) , 1]
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.

To avoid a slight possibility of injustice to unsophisticated owners of machineguns and sawed-off
shotguns, the Court has substituted its views of sound policy for the judgment Congress made when it
enacted the National Firearms Act (or Act). Because the Court's addition to the text of 26 U.S.C. 5861(d)
is foreclosed by both the statute and our precedent, I respectfully dissent.
The Court is preoccupied with guns that "generally can be owned in perfect innocence." Ante, at 11. This
case, however, involves a semiautomatic weapon that was readily convertible into a machinegun - a
weapon that the jury found to be "à dangerous device of a type as would alert one to the likelihood of
regulation.'" Ante, at 3. These are not guns "of some sort" that can be found in almost "50 percent of
American homes." Ante, at 13. 1 They are particularly dangerous - indeed, [ STAPLES v. UNITED STATES,
511 U.S. 600 (1994) , 2] a substantial percentage of the unregistered machineguns now in circulation are
converted semiautomatic weapons. 2
The question presented is whether the National Firearms Act imposed on the Government the burden of
proving beyond a reasonable doubt not only that the defendant knew he possessed a dangerous device
sufficient to alert him to regulation, but also that he knew it had all the characteristics of a "firearm" as
defined in the statute. Three unambiguous guideposts direct us to the correct answer to that question: the
text and structure of the Act, our cases construing both this Act and similar regulatory legislation, and the

Act's history and interpretation.
I
Contrary to the assertion by the Court, the text of the statute does provide "explicit guidance in this case."
Cf. ante, at 4. The relevant section of the Act makes it unlawful for any person . . . to receive or possess a
firearm which is not registered to him in the National Firearms Registration and Transfer Record. 26
U.S.C. 5861(d). Significantly, the section contains no knowledge requirement, nor does it describe a
common law crime.
The common law generally did not condemn acts as criminal unless the actor had "an evil purpose or
mental culpability," Morissette v. United States, 342 U.S. 246, 252 (1952), and was aware of all the facts
that made the [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 3] conduct unlawful. United States v.
Balint, 258 U.S. 250, 251-252 (1922). In interpreting statutes that codified traditional common law
offenses, courts usually followed this rule, even when the text of the statute contained no such
requirement. Ibid. Because the offense involved in this case is entirely a creature of statute, however,
"the background rules of the common law," cf. ante, at 5, do not require a particular construction, and
critically different rules of construction apply. See Morissette v. United States, 342 U.S. 246, 252-260
(1952).
In Morissette, Justice Jackson outlined one such interpretive rule:
● "[C]ongressional silence as to mental elements in an Act merely adopting into federal statutory law
a concept of crime already . . . well defined in common law and statutory interpretation by the
states may warrant quite contrary inferences than the same silence in creating an offense new to
general law, for whose definition the courts have no guidance except the Act." Id., at 262.
Although the lack of an express knowledge requirement in 5861(d) is not dispositive, see United States v.
United States Gypsum Co., 438 U.S. 422, 438 (1978), its absence suggests that Congress did not intend
to require proof that the defendant knew all of the facts that made his conduct illegal. 3 [ STAPLES v.
UNITED STATES, 511 U.S. 600 (1994) , 4]
The provision's place in the overall statutory scheme, see Crandon v. United States, 494 U.S. 152, 158
(1990), confirms this intention. In 1934, when Congress originally enacted the statute, it limited the
coverage of the 1934 Act to a relatively narrow category of weapons such as submachineguns and
sawed-off shotguns - weapons characteristically used only by professional gangsters like Al Capone,
Pretty Boy Floyd, and their henchmen. 4 At the time, the Act would have had little application to guns
used by hunters or guns kept at home as protection against unwelcome intruders. 5 Congress therefore
could reasonably presume that a person found in possession of an unregistered machinegun or sawed-off
shotgun intended to use it for criminal purposes. The statute as a whole, and particularly the decision to
criminalize mere possession, reflected a legislative judgment that the likelihood of innocent possession of
such an unregistered weapon was remote, and far less significant than the interest in depriving gangsters
of their use. [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 5]
In addition at the time of enactment, this Court had already construed comparable provisions of the
Harrison Anti-Narcotic Act not to require proof of knowledge of all the facts that constitute the
proscribed offense. United States v. Balint, 258 U.S. 250 (1922). 6 Indeed, Attorney General Cummings

expressly advised Congress that the text of the gun control legislation deliberately followed the language
of the Anti-Narcotic Act to reap the benefit of cases construing it. 7 Given the reasoning of Balint, we
properly may infer that Congress did not intend the Court to read a stricter knowledge requirement into
the gun control legislation than we read into the Anti-Narcotic Act. Cannon v. University of Chicago,
441 U.S. 677, 698-699 (1979).
Like the 1934 Act, the current National Firearms Act is primarily a regulatory measure. The statute
establishes taxation, registration, reporting, and recordkeeping requirements for businesses and
transactions involving statutorily defined firearms, and requires that each firearm be identified by a serial
number. 26 U.S.C. 5801-5802, 5811-5812, 5821-5822, 5842- 5843. The Secretary of the Treasury must
maintain a central registry that includes the names and addresses of persons in possession of all firearms
not controlled by the Government. 5841. Congress also prohibited [ STAPLES v. UNITED STATES, 511 U.S.
600 (1994) , 6] certain acts and omissions, including the possession of an unregistered firearm. 8 5861.
As the Court acknowledges, ante, at 7, to interpret statutory offenses such as 5861(d), we look to "the
nature of the statute and the particular character of the items regulated" to determine the level of
knowledge required for conviction. An examination of 5861(d) in light of our precedent dictates that the
crime of possession of an unregistered machinegun is in a category of offenses described as "public
welfare" crimes. 9 Our decisions interpreting such offenses clearly require affirmance of petitioner's
conviction.
II
● "Public welfare" offenses share certain characteristics: (1) they regulate "dangerous or deleterious
devices or products or obnoxious waste materials," see United States v. International Minerals &
Chemical Corp., 402 U.S. 558, 565 (1971); (2) they "heighten the duties of those in control of
particular industries, trades, properties or activities that affect public health, safety or welfare,"
Morissette, 342 U.S., at 254; and (3) they "depend on no mental element but consist only of
forbidden acts or omissions," id., at 252-253. Examples [ STAPLES v. UNITED STATES, 511 U.S. 600
(1994) , 7] of such offenses include Congress' exertion of its power to keep dangerous narcotics, 10
hazardous substances, 11 and impure and adulterated foods and drugs 12 out of the channels of
commerce. 13
Public welfare statutes render criminal "a type of conduct that a reasonable person should know is
subject to stringent public regulation and may seriously threaten the community's health or safety."
Liparota v. United States, 471 U.S. 419, 433 (1985). Thus, under such statutes, "a defendant can be
convicted even though he was unaware of the circumstances of his conduct that made it illegal." Id., at
443, n. 7 (White, J., dissenting). Referring to the strict criminal sanctions for unintended violations of the
food and drug laws, Justice Frankfurter wrote:
● "The purposes of this legislation thus touch phases of the lives and health of people which, in the
circumstances of modern industrialism, are largely beyond self-protection. Regard for these
purposes should infuse construction of the legislation if it is to be treated as a working instrument
of government and not merely as a collection of English words. . . . The prosecution . . . is based
on a now familiar type of legislation whereby penalties serve as effective means of regulation.
Such legislation [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 8] dispenses with the

conventional requirement for criminal conduct-awareness of some wrongdoing. In the interest of

the larger good it puts the burden of acting at hazard upon a person otherwise innocent but
standing in responsible relation to a public danger. United States v. Dotterweich, 320 U.S. 277,
280-281 (1943) (citing United States v. Balint, 258 U.S. 250 (1922); other citations omitted).
The National Firearms Act unquestionably is a public welfare statute. United States v. Freed, 401 U.S.
601, 609 (1971) (holding that this statute "is a regulatory measure in the interest of the public safety").
Congress fashioned a legislative scheme to regulate the commerce and possession of certain types of
dangerous devices, including specific kinds of weapons, to protect the health and welfare of the citizenry.
To enforce this scheme, Congress created criminal penalties for certain acts and omissions. The text of
some of these offenses - including the one at issue here - contains no knowledge requirement.
The Court recognizes:
● "[W]e have reasoned that as long as a defendant knows that he is dealing with a dangerous device
of a character that places him "in responsible relation to a public danger, Dotterweich, supra, at
281, he should be alerted to the probability of strict regulation, and we have assumed that in such
cases Congress intended to place the burden on the defendant to "ascertain at his peril whether [his
conduct] comes within the inhibition of the statute. Balint, supra, at 254. Ante, at 7.
We thus have read a knowledge requirement into public welfare crimes, but not a requirement that the
defendant know all the facts that make his conduct illegal. Although the Court acknowledges this
standard, it nevertheless concludes that a gun is not the type of [ STAPLES v. UNITED STATES, 511 U.S. 600
(1994) , 9] dangerous device that would alert one to the possibility of regulation.
Both the Court and JUSTICE GINSBURG erroneously rely upon the "tradition[al]" innocence of gun
ownership to find that Congress must have intended the Government to prove knowledge of all the
characteristics that make a weapon a statutory "firear[m]." Ante, at 10-12; ante, at 2-3 (GINSBURG, J.,
concurring in judgment). We held in Freed, however, that a 5861(d) offense may be committed by one
with no awareness of either wrongdoing or of all the facts that constitute the offense. 14 401 U.S., at
607-610. Nevertheless, the Court, asserting that the Government "gloss[es] over the distinction between
grenades and guns," determines that "the gap between Freed and this case is too wide to bridge." Ante, at
9. As such, the Court instead reaches the rather surprising conclusion that guns are more analogous to
food stamps than to hand grenades. 15 Even if [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 10] one
accepts that dubious proposition, the Court founds it upon a faulty premise: its mischaracterization of the
Government's submission as one contending that "all guns . . . are dangerous devices that put gun owners
on notice. . . . " Ante, at 8 (emphasis added). 16 Accurately identified, the Government's position
presents the question whether guns such as the one possessed by petitioner "àre highly dangerous
offensive weapons, no less dangerous than the narcotics'" in Balint or the hand grenades in Freed, see
ante, at 8, (quoting Freed, 401 U.S., at 609). 17 [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 11]
Thus, even assuming that the Court is correct that the mere possession of an ordinary rifle or pistol does
not entail sufficient danger to alert one to the possibility of regulation, that conclusion does not resolve
this case. Petitioner knowingly possessed a semiautomatic weapon that was readily convertible into a
machinegun. The "`character and nature'" of such a weapon is sufficiently hazardous to place the
possessor on notice of the possibility of regulation. See Posters `N' Things, Ltd. v. United States, 511
U.S. ___, ___ (1994) (slip op., at 12) (citation omitted). 18 No significant difference exists [ STAPLES v.

UNITED STATES, 511 U.S. 600 (1994) , 12] between imposing upon the possessor a duty to determine
whether such a weapon is registered, Freed, 401 U.S., at 607-610, and imposing a duty to determine
whether that weapon has been converted into a machinegun.
Cases arise, of course, in which a defendant would not know that a device was dangerous unless he knew
that it was a "firearm" as defined in the Act. Freed was such a case; unless the defendant knew that the
device in question was a hand grenade, he would not necessarily have known that it was dangerous. But
given the text and nature of the statute, it would be utterly implausible to suggest that Congress intended
the owner of a sawed-off shotgun to be criminally liable if he knew its barrel was 17.5 inches long, but
not if he mistakenly believed the same gun had an 18-inch barrel. Yet the Court's holding today assumes
that Congress intended that bizarre result.
The enforcement of public welfare offenses always entails some possibility of injustice. Congress
nevertheless has repeatedly decided that an overriding public interest in health or safety may outweigh
that risk when a person is dealing with products that are sufficiently dangerous or deleterious to make it
reasonable to presume that he either knows, or should know, whether those products conform to special
regulatory requirements. The dangerous character of the product [ STAPLES v. UNITED STATES, 511 U.S.
600 (1994) , 13] is reasonably presumed to provide sufficient notice of the probability of regulation to
justify strict enforcement against those who are merely guilty of negligent rather than willful misconduct.
The National Firearms Act is within the category of public welfare statutes enacted by Congress to
regulate highly dangerous items. The Government submits that a conviction under such a statute may be
supported by proof that the defendant "knew the item at issue was highly dangerous and of a type likely
to be subject to regulation." Brief for United States 9. 19 It is undisputed that the evidence in this case
met that standard. Nevertheless, neither JUSTICE THOMAS for the Court nor JUSTICE GINSBURG
has explained why such a knowledge requirement is unfaithful to our cases or to the text of the Act. 20
Instead, following the approach of their [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 14] decision in
United States v. Harris, 959 F.2d 246, 260-261 (CADC) (per curiam), cert. denied sub nom. Smith v.
United States, 506 U.S. ___ (1992), they have simply explained why, in their judgment, it would be
unfair to punish the possessor of this machinegun.
III
The history and interpretation of the National Firearms Act supports the conclusion that Congress did not
intend to require knowledge of all the facts that constitute the offense of possession of an unregistered
weapon. During the first 30 years of enforcement of the 1934 Act, consistent with the absence of a
knowledge requirement and with the reasoning in Balint, courts uniformly construed it not to require
knowledge of all the characteristics of the weapon that brought it within the statute. In a case decided in
1963, then-Judge BLACKMUN reviewed the earlier cases and concluded that the defendant's knowledge
that he possessed a gun was "all the scienter which the statute requires." Sipes v. United States, 321 F.2d
174, 179 (CA8), cert. denied, 375 U.S. 913 (1963).
Congress subsequently amended the statute twice, once in 1968 and again in 1986. Both amendments
added knowledge requirements to other portions of the Act, 21 but neither the text nor the history of
either [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 15] amendment discloses an intent to add any
other knowledge requirement to the possession of an unregistered firearm offense. Given that, with only

one partial exception, 22 every federal tribunal to address the question had concluded that proof of
knowledge of all the facts constituting a violation was not required for a conviction under 5861(d), 23 we
may infer that Congress intended that interpretation to survive. See Lorillard v. Pons, 434 U.S. 575, 580
(1978).
In short, petitioner's knowledge that he possessed an item that was sufficiently dangerous to alert him to
the likelihood of regulation would have supported a conviction during the first half century of
enforcement of this statute. Unless application of that standard to a particular [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 16] case violates the Due Process Clause, 24 it is the responsibility of
Congress, not this Court, to amend the statute if Congress deems it unfair or unduly strict.
IV
On the premise that the purpose of the mens rea requirement is to avoid punishing people "for apparently
innocent activity," JUSTICE GINSBURG concludes that proof of knowledge that a weapon is "à
dangerous device of a type as would alert one to the likelihood of regulation'" is not an adequate mens
rea requirement, but that proof of knowledge that the weapon possesses "èvery last characteristic'" that
subjects it to regulation is. Ante, at 3-5, and n. 5 (GINSBURG, J., concurring in judgment) (quoting the
trial court's jury instruction).
Assuming that "innocent activity" describes conduct without any consciousness of wrongdoing, the risk
of punishing such activity can be avoided only by reading into the statute the common law concept of
mens rea: "an evil purpose or mental culpability." Morissette, 342 U.S. at 252. 25 But even petitioner
does not contend that the Government must prove guilty intent or intentional wrongdoing. Instead, the
"mens rea" issue in this [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 17] case is simply what
knowledge requirement, if any, Congress implicitly included in this offense. There are at least five such
possible knowledge requirements, four of which entail the risk that a completely innocent mistake will
subject a defendant to punishment.
First, a defendant may know that he possesses a weapon with all of the characteristics that make it a
"firearm" within the meaning of the statute and also know that it has never been registered, but be
ignorant of the federal registration requirement. In such a case, we presume knowledge of the law even if
we know the defendant is "innocent" in the sense that JUSTICE GINSBURG uses the word. Second, a
defendant may know that he possesses a weapon with all of the characteristics of a statutory firearm and
also know that the law requires that it be registered, but mistakenly believe that it is in fact registered.
Freed squarely holds that this defendant's "innocence" is not a defense. Third, a defendant may know
only that he possesses a weapon with all of the characteristics of a statutory firearm. Neither ignorance of
the registration requirement nor ignorance of the fact that the weapon is unregistered protects this
"innocent" defendant. Fourth, a defendant may know that he possesses a weapon that is sufficiently
dangerous to likely be regulated, but not know that it has all the characteristics of a statutory firearm.
Petitioner asserts that he is an example of this "innocent" defendant. Fifth, a defendant may know that he
possesses an ordinary gun and, being aware of the widespread lawful gun ownership in the country,
reasonably assume that there is no need "to inquire about the need for registration." Ante, at 3
(GINSBURG, J., concurring in judgment). That, of course, is not this case. See supra, at 1, and n. 1. 26 [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 18]

JUSTICE GINSBURG treats the first, second, and third alternatives differently from the fourth and fifth.
Her acceptance of knowledge of the characteristics of a statutory "firearm" as a sufficient predicate for
criminal liability - despite ignorance of either the duty to register or the fact of nonregistration, or both -
must rest on the premise that such knowledge would alert the owner to the likelihood of regulation,
thereby depriving the conduct of its "apparen[t] innocen[ce]." Yet in the fourth alternative, a jury
determines just such knowledge: that the characteristics of the weapon known to the defendant would
alert the owner to the likelihood of regulation.
In short, JUSTICE GINSBURG's reliance on "the purpose of the mens rea requirement - to shield people
against punishment for apparently innocent activity," ante, at 3, neither explains why ignorance of certain
facts is a defense although ignorance of others is not, nor justifies her disagreement with the jury's
finding that this defendant knew facts that should have caused him to inquire about the need for
registration. 27 [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 19]
V
This case presents no dispute about the dangerous character of machineguns and sawed-off shotguns.
Anyone in possession of such a weapon is "standing in responsible relation to a public danger." See
Dotterweich, 320 U.S., at 281 (citation omitted). In the National Firearms Act, Congress determined that
the serious threat to health and safety posed by the private ownership of such firearms warranted the
imposition of a duty on the owners of dangerous weapons to determine whether their possession is
lawful. Semiautomatic weapons that are readily convertible into machineguns are sufficiently dangerous
to alert persons who knowingly possess them to the probability of stringent public regulation. The jury's
finding that petitioner knowingly possessed "a dangerous device of a type as would alert one to the
likelihood of regulation" adequately supports the conviction.
Accordingly, I would affirm the judgment of the Court of Appeals.
[ Footnote 1] Indeed, only about 15 percent of all the guns in the United States are semiautomatic. See
National Rifle Association, Fact Sheet, Semi-Automatic Firearms 1 (Feb. 1, 1994). Although it is not
known how many of those weapons are readily convertible into machineguns, it is obviously a lesser
share of the total.
[ Footnote 2] See U.S. Dept. of Justice, Attorney General's Task Force on Violent Crime: Final Report
29, 32 (Aug. 17, 1981) (stating that over an 18-month period over 20 percent of the machineguns seized
or purchased by the Bureau of Alcohol, Tobacco and Firearms had been converted from semiautomatic
weapons by "simple tool work or the addition of readily available parts") (citing U.S. Dept. of Treasury,
Bureau of Alcohol, Tobacco and Firearms, Firearms Case Summary (Washington: U.S. Govt. Printing
Office 1981)).
[ Footnote 3] The Seventh Circuit's comment in a similar case is equally apt here: "The crime is
possessing an unregistered firearm - not "knowingly" possessing an unregistered firearm, or possessing a
weapon knowing it to be a firearm, or possessing a firearm knowing it to be unregistered. . . . .
[Petitioner's] proposal is not that we interpret a knowledge or intent requirement in 5861(d); it is that we
invent one." United States v. Ross, 917 F.2d 997, 1000 (1990) (per curiam) (emphasis in original), cert.
denied, 498 U.S. 1122 (1991).

[ Footnote 4] "The late 1920s and early 1930s brought . . . a growing perception of crime both as a major
problem and as a national one. . . . [C]riminal gangs found the submachinegun (a fully automatic,
shoulder-fired weapon utilizing automatic pistol cartridges) and sawed-off shotgun deadly for
close-range fighting." Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective,
17 Cumb.L.Rev. 585, 590 (1987).
[ Footnote 5] The Senate Report on the bill explained: "The gangster as a law violator must be deprived
of his most dangerous weapon, the machinegun. Your committee is of the opinion that limiting the bill to
the taxing of sawed-off guns and machineguns is sufficient at this time. It is not thought necessary to go
so far as to include pistols and revolvers and sporting arms. But while there is justification for permitting
the citizen to keep a pistol or revolver for his own protection without any restriction, there is no reason
why anyone except a law officer should have a machinegun or sawed-off shotgun." S. Rep. No. 1444,
73d Cong., 2d Sess., 1-2 (1934).
[ Footnote 6] In the Balint case, after acknowledging the general common law rule that made knowledge
of the facts an element of every crime, we held that as to statutory crimes the question is one of
legislative intent, and that the Anti-Narcotic Act should be construed to authorize "punishment of a
person for an act in violation of law[, even] when ignorant of the facts making it so." Balint, 258 U.S., at
251-252. The "policy of the law may, in order to stimulate proper care, require the punishment of the
negligent person though he be ignorant of the noxious character of what he sells." Id., at 253.
[ Footnote 7] See National Firearms Act: Hearings on H. R. 9066 before the House Committee on Ways
and Means, 73d Cong., 2d Sess., 6 (1934).
[ Footnote 8] "Omission of a mental element is the norm for statutes designed to deal with inaction. Not
registering your gun, not cleaning up your warehouse, United States v. Park, 421 U.S. 658 . . . (1975),
and like "acts" are done without thinking. Often the omission occurs because of lack of attention. . . . Yet
Congress may have sound reasons for requiring people to investigate and act, objectives that cannot be
achieved if the courts add mental elements to the statutes." Ross, 917 F.2d, at 1000.
[ Footnote 9] These statutes are sometimes referred to as "strict liability" offenses. As the Court notes,
because the defendant must know that he is engaged in the type of dangerous conduct that is likely to be
regulated, the use of the term "strict liability" to describe these offenses is inaccurate. Ante, at 7, n. 3. I
therefore use the term "public welfare offense" to describe this type of statute.
[ Footnote 10] See United States v. Balint, 258 U.S. 250 (1922).
[ Footnote 11] See United States v. International Minerals & Chemical Corp., 402 U.S. 558 (1971).
[ Footnote 12] See United States v. Dotterweich, 320 U.S. 277 (1943).
[ Footnote 13] The Court in Morissette, expressing approval of our public welfare offense cases, stated:
● "Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line
or set forth comprehensive criteria for distinguishing between crimes that require a mental element
and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled
nor static." 342 U.S., at 260 (footnotes omitted).

[ Footnote 14] Freed, 401 U.S., at 607 (holding that a violation of 5861(d) may be established without
proof that the defendant was aware of the fact that the firearm he possessed was unregistered). Our
holding in Freed is thus squarely at odds with the Court's conclusion that the "defendant must know the
facts that make his conduct illegal," ante, at 19.
[ Footnote 15] The Court's and JUSTICE GINSBURG's reliance upon Liparota is misplaced. Ante, at
9-11; ante, at 2-3. Although the Court is usually concerned with fine nuances of statutory text, its
discussion of Liparota simply ignores the fact that the food stamp fraud provision, unlike 5861(d),
contained the word "knowingly." The Members of the Court in Liparota disagreed on the proper
interpretation. The dissenters accepted the Government's view that the term merely required proof that
the defendant had knowledge of the facts that constituted the crime. See Liparota, 471 U.S., at 442-443
(White, J., dissenting) ("I would read 2024(b)(1) . . . to require awareness of only the relevant aspects of
one's conduct rendering it illegal, not the fact of illegality"). The majority, however, concluded that
"knowingly" also connoted knowledge of illegality. Id., 471 U.S., at 424-425. Because neither
"knowingly" nor any comparable term [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 10] appears in
5861(d), the statute before us today requires even less proof of knowledge than the dissenters would have
demanded in Liparota.
[ Footnote 16] JUSTICE GINSBURG similarly assumes that the character of "all guns" cannot be said to
place upon defendants an obligation "to inquire about the need for registration." Ante, at 2-3 (emphasis
added).
[ Footnote 17] The Government does note that some Courts of Appeals have required proof of
knowledge only that "the weapon was à firearm, within the general meaning of that term,'" Brief for
United States 24-25 (citing cases). Contrary to the assertion by the Court ante, at 11, n. 5, however, the
Government does not advance this test as the appropriate knowledge requirement, but instead supports
the one used by other Courts of Appeals. Compare the Court's description of the Government's position,
ibid., with the following statements in the Government's brief:
● "A defendant may be convicted of such offenses so long as the government proves that he knew
the item at issue was highly dangerous and of a type likely to be subject to regulation." Brief for
United States 9.
● "[T]he court of appeals correctly required the government to prove only that petitioner knew that
he possessed a dangerous weapon likely to be subject to regulation." Id., at 13.
● "B. The Intent Requirement Applicable To Section 5861(d) Is Knowledge That One Is Dealing
With A Dangerous Item Of A Type Likely To Be Subject To Regulation" Id., at 16. [ STAPLES v.
UNITED STATES, 511 U.S. 600 (1994) , 11]
● "But where a criminal statute involves regulation of a highly hazardous substance - and especially
where it penalizes a failure to act or to comply with a registration scheme - the defendant's
knowledge that he was dealing with such a substance and that it was likely to be subject to
regulation provides sufficient intent to support a conviction." Id., at 17-18.
● "Rather, absent contrary congressional direction, knowledge of the highly dangerous nature of the
articles involved and the likelihood that they are subject to regulation takes the place of the more
rigorous knowledge requirement applicable where apparently innocent and harmless devices are
subject to regulation." Id., at 20.
● "But the instruction did not require the government to prove that petitioner knew his weapon

"possess[ed] every last characteristic [which subjects it] to regulation;" he need only have
"know[n] that he [was] dealing with a dangerous device of a type as would alert one to the
likelihood of regulation." Tr. 465.
● "That instruction accurately describes the mental state necessary for a violation of Section 5861(d).
Id., at 23.
● "[P]roof that a defendant was on fair notice that the item he possessed was highly dangerous and
likely to be regulated is sufficient to support a conviction. Id., at 24.
[ Footnote 18] The Court and JUSTICE GINSBURG apparently assume that the outer limits of any such
notice can be no broader than the category of dangerous objects that Congress delineated as "firearms."
Ante, at 11; ante, at 2-3. Our holding in Posters `N' Things, illustrates the error in that assumption. A
retailer who may not know whether certain merchandise is actually drug paraphernalia, as that term is
defined in the relevant federal statute, may nevertheless violate [ STAPLES v. UNITED STATES, 511 U.S. 600
(1994) , 12] the law if "aware that customers in general are likely to use the merchandise with drugs." ___
U.S., at ___ (slip op., at 11). The owner of a semiautomatic weapon that is readily convertible into a
machinegun can certainly be aware of its dangerous nature and the consequent probability of regulation
even if he does not know whether the weapon is actually a machinegun. If ignorance of the precise
characteristics that render an item forbidden should be a defense, items that are likely to be "drug
paraphernalia" are no more obviously dangerous, and thus regulated, than items that are likely to be
"firearms."
[ Footnote 19] As a matter of law, this is the level of knowledge required by the statute. Therefore,
contrary to the Court's suggestion ante, at 12-13, n. 6, I have not left the determination of the "exact
content of the knowledge requirement" to the jury. I only leave to the jury its usual function: the
application of this legal standard to the facts. In performing this function, juries are frequently required to
determine if a law has been violated by application of just such a "general `standard.'" See, e.g., Posters
`N' Things, ___ U.S. at ___ (slip op., at 11-12); Miller v. California, 413 U.S. 15, 24 (1973).
[ Footnote 20] The Court also supports its conclusion on the basis of the purported disparity between the
penalty provided by this statute and those of other regulatory offenses. Although a modest penalty may
indicate that a crime is a public welfare offense, such a penalty is not, as the Court recognizes ante, at
16-17, a requisite characteristic of public welfare offenses. For example, the crime involved in Balint
involved punishment of up to five years' imprisonment. See Dotterweich, 320 U.S., at 285; see also
Morissette, 342 U.S., at 251, n. 8 (noting that rape of one too young to consent is an offense "in which
the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached
age of consent"). Moreover, congressional authorization of a range of penalties in some cases-petitioner,
for instance, is on probation - demonstrates a recognition that relatively innocent conduct should be
punished [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 14] less severely.
[ Footnote 21] Significantly, in 1968, Congress included a knowledge requirement in 5861(l). 26 U.S.C.
5861(l) (making it unlawful "to make, or cause the making of, a false entry on any application, return, or
record required by this chapter, knowing such entry to be false") (emphasis added). "[W]here Congress
includes particular language in one section of a statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or
exclusion." Rodriguez v. United States, 480 U.S. 522, 525 (1987) (internal quotation marks and citations
omitted); see also Lawrence County v. [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 15]

Lead-Deadwood School Dist. No. 40-1, 469 U.S. 256, 267-268 (1985).
[ Footnote 22] United States v. Herbert, 698 F.2d 981, 986-987 (CA9), cert. denied, 464 U.S. 821 (1983)
(requiring the Government to prove knowledge of all the characteristics of a weapon only when no
external signs indicated that the weapon was a "firearm"). Not until 1989 did a Court of Appeals adopt
the view of the majority today. See United States v. Williams, 872 F.2d 773 (CA6).
[ Footnote 23] See, e.g., United States v. Gonzalez, 719 F.2d 1516, 1522 (CA11 1983), cert. denied, 465
U.S. 1037 (1984); Morgan v. United States, 564 F.2d 803, 805-806 (CA8 1977); United States v.
Cowper, 503 F.2d 130, 132-133 (CA6 1974), cert. denied, 420 U.S. 930 (1975); United States v. De
Bartolo, 482 F.2d 312, 316 (CA1 1973); United States v. Vasquez, 476 F.2d 730, 732 (CA5), cert.
denied, 414 U.S. 836 (1973), overruled by United States v. Anderson, 885 F.2d 1248 (CA5 1989) (en
banc).
And, as I have already noted, United States v. Freed, 401 U.S. 601 (1971), was consistent with the
Government's position here. Although the Government accepted the burden of proving that Freed knew
that the item he possessed was a hand grenade, the possessor of an unfamiliar object such as a hand
grenade would not know that it was "a dangerous item of a type likely to be subject to regulation," Brief
for United States 16; see also id., at 20, 23, 24, unless he knew what it was.
[ Footnote 24] Petitioner makes no such claim in this Court.
[ Footnote 25] Our use of the term mens rea has not been consistent. In Morissette, we used the term as if
it always connoted a form of wrongful intent. In other cases, we employ it simply to mean whatever level
of knowledge is required for any particular crime. See, e.g., United States v. Bailey, 444 U.S. 394, 403
(1980). In this sense, every crime except a true strict liability offense contains a mens rea requirement.
For instance, the Court defined mens rea in Liparota v. United States, 471 U.S. 419, 426 (1985), as
"knowledge of illegality." In dissent, however, JUSTICE White equated the term with knowledge of the
facts that make the conduct illegal. Id., at 442-443. Today, the Court assigns the term the latter definition,
ante, at 4-5, but in fact requires proof of knowledge of only some of the facts that constitute the violation,
ante, at 8-9 (not requiring proof of knowledge of the fact that the gun is unregistered).
[ Footnote 26] Although I disagree with the assumption that "widespread lawful [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 18] gun ownership" provides a sufficient reason for believing that there is no
need to register guns (there is also widespread lawful automobile ownership), acceptance of that
assumption neither justifies the majority's holding nor contradicts my conclusion on the facts of this case.
[ Footnote 27] In addition, contrary to JUSTICE GINSBURG's assumption, if one reads the term
"firearm" from the quoted section of the indictment to mean "gun," the indictment still charges an offense
under 5861(d) and does not differ from the critical jury instruction. See ante, at 3-4. Even if JUSTICE
GINSBURG is correct that there is a technical variance, petitioner makes no claim that any such variance
prejudiced him. The wording of the indictment, of course, sheds no light on the proper interpretation of
the underlying statutory text. Although the repeated use of a term in a statute may shed light on the
statute's construction, see Ratzlaf v. United States, 510 U.S. ___ (1993) (slip op., at 8), such use in an
indictment is irrelevant to that question.
[ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 1]

Text Version | Contents

U.S. Supreme Court
STAPLES v. UNITED STATES, 511 U.S. 600 (1994)
HAROLD E. STAPLES, III, PETITIONER v. UNITED STATES

APPEALS FOR THE TENTH CIRCUIT
No. 92-1441
Argued November 30, 1993

Decided May 23, 1994
The National Firearms Act criminalizes possession of an unregistered

"firearm," 26 U.S.C. 5861(d), including a "machinegun," 5845(a)(6),
which is defined as a weapon that automatically fires more than one
shot with a single pull of the trigger, 5845(b). Petitioner Staples was
charged with possessing an unregistered machinegun in violation of
5861(d) after officers searching his home seized a semiautomatic rifle
- i.e., a weapon that normally fires only one shot with each trigger pull
- that had apparently been modified for fully automatic fire. At trial,
Staples testified that the rifle had never fired automatically while he
possessed it, and that he had been ignorant of any automatic firing
capability. He was convicted after the District Court rejected his
proposed jury instruction under which, to establish a 5861(d)
violation, the Government would have been required to prove beyond
a reasonable doubt that Staples knew that the gun would fire fully
automatically. The Court of Appeals affirmed, concluding that the
Government need not prove a defendant's knowledge of a weapon's
physical properties to obtain a conviction under 5861(d).
Held:
To obtain a 5861(d) conviction, the Government should have been

required to prove beyond a reasonable doubt that Staples knew that
his rifle had the characteristics that brought it within the statutory
definition of a machinegun. Pp. 4-19.
(a) The common law rule requiring mens rea as an element of a

crime informs interpretation of 5861(d) in this case. Because
some indication of congressional intent, express or implied, is
required to dispense with mens rea, 5861(d)'s silence on the
element of knowledge required for a conviction does not
suggest Page II that Congress intended to dispense with a
conventional mens rea requirement, which would require that
the defendant know the facts making his conduct illegal. Pp.
4-5.
(b) The Court rejects the Government's argument that the Act
fits within the Court's line of precedent concerning "public
welfare" or "regulatory" offenses, and thus that the presumption
favoring mens rea does not apply in this case. In cases
concerning public welfare offenses, the Court has inferred from
silence a congressional intent to dispense with conventional
mens rea requirements in statutes that regulate potentially
harmful or injurious items. In such cases, the Court has
reasoned that, as long as a defendant knows that he is dealing
with a dangerous device of a character that places him in
responsible relation to a public danger, he should be alerted to
the probability of strict regulation, and is placed on notice that
he must determine at his peril whether his conduct comes

within the statute's inhibition. See, e.g., United States v. Balint,

258 U.S. 250; United States v. Freed, 401 U.S. 601. Guns,
however, do not fall within the category of dangerous devices
as it has been developed in public welfare offense cases. In
contrast to the selling of dangerous drugs at issue in Balint or
the possession of hand grenades considered in Freed, private
ownership of guns in this country has enjoyed a long tradition
of being entirely lawful conduct. Thus, the destructive potential
of guns in general cannot be said to put gun owners sufficiently
on notice of the likelihood of regulation to justify interpreting
5861(d) as dispensing with proof of knowledge of the
characteristics that make a weapon a "firearm" under the
statute. The Government's interpretation potentially would
impose criminal sanctions on a class of persons whose mental
state - ignorance of the characteristics of weapons in their
possession - makes their actions entirely innocent. Had
Congress intended to make outlaws of such citizens, it would
have spoken more clearly to that effect. Pp. 5-16.
(c) The potentially harsh penalty attached to violation of

5861(d) - up to 10 years' imprisonment - confirms the
foregoing reading of the Act. Where, as here, dispensing with
mens rea would require the defendant to have knowledge only
of traditionally lawful conduct, a severe penalty is a further
factor tending to suggest that Congress did not intend to
eliminate a mens rea requirement. Pp. 16-19.
(d) The holding here is a narrow one that depends on a

common sense evaluation of the nature of the particular device
Congress has subjected to regulation, the expectations that
individuals may legitimately have in dealing with that device,
and the penalty Page III attached to a violation. It does not set
forth comprehensive criteria for distinguishing between crimes
that require a mental element and crimes that do not. Pp.
19-21.
THOMAS, J., delivered the opinion of the Court, in which

REHNQUIST, C.J., and SCALIA, KENNEDY, and SOUTER, JJ.,
joined. Ginsburg, J., filed an opinion concurring in the judgment, in
which O'CONNOR, J., joined. STEVENS, J., filed a dissenting
opinion, in which BLACKMUN, J., joined. [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 1]
JUSTICE THOMAS delivered the opinion of the Court.
The National Firearms Act makes it unlawful for any person to

possess a machinegun that is not properly registered with the Federal
Government. Petitioner contends that, to convict him under the Act,
the Government should have been required to prove beyond a
reasonable doubt that he knew the weapon he possessed had the
characteristics that brought it within the statutory definition of a
machinegun. We agree, and accordingly reverse the judgment of the
Court of Appeals.
The National Firearms Act (Act), 26 U.S.C. 5801-5872, imposes

strict registration requirements on statutorily defined "firearms." The
Act includes within the term "firearm" a machinegun, 5845(a)(6), and

further defines a machinegun as "any weapon which shoots . . . or can

be readily restored to shoot, automatically more than one shot,
without manual reloading, by a single function of the trigger. 5845(b).
Thus, any fully automatic weapon is a "firearm" within the meaning [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 2] of the Act. 1 Under
the Act, all firearms must be registered in the National Firearms
Registration and Transfer Record maintained by the Secretary of the
Treasury. 5841. Section 5861(d) makes it a crime, punishable by up
to 10 years in prison, see 5871, for any person to possess a firearm
that is not properly registered.
Upon executing a search warrant at petitioner's home, local police

and agents of the Bureau of Alcohol, Tobacco and Firearms (BATF)
recovered, among other things, an AR-15 assault rifle. The AR-15 is
the civilian version of the military's M-16 rifle, and is, unless modified,
a semiautomatic weapon. The M-16, in contrast, is a selective fire
rifle that allows the operator, by rotating a selector switch, to choose
semiautomatic or automatic fire. Many M-16 parts are
interchangeable with those in the AR-15, and can be used to convert
the AR-15 into an automatic weapon. No doubt to inhibit such
conversions, the AR-15 is manufactured with a metal stop on its
receiver that will prevent an M-16 selector switch, if installed, from
rotating to the fully automatic position. The metal stop on petitioner's
rifle, however, had been filed away, and the rifle had been assembled
with an M-16 selector switch and several other M-16 internal parts,
including a hammer, disconnector, and trigger. Suspecting that the
AR-15 had been modified to be capable of fully automatic fire,
BATF agents seized the weapon. Petitioner subsequently was
indicted for unlawful [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) ,
3] possession of an unregistered machinegun in violation of 5861(d).
At trial, BATF agents testified that, when the AR-15 was tested, it
fired more than one shot with a single pull of the trigger. It was
undisputed that the weapon was not registered as required by
5861(d). Petitioner testified that the rifle had never fired automatically
when it was in his possession. He insisted that the AR-15 had
operated only semiautomatically, and even then imperfectly, often
requiring manual ejection of the spent casing and chambering of the
next round. According to petitioner, his alleged ignorance of any
automatic firing capability should have shielded him from criminal
liability for his failure to register the weapon. He requested the District
Court to instruct the jury that, to establish a violation of 5861(d), the
Government must prove beyond a reasonable doubt that the
defendant "knew that the gun would fire fully automatically." 1 App.
to Brief for Appellant in No. 91-5033 (CA10), p. 42.
The District Court rejected petitioner's proposed instruction and

instead charged the jury as follows:
"The Government need not prove the defendant knows he's

dealing with a weapon possessing every last characteristic
[which subjects it] 2 to the regulation. It would be enough to
prove he knows that he is dealing with a dangerous device of a
type as would alert one to the likelihood of regulation." Tr.
465.
Petitioner was convicted and sentenced to five years' probation and a

$5,000 fine.
The Court of Appeals affirmed. Relying on its decision in United

States v. Mittleider, 835 F.2d 769 (CA10 [ STAPLES v. UNITED

STATES, 511 U.S. 600 (1994) , 4] 1987), cert. denied, 485 U.S. 980
(1988), the court concluded that the Government need not prove a
defendant's knowledge of a weapon's physical properties to obtain a
conviction under 5861(d). 971 F.2d 608, 612-613 (CA10 1992).
We granted certiorari, 508 U.S. ___ (1993), to resolve a conflict in
the Courts of Appeals concerning the mens rea required under
5861(d).
II
Whether or not 5861(d) requires proof that a defendant knew of the

characteristics of his weapon that made it a "firearm" under the Act is
a question of statutory construction. As we observed in Liparota v.
United States, 471 U.S. 419 (1985), "[t]he definition of the elements
of a criminal offense is entrusted to the legislature, particularly in the
case of federal crimes, which are solely creatures of statute." Id., at
424 (citing United States v. Hudson, 7 Cranch 32 (1812)). Thus, we
have long recognized that determining the mental state required for
commission of a federal crime requires "construction of the statute
and . . . inference of the intent of Congress." United States v. Balint,
258 U.S. 250, 253 (1922). See also Liparota, supra, at 423.
The language of the statute, the starting place in our inquiry, see
Connecticut Nat. Bank v. Germain, 503 U.S. ___, ___ (1992) (slip
op., at 5), provides little explicit guidance in this case. Section
5861(d) is silent concerning the mens rea required for a violation. It
states simply that "[i]t shall be unlawful for any person . . . to receive
or possess a firearm which is not registered to him in the National
Firearms Registration and Transfer Record." 26 U.S.C. 5861(d).
Nevertheless, silence on this point, by itself, does not necessarily
suggest that Congress intended to dispense with a conventional mens
rea element, which would require that the defendant know the facts
that make his conduct [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) ,
5] illegal. See Balint, supra, at 251 (stating that traditionally, "scienter"
was a necessary element in every crime). See also n. 3, infra. On the
contrary, we must construe the statute in light of the background rules
of the common law, see United States v. United States Gypsum Co.,
438 U.S. 422, 436-437 (1978), in which the requirement of some
mens rea for a crime is firmly embedded. As we have observed,
"[t]he existence of a mens rea is the rule of, rather than the exception
to, the principles of Anglo-American criminal jurisprudence." Id., at
436 (internal quotation marks omitted). See also Morissette v. United
States, 342 U.S. 246, 250 (1952) ("The contention that an injury can
amount to a crime only when inflicted by intention is no provincial or
transient notion. It is as universal and persistent in mature systems of
law as belief in freedom of the human will and a consequent ability
and duty of the normal individual to choose between good and evil").
There can be no doubt that this established concept has influenced

our interpretation of criminal statutes. Indeed, we have noted that the
common law rule requiring mens rea has been "followed in regard to
statutory crimes even where the statutory definition did not in terms
include it." Balint, supra, at 251-252. Relying on the strength of the
traditional rule, we have stated that offenses that require no mens rea
generally are disfavored, Liparota, supra, at 426, and have suggested
that some indication of congressional intent, express or implied, is
required to dispense with mens rea as an element of a crime. Cf.
United States Gypsum, supra, at 438; Morissette, supra, at 263.

According to the Government, however, the nature and purpose of

the National Firearms Act suggest that the presumption favoring mens
rea does not apply to this case. The Government argues that
Congress intended the Act to regulate and restrict the circulation of
dangerous weapons. Consequently, in the Government's [ STAPLES v.
UNITED STATES, 511 U.S. 600 (1994) , 6] view, this case fits in a line of
precedent concerning what we have termed "public welfare" or
"regulatory" offenses, in which we have understood Congress to
impose a form of strict criminal liability through statutes that do not
require the defendant to know the facts that make his conduct illegal.
In construing such statutes, we have inferred from silence that
Congress did not intend to require proof of mens rea to establish an
offense.
For example, in Balint, supra, we concluded that the Narcotic Act of

1914, which was intended in part to minimize the spread of addictive
drugs by criminalizing undocumented sales of certain narcotics,
required proof only that the defendant knew that he was selling drugs,
not that he knew the specific items he had sold were "narcotics"
within the ambit of the statute. See Balint, supra, at 254. Cf. United
States v. Dotterweich, 320 U.S. 277, 281 (1943) (stating in dicta
that a statute criminalizing the shipment of adulterated or misbranded
drugs did not require knowledge that the items were misbranded or
adulterated). As we explained in Dotterweich, Balint dealt with "a
now familiar type of legislation whereby penalties serve as effective
means of regulation. Such legislation dispenses with the conventional
requirement for criminal conduct-awareness of some wrongdoing."
Id., at 280-281. See also Morissette, supra, at 252-256.
Such public welfare offenses have been created by Congress, and

recognized by this Court, in "limited circumstances." United States
Gypsum, 438 U.S., at 437. Typically, our cases recognizing such
offenses involve statutes that regulate potentially harmful or injurious
items. Cf. United States v. International Minerals & Chemical Corp.,
402 U.S. 558, 564-565 (1971) (characterizing Balint and similar
cases as involving statutes regulating "dangerous or deleterious
devices or products or obnoxious waste materials"). In [ STAPLES v.
UNITED STATES, 511 U.S. 600 (1994) , 7] such situations, we have
reasoned that as long as a defendant knows that he is dealing with a
dangerous device of a character that places him "in responsible
relation to a public danger," Dotterweich, supra, at 281, he should be
alerted to the probability of strict regulation, and we have assumed
that in such cases Congress intended to place the burden on the
defendant to "ascertain at his peril whether [his conduct] comes within
the inhibition of the statute." Balint, supra, at 254. Thus, we essentially
have relied on the nature of the statute and the particular character of
the items regulated to determine whether congressional silence
concerning the mental element of the offense should be interpreted as
dispensing with conventional mens rea requirements. See generally
Morissette, supra, at 252-260. 3 [ STAPLES v. UNITED STATES, 511
U.S. 600 (1994) , 8]
The Government argues that 5861(d) defines precisely the sort of

regulatory offense described in Balint. In this view, all guns, whether
or not they are statutory "firearms," are dangerous devices that put
gun owners on notice that they must determine at their hazard
whether their weapons come within the scope of the Act. On this
understanding, the District Court's instruction in this case was correct,
because a conviction can rest simply on proof that a defendant knew

he possessed a "firearm" in the ordinary sense of the term.
The Government seeks support for its position from our decision in
United States v. Freed, 401 U.S. 601 (1971), which involved a
prosecution for possession of unregistered grenades under 5861(d).
4 The defendant knew that the items in his possession were grenades,
and we concluded that 5861(d) did not require the Government to
prove the defendant also knew that the grenades were unregistered.
Id., at 609. To be sure, in deciding that mens rea was not required
with respect to that element of the offense, we suggested that the Act
is a regulatory measure in the interest of the public safety, which may
well be premised on the theory that one would hardly be surprised to
learn that possession of hand grenades is not an innocent act. Ibid.
Grenades, we explained, "are highly dangerous offensive weapons,
no less dangerous than the narcotics involved in United States v.
Balint." Ibid. But that reasoning provides little support for dispensing
with mens rea in this case. [ STAPLES v. UNITED STATES, 511 U.S. 600
(1994) , 9]
As the Government concedes, Freed did not address the issue

presented here. In Freed, we decided only that 5861(d) does not
require proof of knowledge that a firearm is unregistered. The
question presented by a defendant who possesses a weapon that is a
"firearm" for purposes of the Act, but who knows only that he has a
"firearm" in the general sense of the term, was not raised or
considered. And our determination that a defendant need not know
that his weapon is unregistered suggests no conclusion concerning
whether 5861(d) requires the defendant to know of the features that
make his weapon a statutory "firearm"; different elements of the same
offense can require different mental states. See Liparota, 471 U.S., at
423, n. 5; United States v. Bailey, 444 U.S. 394, 405-406 (1980).
See also W. LaFave & A. Scott, Handbook on Criminal Law
194-195 (1972). Moreover, our analysis in Freed likening the Act to
the public welfare statute in Balint rested entirely on the assumption
that the defendant knew that he was dealing with hand grenades - that
is, that he knew he possessed a particularly dangerous type of
weapon (one within the statutory definition of a "firearm"), possession
of which was not entirely "innocent" in and of itself. 401 U.S., at 609.
The predicate for that analysis is eliminated when, as in this case, the
very question to be decided is whether the defendant must know of
the particular characteristics that make his weapon a statutory
firearm.
Notwithstanding these distinctions, the Government urges that Freed's

logic applies because guns, no less than grenades, are highly
dangerous devices that should alert their owners to the probability of
regulation. But the gap between Freed and this case is too wide to
bridge. In glossing over the distinction between grenades and guns,
the Government ignores the particular care we have taken to avoid
construing a statute to dispense with mens rea where doing so would
"criminalize [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 10] a
broad range of apparently innocent conduct." Liparota, 471 U.S., at
426. In Liparota, we considered a statute that made unlawful the
unauthorized acquisition or possession of food stamps. We
determined that the statute required proof that the defendant knew his
possession of food stamps was unauthorized, largely because
dispensing with such a mens rea requirement would have resulted in
reading the statute to outlaw a number of apparently innocent acts.
Ibid. Our conclusion that the statute should not be treated as defining
a public welfare offense rested on the common sense distinction that a
"food stamp can hardly be compared to a hand grenade." Id., at 433.

Neither, in our view, can all guns be compared to hand grenades.

Although the contrast is certainly not as stark as that presented in
Liparota, the fact remains that there is a long tradition of widespread
lawful gun ownership by private individuals in this country. Such a
tradition did not apply to the possession of hand grenades in Freed or
to the selling of dangerous drugs that we considered in Balint. See
also International Minerals, 402 U.S., at 563-565; Balint, 258 U.S.,
at 254. In fact, in Freed we construed 5861(d) under the assumption
that "one would hardly be surprised to learn that possession of hand
grenades is not an innocent act." Freed, supra, at 609. Here, the
Government essentially suggests that we should interpret the section
under the altogether different assumption that "one would hardly be
surprised to learn that owning a gun is not an innocent act." That
proposition is simply not supported by common experience. Guns in
general are not "deleterious devices or products or obnoxious waste
materials," International Minerals, supra, at 565, that put their owners
on notice that they stand "in responsible relation to a public danger."
Dotterweich, 320 U.S., at 281.
The Government protests that guns, unlike food stamps, but like
grenades and narcotics, are potentially [ STAPLES v. UNITED STATES,
511 U.S. 600 (1994) , 11] harmful devices. 5 Under this view, it seems
that Liparota's concern for criminalizing ostensibly innocuous conduct
is inapplicable whenever an item is sufficiently dangerous - that is,
dangerousness alone should alert an individual to probable regulation
and justify treating a statute that regulates the dangerous device as
dispensing with mens rea. But that an item is "dangerous," in some
general sense, does not necessarily suggest, as the Government
seems to assume, that it is not also entirely innocent. Even dangerous
items can, in some cases, be so commonplace and generally available
that we would not consider them to alert individuals to the likelihood
of strict regulation. As suggested above, despite their potential for
harm, guns generally can be owned in perfect innocence. Of course,
we might surely classify certain categories of guns - no doubt
including the machineguns, sawed-off shotguns, and artillery pieces
that Congress has subjected to regulation - as items the ownership of
which would have the same quasi-suspect [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 12] character we attributed to owning
hand grenades in Freed. But precisely because guns falling outside
those categories traditionally have been widely accepted as lawful
possessions, their destructive potential, while perhaps even greater
than that of some items we would classify along with narcotics and
hand grenades, cannot be said to put gun owners sufficiently on
notice of the likelihood of regulation to justify interpreting 5861(d) as
not requiring proof of knowledge of a weapon's characteristics. 6 [
On a slightly different tack, the Government suggests that guns are

subject to an array of regulations at the federal, state, and local levels
that put gun owners on notice that they must determine the
characteristics of their weapons and comply with all legal
requirements. 7 But regulation in itself is not sufficient to place gun
ownership in the category of the sale of narcotics in Balint. The food
stamps at issue in Liparota were subject to comprehensive
regulations, yet we did not understand the statute there to dispense
with a mens [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 14] rea
requirement. Moreover, despite the overlay of legal restrictions on
gun ownership, we question whether regulations on guns are
sufficiently intrusive that they impinge upon the common experience
that owning a gun is usually licit and blameless conduct. Roughly 50

per cent of American homes contain at least one firearm of some sort,
8 and in the vast majority of States, buying a shotgun or rifle is a
simple transaction that would not alert a person to regulation any
more than would buying a car. 9
If we were to accept as a general rule the Government's suggestion

that dangerous and regulated items place their owners under an
obligation to inquire at their peril into compliance with regulations, we
would undoubtedly reach some untoward results. Automobiles, for
example, might also be termed "dangerous" devices and are highly
regulated at both the state and federal levels. Congress might see fit
to criminalize the violation of certain regulations concerning
automobiles, and thus might make it a crime to operate a vehicle
without a properly functioning emission control system. But we
probably would hesitate to conclude on the basis of silence that
Congress intended a prison term to apply to [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 15] a car owner whose vehicle's emissions
levels, wholly unbeknownst to him, began to exceed legal limits
between regular inspection dates.
Here, there can be little doubt that, as in Liparota, the Government's

construction of the statute potentially would impose criminal sanctions
on a class of persons whose mental state - ignorance of the
characteristics of weapons in their possession - makes their actions
entirely innocent. 10 The Government does not dispute the contention
that virtually any semiautomatic weapon may be converted, either by
internal modification or, in some cases, simply by wear and tear, into
a machinegun within the meaning of the Act. Cf. United States v.
Anderson, 885 F.2d 1248, 1251, 1253-1254 (CA5 1989) (en
banc). Such a gun may give no externally visible indication that it is
fully automatic. See United States v. Herbert, 698 F.2d 981, 986
(CA9), cert. denied, 464 U.S. 821 (1983). But in the Government's
view, any person who has purchased what he believes to be a
semiautomatic rifle or handgun, or who simply has inherited a gun
from a relative and left it untouched in an attic or basement, can be
subject to imprisonment, despite absolute ignorance of the gun's firing
capabilities, if the gun turns out to be an automatic.
We concur in the Fifth Circuit's conclusion on this point: "It is

unthinkable to us that Congress intended to subject such law-abiding,
well-intentioned citizens to a possible ten-year term of imprisonment if
. . . what they genuinely and reasonably believed was a conventional
semiautomatic [weapon] turns out to have worn down into or been
secretly modified to be a fully automatic weapon. Anderson, supra, at
1254. As we noted in Morissette, the "purpose and obvious effect of
doing away [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 16] with
the requirement of a guilty intent is to ease the prosecution's path to
conviction." 342 U.S., at 263. 11 We are reluctant to impute that
purpose to Congress where, as here, it would mean easing the path
to convicting persons whose conduct would not even alert them to
the probability of strict regulation in the form of a statute such as
5861(d).
The potentially harsh penalty attached to violation of 5861(d)-up to

10 years' imprisonment-confirms our reading of the Act. Historically,
the penalty imposed under a statute has been a significant
consideration in determining whether the statute should be construed
as dispensing with mens rea. Certainly, the cases that first defined the
concept of the public welfare offense almost uniformly involved

statutes that provided for only light penalties such as fines or short jail
sentences, not imprisonment in the state penitentiary. See, e.g.,
Commonwealth v. Raymond, 97 Mass. 567 (1867) (fine of up to
$200 or six months in jail, or both); Commonwealth [ STAPLES v.
UNITED STATES, 511 U.S. 600 (1994) , 17] v. Farren, 91 Mass. 489
(1864) (fine); People v. Snowberger, 113 Mich. 86, 71 N. W. 497
(1897) (fine of up to $500 or incarceration in county jail). 12
As commentators have pointed out, the small penalties attached to

such offenses logically complemented the absence of a mens rea
requirement: in a system that generally requires a "vicious will" to
establish a crime, 4 W. Blackstone, Commentaries *21, imposing
severe punishments for offenses that require no mens rea would seem
incongruous. See Sayre, Public Welfare Offenses, 33 Colum.L.Rev.
55, 70 (1933). Indeed, some courts justified the absence of mens rea
in part on the basis that the offenses did not bear the same
punishments as "infamous crimes," Tenement House Dept. v.
McDevitt, 215 N.Y. 160, 168, 109 N.E. 88, 90 (1915) (Cardozo,
J.), and questioned whether imprisonment was compatible with the
reduced culpability required for such regulatory offenses. See, e. g.,
People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225
N.Y. 25, 32-33, 121 N.E. 474, 477 (1918) (Cardozo, J.); id., at
35, 121 N.E., at 478 (Crane, J., concurring) (arguing that
imprisonment for a crime that requires no mens rea would stretch the
law regarding acts mala prohibita beyond its limitations). 13 Similarly,
commentators [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 18]
collecting the early cases have argued that offenses punishable by
imprisonment cannot be understood to be public welfare offenses, but
must require mens rea. See R. Perkins, Criminal Law 793-798 (2d
ed. 1969) (suggesting that the penalty should be the starting point in
determining whether a statute describes a public welfare offense);
Sayre, supra, at 72 ("Crimes punishable with prison sentences . . .
ordinarily require proof of a guilty intent"). 14
In rehearsing the characteristics of the public welfare offense, we,

too, have included in our consideration the punishments imposed and
have noted that "penalties commonly are relatively small, and
conviction does no grave damage to an offender's reputation."
Morissette, 342 U.S., at 256. 15 We have even recognized that it
was "[u]nder such considerations" that courts have construed statutes
to dispense with mens rea. Ibid.
Our characterization of the public welfare offense in Morissette hardly

seems apt, however, for a crime that is a felony, as is violation of
5861(d). 16 After all, "felony" is, as we noted in distinguishing certain
common law crimes from public welfare offenses, "às bad a [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 19] word as you can
give to man or thing.'" Morissette, supra, at 260 (quoting 2 F. Pollock
& F. Maitland, History of English Law 465 (2d ed. 1899)). Close
adherence to the early cases described above might suggest that
punishing a violation as a felony is simply incompatible with the theory
of the public welfare offense. In this view, absent a clear statement
from Congress that mens rea is not required, we should not apply the
public welfare offense rationale to interpret any statute defining a
felony offense as dispensing with mens rea. But see Balint, supra.
We need not adopt such a definitive rule of construction to decide

this case, however. Instead, we note only that where, as here,
dispensing with mens rea would require the defendant to have
knowledge only of traditionally lawful conduct, a severe penalty is a
further factor tending to suggest that Congress did not intend to

eliminate a mens rea requirement. In such a case, the usual

presumption that a defendant must know the facts that make his
conduct illegal should apply.
III
In short, we conclude that the background rule of the common law

favoring mens rea should govern interpretation of 5861(d) in this
case. Silence does not suggest that Congress dispensed with mens
rea for the element of 5861(d) at issue here. Thus, to obtain a
conviction, the Government should have been required to prove that
petitioner knew of the features of his AR-15 that brought it within the
scope of the Act. 17 [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) ,
20]
We emphasize that our holding is a narrow one. As in our prior

cases, our reasoning depends upon a common sense evaluation of the
nature of the particular device or substance Congress has subjected
to regulation and the expectations that individuals may legitimately
have in dealing with the regulated items. In addition, we think that the
penalty attached to 5861(d) suggests that Congress did not intend to
eliminate a mens rea requirement for violation of the section. As we
noted in Morissette, "[N]either this Court nor, so far as we are
aware, any other has undertaken to delineate a precise line or set
forth comprehensive criteria for distinguishing between crimes that
require a mental element and crimes that do not." 342 U.S., at 260.
We attempt no definition here, either. We note only that our holding
depends critically on our view that if Congress had intended to make
outlaws of gun owners who were wholly ignorant of the offending
characteristics of their weapons, and to subject them to lengthy prison
terms, it would have spoken more clearly to that effect. Cf. United
States v. Harris, 959 F.2d 246, 261 (CADC), cert. denied, 506
U.S. ___ (1992). [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 21]
For the foregoing reasons, the judgment of the Court of Appeals is

reversed and the case remanded for further proceedings consistent
with this opinion.
So ordered.
Footnotes
[ Footnote 1] As used here, the terms "automatic" and "fully

automatic" refer to a weapon that fires repeatedly with a single pull of
the trigger. That is, once its trigger is depressed, the weapon will
automatically continue to fire until its trigger is released or the
ammunition is exhausted. Such weapons are "machineguns" within the
meaning of the Act. We use the term "semiautomatic" to designate a
weapon that fires only one shot with each pull of the trigger, and
which requires no manual manipulation by the operator to place
another round in the chamber after each round is fired.
[ Footnote 2] In what the parties regard as a mistranscription, the

transcript contains the word "suggested" instead of "which subjects
it."
[ Footnote 3] By interpreting such public welfare offenses to require

at least that the defendant know that he is dealing with some
dangerous or deleterious substance, we have avoided construing
criminal statutes to impose a rigorous form of strict liability. See, e.g.,
United States v. International Minerals & Chemical Corp., 402 U.S.

558, 563-564 (1971) (suggesting that if a person shipping acid

mistakenly thought that he was shipping distilled water, he would not
violate a statute criminalizing undocumented shipping of acids). True
strict liability might suggest that the defendant need not know even
that he was dealing with a dangerous item. Nevertheless, we have
referred to public welfare offenses as "dispensing with" or
"eliminating" a mens rea requirement or "mental element," see, e.g.,
Morissette, 342 U.S., at 250, 263; United States v. Dotterweich,
320 U.S. 277, 281 (1943), and have described them as strict liability
crimes, United States v. United States Gypsum Co., 438 U.S. 422,
437 (1978). While use of the term "strict liability" is really a
misnomer, we have interpreted statutes defining public welfare
offenses to eliminate the requirement of mens rea; that is, the
requirement of a "guilty mind" with respect to an element of a crime.
Under such statutes we have not required that the defendant know
the facts that make his conduct fit the definition of the offense.
Generally speaking, such knowledge is necessary to establish mens
rea, as is reflected in the maxim ignorantia facti excusat. See generally
J. Hawley & M. McGregor, Criminal Law 26-30 (1899); R. Perkins,
Criminal Law 785-786 (2d ed. 1969); G. Williams, Criminal Law:
The General Part [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 8]
113-174 (1953). Cf. Regina v. Tolson, 23 Q.B. 168, 187 (1889)
(Stephen, J.) ("[I]t may, I think, be maintained that in every case
knowledge of fact [when not appearing in the statute] is to some
extent an element of criminality as much as competent age and
sanity").
[ Footnote 4] A grenade is a "firearm" under the Act. 26 U.S.C.

5845(a)(8), 5845(f)(1)(B).
[ Footnote 5] The dissent's assertions to the contrary notwithstanding,

the Government's position, "[a]ccurately identified," post, at 10, is
precisely that "guns in general" are dangerous items. The Government,
like the dissent, cites Sipes v. United States, 321 F.2d 174, 179
(CA8), cert. denied, 375 U.S. 913 (1963), for the proposition that a
defendant's knowledge that the item he possessed "was a gun" is
sufficient for a conviction under 5861(d). Brief for United States 21.
Indeed, the Government argues that "guns" should be placed in the
same category as the misbranded drugs in Dotterweich and the
narcotics in Balint because "òne would hardly be surprised to learn,'
Freed, 401 U.S. at 609, that there are laws that affect one's rights of
gun ownership." Brief for United States 22. The dissent relies upon
the Government's repeated contention that the statute requires
knowledge that "the item at issue was highly dangerous and of a type
likely to be subject to regulation." Id., at 9. But that assertion merely
patterns the general language we have used to describe the mens rea
requirement in public welfare offenses and amounts to no more than
an assertion that the statute should be treated as defining a public
welfare offense.
[ Footnote 6] The dissent asserts that the question is not whether all
guns are deleterious devices, but whether a gun "such as the one
possessed by petitioner," post, at 10 (which the dissent characterizes
as a "semiautomatic weapon that [is] readily convertible into a
machinegun," post, at 1, 11, 19), is such a device. If the dissent
intends to suggest that the category of readily convertible
semi-automatics provides the benchmark for defining the knowledge
requirement for 5861(d), it is difficult to see how it derives that class
of weapons as a standard. As explained above, see n. 5, supra, the
Government's argument has nothing to do with this ad hoc category
of weapons. And the statute certainly does not suggest that any

significance should attach to readily convertible semiautomatics, for

that class bears no relation to the definitions in the Act. Indeed, in the
absence of any definition, it is not at all clear what the contours of this
category would be. The parties assume that virtually all
semiautomatics may be converted into automatics, and limiting the
class to those "readily" convertible provides no real guidance
concerning the required mens rea. In short, every owner of a
semiautomatic rifle or handgun would potentially meet such a mens
rea test.
But the dissent apparently does not conceive of the mens rea
requirement in terms of specific categories of weapons at all, and
rather views it as a more fluid concept that does not require
delineation of any concrete elements of knowledge that will apply
consistently from case to case. The dissent sees no need to define a
class of items the knowing possession of which satisfies the mens rea
element of the offense, for in the dissent's view the exact content of
the knowledge requirement can be left to the jury in each case. As
long as the jury concludes that the item in a given case is "sufficiently
dangerous to alert [the defendant] to the likelihood of regulation,"
post, at 15, the knowledge requirement is satisfied. See also [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 13] post, at 1, 18, 19.
But the mens rea requirement under a criminal statute is a question of
law, to be determined by the court. Our decisions suggesting that
public welfare offenses require that the defendant know that he stands
in "responsible relation to a public danger," Dotterweich, 320 U.S., at
281, in no way suggest that what constitutes a public danger is a jury
question. It is for courts, through interpretation of the statute, to
define the mens rea required for a conviction. That task cannot be
reduced to setting a general "standard," post, at 13, that leaves it to
the jury to determine, based presumably on the jurors' personal
opinions, whether the items involved in a particular prosecution are
sufficiently dangerous to place a person on notice of regulation.
Moreover, as our discussion above should make clear, to determine

as a threshold matter whether a particular statute defines a public
welfare offense, a court must have in view some category of
dangerous and deleterious devices that will be assumed to alert an
individual that he stands in "responsible relation to a public danger."
Dotterweich, supra, at 281. The truncated mens rea requirement we
have described applies precisely because the court has determined
that the statute regulates in a field where knowing possession of some
general class of items should alert individuals to probable regulation.
Under the dissent's approach, however, it seems that every regulatory
statute potentially could be treated as a public welfare offense as long
as the jury - not the court - ultimately determines that the specific
items involved in a prosecution were sufficiently dangerous.
[ Footnote 7] See, e.g., 18 U.S.C. 921-928 (1988 ed. and Supp IV)
(requiring licensing of manufacturers, importers, and dealers of guns
and regulating the sale, possession, and interstate transportation of
certain guns).
[ Footnote 8] See U.S. Dept. of Justice, Bureau of Justice Statistics,

Sourcebook of Criminal Justice Statistics 209, Table 2.58 (1992).
[ Footnote 9] For example, as of 1990, 39 States allowed adult

residents, who are not felons or mentally infirm, to purchase a rifle or
shotgun simply with proof of identification (and in some cases a
simultaneous application for a permit). See U.S. Dept. of Justice,
Bureau of Justice Statistics, Identifying Persons, Other Than Felons,

Ineligible to Purchase Firearms 114, Exh. B.4 (1990); U.S.

Congress, Office of Technology Assessment, Automated Record
Checks of Firearm Purchasers 27 (July 1991). See also M. Cooper,
Reassessing the Nation's Gun Laws, Editorial Research Reports 158,
160 (Jan.-Mar. 1991) (table) (suggesting the total is forty-one
States); Dept. of Treasury, Bureau of Alcohol, Tobacco and
Firearms, State Laws and Published Ordinances-Firearms (19th ed.
1989).
[ Footnote 10] We, of course, express no view concerning the

inferences a jury may have drawn regarding petitioner's knowledge
from the evidence in this case.
[ Footnote 11] The Government contends that Congress intended

precisely such an aid to obtaining convictions, because requiring
proof of knowledge would place too heavy a burden on the
Government and obstruct the proper functioning of 5861(d). Cf.
United States v. Balint, 258 U.S. 250, 254 (1922) (difficulty of
proving knowledge suggests Congress did not intend to require mens
rea). But knowledge can be inferred from circumstantial evidence,
including any external indications signaling the nature of the weapon.
And firing a fully automatic weapon would make the regulated
characteristics of the weapon immediately apparent to its owner. In
short, we are confident that when the defendant knows of the
characteristics of his weapon that bring it within the scope of the Act,
the Government will not face great difficulty in proving that
knowledge. Of course, if Congress thinks it necessary to reduce the
Government's burden at trial to ensure proper enforcement of the
Act, it remains free to amend 5861(d) by explicitly eliminating a mens
rea requirement.
[ Footnote 12] Leading English cases developing a parallel theory of

regulatory offenses similarly involved violations punishable only by
fine or short term incarceration. See, e.g., Regina v. Woodrow, 15
M. & W. 404, 153 Eng.Rep. 907 (Ex. 1846) (fine of 200 for
adulterated tobacco); Hobbs v. Winchester Corp., 1910. 2 K.B.
471 (maximum penalty of three months' imprisonment for sale of
unwholesome meat).
[ Footnote 13] Cf. Regina v. Tolson, 23 Q.B., at 177 (Wills, J.) (In
determining whether a criminal statute dispenses with mens rea, "the
nature and extent of the penalty attached to the offence may
reasonably be considered. There is nothing that need shock any mind
in the payment of a small pecuniary penalty by a person who has
unwittingly done something detrimental to the public interest").
[ Footnote 14] But see, e.g., State v. Lindberg, 125 Wash. 51, 215
P. 41 (1923) (applying the public welfare offense rationale to a
felony).
[ Footnote 15] See also United States Gypsum, 438 U.S., at 442, n.
18 (noting that an individual violation of the Sherman Antitrust Act is
a felony punishable by three years in prison or a fine not exceeding
$100,000 and stating that "[t]he severity of these sanctions provides
further support for our conclusion that the [Act] should not be
construed as creating strict liability crimes"). Cf. Holdridge v. United
States, 282 F.2d 302, 310 (CA8 1960) (BLACKMUN, J.)
("[W]here a federal criminal statute omits mention of intent and . . .
where the penalty is relatively small, where conviction does not
gravely besmirch, [and] where the statutory crime is not one taken
over from the common law, . . . the statute can be construed as one

not requiring criminal intent").
[ Footnote 16] Title 18 U.S.C. 3559 makes any crime punishable by

more than one year in prison a felony.
[ Footnote 17] In reaching our conclusion, we find it unnecessary to

rely on the rule of lenity, under which an ambiguous criminal statute is
to be construed in favor of the accused. That maxim of construction
"is reserved for cases where, `[a]fter "seiz[ing] every thing from which
aid can be derived,"' the Court is `left with an ambiguous statute.'"
Smith v. United States, 507 U.S. ___, ___ (1993) (slip op., at 16) [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 20] (quoting United
States v. Bass, 404 U.S. 336, 347 (1971), in turn quoting United
States v. Fisher, 2 Cranch 358, 386 (1805)). See also United States
v. R.L.C., 503 U.S. ___, ___ (1992) (THOMAS, J., concurring in
part and concurring in the judgment); Chapman v. United States, 500
U.S. 453, 463 (1991) (rule of lenity inapplicable unless there is a
"`grievous ambiguity or uncertainty'" in the statute). Here, the
background rule of the common law favoring mens rea and the
substantial body of precedent we have developed construing statutes
that do not specify a mental element provide considerable interpretive
tools from which we can "seize aid," and they do not leave us with the
ultimate impression that 5861(d) is "grievous[ly]" ambiguous.
Certainly, we have not concluded in the past that statutes silent with
respect to mens rea are ambiguous. See, e.g., Balint, supra. [
JUSTICE GINSBURG, with whom JUSTICE O'CONNOR joins,

concurring in the judgment.
The statute petitioner Harold E. Staples is charged with violating, 26

U.S.C. 5861(d), makes it a crime for any person to "receive or
possess a firearm which is not registered to him." Although the word
"knowingly" does not appear in the statute's text, courts generally
assume that Congress, absent a contrary indication, means to retain a
mens rea requirement. Ante, at 5; see Liparota v. United States, 471
U.S. 419, 426 (1985); United States v. United States Gypsum Co.,
438 U.S. 422, 437-438 (1978). 1 Thus, our holding in United States
v. Freed, 401 U.S. 601 (1971), that 5861(d) does not require proof
of knowledge that the firearm is unregistered, rested on the premise
that the defendant indeed knew the items he possessed were hand
grenades. Id., at 607; id., at 612 (BRENNAN, J., concurring in
judgment) ("The Government and the Court agree [ STAPLES v.
UNITED STATES, 511 U.S. 600 (1994) , 2] that the prosecutor must prove
knowing possession of the items and also knowledge that the items
possessed were hand grenades.").
Conviction under 5861(d), the Government accordingly concedes,

requires proof that Staples "knowingly" possessed the machinegun.
Brief for United States 23. The question before us is not whether
knowledge of possession is required, but what level of knowledge
suffices: (1) knowledge simply of possession of the object; (2)
knowledge, in addition, that the object is a dangerous weapon; (3)
knowledge, beyond dangerousness, of the characteristics that render
the object subject to regulation, for example, awareness that the
weapon is a machinegun. 2
Recognizing that the first reading effectively dispenses with mens rea,
the Government adopts the second, contending that it avoids
criminalizing "apparently innocent conduct," Liparota, supra, at 426,
because, under the second reading, "a defendant who possessed

what he thought was a toy or a violin case, but which in fact was a
machinegun, could not be convicted." Brief for United States 23. The
Government, however, does not take adequate account of the
"widespread lawful gun ownership" Congress and the States have
allowed to persist in this country. See United States v. Harris, 959
F.2d 246, 261 (CADC) (per curiam), cert. denied, 506 U.S. ___
(1992). Given the notable lack of comprehensive regulation, "mere
unregistered possession of certain types of [regulated weapons] -
often [difficult to [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 3]
distinguish] from other, [nonregulated] types," has been held
inadequate to establish the requisite knowledge. See 959 F.2d, at
261.
The Nation's legislators chose to place under a registration

requirement only a very limited class of firearms, those they
considered especially dangerous. The generally "dangerous" character
of all guns, the Court therefore observes, ante, at 11-12, did not
suffice to give individuals in Staples' situation cause to inquire about
the need for registration. Compare United States v. Balint, 258 U.S.
250 (1922) (requiring reporting of sale of strictly regulated narcotics,
opium and cocaine). Only the third reading, then, suits the purpose of
the mens rea requirement - to shield people against punishment for
apparently innocent activity. 3
The indictment in Staples' case charges that he "knowingly received

and possessed firearms." App. to Brief for Appellant in No. 91-5033
(CA10), p. 1. 4 [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 4]
"Firearms" has a circumscribed statutory definition. See 26 U.S.C.
5845(a). The "firear[m]" the Government contends Staples possessed
in violation of 5861(d) is a machinegun. See 5845(a)(6). The
indictment thus effectively charged that Staples knowingly possessed
a machinegun. "Knowingly possessed" logically means "possessed
and knew that he possessed." The Government can reconcile the jury
instruction 5 with the indictment only on the implausible assumption
that the term "firear[m]" has two different meanings when used once
in the same charge - simply "gun" when referring to what petitioner
knew, and "machinegun" when referring to what he possessed. See
Cunningham, Levi, Green, & Kaplan, Plain Meaning and Hard
Cases, 103 Yale L. J. 1561, 1576-1577 (1994); cf. Ratzlaf v.
United States, 510 U.S. ___ (1994) (slip op., at 8) (construing
statutory term to bear same meaning "each time it is called into play").
For these reasons, I conclude that conviction under 5861(d) requires

proof that the defendant knew he possessed not simply a gun, but a
machinegun. The indictment in this case, but not the jury instruction,
properly described this knowledge requirement. I therefore concur in
the Court's judgment.
[ Footnote 1] Contrary to the dissent's suggestion, we have not

confined the presumption of mens rea to statutes codifying traditional
common law offenses, but have also applied the presumption to
offenses that are "entirely a creature of statute," post, at 3, such as
those at issue in Liparota, Gypsum, and, most recently, Posters `N'
Things v. United States, 511 U.S. ___ (1994) (slip op., at 10).
[ Footnote 2] Some Courts of Appeals have adopted a variant of the

third reading, holding that the Government must show that the
defendant knew the gun was a machinegun, but allowing inference of
the requisite knowledge where a visual inspection of the gun would
reveal that it has been converted into an automatic weapon. See

United States v. O'Mara, 963 F.2d 1288, 1291 (CA9 1992); United
States v. Anderson, 885 F.2d 1248, 1251 (CA5 1989) (en banc).
[ Footnote 3] The mens rea presumption requires knowledge only of

the facts that make the defendant's conduct illegal, lest it conflict with
the related presumption, "deeply rooted in the American legal
system," that, ordinarily, "ignorance of the law or a mistake of law is
no defense to criminal prosecution." Cheek v. United States, 498
U.S. 192, 199 (1990). Cf. Freed, 401 U.S., at 612 (BRENNAN,
J., concurring in judgment) ("If the ancient maxim that ìgnorance of
the law is no excuse' has any residual validity, it indicates that the
ordinary intent requirement - mens rea - of the criminal law does not
require knowledge that an act is illegal, wrong, or blameworthy.").
The maxim explains why some "innocent" actors - for example, a
defendant who knows he possesses a weapon with all of the
characteristics that subject it to registration, but was unaware of the
registration requirement, or thought the gun was registered - may be
convicted under 5861(d), see post, at 17. Knowledge of whether the
gun was registered is so closely related to knowledge of the
registration requirement that requiring the Government to prove the
former would in effect require it to prove knowledge of the law. Cf.
Freed, supra, at 612-614 (BRENNAN, J., concurring in judgment).
[ Footnote 4] The indictment charged Staples with possession of two

unregistered [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 4]
machineguns, but the jury found him guilty of knowingly possessing
only one of them. Tr. 477.
[ Footnote 5] The trial court instructed the jury:
"[A] person is knowingly in possession of a thing if his

possession occurred voluntarily and intentionally and not
because of mistake or accident or other innocent reason. The
purpose of adding the word "knowingly" is to insure that no
one can be convicted of possession of a firearm he did not
intend to possess. The Government need not prove the
defendant knows he's dealing with a weapon possessing every
last characteristic [which subjects it] to the regulation. It would
be enough to prove he knows that he is dealing with a
dangerous device of a type as would alert one to the likelihood
of regulation. If he has such knowledge and if the particular
item is, in fact, regulated, then that person acts at his peril.
Mere possession of an unregistered firearm is a violation of the
law of the United States, and it is not necessary for the
Government to prove that the defendant knew that the weapon
in his possession was a firearm within the meaning of the
statute, only that he knowingly possessed the firearm." Tr. 465.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins,

dissenting.
To avoid a slight possibility of injustice to unsophisticated owners of

machineguns and sawed-off shotguns, the Court has substituted its
views of sound policy for the judgment Congress made when it
enacted the National Firearms Act (or Act). Because the Court's
addition to the text of 26 U.S.C. 5861(d) is foreclosed by both the
statute and our precedent, I respectfully dissent.
The Court is preoccupied with guns that "generally can be owned in

perfect innocence." Ante, at 11. This case, however, involves a

semiautomatic weapon that was readily convertible into a machinegun

- a weapon that the jury found to be "à dangerous device of a type
as would alert one to the likelihood of regulation.'" Ante, at 3. These
are not guns "of some sort" that can be found in almost "50 percent of
American homes." Ante, at 13. 1 They are particularly dangerous -
indeed, [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 2] a
substantial percentage of the unregistered machineguns now in
circulation are converted semiautomatic weapons. 2
The question presented is whether the National Firearms Act

imposed on the Government the burden of proving beyond a
reasonable doubt not only that the defendant knew he possessed a
dangerous device sufficient to alert him to regulation, but also that he
knew it had all the characteristics of a "firearm" as defined in the
statute. Three unambiguous guideposts direct us to the correct
answer to that question: the text and structure of the Act, our cases
construing both this Act and similar regulatory legislation, and the
Act's history and interpretation.
Contrary to the assertion by the Court, the text of the statute does
provide "explicit guidance in this case." Cf. ante, at 4. The relevant
section of the Act makes it unlawful for any person . . . to receive or
possess a firearm which is not registered to him in the National
Firearms Registration and Transfer Record. 26 U.S.C. 5861(d).
Significantly, the section contains no knowledge requirement, nor
does it describe a common law crime.
The common law generally did not condemn acts as criminal unless
the actor had "an evil purpose or mental culpability," Morissette v.
United States, 342 U.S. 246, 252 (1952), and was aware of all the
facts that made the [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 3]
conduct unlawful. United States v. Balint, 258 U.S. 250, 251-252
(1922). In interpreting statutes that codified traditional common law
offenses, courts usually followed this rule, even when the text of the
statute contained no such requirement. Ibid. Because the offense
involved in this case is entirely a creature of statute, however, "the
background rules of the common law," cf. ante, at 5, do not require a
particular construction, and critically different rules of construction
apply. See Morissette v. United States, 342 U.S. 246, 252-260
(1952).
In Morissette, Justice Jackson outlined one such interpretive rule:
"[C]ongressional silence as to mental elements in an Act merely

adopting into federal statutory law a concept of crime already .
. . well defined in common law and statutory interpretation by
the states may warrant quite contrary inferences than the same
silence in creating an offense new to general law, for whose
definition the courts have no guidance except the Act." Id., at
262.
Although the lack of an express knowledge requirement in 5861(d) is

not dispositive, see United States v. United States Gypsum Co., 438
U.S. 422, 438 (1978), its absence suggests that Congress did not
intend to require proof that the defendant knew all of the facts that
made his conduct illegal. 3 [ STAPLES v. UNITED STATES, 511 U.S. 600
(1994) , 4]
The provision's place in the overall statutory scheme, see Crandon v.

United States, 494 U.S. 152, 158 (1990), confirms this intention. In
1934, when Congress originally enacted the statute, it limited the
coverage of the 1934 Act to a relatively narrow category of weapons
such as submachineguns and sawed-off shotguns - weapons
characteristically used only by professional gangsters like Al Capone,
Pretty Boy Floyd, and their henchmen. 4 At the time, the Act would
have had little application to guns used by hunters or guns kept at
home as protection against unwelcome intruders. 5 Congress
therefore could reasonably presume that a person found in possession
of an unregistered machinegun or sawed-off shotgun intended to use
it for criminal purposes. The statute as a whole, and particularly the
decision to criminalize mere possession, reflected a legislative
judgment that the likelihood of innocent possession of such an
unregistered weapon was remote, and far less significant than the
interest in depriving gangsters of their use. [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 5]
In addition at the time of enactment, this Court had already construed

comparable provisions of the Harrison Anti-Narcotic Act not to
require proof of knowledge of all the facts that constitute the
proscribed offense. United States v. Balint, 258 U.S. 250 (1922). 6
Indeed, Attorney General Cummings expressly advised Congress that
the text of the gun control legislation deliberately followed the
language of the Anti-Narcotic Act to reap the benefit of cases
construing it. 7 Given the reasoning of Balint, we properly may infer
that Congress did not intend the Court to read a stricter knowledge
requirement into the gun control legislation than we read into the
Anti-Narcotic Act. Cannon v. University of Chicago, 441 U.S. 677,
698-699 (1979).
Like the 1934 Act, the current National Firearms Act is primarily a
regulatory measure. The statute establishes taxation, registration,
reporting, and recordkeeping requirements for businesses and
transactions involving statutorily defined firearms, and requires that
each firearm be identified by a serial number. 26 U.S.C. 5801-5802,
5811-5812, 5821-5822, 5842- 5843. The Secretary of the Treasury
must maintain a central registry that includes the names and addresses
of persons in possession of all firearms not controlled by the
Government. 5841. Congress also prohibited [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 6] certain acts and omissions, including the
possession of an unregistered firearm. 8 5861.
As the Court acknowledges, ante, at 7, to interpret statutory offenses

such as 5861(d), we look to "the nature of the statute and the
particular character of the items regulated" to determine the level of
knowledge required for conviction. An examination of 5861(d) in
light of our precedent dictates that the crime of possession of an
unregistered machinegun is in a category of offenses described as
"public welfare" crimes. 9 Our decisions interpreting such offenses
clearly require affirmance of petitioner's conviction.
II
"Public welfare" offenses share certain characteristics: (1) they

regulate "dangerous or deleterious devices or products or
obnoxious waste materials," see United States v. International
Minerals & Chemical Corp., 402 U.S. 558, 565 (1971); (2)
they "heighten the duties of those in control of particular
industries, trades, properties or activities that affect public
health, safety or welfare," Morissette, 342 U.S., at 254; and
(3) they "depend on no mental element but consist only of

forbidden acts or omissions," id., at 252-253. Examples [

STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 7] of such
offenses include Congress' exertion of its power to keep
dangerous narcotics, 10 hazardous substances, 11 and impure
and adulterated foods and drugs 12 out of the channels of
commerce. 13
Public welfare statutes render criminal "a type of conduct that a

reasonable person should know is subject to stringent public
regulation and may seriously threaten the community's health or
safety." Liparota v. United States, 471 U.S. 419, 433 (1985). Thus,
under such statutes, "a defendant can be convicted even though he
was unaware of the circumstances of his conduct that made it illegal."
Id., at 443, n. 7 (White, J., dissenting). Referring to the strict criminal
sanctions for unintended violations of the food and drug laws, Justice
Frankfurter wrote:
"The purposes of this legislation thus touch phases of the lives

and health of people which, in the circumstances of modern
industrialism, are largely beyond self-protection. Regard for
these purposes should infuse construction of the legislation if it
is to be treated as a working instrument of government and not
merely as a collection of English words. . . . The prosecution . .
. is based on a now familiar type of legislation whereby
penalties serve as effective means of regulation. Such
legislation [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 8]
dispenses with the conventional requirement for criminal
conduct-awareness of some wrongdoing. In the interest of the
larger good it puts the burden of acting at hazard upon a
person otherwise innocent but standing in responsible relation
to a public danger. United States v. Dotterweich, 320 U.S.
277, 280-281 (1943) (citing United States v. Balint, 258 U.S.
250 (1922); other citations omitted).
The National Firearms Act unquestionably is a public welfare statute.

United States v. Freed, 401 U.S. 601, 609 (1971) (holding that this
statute "is a regulatory measure in the interest of the public safety").
Congress fashioned a legislative scheme to regulate the commerce
and possession of certain types of dangerous devices, including
specific kinds of weapons, to protect the health and welfare of the
citizenry. To enforce this scheme, Congress created criminal penalties
for certain acts and omissions. The text of some of these offenses -
including the one at issue here - contains no knowledge requirement.
The Court recognizes:
"[W]e have reasoned that as long as a defendant knows that

he is dealing with a dangerous device of a character that places
him "in responsible relation to a public danger, Dotterweich,
supra, at 281, he should be alerted to the probability of strict
regulation, and we have assumed that in such cases Congress
intended to place the burden on the defendant to "ascertain at
his peril whether [his conduct] comes within the inhibition of
the statute. Balint, supra, at 254. Ante, at 7.
We thus have read a knowledge requirement into public welfare

crimes, but not a requirement that the defendant know all the facts
that make his conduct illegal. Although the Court acknowledges this
standard, it nevertheless concludes that a gun is not the type of [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 9] dangerous device
that would alert one to the possibility of regulation.

Both the Court and JUSTICE GINSBURG erroneously rely upon

the "tradition[al]" innocence of gun ownership to find that Congress
must have intended the Government to prove knowledge of all the
characteristics that make a weapon a statutory "firear[m]." Ante, at
10-12; ante, at 2-3 (GINSBURG, J., concurring in judgment). We
held in Freed, however, that a 5861(d) offense may be committed by
one with no awareness of either wrongdoing or of all the facts that
constitute the offense. 14 401 U.S., at 607-610. Nevertheless, the
Court, asserting that the Government "gloss[es] over the distinction
between grenades and guns," determines that "the gap between Freed
and this case is too wide to bridge." Ante, at 9. As such, the Court
instead reaches the rather surprising conclusion that guns are more
analogous to food stamps than to hand grenades. 15 Even if [
STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 10] one accepts that
dubious proposition, the Court founds it upon a faulty premise: its
mischaracterization of the Government's submission as one
contending that "all guns . . . are dangerous devices that put gun
owners on notice. . . . " Ante, at 8 (emphasis added). 16 Accurately
identified, the Government's position presents the question whether
guns such as the one possessed by petitioner "àre highly dangerous
offensive weapons, no less dangerous than the narcotics'" in Balint or
the hand grenades in Freed, see ante, at 8, (quoting Freed, 401 U.S.,
at 609). 17 [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 11]
Thus, even assuming that the Court is correct that the mere
possession of an ordinary rifle or pistol does not entail sufficient
danger to alert one to the possibility of regulation, that conclusion
does not resolve this case. Petitioner knowingly possessed a
semiautomatic weapon that was readily convertible into a
machinegun. The "`character and nature'" of such a weapon is
sufficiently hazardous to place the possessor on notice of the
possibility of regulation. See Posters `N' Things, Ltd. v. United
States, 511 U.S. ___, ___ (1994) (slip op., at 12) (citation omitted).
18 No significant difference exists [ STAPLES v. UNITED STATES, 511
U.S. 600 (1994) , 12] between imposing upon the possessor a duty to
determine whether such a weapon is registered, Freed, 401 U.S., at
607-610, and imposing a duty to determine whether that weapon has
been converted into a machinegun.
Cases arise, of course, in which a defendant would not know that a

device was dangerous unless he knew that it was a "firearm" as
defined in the Act. Freed was such a case; unless the defendant knew
that the device in question was a hand grenade, he would not
necessarily have known that it was dangerous. But given the text and
nature of the statute, it would be utterly implausible to suggest that
Congress intended the owner of a sawed-off shotgun to be criminally
liable if he knew its barrel was 17.5 inches long, but not if he
mistakenly believed the same gun had an 18-inch barrel. Yet the
Court's holding today assumes that Congress intended that bizarre
result.
The enforcement of public welfare offenses always entails some

possibility of injustice. Congress nevertheless has repeatedly decided
that an overriding public interest in health or safety may outweigh that
risk when a person is dealing with products that are sufficiently
dangerous or deleterious to make it reasonable to presume that he
either knows, or should know, whether those products conform to
special regulatory requirements. The dangerous character of the
product [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 13] is
reasonably presumed to provide sufficient notice of the probability of

regulation to justify strict enforcement against those who are merely

guilty of negligent rather than willful misconduct.
The National Firearms Act is within the category of public welfare

statutes enacted by Congress to regulate highly dangerous items. The
Government submits that a conviction under such a statute may be
supported by proof that the defendant "knew the item at issue was
highly dangerous and of a type likely to be subject to regulation."
Brief for United States 9. 19 It is undisputed that the evidence in this
case met that standard. Nevertheless, neither JUSTICE THOMAS
for the Court nor JUSTICE GINSBURG has explained why such a
knowledge requirement is unfaithful to our cases or to the text of the
Act. 20 Instead, following the approach of their [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 14] decision in United States v. Harris,
959 F.2d 246, 260-261 (CADC) (per curiam), cert. denied sub
nom. Smith v. United States, 506 U.S. ___ (1992), they have simply
explained why, in their judgment, it would be unfair to punish the
possessor of this machinegun.
III
The history and interpretation of the National Firearms Act supports

the conclusion that Congress did not intend to require knowledge of
all the facts that constitute the offense of possession of an
unregistered weapon. During the first 30 years of enforcement of the
1934 Act, consistent with the absence of a knowledge requirement
and with the reasoning in Balint, courts uniformly construed it not to
require knowledge of all the characteristics of the weapon that
brought it within the statute. In a case decided in 1963, then-Judge
BLACKMUN reviewed the earlier cases and concluded that the
defendant's knowledge that he possessed a gun was "all the scienter
which the statute requires." Sipes v. United States, 321 F.2d 174,
179 (CA8), cert. denied, 375 U.S. 913 (1963).
Congress subsequently amended the statute twice, once in 1968 and

again in 1986. Both amendments added knowledge requirements to
other portions of the Act, 21 but neither the text nor the history of
either [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 15] amendment
discloses an intent to add any other knowledge requirement to the
possession of an unregistered firearm offense. Given that, with only
one partial exception, 22 every federal tribunal to address the
question had concluded that proof of knowledge of all the facts
constituting a violation was not required for a conviction under
5861(d), 23 we may infer that Congress intended that interpretation
to survive. See Lorillard v. Pons, 434 U.S. 575, 580 (1978).
In short, petitioner's knowledge that he possessed an item that was

sufficiently dangerous to alert him to the likelihood of regulation would
have supported a conviction during the first half century of
enforcement of this statute. Unless application of that standard to a
particular [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 16] case
violates the Due Process Clause, 24 it is the responsibility of
Congress, not this Court, to amend the statute if Congress deems it
unfair or unduly strict.
IV
On the premise that the purpose of the mens rea requirement is to

avoid punishing people "for apparently innocent activity," JUSTICE
GINSBURG concludes that proof of knowledge that a weapon is "à
dangerous device of a type as would alert one to the likelihood of

regulation'" is not an adequate mens rea requirement, but that proof of

knowledge that the weapon possesses "èvery last characteristic'" that
subjects it to regulation is. Ante, at 3-5, and n. 5 (GINSBURG, J.,
concurring in judgment) (quoting the trial court's jury instruction).
Assuming that "innocent activity" describes conduct without any

consciousness of wrongdoing, the risk of punishing such activity can
be avoided only by reading into the statute the common law concept
of mens rea: "an evil purpose or mental culpability." Morissette, 342
U.S. at 252. 25 But even petitioner does not contend that the
Government must prove guilty intent or intentional wrongdoing.
Instead, the "mens rea" issue in this [ STAPLES v. UNITED STATES, 511
U.S. 600 (1994) , 17] case is simply what knowledge requirement, if any,
Congress implicitly included in this offense. There are at least five
such possible knowledge requirements, four of which entail the risk
that a completely innocent mistake will subject a defendant to
punishment.
First, a defendant may know that he possesses a weapon with all of

the characteristics that make it a "firearm" within the meaning of the
statute and also know that it has never been registered, but be
ignorant of the federal registration requirement. In such a case, we
presume knowledge of the law even if we know the defendant is
"innocent" in the sense that JUSTICE GINSBURG uses the word.
Second, a defendant may know that he possesses a weapon with all
of the characteristics of a statutory firearm and also know that the law
requires that it be registered, but mistakenly believe that it is in fact
registered. Freed squarely holds that this defendant's "innocence" is
not a defense. Third, a defendant may know only that he possesses a
weapon with all of the characteristics of a statutory firearm. Neither
ignorance of the registration requirement nor ignorance of the fact that
the weapon is unregistered protects this "innocent" defendant. Fourth,
a defendant may know that he possesses a weapon that is sufficiently
dangerous to likely be regulated, but not know that it has all the
characteristics of a statutory firearm. Petitioner asserts that he is an
example of this "innocent" defendant. Fifth, a defendant may know
that he possesses an ordinary gun and, being aware of the
widespread lawful gun ownership in the country, reasonably assume
that there is no need "to inquire about the need for registration." Ante,
at 3 (GINSBURG, J., concurring in judgment). That, of course, is not
this case. See supra, at 1, and n. 1. 26 [ STAPLES v. UNITED STATES,
511 U.S. 600 (1994) , 18]
JUSTICE GINSBURG treats the first, second, and third alternatives

differently from the fourth and fifth. Her acceptance of knowledge of
the characteristics of a statutory "firearm" as a sufficient predicate for
criminal liability - despite ignorance of either the duty to register or the
fact of nonregistration, or both - must rest on the premise that such
knowledge would alert the owner to the likelihood of regulation,
thereby depriving the conduct of its "apparen[t] innocen[ce]." Yet in
the fourth alternative, a jury determines just such knowledge: that the
characteristics of the weapon known to the defendant would alert the
owner to the likelihood of regulation.
In short, JUSTICE GINSBURG's reliance on "the purpose of the

mens rea requirement - to shield people against punishment for
apparently innocent activity," ante, at 3, neither explains why
ignorance of certain facts is a defense although ignorance of others is
not, nor justifies her disagreement with the jury's finding that this
defendant knew facts that should have caused him to inquire about
the need for registration. 27 [ STAPLES v. UNITED STATES, 511 U.S.

600 (1994) , 19]
This case presents no dispute about the dangerous character of

machineguns and sawed-off shotguns. Anyone in possession of such
a weapon is "standing in responsible relation to a public danger." See
Dotterweich, 320 U.S., at 281 (citation omitted). In the National
Firearms Act, Congress determined that the serious threat to health
and safety posed by the private ownership of such firearms warranted
the imposition of a duty on the owners of dangerous weapons to
determine whether their possession is lawful. Semiautomatic weapons
that are readily convertible into machineguns are sufficiently
dangerous to alert persons who knowingly possess them to the
probability of stringent public regulation. The jury's finding that
petitioner knowingly possessed "a dangerous device of a type as
would alert one to the likelihood of regulation" adequately supports
the conviction.
Accordingly, I would affirm the judgment of the Court of Appeals.
[ Footnote 1] Indeed, only about 15 percent of all the guns in the

United States are semiautomatic. See National Rifle Association,
Fact Sheet, Semi-Automatic Firearms 1 (Feb. 1, 1994). Although it
is not known how many of those weapons are readily convertible into
machineguns, it is obviously a lesser share of the total.
[ Footnote 2] See U.S. Dept. of Justice, Attorney General's Task

Force on Violent Crime: Final Report 29, 32 (Aug. 17, 1981)
(stating that over an 18-month period over 20 percent of the
machineguns seized or purchased by the Bureau of Alcohol, Tobacco
and Firearms had been converted from semiautomatic weapons by
"simple tool work or the addition of readily available parts") (citing
U.S. Dept. of Treasury, Bureau of Alcohol, Tobacco and Firearms,
Firearms Case Summary (Washington: U.S. Govt. Printing Office
1981)).
[ Footnote 3] The Seventh Circuit's comment in a similar case is

equally apt here: "The crime is possessing an unregistered firearm -
not "knowingly" possessing an unregistered firearm, or possessing a
weapon knowing it to be a firearm, or possessing a firearm knowing it
to be unregistered. . . . . [Petitioner's] proposal is not that we
interpret a knowledge or intent requirement in 5861(d); it is that we
invent one." United States v. Ross, 917 F.2d 997, 1000 (1990) (per
curiam) (emphasis in original), cert. denied, 498 U.S. 1122 (1991).
[ Footnote 4] "The late 1920s and early 1930s brought . . . a growing

perception of crime both as a major problem and as a national one. .
. . [C]riminal gangs found the submachinegun (a fully automatic,
shoulder-fired weapon utilizing automatic pistol cartridges) and
sawed-off shotgun deadly for close-range fighting." Hardy, The
Firearms Owners' Protection Act: A Historical and Legal
Perspective, 17 Cumb.L.Rev. 585, 590 (1987).
[ Footnote 5] The Senate Report on the bill explained: "The gangster

as a law violator must be deprived of his most dangerous weapon,
the machinegun. Your committee is of the opinion that limiting the bill
to the taxing of sawed-off guns and machineguns is sufficient at this
time. It is not thought necessary to go so far as to include pistols and
revolvers and sporting arms. But while there is justification for
permitting the citizen to keep a pistol or revolver for his own

protection without any restriction, there is no reason why anyone

except a law officer should have a machinegun or sawed-off
shotgun." S. Rep. No. 1444, 73d Cong., 2d Sess., 1-2 (1934).
[ Footnote 6] In the Balint case, after acknowledging the general

common law rule that made knowledge of the facts an element of
every crime, we held that as to statutory crimes the question is one of
legislative intent, and that the Anti-Narcotic Act should be construed
to authorize "punishment of a person for an act in violation of law[,
even] when ignorant of the facts making it so." Balint, 258 U.S., at
251-252. The "policy of the law may, in order to stimulate proper
care, require the punishment of the negligent person though he be
ignorant of the noxious character of what he sells." Id., at 253.
[ Footnote 7] See National Firearms Act: Hearings on H. R. 9066

before the House Committee on Ways and Means, 73d Cong., 2d
Sess., 6 (1934).
[ Footnote 8] "Omission of a mental element is the norm for statutes

designed to deal with inaction. Not registering your gun, not cleaning
up your warehouse, United States v. Park, 421 U.S. 658 . . . (1975),
and like "acts" are done without thinking. Often the omission occurs
because of lack of attention. . . . Yet Congress may have sound
reasons for requiring people to investigate and act, objectives that
cannot be achieved if the courts add mental elements to the statutes."
Ross, 917 F.2d, at 1000.
[ Footnote 9] These statutes are sometimes referred to as "strict

liability" offenses. As the Court notes, because the defendant must
know that he is engaged in the type of dangerous conduct that is
likely to be regulated, the use of the term "strict liability" to describe
these offenses is inaccurate. Ante, at 7, n. 3. I therefore use the term
"public welfare offense" to describe this type of statute.
[ Footnote 10] See United States v. Balint, 258 U.S. 250 (1922).
[ Footnote 11] See United States v. International Minerals &

Chemical Corp., 402 U.S. 558 (1971).
[ Footnote 12] See United States v. Dotterweich, 320 U.S. 277

(1943).
[ Footnote 13] The Court in Morissette, expressing approval of our

public welfare offense cases, stated:
"Neither this Court nor, so far as we are aware, any other has
undertaken to delineate a precise line or set forth
comprehensive criteria for distinguishing between crimes that
require a mental element and crimes that do not. We attempt
no closed definition, for the law on the subject is neither settled
nor static." 342 U.S., at 260 (footnotes omitted).
[ Footnote 14] Freed, 401 U.S., at 607 (holding that a violation of

5861(d) may be established without proof that the defendant was
aware of the fact that the firearm he possessed was unregistered).
Our holding in Freed is thus squarely at odds with the Court's
conclusion that the "defendant must know the facts that make his
conduct illegal," ante, at 19.
[ Footnote 15] The Court's and JUSTICE GINSBURG's reliance

upon Liparota is misplaced. Ante, at 9-11; ante, at 2-3. Although the

Court is usually concerned with fine nuances of statutory text, its

discussion of Liparota simply ignores the fact that the food stamp
fraud provision, unlike 5861(d), contained the word "knowingly." The
Members of the Court in Liparota disagreed on the proper
interpretation. The dissenters accepted the Government's view that
the term merely required proof that the defendant had knowledge of
the facts that constituted the crime. See Liparota, 471 U.S., at
442-443 (White, J., dissenting) ("I would read 2024(b)(1) . . . to
require awareness of only the relevant aspects of one's conduct
rendering it illegal, not the fact of illegality"). The majority, however,
concluded that "knowingly" also connoted knowledge of illegality. Id.,
471 U.S., at 424-425. Because neither "knowingly" nor any
comparable term [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 10]
appears in 5861(d), the statute before us today requires even less
proof of knowledge than the dissenters would have demanded in
Liparota.
[ Footnote 16] JUSTICE GINSBURG similarly assumes that the

character of "all guns" cannot be said to place upon defendants an
obligation "to inquire about the need for registration." Ante, at 2-3
(emphasis added).
[ Footnote 17] The Government does note that some Courts of

Appeals have required proof of knowledge only that "the weapon
was à firearm, within the general meaning of that term,'" Brief for
United States 24-25 (citing cases). Contrary to the assertion by the
Court ante, at 11, n. 5, however, the Government does not advance
this test as the appropriate knowledge requirement, but instead
supports the one used by other Courts of Appeals. Compare the
Court's description of the Government's position, ibid., with the
following statements in the Government's brief:
"A defendant may be convicted of such offenses so long as the

government proves that he knew the item at issue was highly
dangerous and of a type likely to be subject to regulation."
Brief for United States 9.
"[T]he court of appeals correctly required the government to

prove only that petitioner knew that he possessed a dangerous
weapon likely to be subject to regulation." Id., at 13.
"B. The Intent Requirement Applicable To Section 5861(d) Is

Knowledge That One Is Dealing With A Dangerous Item Of A
Type Likely To Be Subject To Regulation" Id., at 16. [
"But where a criminal statute involves regulation of a highly

hazardous substance - and especially where it penalizes a
failure to act or to comply with a registration scheme - the
defendant's knowledge that he was dealing with such a
substance and that it was likely to be subject to regulation
provides sufficient intent to support a conviction." Id., at
17-18.
"Rather, absent contrary congressional direction, knowledge of

the highly dangerous nature of the articles involved and the
likelihood that they are subject to regulation takes the place of
the more rigorous knowledge requirement applicable where
apparently innocent and harmless devices are subject to
regulation." Id., at 20.

"But the instruction did not require the government to prove

that petitioner knew his weapon "possess[ed] every last
characteristic [which subjects it] to regulation;" he need only
have "know[n] that he [was] dealing with a dangerous device
of a type as would alert one to the likelihood of regulation." Tr.
465.
"That instruction accurately describes the mental state

necessary for a violation of Section 5861(d). Id., at 23.
"[P]roof that a defendant was on fair notice that the item he

possessed was highly dangerous and likely to be regulated is
sufficient to support a conviction. Id., at 24.
[ Footnote 18] The Court and JUSTICE GINSBURG apparently

assume that the outer limits of any such notice can be no broader than
the category of dangerous objects that Congress delineated as
"firearms." Ante, at 11; ante, at 2-3. Our holding in Posters `N'
Things, illustrates the error in that assumption. A retailer who may not
know whether certain merchandise is actually drug paraphernalia, as
that term is defined in the relevant federal statute, may nevertheless
violate [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 12] the law if
"aware that customers in general are likely to use the merchandise
with drugs." ___ U.S., at ___ (slip op., at 11). The owner of a
semiautomatic weapon that is readily convertible into a machinegun
can certainly be aware of its dangerous nature and the consequent
probability of regulation even if he does not know whether the
weapon is actually a machinegun. If ignorance of the precise
characteristics that render an item forbidden should be a defense,
items that are likely to be "drug paraphernalia" are no more obviously
dangerous, and thus regulated, than items that are likely to be
"firearms."
[ Footnote 19] As a matter of law, this is the level of knowledge

required by the statute. Therefore, contrary to the Court's suggestion
ante, at 12-13, n. 6, I have not left the determination of the "exact
content of the knowledge requirement" to the jury. I only leave to the
jury its usual function: the application of this legal standard to the
facts. In performing this function, juries are frequently required to
determine if a law has been violated by application of just such a
"general `standard.'" See, e.g., Posters `N' Things, ___ U.S. at ___
(slip op., at 11-12); Miller v. California, 413 U.S. 15, 24 (1973).
[ Footnote 20] The Court also supports its conclusion on the basis of
the purported disparity between the penalty provided by this statute
and those of other regulatory offenses. Although a modest penalty
may indicate that a crime is a public welfare offense, such a penalty is
not, as the Court recognizes ante, at 16-17, a requisite characteristic
of public welfare offenses. For example, the crime involved in Balint
involved punishment of up to five years' imprisonment. See
Dotterweich, 320 U.S., at 285; see also Morissette, 342 U.S., at
251, n. 8 (noting that rape of one too young to consent is an offense
"in which the victim's actual age was determinative despite
defendant's reasonable belief that the girl had reached age of
consent"). Moreover, congressional authorization of a range of
penalties in some cases-petitioner, for instance, is on probation -
demonstrates a recognition that relatively innocent conduct should be
punished [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) , 14] less
severely.
[ Footnote 21] Significantly, in 1968, Congress included a knowledge

requirement in 5861(l). 26 U.S.C. 5861(l) (making it unlawful "to

make, or cause the making of, a false entry on any application, return,
or record required by this chapter, knowing such entry to be false")
(emphasis added). "[W]here Congress includes particular language in
one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion." Rodriguez v. United
States, 480 U.S. 522, 525 (1987) (internal quotation marks and
citations omitted); see also Lawrence County v. [ STAPLES v. UNITED
STATES, 511 U.S. 600 (1994) , 15] Lead-Deadwood School Dist. No.
40-1, 469 U.S. 256, 267-268 (1985).
[ Footnote 22] United States v. Herbert, 698 F.2d 981, 986-987

(CA9), cert. denied, 464 U.S. 821 (1983) (requiring the Government
to prove knowledge of all the characteristics of a weapon only when
no external signs indicated that the weapon was a "firearm"). Not until
1989 did a Court of Appeals adopt the view of the majority today.
See United States v. Williams, 872 F.2d 773 (CA6).
[ Footnote 23] See, e.g., United States v. Gonzalez, 719 F.2d 1516,
1522 (CA11 1983), cert. denied, 465 U.S. 1037 (1984); Morgan v.
United States, 564 F.2d 803, 805-806 (CA8 1977); United States
v. Cowper, 503 F.2d 130, 132-133 (CA6 1974), cert. denied, 420
U.S. 930 (1975); United States v. De Bartolo, 482 F.2d 312, 316
(CA1 1973); United States v. Vasquez, 476 F.2d 730, 732 (CA5),
cert. denied, 414 U.S. 836 (1973), overruled by United States v.
Anderson, 885 F.2d 1248 (CA5 1989) (en banc).
And, as I have already noted, United States v. Freed, 401 U.S. 601
(1971), was consistent with the Government's position here. Although
the Government accepted the burden of proving that Freed knew that
the item he possessed was a hand grenade, the possessor of an
unfamiliar object such as a hand grenade would not know that it was
"a dangerous item of a type likely to be subject to regulation," Brief
for United States 16; see also id., at 20, 23, 24, unless he knew what
it was.
[ Footnote 24] Petitioner makes no such claim in this Court.
[ Footnote 25] Our use of the term mens rea has not been consistent.
In Morissette, we used the term as if it always connoted a form of
wrongful intent. In other cases, we employ it simply to mean whatever
level of knowledge is required for any particular crime. See, e.g.,
United States v. Bailey, 444 U.S. 394, 403 (1980). In this sense,
every crime except a true strict liability offense contains a mens rea
requirement. For instance, the Court defined mens rea in Liparota v.
United States, 471 U.S. 419, 426 (1985), as "knowledge of
illegality." In dissent, however, JUSTICE White equated the term
with knowledge of the facts that make the conduct illegal. Id., at
442-443. Today, the Court assigns the term the latter definition, ante,
at 4-5, but in fact requires proof of knowledge of only some of the
facts that constitute the violation, ante, at 8-9 (not requiring proof of
knowledge of the fact that the gun is unregistered).
[ Footnote 26] Although I disagree with the assumption that

"widespread lawful [ STAPLES v. UNITED STATES, 511 U.S. 600 (1994) ,
18] gun ownership" provides a sufficient reason for believing that there
is no need to register guns (there is also widespread lawful
automobile ownership), acceptance of that assumption neither justifies
the majority's holding nor contradicts my conclusion on the facts of
this case.

[ Footnote 27] In addition, contrary to JUSTICE GINSBURG's

assumption, if one reads the term "firearm" from the quoted section of
the indictment to mean "gun," the indictment still charges an offense
under 5861(d) and does not differ from the critical jury instruction.
See ante, at 3-4. Even if JUSTICE GINSBURG is correct that there
is a technical variance, petitioner makes no claim that any such
variance prejudiced him. The wording of the indictment, of course,
sheds no light on the proper interpretation of the underlying statutory
text. Although the repeated use of a term in a statute may shed light
on the statute's construction, see Ratzlaf v. United States, 510 U.S.
___ (1993) (slip op., at 8), such use in an indictment is irrelevant to
that question.

McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995)
U.S. Supreme Court

McINTYRE v. OHIO ELECTIONS COMM'N, 514 U.S. 334 (1995)
JOSEPH McINTYRE, EXECUTOR OF ESTATE OF MARGARET McINTYRE, DECEASED,
PETITIONER v. OHIO ELECTIONS COMMISSION
CERTIORARI TO THE SUPREME COURT OF OHIO
No. 93-986.

Decided April 19, 1995
After petitioner's decedent distributed leaflets purporting to express the views of "CONCERNED
PARENTS AND TAX PAYERS" opposing a proposed school tax levy, she was fined by respondent for
violating 3599.09(A) of the Ohio Code, which prohibits the distribution of campaign literature that does
not contain the name and address of the person or campaign official issuing the literature. The Court of
Common Pleas reversed, but the Ohio Court of Appeals reinstated the fine. In affirming, the State
Supreme Court held that the burdens 3599.09(A) imposed on voters' First Amendment rights were
"reasonable and "nondiscriminatory" and therefore valid. Declaring that 3599.09(A) is intended to
identify persons who distribute campaign materials containing fraud, libel, or false advertising and to
provide voters with a mechanism for evaluating such materials, the court distinguished Talley v.
California, 362 U.S. 60, in which this Court invalidated an ordinance prohibiting all anonymous
leafletting.
Held:
Section 3599.09(A)'s prohibition of the distribution of anonymous campaign literature abridges the
freedom of speech in violation of the First Amendment. Pp. 7-24.
(a) The freedom to publish anonymously is protected by the First Amendment, and, as
Talley indicates, extends beyond the literary realm to the advocacy of political causes. Pp.
7-9.
(b) This Court's precedents make abundantly clear that the Ohio Supreme Court's
reasonableness standard is significantly more lenient than is appropriate in a case of this
kind. Although Talley concerned a different limitation than 3599.09(A) and thus does not
necessarily control here, the First Amendment's protection of anonymity nevertheless
applies. Section 3599.09(A) is not simply an Page II election code provision subject to the
"ordinary litigation" test set forth in Anderson v. Celebrezze, 460 U.S. 780, and similar
cases. Rather, it is a regulation of core political speech. Moreover, the category of
documents it covers is defined by their content – only those publications containing speech
designed to influence the voters in an election need bear the required information. See, e.g.,
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 776-777. When a law burdens such
speech, the Court applies "exacting scrutiny," upholding the restriction only if it is narrowly
tailored to serve an overriding state interest. See, e.g., id., at 786. Pp. 9-14.

(c) Section 3599.09(A)'s anonymous speech ban is not justified by Ohio's asserted interests
in preventing fraudulent and libelous statements and in providing the electorate with
relevant information. The claimed informational interest is plainly insufficient to support the
statute's disclosure requirement, since the speaker's identity is no different from other
components of a document's contents that the author is free to include or exclude, and the
author's name and address add little to the reader's ability to evaluate the document in the
case of a handbill written by a private citizen unknown to the reader. Moreover, the state
interest in preventing fraud and libel (which Ohio vindicates by means of other, more direct
prohibitions) does not justify 3599.09(A)'s extremely broad prohibition of anonymous
leaflets. The statute encompasses all documents, regardless of whether they are arguably
false or misleading. Although a State might somehow demonstrate that its enforcement
interests justify a more limited identification requirement, Ohio has not met that burden
here. Pp. 14-20.
(d) This Court's opinions in Bellotti, 435 U.S., at 792, n. 32 – which commented in dicta on
the prophylactic effect of requiring identification of the source of corporate campaign
advertising - and Buckley v. Valeo, 424 U.S. 1, 75-76 – which approved mandatory
disclosure of campaign-related expenditures – do not establish the constitutionality of
3599.09(A), since neither case involved a prohibition of anonymous campaign literature. Pp.
20-23.
67 Ohio St. 3d 391, 618 N. E. 2d 152, reversed.
STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG,
and BREYER, JJ., joined. GINSBURG, J., filed a concurring opinion. THOMAS, J., filed an opinion
concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., joined.
[514 U.S. 334, 334]
JUSTICE STEVENS delivered the opinion of the Court.

The question presented is whether an Ohio statute that prohibits the distribution of anonymous campaign
literature is a "law ... abridging the freedom of speech" within the meaning of the First Amendment.[1]
[514 U.S. 334, 335]
I
On April 27, 1988, Margaret McIntyre distributed leaflets to persons attending a public meeting at the
Blendon Middle School in Westerville, Ohio. At this meeting, the superintendent of schools planned to
discuss an imminent referendum on a proposed school tax levy. The leaflets expressed Mrs. McIntyre's
opposition to the levy.[2] There is no suggestion that the text of her message was false, misleading, or
libelous. She [ 514 U.S. 334, 336] had composed and printed it on her home computer and had paid a
professional printer to make additional copies. Some of the handbills identified her as the author; others
merely purported to express the views of "CONCERNED PARENTS AND TAX PAYERS." Except for
the help provided by her son and a friend, who placed some of the leaflets on car windshields in the
school parking lot, Mrs. McIntyre acted independently.
While Mrs. McIntyre distributed her handbills, an official of the school district, who supported the tax
proposal, advised her that the unsigned leaflets did not conform to the Ohio election laws. Undeterred,

Mrs. McIntyre appeared at another meeting on the next evening and handed out more of the handbills.
The proposed school levy was defeated at the next two elections, but it finally passed on its third try in
November 1988. Five months later, the same school official filed a complaint with the Ohio Elections
Commission charging that Mrs. McIntyre's distribution of unsigned leaflets violated 3599.09(A) of the
Ohio Code.[3] [ 514 U.S. 334, 337] The Commission agreed and imposed a fine of $100.
The Franklin County Court of Common Pleas reversed. Finding that Mrs. McIntyre did not "mislead the
public nor act in a surreptitious manner," the court concluded that the statute was unconstitutional as
applied to her conduct. App. to Pet. for Cert. A-34 to A-35. The Ohio Court of Appeals, by a divided
vote, reinstated the fine. Notwithstanding doubts about the continuing validity of a 1922 decision of the
Ohio Supreme Court upholding the statutory predecessor of 3599.09(A), the majority considered itself
bound by that precedent. Id., at A-20 to A-21, citing State v. Babst, 104 Ohio St. [ 514 U.S. 334, 338] 167,
135 N. E. 525 (1922). The dissenting judge thought that our intervening decision in Talley v. California,
362 U.S. 60 (1960), in which we invalidated a city ordinance prohibiting all anonymous leafletting,
compelled the Ohio court to adopt a narrowing construction of the statute to save its constitutionality.
App. to Pet. for Cert. A-30 to A-31.
The Ohio Supreme Court affirmed by a divided vote. The majority distinguished Mrs. McIntyre's case
from Talley on the ground that 3599.09(A) "has as its purpose the identification of persons who
distribute materials containing false statements." 67 Ohio St. 3d 391, 394, 618 N. E. 2d 152, 154 (1993).
The Ohio court believed that such a law should be upheld if the burdens imposed on the First
Amendment rights of voters are "reasonable" and "nondiscriminatory." Id., at 396, 618 N. E. 2d, at 155,
quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Under that standard, the majority concluded
that the statute was plainly valid:
"The minor requirement imposed by R.C. 3599.09 that those persons producing campaign
literature identify themselves as the source thereof neither impacts the content of their
message nor significantly burdens their ability to have it disseminated. This burden is more
than counterbalanced by the state interest in providing the voters to whom the message is
directed with a mechanism by which they may better evaluate its validity. Moreover, the law
serves to identify those who engage in fraud, libel or false advertising. Not only are such
interests sufficient to overcome the minor burden placed upon such persons, these interests
were specifically acknowledged in [First National Bank of Boston v.] Bellotti[, 435 U.S.
765 (1978),] to be regulations of the sort which would survive constitutional scrutiny." 67
Ohio St. 3d, at 396, 618 N. E. 2d, at [ 514 U.S. 334, 339] 155-156.
In dissent, Justice Wright argued that the statute should be tested under a more severe standard because
of its significant effect "on the ability of individual citizens to freely express their views in writing on
political issues." Id., at 398, 618 N. E. 2d, at 156-157. He concluded that 3599.09(A) "is not narrowly
tailored to serve a compelling state interest and is, therefore, unconstitutional as applied to McIntyre."
Id., at 401, 618 N. E. 2d, at 159.
Mrs. McIntyre passed away during the pendency of this litigation. Even though the amount in
controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court.
Our grant of certiorari, 510 U.S. ___ (1994), reflects our agreement with his appraisal of the importance
of the question presented.

II
Ohio maintains that the statute under review is a reasonable regulation of the electoral process. The State
does not suggest that all anonymous publications are pernicious or that a statute totally excluding them
from the marketplace of ideas would be valid. This is a wise (albeit implicit) concession, for the
anonymity of an author is not ordinarily a sufficient reason to exclude her work product from the
protections of the First Amendment.
"Anonymous pamphlets, leaflets, brochures and even books have played an important role
in the progress of mankind." Talley v. California, 362 U.S. 60, 64 (1960). Great works of
literature have frequently been produced by authors writing under assumed names.[4]
Despite [514 U.S. 334, 340] readers' curiosity and the public's interest in identifying the
creator of a work of art, an author generally is free to decide whether or not to disclose her
true identity. The decision in favor of anonymity may be motivated by fear of economic or
official retaliation, by concern about social ostracism, or merely by a desire to preserve as
much of one's privacy as possible. Whatever the motivation may be, at least in the field of
literary endeavor, the interest in having anonymous works enter the marketplace of ideas
unquestionably outweighs any public interest in requiring disclosure as a condition of
entry.[5] Accordingly, an author's decision to remain anonymous, like other decisions
concerning omissions or additions to the content of a publication, is an aspect of the
freedom of speech protected by the First Amendment. [514 U.S. 334, 341]
The freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that the
First Amendment protects the distribution of unsigned handbills urging readers to boycott certain Los
Angeles merchants who were allegedly engaging in discriminatory employment practices. 362 U.S. 60 .
Writing for the Court, Justice Black noted that "[p]ersecuted groups and sects from time to time
throughout history have been able to criticize oppressive practices and laws either anonymously or not at
all." Id., at 64. Justice Black recalled England's abusive press licensing laws and seditious libel
prosecutions, and he reminded us that even the arguments favoring the ratification of the Constitution
advanced in the Federalist Papers were published under fictitious names. Id., at 64-65. On occasion, quite
apart from any threat of persecution, an advocate may believe her ideas will be more persuasive if her
readers are unaware of her identity. Anonymity thereby provides a way for a writer who may be
personally unpopular to ensure that readers will not prejudge her message simply because they do not
like its proponent. Thus, even in the field of political rhetoric, where "the identity of the speaker is an
important component of many attempts to persuade," City of Ladue v. Gilleo, 512 U.S. ___, ___ (1994)
(slip op., at 13), the most effective advocates have sometimes opted for anonymity. The specific holding
in Talley related to advocacy of an economic boycott, but the Court's reasoning embraced a respected
tradition of anonymity in the advocacy of political causes.[6] This tradition is perhaps best exemplified
[514 U.S. 334, 342] by the secret ballot, the hard-won right to vote one's conscience without fear of
retaliation.

III
California had defended the Los Angeles ordinance at issue in Talley as a law "aimed at providing a way
to identify those responsible for fraud, false advertising and libel." 362 U.S., at 64 . We rejected that
argument because nothing in the text or legislative history of the ordinance limited its application to
those evils.[7] Ibid. We then made clear that we did "not pass on the validity of an ordinance limited to
prevent these or [ 514 U.S. 334, 343] any other supposed evils." Ibid. The Ohio statute likewise contains no
language limiting its application to fraudulent, false, or libelous statements; to the extent, therefore, that
Ohio seeks to justify 3599.09(A) as a means to prevent the dissemination of untruths, its defense must
fail for the same reason given in Talley. As the facts of this case demonstrate, the ordinance plainly
applies even when there is no hint of falsity or libel.
Ohio's statute does, however, contain a different limitation: It applies only to unsigned documents
designed to influence voters in an election. In contrast, the Los Angeles ordinance prohibited all
anonymous handbilling "in any place under any circumstances." Id., at 60-61. For that reason, Ohio
correctly argues that Talley does not necessarily control the disposition of this case. We must, therefore,
decide whether and to what extent the First Amendment's protection of anonymity encompasses
documents intended to influence the electoral process.
Ohio places its principal reliance on cases such as Anderson v. Celebrezze, 460 U.S. 780 (1983); Storer
v. Brown, 415 U.S. 724 (1974); and Burdick v. Takushi, 504 U.S. ___ (1992), in which we reviewed
election code provisions governing the voting process itself. See Anderson, supra (filing deadlines);
Storer, supra (ballot access); Burdick, supra (write-in voting); see also Tashjian v. Republican Party of
Connecticut, 479 U.S. 208 (1986) (eligibility of independent voters to vote in party primaries). In those
cases we refused to adopt "any `litmus-paper test' that will separate valid from invalid restrictions."
Anderson, 460 U.S., at 789, quoting Storer, 415 U.S., at 730 . Instead, we pursued an analytical process
comparable to that used by courts "in ordinary litigation": we considered the relative interests of the State
and the injured voters, and we evaluated the extent to which the State's interests necessitated the
contested restrictions. Anderson, [514 U.S. 334, 344] 460 U.S., at 789 . Applying similar reasoning in this
case, the Ohio Supreme Court upheld 3599.09(A) as a "reasonable" and "nondiscriminatory" burden on
the rights of voters. 67 Ohio St. 3d 391, 396, 618 N. E. 2d 152, 155 (1993), quoting Anderson, 460 U.S.,
at 788 .
The "ordinary litigation" test does not apply here. Unlike the statutory provisions challenged in Storer
and Anderson, 3599.09(A) of the Ohio Code does not control the mechanics of the electoral process. It is
a regulation of pure speech. Moreover, even though this provision applies evenhandedly to advocates of
differing viewpoints,[8] it is a direct regulation of the content of speech. Every written document covered
by the statute must contain "the name and residence or business address of the chairman, treasurer, or
secretary of the organization issuing the same, or the person who issues, makes, or is responsible
therefor." Ohio Rev. Code Ann. 3599.09(A) (1988). Furthermore, the category of covered documents is
defined by their content – only those publications containing speech designed to influence the voters in
an election need bear the required markings.[9] Ibid. Consequently, we are not faced with an ordinary
election restriction; this case "involves a limitation on political expression subject to exacting scrutiny."
Meyer v. Grant, 486 U.S. 414, 420 (1988).10 [ 514 U.S. 334, 345]

Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio
statute occupies the core of the protection afforded by the First Amendment:
"Discussion of public issues and debate on the qualifications of candidates are integral to the
operation of the system of government established by our Constitution. The First
Amendment affords the broadest protection to such political expression in order `to assure
[the] unfettered interchange of ideas for the bringing about of political and social changes
desired by the people.' Roth v. United States, 354 U.S. 476, 484 (1957). Although First
Amendment protections are not confined to `the exposition of ideas,' Winters v. New York,
333 U.S. 507, 510 (1948), `there is practically universal agreement that a major purpose of
that Amendment was to protect the free discussion of governmental affairs, ... of course
includ[ing] discussions of candidates . . . .' Mills v. Alabama, 384 U.S. 214, 218 (1966).
This no more than reflects our `profound national commitment to the principle that debate
on public issues should be uninhibited, robust, and wide-open,' New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964). In a republic where the people are sovereign, the ability
of the citizenry to make informed choices among candidates for office is essential, for the
identities of those who [514 U.S. 334, 346] are elected will inevitably shape the course that we
follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272
(1971), ìt can hardly be doubted that the constitutional guarantee has its fullest and most
urgent application precisely to the conduct of campaigns for political office.'" Buckley v.
Valeo, 424 U.S. 1, 14-15 (1976).
Of course, core political speech need not center on a candidate for office. The principles enunciated in
Buckley extend equally to issue-based elections such as the school-tax referendum that Mrs. McIntyre
sought to influence through her handbills. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765,
776-777 (1978) (speech on income-tax referendum "is at the heart of the First Amendment's protection").
Indeed, the speech in which Mrs. McIntyre engaged – handing out leaflets in the advocacy of a
politically controversial viewpoint – is the essence of First Amendment expression. See International
Society for Krishna Consciousness v. Lee, 505 U.S. ___ (1992); Lovell v. Griffin, 303 U.S. 444 (1938).
That this advocacy occurred in the heat of a controversial referendum vote only strengthens the
protection afforded to Ms. McIntyre's expression: urgent, important, and effective speech can be no less
protected than impotent speech, lest the right to speak be relegated to those instances when it is least
needed. See Terminiello v. Chicago, 337 U.S. 1, 4 (1949). No form of speech is entitled to greater
constitutional protection than Mrs. McIntyre's.
When a law burdens core political speech, we apply "exacting scrutiny," and we uphold the restriction
only if it is narrowly tailored to serve an overriding state interest. See, e.g., Bellotti, 435 U.S., at 786 .
Our precedents thus make abundantly clear that the Ohio Supreme Court applied a significantly more
lenient [514 U.S. 334, 347] standard than is appropriate in a case of this kind.
IV
Nevertheless, the State argues that even under the strictest standard of review, the disclosure requirement
in 3599.09(A) is justified by two important and legitimate state interests. Ohio judges its interest in
preventing fraudulent and libelous statements and its interest in providing the electorate with relevant

information to be sufficiently compelling to justify the anonymous speech ban. These two interests
necessarily overlap to some extent, but it is useful to discuss them separately.
Insofar as the interest in informing the electorate means nothing more than the provision of additional
information that may either buttress or undermine the argument in a document, we think the identity of
the speaker is no different from other components of the document's content that the author is free to
include or exclude.11 We have already held that the State may not compel a newspaper that prints
editorials critical of a particular candidate to provide space for a reply by the candidate. Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241 (1974). The simple interest in providing voters with additional
relevant information does not [514 U.S. 334, 348] justify a state requirement that a writer make statements
or disclosures she would otherwise omit. Moreover, in the case of a handbill written by a private citizen
who is not known to the recipient, the name and address of the author adds little, if anything, to the
reader's ability to evaluate the document's message. Thus, Ohio's informational interest is plainly
insufficient to support the constitutionality of its disclosure requirement.
The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio's
submission that this interest carries special weight during election campaigns when false statements, if
credited, may have serious adverse consequences for the public at large. Ohio does not, however, rely
solely on 3599.09(A) to protect that interest. Its Election Code includes detailed and specific prohibitions
against making or disseminating false statements during political campaigns. Ohio Rev. Code Ann.
3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections and to
issue-driven ballot measures.[12] Thus, Ohio's prohibition [514 U.S. 334, 349]
[514 U.S. 334, 350] of anonymous leaflets plainly is not its principal weapon against fraud.[13] Rather, it
serves as an aid to enforcement of the specific prohibitions and as a deterrent to the making of false
statements by unscrupulous prevaricators. Although these ancillary benefits are assuredly legitimate, we
are not persuaded that they justify 3599.09(A)'s extremely broad prohibition.
As this case demonstrates, the prohibition encompasses documents that are not even arguably false or
misleading. It applies not only to the activities of candidates and their organized supporters, but also to
individuals acting independently and using only their own modest resources.[14] It applies not only to
elections of public [514 U.S. 334, 351] officers, but also to ballot issues that present neither a substantial
risk of libel nor any potential appearance of corrupt advantage.[15] It applies not only to leaflets
distributed on the eve of an election, when the opportunity for reply is limited, but also to those
distributed months in advance.[16] It applies no matter what the [ 514 U.S. 334, 352] character or strength
of the author's interest in anonymity. Moreover, as this case also demonstrates, the absence of the
author's name on a document does not necessarily protect either that person or a distributor of a
forbidden document from being held responsible for compliance with the election code. Nor has the State
explained why it can more easily enforce the direct bans on disseminating false documents against
anonymous authors and distributors than against wrongdoers who might use false names and addresses in
an attempt to avoid detection. We recognize that a State's enforcement interest might justify a more
limited identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue
here.

V
Finally, Ohio vigorously argues that our opinions in First Nat. Bank of Boston v. Bellotti, 435 U.S. 765
(1978), and Buckley v. Valeo, 424 U.S. 1 (1976), amply support the constitutionality of its disclosure
requirement. Neither case is controlling: the former concerned the scope of First Amendment protection
afforded to corporations; the relevant portion of the latter concerned mandatory disclosure of
campaign-related expenditures. Neither case involved a prohibition of anonymous campaign literature.
In Bellotti, we reversed a judgment of the Supreme Judicial Court of Massachusetts sustaining a state law
[514 U.S. 334, 353] that prohibited corporate expenditures designed to influence the vote on referendum
proposals. 435 U.S. 765 . The Massachusetts court had held that the First Amendment protects corporate
speech only if its message pertains directly to the business interests of the corporation. Id., at 771-772.
Consistently with our holding today, we noted that the "inherent worth of the speech in terms of its
capacity for informing the public does not depend upon the identity of its source, whether corporation,
association, union, or individual." Id., at 777. We also made it perfectly clear that we were not deciding
whether the First Amendment's protection of corporate speech is coextensive with the protection it
affords to individuals.[17] Accordingly, although we commented in dicta on the prophylactic effect of
requiring identification of the source of corporate advertising,[18] that footnote did not necessarily apply
to independent communications by an individual like Mrs. McIntyre. [514 U.S. 334, 354]
Our reference in the Bellotti footnote to the "prophylactic effect" of disclosure requirements cited a
portion of our earlier opinion in Buckley, in which we stressed the importance of providing "the
electorate with information às to where political campaign money comes from and how it is spent by the
candidate.'" 424 U.S., at 66 . We observed that the "sources of a candidate's financial support also alert
the voter to the interests to which a candidate is most likely to be responsive and thus facilitate
predictions of future performance in office." Id., at 67. Those comments concerned contributions to the
candidate or expenditures authorized by the candidate or his responsible agent. They had no reference to
the kind of independent activity pursued by Mrs. McIntyre. Required disclosures about the level of
financial support a candidate has received from various sources are supported by an interest in avoiding
the appearance of corruption that has no application to this case.
True, in another portion of the Buckley opinion we expressed approval of a requirement that even
"independent expenditures" in excess of a threshold level be reported to the Federal Election
Commission. Id., at 75-76. But that requirement entailed nothing more than an identification to the
Commission of the amount and use of money expended in support of a candidate. See id., at 157-159,
160 (reproducing relevant portions of the statute[19] ). Though such mandatory reporting [514 U.S. 334,
355] undeniably impedes protected First Amendment activity, the intrusion is a far cry from compelled
self-identification on all election-related writings. A written election-related document – particularly a
leaflet – is often a personally crafted statement of a political viewpoint. Mrs. McIntyre's handbills surely
fit that description. As such, identification of the author against her will is particularly intrusive; it
reveals unmistakably the content of her thoughts on a controversial issue. Disclosure of an expenditure
and its use, without more, reveals far less information. It may be information that a person prefers to
keep secret, and undoubtedly it often gives away something about the spender's political views.
Nonetheless, even though money may "talk," its speech is less specific, less personal, and less
provocative than a handbill - and as a result, when money supports an unpopular viewpoint it is less
likely to precipitate retaliation.

Not only is the Ohio statute's infringement on speech more intrusive than the Buckley disclosure
requirement, but it rests on different and less powerful state interests. The Federal Election Campaign
Act of 1971, at issue in Buckley, regulates only candidate elections, not referenda or other issue-based
ballot measures; and we construed "independent expenditures" to mean only those expenditures that
"expressly advocate the election or defeat of a clearly identified candidate." Id., at 80. In candidate
elections, the Government can identify a compelling state interest in avoiding the corruption that might
result from campaign expenditures. Disclosure of expenditures lessens the risk that individuals will spend
money to support a candidate as a quid pro quo for [514 U.S. 334, 356] special treatment after the
candidate is in office. Curriers of favor will be deterred by the knowledge that all expenditures will be
scrutinized by the Federal Election Commission and by the public for just this sort of abuse.20 Moreover,
the federal Act contains numerous legitimate disclosure requirements for campaign organizations; the
similar requirements for independent expenditures serve to ensure that a campaign organization will not
seek to evade disclosure by routing its expenditures through individual supporters. See Buckley, 424
U.S., at 76. In short, although Buckley may permit a more narrowly drawn statute, it surely is not
authority for upholding Ohio's open-ended provision.[21]
VI
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an
honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.
See generally J. S. Mill, On Liberty, in On Liberty and Considerations on Representative Government 1,
3-4 (R. McCallum ed. [514 U.S. 334, 357] 1947). It thus exemplifies the purpose behind the Bill of Rights,
and of the First Amendment in particular: to protect unpopular individuals from retaliation – and their
ideas from suppression – at the hand of an intolerant society. The right to remain anonymous may be
abused when it shields fraudulent conduct. But political speech by its nature will sometimes have
unpalatable consequences, and, in general, our society accords greater weight to the value of free speech
than to the dangers of its misuse. See Abrams v. United States, 250 U.S. 616, 630-31 (1919) (Holmes, J.,
dissenting). Ohio has not shown that its interest in preventing the misuse of anonymous election-related
speech justifies a prohibition of all uses of that speech. The State may, and does, punish fraud directly.
But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech, based
on its content, with no necessary relationship to the danger sought to be prevented. One would be hard
pressed to think of a better example of the pitfalls of Ohio's blunderbuss approach than the facts of the
case before us.
The judgment of the Ohio Supreme Court is reversed.
It is so ordered.
Footnotes
[1] The term "liberty" in the Fourteenth Amendment to the Constitution makes the First Amendment
applicable to the States. The Fourteenth Amendment reads, in relevant part: "No State shall ... deprive
any person of life, liberty, or property, without due process of law ... ." U.S. Const., Amdt. 14, 1.
Referring to that Clause in his separate opinion in Whitney v. California, 274 U.S. 357 (1927), Justice
Brandeis stated that "all fundamental rights comprised within the term liberty are protected by the

Federal Constitution from invasion by the States. The right of free speech, the right to teach and the right
of assembly are, of course, fundamental rights." Id., at 373 (Brandeis, J., concurring). Although the text
of the First Amendment provides only that "Congress shall make no law ... abridging the freedom of
speech ...," Justice Brandeis' view has been embedded in our law ever since. See First Nat. Bank of
Boston v. Bellotti, 435 U.S. 765, 779 -780 (1978); see also Stevens, The Bill of Rights: A Century of
Progress, 59 U. Chi. L. Rev. 13, 20, 25-26 (1992).
[2] The following is one of Mrs. McIntyre's leaflets, in its original typeface:
VOTE NO
ISSUE 19 SCHOOL TAX LEVY
Last election Westerville Schools, asked us to vote yes for new buildings and expansions programs.
We gave them what they asked. We knew there was crowded conditions and new growth in the district.
Now we find out there is a 4 million dollar deficit – WHY?
We are told the 3 middle schools must be split because of over-crowding,
and yet we are told 3 schools are being closed – WHY?
A magnet school is not a full operating school, but a specials school.
Residents were asked to work on a 20 member commission to help formulate the new boundaries.
For 4 weeks they worked long and hard and came up with a very workable plan.
Their plan was totally disregarded – WHY?
WASTE of tax payers dollars must be stopped.
Our children's education and welfare must come first.
WASTE CAN NO LONGER BE TOLERATED.
PLEASE VOTE NO
ISSUE 19
THANK YOU
CONCERNED PARENTS
AND
TAX PAYERS
[3] Ohio Rev. Code Ann. 3599.09(A) (1988) provides:
"No person shall write, print, post, or distribute, or cause to be written, printed, posted, or
distributed, a notice, placard, dodger, advertisement, sample ballot, or any other form of
general publication which is designed to promote the nomination or election or defeat of a
candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any
election, or make an expenditure for the purpose of financing political communications
through newspapers, magazines, outdoor advertising facilities, direct mailings, or other
similar types of general public political advertising, or through flyers, handbills, or other

nonperiodical printed matter, unless there appears on such form of publication in a

conspicuous place or is contained within said statement the name and residence or business
address of the chairman, treasurer, or secretary of the organization issuing the same, or the
person who issues, makes, or is responsible therefor. The disclaimer `paid political
advertisement' is not sufficient to meet the requirements of this division. When such
publication is issued by the regularly constituted central or executive committee of a
political party, organized as provided [514 U.S. 334, 337] in Chapter 3517. of the Revised
Code, it shall be sufficiently identified if it bears the name of the committee and its
chairman or treasurer. No person, firm, or corporation shall print or reproduce any notice,
placard, dodger, advertisement, sample ballot, or any other form of publication in violation
of this section. This section does not apply to the transmittal of personal correspondence that
is not reproduced by machine for general distribution.
"The secretary of state may, by rule, exempt, from the requirements of this division, printed
matter and certain other kinds of printed communications such as campaign buttons,
balloons, pencils, or like items, the size or nature of which makes it unreasonable to add an
identification or disclaimer. The disclaimer or identification, when paid for by a campaign
committee, shall be identified by the words `paid for by' followed by the name and address
of the campaign committee and the appropriate officer of the committee, identified by name
and title."
Section 3599.09(B) contains a comparable prohibition against unidentified communications uttered over
the broadcasting facilities of any radio or television station. No question concerning that provision is
raised in this case. Our opinion, therefore, discusses only written communications and, particularly,
leaflets of the kind Mrs. McIntyre distributed. Cf. Turner Broadcasting System, Inc. v. FCC, 512 U.S.
___, ___-___ (1994) (slip op., at ___-___) (discussing application of First Amendment principles to
regulation of television and radio).
The complaint against Mrs. McIntyre also alleged violations of two other provisions of the Ohio Code,
but those charges were dismissed and are not before this Court.
[4] American names such as Mark Twain (Samuel Langhorne Clemens) and O. Henry (William Sydney
Porter) come readily to mind. Benjamin [514 U.S. 334, 350] Franklin employed numerous different
pseudonyms. See 2 W. C. Bruce, Benjamin Franklin Self-Revealed: A Biographical and Critical Study
Based Mainly on His Own Writings, ch. 5 (2d ed. 1923). Distinguished French authors such as Voltaire
(Francois Marie Arouet) and George Sand (Amandine Aurore Lucie Dupin), and British authors such as
George Eliot (Mary Ann Evans), Charles Lamb (sometimes wrote as "Elia"), and Charles Dickens
(sometimes wrote as "Boz"), also published under assumed names. Indeed, some believe the works of
Shakespeare were actually written by the Earl of Oxford rather than by William Shaksper of
Stratford-on-Avon. See C. Ogburn, The Mysterious William Shakespeare: The Myth & the Reality (2d
ed. 1992); but see S. Schoenbaum, Shakespeare's Lives (2d ed. 1991) (adhering to the traditional view
that Shaksper was in fact the author). See also Stevens, The Shakespeare Canon of Statutory
Construction, 140 U. Pa. L. Rev. 1373 (1992) (commenting on the competing theories).
[5] Though such a requirement might provide assistance to critics in evaluating the quality and
significance of the writing, it is not indispensable. To draw an analogy from a nonliterary context, the
now-pervasive practice of grading law school examination papers "blindly" (i.e., under a system in which

the professor does not know whose paper she is grading) indicates that such evaluations are possible -
indeed, perhaps more reliable – when any bias associated with the author's identity is prescinded.
[6] That tradition is most famously embodied in the Federalist Papers, authored by James Madison,
Alexander Hamilton, and John Jay, but signed "Publius." Publius's opponents, the Anti-Federalists, also
tended to publish under pseudonyms: prominent among them were "Cato," believed to be New York
Governor George Clinton; "Centinel," probably Samuel Bryan or his father, Pennsylvania judge [ 514 U.S.
334, 342] and legislator George Bryan; "The Federal Farmer," who may have been Richard Henry Lee, a
Virginia member of the Continental Congress and a signer of the Declaration of Independence; and
"Brutus," who may have been Robert Yates, a New York Supreme Court justice who walked out on the
Constitutional Convention. 2 H. Storing, ed., The Complete Anti-Federalist (1981). A forerunner of all of
these writers was the pre-Revolutionary War English pamphleteer "Junius," whose true identity remains
a mystery. See J. M. Faragher, ed., The Encyclopedia of Colonial and Revolutionary America 220 (1990)
(positing that "Junius" may have been Sir Phillip Francis). The "Letters of Junius" were "widely reprinted
in colonial newspapers and lent considerable support to the revolutionary cause." Powell v. McCormack,
395 U.S. 486, 531, n. 60 (1969).
[7] In his concurring opinion, Justice Harlan added these words:

"Here the State says that this ordinance is aimed at the prevention of `fraud, deceit, false
advertising, negligent use of words, obscenity, and libel,' in that it will aid in the detection of
those responsible for spreading material of that character. But the ordinance is not so
limited, and I think it will not do for the State simply to say that the circulation of all
anonymous handbills must be suppressed in order to identify the distributors of those that
may be of an obnoxious character. In the absence of a more substantial showing as to Los
Angeles' actual experience with the distribution of obnoxious handbills, such a generality is
for me too remote to furnish a constitutionally acceptable justification for the deterrent
effect on free speech which this all-embracing ordinance is likely to have." Talley v.
California, 362 U.S. 60, 66-67 (1960) (footnote omitted).
[8] Arguably, the disclosure requirement places a more significant burden on advocates of unpopular
causes than on defenders of the status quo. For purposes of our analysis, however, we assume the statute
evenhandedly burdens all speakers who have a legitimate interest in remaining anonymous.
[9] Covered documents are those "designed to promote the nomination or election or defeat of a
candidate, or to promote the adoption or defeat of any issue, or to influence the voters in any election ...
." Ohio Rev. Code Ann. 3599.09(A) (1988).
[10] In Meyer, we unanimously applied strict scrutiny to invalidate an election-related law making it
illegal to pay petition circulators for obtaining signatures to place an initiative on the state ballot. [514 U.S.
334, 345] 486 U.S. 414 . Similarly, in Burson v. Freeman, 504 U.S. ___ (1992), although the law at issue
– forbidding campaign-related speech within 100 feet of the entrance to a polling place – was an
election-related restriction, both the plurality and dissent applied strict scrutiny because the law was "a
facially content-based restriction on political speech in a public forum." Id., at ___ (slip op., at 6); see
also id., at ___ (slip op., at 3) (KENNEDY, J., concurring); id., at ___ (slip op., at 1) (STEVENS, J.,
dissenting).
[11] "Of course, the identity of the source is helpful in evaluating ideas. But `the best test of truth is the

power of the thought to get itself accepted in the competition of the market' (Abrams v. United States,
[250 U.S. 616, 630 (1919) (Holmes, J., dissenting)]). Don't underestimate the common man. People are
intelligent enough to evaluate the source of an anonymous writing. They can see it is anonymous. They
know it is anonymous. They can evaluate its anonymity along with its message, as long as they are
permitted, as they must be, to read that message. And then, once they have done so, it is for them to
decide what is `responsible', what is valuable, and what is truth." New York v. Duryea, 76 Misc. 2d 948,
966-967, 351 N. Y. S. 2d 978, 996 (1974) (striking down similar New York statute as overbroad).
[12] Section 3599.09.1(B) provides:
"No person, during the course of any campaign for nomination or election to public office or office of a
political party, by means of campaign materials, including sample ballots, an advertisement on radio or
television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly
and with intent to affect the outcome of such campaign do any of the following:
"(1) Use the title of an office not currently held by a candidate in a manner that implies that the
candidate does currently hold that office or use the term `re-elect' when the candidate has never
been elected at a primary, general, or special election to the office for which he is a candidate;
"(2) Make a false statement concerning the formal schooling or training completed or attempted by
a candidate; a degree, diploma, certificate, scholarship, grant, award, prize, or honor received,
earned, or held by a candidate; or the period of time during which a candidate attended any school,
college, community technical school, or institution; [ 514 U.S. 334, 349]
"(3) Make a false statement concerning the professional, occupational, or vocational licenses held
by a candidate, or concerning any position the candidate held for which he received a salary or
wages;
"(4) Make a false statement that a candidate or public official has been indicted or convicted of a
theft offense, extortion, or other crime involving financial corruption or moral turpitude;
"(5) Make a statement that a candidate has been indicted for any crime or has been the subject of a
finding by the Ohio elections commission without disclosing the outcome of any legal proceedings
resulting from the indictment or finding;
"(6) Make a false statement that a candidate or official has a record of treatment or confinement for
mental disorder;
"(7) Make a false statement that a candidate or official has been subjected to military discipline for
criminal misconduct or dishonorably discharged from the armed services;
"(8) Falsely identify the source of a statement, issue statements under the name of another person
without authorization, or falsely state the endorsement of or opposition to a candidate by a person
or publication;
"(9) Make a false statement concerning the voting record of a candidate or public official;
"(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement, either knowing
the same to be false or with reckless disregard of whether it was false or not, concerning a
candidate that is designed to promote the election, nomination, or defeat of the candidate. As used
in this section, `voting record' means the recorded `yes' or `no' vote on a bill, ordinance, resolution,
motion, amendment, or confirmation." Ohio Rev. Code Ann. 3599.09.1(B) (1988).
Section 3599.09.2(B) provides:

"No person, during the course of any campaign in advocacy of or in opposition to the adoption of any
ballot proposition or issue, by means of campaign material, including sample ballots, an advertisement
on radio or television or in a newspaper or periodical, a public speech, a press release, or otherwise, shall
knowingly and with intent to affect the outcome of such campaign do any of the following:
"(1) Falsely identify the source of a statement, issue statements under the name of another person
without authorization, or falsely state the endorsement of or opposition to a ballot proposition or
issue by a person or publication;
"(2) Post, publish, circulate, distribute, or otherwise disseminate, a false statement, either knowing
the same to be false or acting with reckless disregard of whether it was false or not, that is
designed to promote the adoption or defeat of any ballot proposition or issue." Ohio [514 U.S. 334,
350] Rev. Code Ann. 3599.09.2(B) (1988).
We need not, of course, evaluate the constitutionality of these provisions. We quote them merely to
emphasize that Ohio has addressed directly the problem of election fraud. To the extent the anonymity
ban indirectly seeks to vindicate the same goals, it is merely a supplement to the above provisions.
[13] The same can be said with regard to "libel," as many of the above-quoted election code provisions
prohibit false statements about candidates. To the extent those provisions may be underinclusive, Ohio
courts also enforce the common-law tort of defamation. See, e.g., Varanese v. Gall, 35 Ohio St. 3d 78,
518 N. E. 2d 1177 (1988) (applying the standard of New York Times Co. v. Sullivan, 376 U.S. 254
(1964), to an Ohio public official's state-law libel claim arising from an election-related advertisement).
Like other forms of election fraud, then, Ohio directly attacks the problem of election-related libel; to the
extent that the anonymity ban serves the same interest, it is merely a supplement.
[14] We stressed the importance of this distinction in Buckley v. Valeo, 424 U.S. 1, 37 (1976):
"Treating these expenses [the expenses incurred by campaign volunteers] as contributions

when made to the candidate's campaign or at the direction of the candidate or his staff
forecloses an avenue of abuse without limiting actions voluntarily undertaken by citizens
independently of a candidate's campaign." (omitted.)
Again, in striking down the independent expenditure limitations of the Federal Election Campaign Act of
1971, 18 U.S.C. 608(e)(1) (1970 ed., [ 514 U.S. 334, 351] Supp. IV) (repealed 1976), we distinguished
another section of the statute ( 608(b), which we upheld) that placed a ceiling on contributions to a
political campaign.
"By contrast, 608(e)(1) limits expenditures for express advocacy of candidates made totally
independently of the candidate and his campaign. Unlike contributions, such independent
expenditures may well provide little assistance to the candidate's campaign and indeed may
prove counterproductive. The absence of prearrangement and coordination of an expenditure
with the candidate or his agent not only undermines the value of the expenditure to the
candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for
improper commitments from the candidate. Rather than preventing circumvention of the
contribution limitations, 608(e)(1) severely restricts all independent advocacy despite its
substantially diminished potential for abuse." 424 U.S., at 47.
[15] "The risk of corruption perceived in cases involving candidate elections, e. g., United States v.

Automobile Workers, [ 352 U.S. 567 (1957)]; United States v. CIO, [ 335 U.S. 106 (1948)], simply is not
present in a popular vote on a public issue." First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 790
(1978) (footnote omitted).
[16] As the Illinois Supreme Court explained in People v. White, 116 Ill. 2d 171, 180, 506 N. E. 2d 1284,
1288 (Ill. 1987), which struck down a similar statute:
"Implicit in the State's ... justification is the concern that the public could be misinformed
and an election swayed on the strength of an eleventh-hour anonymous smear campaign to
which the candidate could not meaningfully respond. The statute cannot be upheld on this
ground, however, because it sweeps within its net a great deal of anonymous speech
completely unrelated to this concern. In the first place, the statute has no time limit and
applies to literature circulated two months prior to an election as well as that distributed two
days before. The statute also prohibits anonymous literature supporting or opposing not only
candidates, but also referenda. A public question clearly cannot be the victim of character
assassination."
The temporal breadth of the Ohio statute also distinguishes it from the [ 514 U.S. 334, 352] Tennessee law
that we upheld in Burson v. Freeman, 504 U.S. ___ (1992). The Tennessee statute forbade electioneering
within 100 feet of the entrance to a polling place. It applied only on election day. The state's interest in
preventing voter intimidation and election fraud was therefore enhanced by the need to prevent
last-minute misinformation to which there is no time to respond. Moreover, Tennessee geographically
confined the reach of its law to a 100-foot no-solicitation zone. By contrast, the Ohio law forbids
anonymous campaign speech wherever it occurs.
[17] "In deciding whether this novel and restrictive gloss on the First Amendment comports with the
Constitution and the precedents of this Court, we need not survey the outer boundaries of the
Amendment's protection of corporate speech, or address the abstract question whether corporations have
the full measure of rights that individuals enjoy under the First Amendment." Bellotti, 435 U.S., at
777-778.
In a footnote to that passage, we continued:

"Nor is there any occasion to consider in this case whether, under different circumstances, a
justification for a restriction on speech that would be inadequate as applied to individuals
might suffice to sustain the same restriction as applied to corporations, unions, or like
entities." Id., at 777-778, n. 13.
[18] "Corporate advertising, unlike some methods of participation in political campaigns, is likely to be
highly visible. Identification of the source of advertising may be required as a means of disclosure, so
that the people will be able to evaluate the arguments to which they are being subjected. See Buckley,
424 U.S., at 66-67; United States v. Harriss, 347 U.S. 612, 625-626 (1954). In addition, we emphasized
in Buckley the prophylactic effect of requiring that the source of communication be disclosed. 424 U.S.,
at 67 ." Bellotti, 435 U.S., at 792, n. 32.
[19] One of those provisions, addressing contributions by campaign committees, requires:

"the identification of each person to whom expenditures have been made by such committee

or on behalf of such committee within the calendar year in an aggregate amount or value in
excess of $100, the amount, date, and purpose of each such expenditure and the name and
address of, and office sought by, each candidate on whose behalf such expenditure was
made." 2 U.S.C. 434(b) (9) (reprinted [514 U.S. 334, 355] in Buckley, 424 U.S., at 158 ).
A separate provision, 2 U.S.C. 434(e) (reprinted in Buckley, 424 U.S., at 160 ), requires individuals
making contributions or expenditures to file statements containing the same information.
[20] This interest also serves to distinguish United States v. Harriss, 347 U.S. 612 (1954), in which we
upheld limited disclosure requirements for lobbyists. The activities of lobbyists who have direct access to
elected representatives, if undisclosed, may well present the appearance of corruption.
[21] We note here also that the federal Act, while constitutional on its face, may not be constitutional in
all its applications. Cf. Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87, 88 (1982)
(holding Ohio disclosure requirements unconstitutional as applied to "a minor political party which
historically has been the object of harassment by government officials and private parties"); Buckley, 424
U.S., at 74 (exempting minor parties from disclosure requirements if they can show "a reasonable
probability that the compelled disclosure of a party's contributors' names will subject them to threats,
harassment, or reprisals from either Government officials or private parties"). [514 U.S. 334, 334]
JUSTICE GINSBURG, concurring.
The dissent is stirring in its appreciation of democratic values. But I do not see the Court's opinion as
unguided by "bedrock principle," tradition, or our case law. See post, at 8, 5-9, 9-11. Margaret McIntyre's
case, it seems to me, bears a marked resemblance to Margaret Gilleo's case[1] and Mary Grace's.[2] All
three decisions, I believe, are sound, and hardly sensational, applications of our First Amendment
jurisprudence.
In for a calf is not always in for a cow. The Court's decision finds unnecessary, overintrusive, and
inconsistent with American ideals the State's imposition of a fine on an individual leafleteer who, within
her local community, spoke her mind, but sometimes not her [514 U.S. 334, 335] name. We do not thereby
hold that the State may not in other, larger circumstances, require the speaker to disclose its interest by
disclosing its identity. Appropriately leaving open matters not presented by McIntyre's handbills, the
Court recognizes that a State's interest in protecting an election process "might justify a more limited
identification requirement." Ante, at 19. But the Court has convincingly explained why Ohio lacks "cause
for inhibiting the leafletting at issue here." Ibid.
Footnotes
[1] See City of Ladue v. Gilleo, 512 U.S. ___ (1994), in which we held that the City of Ladue could not
prohibit homeowner Gilleo's display of a small sign, on her lawn or in a window, opposing war in the
Persian Gulf.
[2] Grace was the "lone picketer" who stood on the sidewalk in front of this Court with a sign containing
the text of the First Amendment, prompting us to exclude public sidewalks from the statutory ban on
display of a "flag, banner, or device" on Court grounds. United States v. Grace, 461 U.S. 171, 183
(1983). [514 U.S. 334, 334]


U.S. Supreme Court
McINTYRE v. OHIO ELECTIONS COMM'N, 514 U.S.

334 (1995)
JOSEPH McINTYRE, EXECUTOR OF ESTATE OF MARGARET

McINTYRE, DECEASED,
PETITIONER v. OHIO ELECTIONS COMMISSION
CERTIORARI TO THE SUPREME COURT OF OHIO
No. 93-986.

Decided April 19, 1995
After petitioner's decedent distributed leaflets purporting to express the

views of "CONCERNED PARENTS AND TAX PAYERS" opposing a proposed school tax
levy, she was fined by respondent for violating 3599.09(A) of the Ohio Code,
which prohibits the distribution of campaign literature that does not
contain the name and address of the person or campaign official issuing the
literature. The Court of Common Pleas reversed, but the Ohio Court of
Appeals reinstated the fine. In affirming, the State Supreme Court held that
the burdens 3599.09(A) imposed on voters' First Amendment rights were
"reasonable and "nondiscriminatory" and therefore valid. Declaring that
3599.09(A) is intended to identify persons who distribute campaign materials
containing fraud, libel, or false advertising and to provide voters with a
mechanism for evaluating such materials, the court distinguished Talley v.
California, 362 U.S. 60, in which this Court invalidated an ordinance
prohibiting all anonymous leafletting.
Held:
Section 3599.09(A)'s prohibition of the distribution of anonymous campaign

literature abridges the freedom of speech in violation of the First
Amendment. Pp. 7-24.
(a) The freedom to publish anonymously is protected by the

First Amendment, and, as Talley indicates, extends beyond
the literary realm to the advocacy of political causes. Pp. 7-9.
(b) This Court's precedents make abundantly clear that the

Ohio Supreme Court's reasonableness standard is
significantly more lenient than is appropriate in a case of this
kind. Although Talley concerned a different limitation than
3599.09(A) and thus does not necessarily control here, the
First Amendment's protection of anonymity nevertheless
applies. Section 3599.09(A) is not simply an Page II election
code provision subject to the "ordinary litigation" test set forth
in Anderson v. Celebrezze, 460 U.S. 780, and similar cases.
Rather, it is a regulation of core political speech. Moreover,
the category of documents it covers is defined by their
content -- only those publications containing speech designed
to influence the voters in an election need bear the required
information. See, e.g., First Nat. Bank of Boston v. Bellotti,
435 U.S. 765, 776-777. When a law burdens such speech,
the Court applies "exacting scrutiny," upholding the restriction
only if it is narrowly tailored to serve an overriding state
interest. See, e.g., id., at 786. Pp. 9-14.
(c) Section 3599.09(A)'s anonymous speech ban is not

justified by Ohio's asserted interests in preventing fraudulent
and libelous statements and in providing the electorate with

relevant information. The claimed informational interest is

plainly insufficient to support the statute's disclosure
requirement, since the speaker's identity is no different from
other components of a document's contents that the author is
free to include or exclude, and the author's name and address
add little to the reader's ability to evaluate the document in
the case of a handbill written by a private citizen unknown to
the reader. Moreover, the state interest in preventing fraud
and libel (which Ohio vindicates by means of other, more
direct prohibitions) does not justify 3599.09(A)'s extremely
broad prohibition of anonymous leaflets. The statute
encompasses all documents, regardless of whether they are
arguably false or misleading. Although a State might
somehow demonstrate that its enforcement interests justify a
more limited identification requirement, Ohio has not met that
burden here. Pp. 14-20.
(d) This Court's opinions in Bellotti, 435 U.S., at 792, n. 32

-- which commented in dicta on the prophylactic effect of
requiring identification of the source of corporate campaign
advertising - and Buckley v. Valeo, 424 U.S. 1, 75-76 --
which approved mandatory disclosure of campaign-related
expenditures -- do not establish the constitutionality of
3599.09(A), since neither case involved a prohibition of
anonymous campaign literature. Pp. 20-23.
67 Ohio St. 3d 391, 618 N. E. 2d 152, reversed.
STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY,
SOUTER, GINSBURG, and BREYER, JJ., joined. GINSBURG, J., filed a concurring
opinion. THOMAS, J., filed an opinion concurring in the judgment. SCALIA,
J., filed a dissenting opinion, in which REHNQUIST, C. J., joined. [514 U.S.
334, 334]
JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether an Ohio statute that prohibits the

distribution of anonymous campaign literature is a "law ... abridging the
freedom of speech" within the meaning of the First Amendment.[1] [514 U.S.
334, 335]
On April 27, 1988, Margaret McIntyre distributed leaflets to persons

attending a public meeting at the Blendon Middle School in Westerville,
Ohio. At this meeting, the superintendent of schools planned to discuss an
imminent referendum on a proposed school tax levy. The leaflets expressed
Mrs. McIntyre's opposition to the levy.[2] There is no suggestion that the
text of her message was false, misleading, or libelous. She [ 514 U.S. 334,
336] had composed and printed it on her home computer and had paid a
professional printer to make additional copies. Some of the handbills
identified her as the author; others merely purported to express the views
of "CONCERNED PARENTS AND TAX PAYERS." Except for the help provided by her
son and a friend, who placed some of the leaflets on car windshields in the
school parking lot, Mrs. McIntyre acted independently.
While Mrs. McIntyre distributed her handbills, an official of the school

district, who supported the tax proposal, advised her that the unsigned
leaflets did not conform to the Ohio election laws. Undeterred, Mrs.
McIntyre appeared at another meeting on the next evening and handed out more
of the handbills.

The proposed school levy was defeated at the next two elections, but it
finally passed on its third try in November 1988. Five months later, the
same school official filed a complaint with the Ohio Elections Commission
charging that Mrs. McIntyre's distribution of unsigned leaflets violated
3599.09(A) of the Ohio Code.[3] [ 514 U.S. 334, 337] The Commission agreed
and imposed a fine of $100.
The Franklin County Court of Common Pleas reversed. Finding that Mrs.
McIntyre did not "mislead the public nor act in a surreptitious manner," the
court concluded that the statute was unconstitutional as applied to her
conduct. App. to Pet. for Cert. A-34 to A-35. The Ohio Court of Appeals, by
a divided vote, reinstated the fine. Notwithstanding doubts about the
continuing validity of a 1922 decision of the Ohio Supreme Court upholding
the statutory predecessor of 3599.09(A), the majority considered itself
bound by that precedent. Id., at A-20 to A-21, citing State v. Babst, 104
Ohio St. [ 514 U.S. 334, 338] 167, 135 N. E. 525 (1922). The dissenting
judge thought that our intervening decision in Talley v. California, 362
U.S. 60 (1960), in which we invalidated a city ordinance prohibiting all
anonymous leafletting, compelled the Ohio court to adopt a narrowing
construction of the statute to save its constitutionality. App. to Pet. for
Cert. A-30 to A-31.
The Ohio Supreme Court affirmed by a divided vote. The majority

distinguished Mrs. McIntyre's case from Talley on the ground that 3599.09(A)
"has as its purpose the identification of persons who distribute materials
containing false statements." 67 Ohio St. 3d 391, 394, 618 N. E. 2d 152, 154
(1993). The Ohio court believed that such a law should be upheld if the
burdens imposed on the First Amendment rights of voters are "reasonable" and
"nondiscriminatory." Id., at 396, 618 N. E. 2d, at 155, quoting Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983). Under that standard, the majority
concluded that the statute was plainly valid:
"The minor requirement imposed by R.C. 3599.09 that those

persons producing campaign literature identify themselves as
the source thereof neither impacts the content of their
message nor significantly burdens their ability to have it
disseminated. This burden is more than counterbalanced by
the state interest in providing the voters to whom the message
is directed with a mechanism by which they may better
evaluate its validity. Moreover, the law serves to identify
those who engage in fraud, libel or false advertising. Not only
are such interests sufficient to overcome the minor burden
placed upon such persons, these interests were specifically
acknowledged in [First National Bank of Boston v.] Bellotti[,
435 U.S. 765 (1978),] to be regulations of the sort which
would survive constitutional scrutiny." 67 Ohio St. 3d, at
396, 618 N. E. 2d, at [ 514 U.S. 334, 339] 155-156.
In dissent, Justice Wright argued that the statute should be tested under a
more severe standard because of its significant effect "on the ability of
individual citizens to freely express their views in writing on political
issues." Id., at 398, 618 N. E. 2d, at 156-157. He concluded that 3599.09(A)
"is not narrowly tailored to serve a compelling state interest and is,
therefore, unconstitutional as applied to McIntyre." Id., at 401, 618 N. E.
2d, at 159.
Mrs. McIntyre passed away during the pendency of this litigation. Even
though the amount in controversy is only $100, petitioner, as the executor
of her estate, has pursued her claim in this Court. Our grant of certiorari,
510 U.S. ___ (1994), reflects our agreement with his appraisal of the

importance of the question presented.
II
Ohio maintains that the statute under review is a reasonable regulation of

the electoral process. The State does not suggest that all anonymous
publications are pernicious or that a statute totally excluding them from
the marketplace of ideas would be valid. This is a wise (albeit implicit)
concession, for the anonymity of an author is not ordinarily a sufficient
reason to exclude her work product from the protections of the First
Amendment.
"Anonymous pamphlets, leaflets, brochures and even books

have played an important role in the progress of mankind."
Talley v. California, 362 U.S. 60, 64 (1960). Great works of
literature have frequently been produced by authors writing
under assumed names.[4] Despite [514 U.S. 334, 340] readers'
curiosity and the public's interest in identifying the creator of a
work of art, an author generally is free to decide whether or
not to disclose her true identity. The decision in favor of
anonymity may be motivated by fear of economic or official
retaliation, by concern about social ostracism, or merely by a
desire to preserve as much of one's privacy as possible.
Whatever the motivation may be, at least in the field of
literary endeavor, the interest in having anonymous works
enter the marketplace of ideas unquestionably outweighs any
public interest in requiring disclosure as a condition of
entry.[5] Accordingly, an author's decision to remain
anonymous, like other decisions concerning omissions or
additions to the content of a publication, is an aspect of the
freedom of speech protected by the First Amendment. [514
U.S. 334, 341]
The freedom to publish anonymously extends beyond the literary realm. In

Talley, the Court held that the First Amendment protects the distribution of
unsigned handbills urging readers to boycott certain Los Angeles merchants
who were allegedly engaging in discriminatory employment practices. 362 U.S.
60 . Writing for the Court, Justice Black noted that "[p]ersecuted groups
and sects from time to time throughout history have been able to criticize
oppressive practices and laws either anonymously or not at all." Id., at 64.
Justice Black recalled England's abusive press licensing laws and seditious
libel prosecutions, and he reminded us that even the arguments favoring the
ratification of the Constitution advanced in the Federalist Papers were
published under fictitious names. Id., at 64-65. On occasion, quite apart
from any threat of persecution, an advocate may believe her ideas will be
more persuasive if her readers are unaware of her identity. Anonymity
thereby provides a way for a writer who may be personally unpopular to
ensure that readers will not prejudge her message simply because they do not
like its proponent. Thus, even in the field of political rhetoric, where
"the identity of the speaker is an important component of many attempts to
persuade," City of Ladue v. Gilleo, 512 U.S. ___, ___ (1994) (slip op., at
13), the most effective advocates have sometimes opted for anonymity. The
specific holding in Talley related to advocacy of an economic boycott, but
the Court's reasoning embraced a respected tradition of anonymity in the
advocacy of political causes.[6] This tradition is perhaps best exemplified
[514 U.S. 334, 342] by the secret ballot, the hard-won right to vote one's
conscience without fear of retaliation.
III
California had defended the Los Angeles ordinance at issue in Talley as a

law "aimed at providing a way to identify those responsible for fraud, false
advertising and libel." 362 U.S., at 64 . We rejected that argument because
nothing in the text or legislative history of the ordinance limited its
application to those evils.[7] Ibid. We then made clear that we did "not
pass on the validity of an ordinance limited to prevent these or [ 514 U.S.
334, 343] any other supposed evils." Ibid. The Ohio statute likewise
contains no language limiting its application to fraudulent, false, or
libelous statements; to the extent, therefore, that Ohio seeks to justify
3599.09(A) as a means to prevent the dissemination of untruths, its defense
must fail for the same reason given in Talley. As the facts of this case
demonstrate, the ordinance plainly applies even when there is no hint of
falsity or libel.
Ohio's statute does, however, contain a different limitation: It applies

only to unsigned documents designed to influence voters in an election. In
contrast, the Los Angeles ordinance prohibited all anonymous handbilling "in
any place under any circumstances." Id., at 60-61. For that reason, Ohio
correctly argues that Talley does not necessarily control the disposition of
this case. We must, therefore, decide whether and to what extent the First
Amendment's protection of anonymity encompasses documents intended to
influence the electoral process.
Ohio places its principal reliance on cases such as Anderson v. Celebrezze,

460 U.S. 780 (1983); Storer v. Brown, 415 U.S. 724 (1974); and Burdick v.
Takushi, 504 U.S. ___ (1992), in which we reviewed election code provisions
governing the voting process itself. See Anderson, supra (filing deadlines);
Storer, supra (ballot access); Burdick, supra (write-in voting); see also
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986)
(eligibility of independent voters to vote in party primaries). In those
cases we refused to adopt "any `litmus-paper test' that will separate valid
from invalid restrictions." Anderson, 460 U.S., at 789, quoting Storer, 415
U.S., at 730 . Instead, we pursued an analytical process comparable to that
used by courts "in ordinary litigation": we considered the relative
interests of the State and the injured voters, and we evaluated the extent
to which the State's interests necessitated the contested restrictions.
Anderson, [514 U.S. 334, 344] 460 U.S., at 789 . Applying similar reasoning
in this case, the Ohio Supreme Court upheld 3599.09(A) as a "reasonable" and
"nondiscriminatory" burden on the rights of voters. 67 Ohio St. 3d 391, 396,
618 N. E. 2d 152, 155 (1993), quoting Anderson, 460 U.S., at 788 .
The "ordinary litigation" test does not apply here. Unlike the statutory
provisions challenged in Storer and Anderson, 3599.09(A) of the Ohio Code
does not control the mechanics of the electoral process. It is a regulation
of pure speech. Moreover, even though this provision applies evenhandedly to
advocates of differing viewpoints,[8] it is a direct regulation of the
content of speech. Every written document covered by the statute must
contain "the name and residence or business address of the chairman,
treasurer, or secretary of the organization issuing the same, or the person
who issues, makes, or is responsible therefor." Ohio Rev. Code Ann.
3599.09(A) (1988). Furthermore, the category of covered documents is defined
by their content -- only those publications containing speech designed to
influence the voters in an election need bear the required markings.[9]
Ibid. Consequently, we are not faced with an ordinary election restriction;
this case "involves a limitation on political expression subject to exacting
scrutiny." Meyer v. Grant, 486 U.S. 414, 420 (1988).10 [ 514 U.S. 334, 345]
Indeed, as we have explained on many prior occasions, the category of speech

regulated by the Ohio statute occupies the core of the protection afforded
by the First Amendment:
"Discussion of public issues and debate on the qualifications

of candidates are integral to the operation of the system of

government established by our Constitution. The First
Amendment affords the broadest protection to such political
expression in order `to assure [the] unfettered interchange of
ideas for the bringing about of political and social changes
desired by the people.' Roth v. United States, 354 U.S. 476,
484 (1957). Although First Amendment protections are not
confined to `the exposition of ideas,' Winters v. New York,
333 U.S. 507, 510 (1948), `there is practically universal
agreement that a major purpose of that Amendment was to
protect the free discussion of governmental affairs, ... of
course includ[ing] discussions of candidates . . . .' Mills v.
Alabama, 384 U.S. 214, 218 (1966). This no more than
reflects our `profound national commitment to the principle
that debate on public issues should be uninhibited, robust,
and wide-open,' New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964). In a republic where the people are
sovereign, the ability of the citizenry to make informed
choices among candidates for office is essential, for the
identities of those who [514 U.S. 334, 346] are elected will
inevitably shape the course that we follow as a nation. As the
Court observed in Monitor Patriot Co. v. Roy, 401 U.S.
265, 272 (1971), ìt can hardly be doubted that the
constitutional guarantee has its fullest and most urgent
application precisely to the conduct of campaigns for political
office.'" Buckley v. Valeo, 424 U.S. 1, 14-15 (1976).
Of course, core political speech need not center on a candidate for office.
The principles enunciated in Buckley extend equally to issue-based elections
such as the school-tax referendum that Mrs. McIntyre sought to influence
through her handbills. See First Nat. Bank of Boston v. Bellotti, 435 U.S.
765, 776-777 (1978) (speech on income-tax referendum "is at the heart of the
First Amendment's protection"). Indeed, the speech in which Mrs. McIntyre
engaged -- handing out leaflets in the advocacy of a politically
controversial viewpoint -- is the essence of First Amendment expression. See
International Society for Krishna Consciousness v. Lee, 505 U.S. ___ (1992);
Lovell v. Griffin, 303 U.S. 444 (1938). That this advocacy occurred in the
heat of a controversial referendum vote only strengthens the protection
afforded to Ms. McIntyre's expression: urgent, important, and effective
speech can be no less protected than impotent speech, lest the right to
speak be relegated to those instances when it is least needed. See
Terminiello v. Chicago, 337 U.S. 1, 4 (1949). No form of speech is entitled
to greater constitutional protection than Mrs. McIntyre's.
When a law burdens core political speech, we apply "exacting scrutiny," and
we uphold the restriction only if it is narrowly tailored to serve an
overriding state interest. See, e.g., Bellotti, 435 U.S., at 786 . Our
precedents thus make abundantly clear that the Ohio Supreme Court applied a
significantly more lenient [514 U.S. 334, 347] standard than is appropriate
in a case of this kind.
IV
Nevertheless, the State argues that even under the strictest standard of
review, the disclosure requirement in 3599.09(A) is justified by two
important and legitimate state interests. Ohio judges its interest in
preventing fraudulent and libelous statements and its interest in providing
the electorate with relevant information to be sufficiently compelling to
justify the anonymous speech ban. These two interests necessarily overlap to
some extent, but it is useful to discuss them separately.

Insofar as the interest in informing the electorate means nothing more than
the provision of additional information that may either buttress or
undermine the argument in a document, we think the identity of the speaker
is no different from other components of the document's content that the
author is free to include or exclude.11 We have already held that the State
may not compel a newspaper that prints editorials critical of a particular
candidate to provide space for a reply by the candidate. Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241 (1974). The simple interest in
providing voters with additional relevant information does not [514 U.S.
334, 348] justify a state requirement that a writer make statements or
disclosures she would otherwise omit. Moreover, in the case of a handbill
written by a private citizen who is not known to the recipient, the name and
address of the author adds little, if anything, to the reader's ability to
evaluate the document's message. Thus, Ohio's informational interest is
plainly insufficient to support the constitutionality of its disclosure
requirement.
The state interest in preventing fraud and libel stands on a different

footing. We agree with Ohio's submission that this interest carries special
weight during election campaigns when false statements, if credited, may
have serious adverse consequences for the public at large. Ohio does not,
however, rely solely on 3599.09(A) to protect that interest. Its Election
Code includes detailed and specific prohibitions against making or
disseminating false statements during political campaigns. Ohio Rev. Code
Ann. 3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to
candidate elections and to issue-driven ballot measures.[12] Thus, Ohio's
prohibition [514 U.S. 334, 349]
[514 U.S. 334, 350] of anonymous leaflets plainly is not its principal
weapon against fraud.[13] Rather, it serves as an aid to enforcement of the
specific prohibitions and as a deterrent to the making of false statements
by unscrupulous prevaricators. Although these ancillary benefits are
assuredly legitimate, we are not persuaded that they justify 3599.09(A)'s
extremely broad prohibition.
As this case demonstrates, the prohibition encompasses documents that are

not even arguably false or misleading. It applies not only to the activities
of candidates and their organized supporters, but also to individuals acting
independently and using only their own modest resources.[14] It applies not
only to elections of public [514 U.S. 334, 351] officers, but also to ballot
issues that present neither a substantial risk of libel nor any potential
appearance of corrupt advantage.[15] It applies not only to leaflets
distributed on the eve of an election, when the opportunity for reply is
limited, but also to those distributed months in advance.[16] It applies no
matter what the [ 514 U.S. 334, 352] character or strength of the author's
interest in anonymity. Moreover, as this case also demonstrates, the absence
of the author's name on a document does not necessarily protect either that
person or a distributor of a forbidden document from being held responsible
for compliance with the election code. Nor has the State explained why it
can more easily enforce the direct bans on disseminating false documents
against anonymous authors and distributors than against wrongdoers who might
use false names and addresses in an attempt to avoid detection. We recognize
that a State's enforcement interest might justify a more limited
identification requirement, but Ohio has shown scant cause for inhibiting
the leafletting at issue here.
Finally, Ohio vigorously argues that our opinions in First Nat. Bank of
Boston v. Bellotti, 435 U.S. 765 (1978), and Buckley v. Valeo, 424 U.S. 1
(1976), amply support the constitutionality of its disclosure requirement.

Neither case is controlling: the former concerned the scope of First

Amendment protection afforded to corporations; the relevant portion of the
latter concerned mandatory disclosure of campaign-related expenditures.
Neither case involved a prohibition of anonymous campaign literature.
In Bellotti, we reversed a judgment of the Supreme Judicial Court of

Massachusetts sustaining a state law [514 U.S. 334, 353] that prohibited
corporate expenditures designed to influence the vote on referendum
proposals. 435 U.S. 765 . The Massachusetts court had held that the First
Amendment protects corporate speech only if its message pertains directly to
the business interests of the corporation. Id., at 771-772. Consistently
with our holding today, we noted that the "inherent worth of the speech in
terms of its capacity for informing the public does not depend upon the
identity of its source, whether corporation, association, union, or
individual." Id., at 777. We also made it perfectly clear that we were not
deciding whether the First Amendment's protection of corporate speech is
coextensive with the protection it affords to individuals.[17] Accordingly,
although we commented in dicta on the prophylactic effect of requiring
identification of the source of corporate advertising,[18] that footnote did
not necessarily apply to independent communications by an individual like
Mrs. McIntyre. [514 U.S. 334, 354]
Our reference in the Bellotti footnote to the "prophylactic effect" of

disclosure requirements cited a portion of our earlier opinion in Buckley,
in which we stressed the importance of providing "the electorate with
information às to where political campaign money comes from and how it is
spent by the candidate.'" 424 U.S., at 66 . We observed that the "sources of
a candidate's financial support also alert the voter to the interests to
which a candidate is most likely to be responsive and thus facilitate
predictions of future performance in office." Id., at 67. Those comments
concerned contributions to the candidate or expenditures authorized by the
candidate or his responsible agent. They had no reference to the kind of
independent activity pursued by Mrs. McIntyre. Required disclosures about
the level of financial support a candidate has received from various sources
are supported by an interest in avoiding the appearance of corruption that
has no application to this case.
True, in another portion of the Buckley opinion we expressed approval of a

requirement that even "independent expenditures" in excess of a threshold
level be reported to the Federal Election Commission. Id., at 75-76. But
that requirement entailed nothing more than an identification to the
Commission of the amount and use of money expended in support of a
candidate. See id., at 157-159, 160 (reproducing relevant portions of the
statute[19] ). Though such mandatory reporting [514 U.S. 334, 355]
undeniably impedes protected First Amendment activity, the intrusion is a
far cry from compelled self-identification on all election-related writings.
A written election-related document -- particularly a leaflet -- is often a
personally crafted statement of a political viewpoint. Mrs. McIntyre's
handbills surely fit that description. As such, identification of the author
against her will is particularly intrusive; it reveals unmistakably the
content of her thoughts on a controversial issue. Disclosure of an
expenditure and its use, without more, reveals far less information. It may
be information that a person prefers to keep secret, and undoubtedly it
often gives away something about the spender's political views. Nonetheless,
even though money may "talk," its speech is less specific, less personal,
and less provocative than a handbill - and as a result, when money supports
an unpopular viewpoint it is less likely to precipitate retaliation.
Not only is the Ohio statute's infringement on speech more intrusive than
the Buckley disclosure requirement, but it rests on different and less
powerful state interests. The Federal Election Campaign Act of 1971, at

issue in Buckley, regulates only candidate elections, not referenda or other

issue-based ballot measures; and we construed "independent expenditures" to
mean only those expenditures that "expressly advocate the election or defeat
of a clearly identified candidate." Id., at 80. In candidate elections, the
Government can identify a compelling state interest in avoiding the
corruption that might result from campaign expenditures. Disclosure of
expenditures lessens the risk that individuals will spend money to support a
candidate as a quid pro quo for [514 U.S. 334, 356] special treatment after
the candidate is in office. Curriers of favor will be deterred by the
knowledge that all expenditures will be scrutinized by the Federal Election
Commission and by the public for just this sort of abuse.20 Moreover, the
federal Act contains numerous legitimate disclosure requirements for
campaign organizations; the similar requirements for independent
expenditures serve to ensure that a campaign organization will not seek to
evade disclosure by routing its expenditures through individual supporters.
See Buckley, 424 U.S., at 76. In short, although Buckley may permit a more
narrowly drawn statute, it surely is not authority for upholding Ohio's
open-ended provision.[21]
VI
Under our Constitution, anonymous pamphleteering is not a pernicious,

fraudulent practice, but an honorable tradition of advocacy and of dissent.
Anonymity is a shield from the tyranny of the majority. See generally J. S.
Mill, On Liberty, in On Liberty and Considerations on Representative
Government 1, 3-4 (R. McCallum ed. [514 U.S. 334, 357] 1947). It thus
exemplifies the purpose behind the Bill of Rights, and of the First
Amendment in particular: to protect unpopular individuals from retaliation
-- and their ideas from suppression -- at the hand of an intolerant society.
The right to remain anonymous may be abused when it shields fraudulent
conduct. But political speech by its nature will sometimes have unpalatable
consequences, and, in general, our society accords greater weight to the
value of free speech than to the dangers of its misuse. See Abrams v. United
States, 250 U.S. 616, 630-31 (1919) (Holmes, J., dissenting). Ohio has not
shown that its interest in preventing the misuse of anonymous
election-related speech justifies a prohibition of all uses of that speech.
The State may, and does, punish fraud directly. But it cannot seek to punish
fraud indirectly by indiscriminately outlawing a category of speech, based
on its content, with no necessary relationship to the danger sought to be
prevented. One would be hard pressed to think of a better example of the
pitfalls of Ohio's blunderbuss approach than the facts of the case before
us.
The judgment of the Ohio Supreme Court is reversed.
It is so ordered.
Footnotes
[1] The term "liberty" in the Fourteenth Amendment to the Constitution makes
the First Amendment applicable to the States. The Fourteenth Amendment
reads, in relevant part: "No State shall ... deprive any person of life,
liberty, or property, without due process of law ... ." U.S. Const., Amdt.
14, 1. Referring to that Clause in his separate opinion in Whitney v.
California, 274 U.S. 357 (1927), Justice Brandeis stated that "all
fundamental rights comprised within the term liberty are protected by the
Federal Constitution from invasion by the States. The right of free speech,
the right to teach and the right of assembly are, of course, fundamental
rights." Id., at 373 (Brandeis, J., concurring). Although the text of the
First Amendment provides only that "Congress shall make no law ... abridging
the freedom of speech ...," Justice Brandeis' view has been embedded in our

law ever since. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 779
-780 (1978); see also Stevens, The Bill of Rights: A Century of Progress, 59
U. Chi. L. Rev. 13, 20, 25-26 (1992).
[2] The following is one of Mrs. McIntyre's leaflets, in its original typeface:
VOTE NO
ISSUE 19 SCHOOL TAX LEVY
Last election Westerville Schools, asked us to vote yes for new buildings
and expansions programs.
We gave them what they asked. We knew there was crowded conditions
and new growth in the district.
Now we find out there is a 4 million dollar deficit -- WHY?
We are told the 3 middle schools must be split because of over-crowding,

and yet we are told 3 schools are being closed -- WHY?
A magnet school is not a full operating school, but a specials school.
Residents were asked to work on a 20 member commission to help

formulate the new boundaries.
For 4 weeks they worked long and hard and came up with a very
workable plan.
Their plan was totally disregarded -- WHY?
WASTE of tax payers dollars must be stopped.

Our children's education and welfare must come first.
WASTE CAN NO LONGER BE TOLERATED.
PLEASE VOTE NO
ISSUE 19
THANK YOU
CONCERNED PARENTS
AND
TAX PAYERS
[3] Ohio Rev. Code Ann. 3599.09(A) (1988) provides:
"No person shall write, print, post, or distribute, or cause to

be written, printed, posted, or distributed, a notice, placard,
dodger, advertisement, sample ballot, or any other form of
general publication which is designed to promote the
nomination or election or defeat of a candidate, or to
promote the adoption or defeat of any issue, or to influence
the voters in any election, or make an expenditure for the
purpose of financing political communications through
newspapers, magazines, outdoor advertising facilities, direct
mailings, or other similar types of general public political
advertising, or through flyers, handbills, or other
nonperiodical printed matter, unless there appears on such
form of publication in a conspicuous place or is contained
within said statement the name and residence or business
address of the chairman, treasurer, or secretary of the

organization issuing the same, or the person who issues,

makes, or is responsible therefor. The disclaimer `paid
political advertisement' is not sufficient to meet the
requirements of this division. When such publication is issued
by the regularly constituted central or executive committee of
a political party, organized as provided [514 U.S. 334, 337] in
Chapter 3517. of the Revised Code, it shall be sufficiently
identified if it bears the name of the committee and its
chairman or treasurer. No person, firm, or corporation shall
print or reproduce any notice, placard, dodger,
advertisement, sample ballot, or any other form of publication
in violation of this section. This section does not apply to the
transmittal of personal correspondence that is not reproduced
by machine for general distribution.
"The secretary of state may, by rule, exempt, from the

requirements of this division, printed matter and certain other
kinds of printed communications such as campaign buttons,
balloons, pencils, or like items, the size or nature of which
makes it unreasonable to add an identification or disclaimer.
The disclaimer or identification, when paid for by a campaign
committee, shall be identified by the words `paid for by'
followed by the name and address of the campaign
committee and the appropriate officer of the committee,
identified by name and title."
Section 3599.09(B) contains a comparable prohibition against unidentified

communications uttered over the broadcasting facilities of any radio or
television station. No question concerning that provision is raised in this
case. Our opinion, therefore, discusses only written communications and,
particularly, leaflets of the kind Mrs. McIntyre distributed. Cf. Turner
Broadcasting System, Inc. v. FCC, 512 U.S. ___, ___-___ (1994) (slip op., at
___-___) (discussing application of First Amendment principles to regulation
of television and radio).
The complaint against Mrs. McIntyre also alleged violations of two other
provisions of the Ohio Code, but those charges were dismissed and are
not before this Court.
[4] American names such as Mark Twain (Samuel Langhorne Clemens) and O.
Henry (William Sydney Porter) come readily to mind. Benjamin [514 U.S. 334,
350] Franklin employed numerous different pseudonyms. See 2 W. C. Bruce,
Benjamin Franklin Self-Revealed: A Biographical and Critical Study Based
Mainly on His Own Writings, ch. 5 (2d ed. 1923). Distinguished French
authors such as Voltaire (Francois Marie Arouet) and George Sand (Amandine
Aurore Lucie Dupin), and British authors such as George Eliot (Mary Ann
Evans), Charles Lamb (sometimes wrote as "Elia"), and Charles Dickens
(sometimes wrote as "Boz"), also published under assumed names. Indeed, some
believe the works of Shakespeare were actually written by the Earl of Oxford
rather than by William Shaksper of Stratford-on-Avon. See C. Ogburn, The
Mysterious William Shakespeare: The Myth & the Reality (2d ed. 1992); but
see S. Schoenbaum, Shakespeare's Lives (2d ed. 1991) (adhering to the
traditional view that Shaksper was in fact the author). See also Stevens,
The Shakespeare Canon of Statutory Construction, 140 U. Pa. L. Rev. 1373
(1992) (commenting on the competing theories).
[5] Though such a requirement might provide assistance to critics in

evaluating the quality and significance of the writing, it is not indispensable.
To draw an analogy from a nonliterary context, the now-pervasive practice
of grading law school examination papers "blindly" (i.e., under a system in
which the professor does not know whose paper she is grading) indicates

that such evaluations are possible - indeed, perhaps more reliable -- when
any bias associated with the author's identity is prescinded.
[6] That tradition is most famously embodied in the Federalist Papers,

authored by James Madison, Alexander Hamilton, and John Jay, but signed
"Publius." Publius's opponents, the Anti-Federalists, also tended to publish
under pseudonyms: prominent among them were "Cato," believed to be New York
Governor George Clinton; "Centinel," probably Samuel Bryan or his father,
Pennsylvania judge [ 514 U.S. 334, 342] and legislator George Bryan; "The
Federal Farmer," who may have been Richard Henry Lee, a Virginia member of
the Continental Congress and a signer of the Declaration of Independence;
and "Brutus," who may have been Robert Yates, a New York Supreme Court
justice who walked out on the Constitutional Convention. 2 H. Storing, ed.,
The Complete Anti-Federalist (1981). A forerunner of all of these writers
was the pre-Revolutionary War English pamphleteer "Junius," whose true
identity remains a mystery. See J. M. Faragher, ed., The Encyclopedia of
Colonial and Revolutionary America 220 (1990) (positing that "Junius" may
have been Sir Phillip Francis). The "Letters of Junius" were "widely
reprinted in colonial newspapers and lent considerable support to the
revolutionary cause." Powell v. McCormack, 395 U.S. 486, 531, n. 60 (1969).
[7] In his concurring opinion, Justice Harlan added these words:
"Here the State says that this ordinance is aimed at the

prevention of `fraud, deceit, false advertising, negligent use of
words, obscenity, and libel,' in that it will aid in the detection
of those responsible for spreading material of that character.
But the ordinance is not so limited, and I think it will not do
for the State simply to say that the circulation of all
anonymous handbills must be suppressed in order to identify
the distributors of those that may be of an obnoxious
character. In the absence of a more substantial showing as to
Los Angeles' actual experience with the distribution of
obnoxious handbills, such a generality is for me too remote to
furnish a constitutionally acceptable justification for the
deterrent effect on free speech which this all-embracing
ordinance is likely to have." Talley v. California, 362 U.S. 60,
66-67 (1960) (footnote omitted).
[8] Arguably, the disclosure requirement places a more significant burden on

advocates of unpopular causes than on defenders of the status quo. For
purposes of our analysis, however, we assume the statute evenhandedly
burdens all speakers who have a legitimate interest in remaining anonymous.
[9] Covered documents are those "designed to promote the nomination or

election or defeat of a candidate, or to promote the adoption or defeat of
any issue, or to influence the voters in any election ... ." Ohio Rev. Code
Ann. 3599.09(A) (1988).
[10] In Meyer, we unanimously applied strict scrutiny to invalidate an

election-related law making it illegal to pay petition circulators for
obtaining signatures to place an initiative on the state ballot. [514 U.S.
334, 345] 486 U.S. 414 . Similarly, in Burson v. Freeman, 504 U.S. ___
(1992), although the law at issue -- forbidding campaign-related speech
within 100 feet of the entrance to a polling place -- was an
election-related restriction, both the plurality and dissent applied strict
scrutiny because the law was "a facially content-based restriction on
political speech in a public forum." Id., at ___ (slip op., at 6); see also
id., at ___ (slip op., at 3) (KENNEDY, J., concurring); id., at ___ (slip
op., at 1) (STEVENS, J., dissenting).

[11] "Of course, the identity of the source is helpful in evaluating ideas.
But `the best test of truth is the power of the thought to get itself
accepted in the competition of the market' (Abrams v. United States, [250
U.S. 616, 630 (1919) (Holmes, J., dissenting)]). Don't underestimate the
common man. People are intelligent enough to evaluate the source of an
anonymous writing. They can see it is anonymous. They know it is anonymous.
They can evaluate its anonymity along with its message, as long as they are
permitted, as they must be, to read that message. And then, once they have
done so, it is for them to decide what is `responsible', what is valuable,
and what is truth." New York v. Duryea, 76 Misc. 2d 948, 966-967, 351 N. Y.
S. 2d 978, 996 (1974) (striking down similar New York statute as overbroad).
[12] Section 3599.09.1(B) provides:
"No person, during the course of any campaign for nomination or election
to public office or office of a political party, by means of campaign
materials, including sample ballots, an advertisement on radio or television
or in a newspaper or periodical, a public speech, press release, or
otherwise, shall knowingly and with intent to affect the outcome of such
campaign do any of the following:
"(1) Use the title of an office not currently held by a candidate in a
manner that implies that the candidate does currently hold that office
or use the term `re-elect' when the candidate has never been elected
at a primary, general, or special election to the office for which he is
a candidate;
"(2) Make a false statement concerning the formal schooling or
training completed or attempted by a candidate; a degree, diploma,
certificate, scholarship, grant, award, prize, or honor received,
earned, or held by a candidate; or the period of time during which a
candidate attended any school, college, community technical school,
or institution; [ 514 U.S. 334, 349]
"(3) Make a false statement concerning the professional,
occupational, or vocational licenses held by a candidate, or
concerning any position the candidate held for which he received a
salary or wages;
"(4) Make a false statement that a candidate or public official has
been indicted or convicted of a theft offense, extortion, or other
crime involving financial corruption or moral turpitude;
"(5) Make a statement that a candidate has been indicted for any
crime or has been the subject of a finding by the Ohio elections
commission without disclosing the outcome of any legal proceedings
resulting from the indictment or finding;
"(6) Make a false statement that a candidate or official has a record
of treatment or confinement for mental disorder;
"(7) Make a false statement that a candidate or official has been
subjected to military discipline for criminal misconduct or
dishonorably discharged from the armed services;
"(8) Falsely identify the source of a statement, issue statements
under the name of another person without authorization, or falsely
state the endorsement of or opposition to a candidate by a person
or publication;
"(9) Make a false statement concerning the voting record of a
candidate or public official;
"(10) Post, publish, circulate, distribute, or otherwise disseminate a
false statement, either knowing the same to be false or with reckless
disregard of whether it was false or not, concerning a candidate that
is designed to promote the election, nomination, or defeat of the
candidate. As used in this section, `voting record' means the
recorded `yes' or `no' vote on a bill, ordinance, resolution, motion,
amendment, or confirmation." Ohio Rev. Code Ann. 3599.09.1(B)
(1988).

Section 3599.09.2(B) provides:
"No person, during the course of any campaign in advocacy of or in

opposition to the adoption of any ballot proposition or issue, by means of
campaign material, including sample ballots, an advertisement on radio or
television or in a newspaper or periodical, a public speech, a press release,
or otherwise, shall knowingly and with intent to affect the outcome of such
campaign do any of the following:
"(1) Falsely identify the source of a statement, issue statements
under the name of another person without authorization, or falsely
state the endorsement of or opposition to a ballot proposition or
issue by a person or publication;
"(2) Post, publish, circulate, distribute, or otherwise disseminate, a
false statement, either knowing the same to be false or acting with
reckless disregard of whether it was false or not, that is designed to
promote the adoption or defeat of any ballot proposition or issue."
Ohio [514 U.S. 334, 350] Rev. Code Ann. 3599.09.2(B) (1988).
We need not, of course, evaluate the constitutionality of these provisions.

We quote them merely to emphasize that Ohio has addressed directly the
problem of election fraud. To the extent the anonymity ban indirectly seeks
to vindicate the same goals, it is merely a supplement to the above
provisions.
[13] The same can be said with regard to "libel," as many of the
above-quoted election code provisions prohibit false statements about
candidates. To the extent those provisions may be underinclusive, Ohio
courts also enforce the common-law tort of defamation. See, e.g., Varanese
v. Gall, 35 Ohio St. 3d 78, 518 N. E. 2d 1177 (1988) (applying the standard
of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), to an Ohio public
official's state-law libel claim arising from an election-related
advertisement). Like other forms of election fraud, then, Ohio directly
attacks the problem of election-related libel; to the extent that the
anonymity ban serves the same interest, it is merely a supplement.
[14] We stressed the importance of this distinction in Buckley v. Valeo,

424 U.S. 1, 37 (1976):
"Treating these expenses [the expenses incurred by campaign

volunteers] as contributions when made to the candidate's
campaign or at the direction of the candidate or his staff
forecloses an avenue of abuse without limiting actions
voluntarily undertaken by citizens independently of a
candidate's campaign." (omitted.)
Again, in striking down the independent expenditure limitations of the

Federal Election Campaign Act of 1971, 18 U.S.C. 608(e)(1) (1970 ed., [ 514
U.S. 334, 351] Supp. IV) (repealed 1976), we distinguished another section
of the statute ( 608(b), which we upheld) that placed a ceiling on
contributions to a political campaign.
"By contrast, 608(e)(1) limits expenditures for express

advocacy of candidates made totally independently of the
candidate and his campaign. Unlike contributions, such
independent expenditures may well provide little assistance to
the candidate's campaign and indeed may prove
counterproductive. The absence of prearrangement and
coordination of an expenditure with the candidate or his agent
not only undermines the value of the expenditure to the
candidate, but also alleviates the danger that expenditures will

be given as a quid pro quo for improper commitments from

the candidate. Rather than preventing circumvention of the
contribution limitations, 608(e)(1) severely restricts all
independent advocacy despite its substantially diminished
potential for abuse." 424 U.S., at 47.
[15] "The risk of corruption perceived in cases involving candidate

elections, e. g., United States v. Automobile Workers, [ 352 U.S. 567
(1957)]; United States v. CIO, [ 335 U.S. 106 (1948)], simply is not present
in a popular vote on a public issue." First Nat. Bank of Boston v. Bellotti,
435 U.S. 765, 790 (1978) (footnote omitted).
[16] As the Illinois Supreme Court explained in People v. White, 116 Ill. 2d
171, 180, 506 N. E. 2d 1284, 1288 (Ill. 1987), which struck down a similar
statute:
"Implicit in the State's ... justification is the concern that the

public could be misinformed and an election swayed on the
strength of an eleventh-hour anonymous smear campaign to
which the candidate could not meaningfully respond. The
statute cannot be upheld on this ground, however, because it
sweeps within its net a great deal of anonymous speech
completely unrelated to this concern. In the first place, the
statute has no time limit and applies to literature circulated
two months prior to an election as well as that distributed two
days before. The statute also prohibits anonymous literature
supporting or opposing not only candidates, but also
referenda. A public question clearly cannot be the victim of
character assassination."
The temporal breadth of the Ohio statute also distinguishes it from the [
514 U.S. 334, 352] Tennessee law that we upheld in Burson v. Freeman, 504
U.S. ___ (1992). The Tennessee statute forbade electioneering within 100
feet of the entrance to a polling place. It applied only on election day.
The state's interest in preventing voter intimidation and election fraud was
therefore enhanced by the need to prevent last-minute misinformation to
which there is no time to respond. Moreover, Tennessee geographically
confined the reach of its law to a 100-foot no-solicitation zone. By
contrast, the Ohio law forbids anonymous campaign speech wherever it occurs.
[17] "In deciding whether this novel and restrictive gloss on the First
Amendment comports with the Constitution and the precedents of this Court,
we need not survey the outer boundaries of the Amendment's protection of
corporate speech, or address the abstract question whether corporations have
the full measure of rights that individuals enjoy under the First
Amendment." Bellotti, 435 U.S., at 777-778.
In a footnote to that passage, we continued:
"Nor is there any occasion to consider in this case whether,

under different circumstances, a justification for a restriction
on speech that would be inadequate as applied to individuals
might suffice to sustain the same restriction as applied to
corporations, unions, or like entities." Id., at 777-778, n. 13.
[18] "Corporate advertising, unlike some methods of participation in

political campaigns, is likely to be highly visible. Identification of the
source of advertising may be required as a means of disclosure, so that the
people will be able to evaluate the arguments to which they are being
subjected. See Buckley, 424 U.S., at 66-67; United States v. Harriss, 347
U.S. 612, 625-626 (1954). In addition, we emphasized in Buckley the

prophylactic effect of requiring that the source of communication be

disclosed. 424 U.S., at 67 ." Bellotti, 435 U.S., at 792, n. 32.
[19] One of those provisions, addressing contributions by campaign

committees, requires:
"the identification of each person to whom expenditures have

been made by such committee or on behalf of such
committee within the calendar year in an aggregate amount or
value in excess of $100, the amount, date, and purpose of
each such expenditure and the name and address of, and
office sought by, each candidate on whose behalf such
expenditure was made." 2 U.S.C. 434(b) (9) (reprinted [514
U.S. 334, 355] in Buckley, 424 U.S., at 158 ).
A separate provision, 2 U.S.C. 434(e) (reprinted in Buckley, 424 U.S., at

160 ), requires individuals making contributions or expenditures to file
statements containing the same information.
[20] This interest also serves to distinguish United States v. Harriss, 347
U.S. 612 (1954), in which we upheld limited disclosure requirements for
lobbyists. The activities of lobbyists who have direct access to elected
representatives, if undisclosed, may well present the appearance of
corruption.
[21] We note here also that the federal Act, while constitutional on its
face, may not be constitutional in all its applications. Cf. Brown v.
Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87, 88 (1982) (holding
Ohio disclosure requirements unconstitutional as applied to "a minor
political party which historically has been the object of harassment by
government officials and private parties"); Buckley, 424 U.S., at 74
(exempting minor parties from disclosure requirements if they can show "a
reasonable probability that the compelled disclosure of a party's
contributors' names will subject them to threats, harassment, or reprisals
from either Government officials or private parties"). [514 U.S. 334, 334]
JUSTICE GINSBURG, concurring.
The dissent is stirring in its appreciation of democratic values. But I do

not see the Court's opinion as unguided by "bedrock principle," tradition,
or our case law. See post, at 8, 5-9, 9-11. Margaret McIntyre's case, it
seems to me, bears a marked resemblance to Margaret Gilleo's case[1] and
Mary Grace's.[2] All three decisions, I believe, are sound, and hardly
sensational, applications of our First Amendment jurisprudence.
In for a calf is not always in for a cow. The Court's decision finds
unnecessary, overintrusive, and inconsistent with American ideals the
State's imposition of a fine on an individual leafleteer who, within her
local community, spoke her mind, but sometimes not her [514 U.S. 334, 335]
name. We do not thereby hold that the State may not in other, larger
circumstances, require the speaker to disclose its interest by disclosing
its identity. Appropriately leaving open matters not presented by McIntyre's
handbills, the Court recognizes that a State's interest in protecting an
election process "might justify a more limited identification requirement."
Ante, at 19. But the Court has convincingly explained why Ohio lacks "cause
for inhibiting the leafletting at issue here." Ibid.
Footnotes
[1] See City of Ladue v. Gilleo, 512 U.S. ___ (1994), in which we held that
the City of Ladue could not prohibit homeowner Gilleo's display of a small

sign, on her lawn or in a window, opposing war in the Persian Gulf.
[2] Grace was the "lone picketer" who stood on the sidewalk in front of this
Court with a sign containing the text of the First Amendment, prompting us
to exclude public sidewalks from the statutory ban on display of a "flag,
banner, or device" on Court grounds. United States v. Grace, 461 U.S. 171,
183 (1983). [514 U.S. 334, 334]


JUSTICE THOMAS, concurring in the judgment.
I agree with the majority's conclusion that Ohio's election law, Ohio Rev. Code Ann. 3599.09(A), is
inconsistent with the First Amendment. I would apply, however, a different methodology to this case.
Instead of asking whether "an honorable tradition" of anonymous speech has existed throughout
American history, or what the "value" of anonymous speech might be, we should determine whether the
phrase "freedom of speech, or of the press," as originally understood, protected anonymous political
leafletting. I believe that it did.
I
The First Amendment states that the government "shall make no law ... abridging the freedom of speech,
or of the press." U.S. Const., Amdt. 1. When interpreting the Free Speech and Press Clauses, we must be
guided by their original meaning, for "[t]he Constitution is a written instrument. As such its meaning
does not alter. That which it meant when adopted, it means now." South Carolina v. United States, 199
U.S. 437, 448 (1905). We have long recognized that the meaning of the Constitution "must necessarily
depend on the words of the constitution [and] the meaning and [514 U.S. 334, 335] intention of the
convention which framed and proposed it for adoption and ratification to the conventions ... in the
several states." Rhode Island v. Massachusetts, 12 Pet. 657, 721 (1838). See also INS v. Chadha, 462
U.S. 919, 959 (1983). We should seek the original understanding when we interpret the Speech and Press
Clauses, just as we do when we read the Religion Clauses of the First Amendment. When the Framers
did not discuss the precise question at issue, we have turned to "what history reveals was the
contemporaneous understanding of [the Establishment Clause's] guarantees." Lynch v. Donnelly, 465
U.S. 668, 673 (1984). "[T]he line we must draw between the permissible and the impermissible is one
which accords with history and faithfully reflects the understanding of the Founding Fathers." Abington
School Dist. v. Schempp, 374 U.S. 203, 294 (1963) (BRENNAN, J., concurring); see also Lee v.
Weisman, 505 U.S. 577 (1992) (slip op., at 2-3) (SCALIA, J., dissenting).
II
Unfortunately, we have no record of discussions of anonymous political expression either in the First
Congress, which drafted the Bill of Rights, or in the state ratifying conventions. Thus, our analysis must
focus on the practices and beliefs held by the Founders concerning anonymous political articles and
pamphlets. As an initial matter, we can safely maintain that the leaflets at issue in this case implicate the
freedom of the press. When the Framers thought of the press, they did not envision the large, corporate
newspaper and television establishments of our modern world. Instead, they employed the term "the
press" to refer to the many independent printers who circulated small newspapers or published a writer's
pamphlets for a fee. See generally B. Bailyn & J. Hench, The Press & the American Revolution (1980);
L. Levy, Emergence of a Free Press (1985); [514 U.S. 334, 336] B. Bailyn, The Ideological Origins of the
American Revolution (1967). "It was in this form – as pamphlets – that much of the most important and
characteristic writing of the American Revolution occurred." 1 B. Bailyn, Pamphlets of the American
Revolution 3 (1965). This practice continued during the struggle for ratification. See, e.g., Pamphlets on
the Constitution of the United States (P. Ford, ed. 1888). Regardless of whether one designates the right

involved here as one of press or one of speech, however, it makes little difference in terms of our
analysis, which seeks to determine only whether the First Amendment, as originally understood, protects
anonymous writing.
There is little doubt that the Framers engaged in anonymous political writing. The essays in the
Federalist Papers, published under the pseudonym of "Publius," are only the most famous example of the
outpouring of anonymous political writing that occurred during the ratification of the Constitution. Of
course, the simple fact that the Framers engaged in certain conduct does not necessarily prove that they
forbade its prohibition by the government. See post, at 4 (SCALIA, J., dissenting). In this case, however,
the historical evidence indicates that Founding-era Americans opposed attempts to require that
anonymous authors reveal their identities on the ground that forced disclosure violated the "freedom of
the press."
For example, the earliest and most famous American experience with freedom of the press, the 1735
Zenger trial, centered around anonymous political pamphlets. The case involved a printer, John Peter
Zenger, who refused to reveal the anonymous authors of published attacks on the Crown governor of
New York. When the governor and his council could not discover the identity of the authors, they
prosecuted Zenger himself for seditious libel. See J. Alexander, A Brief Narrative of the Case and Trial
of John Peter Zenger 9-19 (S. Katz [514 U.S. 334, 337] ed. 1972). Although the case set the colonies afire
for its example of a jury refusing to convict a defendant of seditious libel against Crown authorities, it
also signified at an early moment the extent to which anonymity and the freedom of the press were
intertwined in the early American mind.
During the Revolutionary and Ratification periods, the Framers' understanding of the relationship
between anonymity and freedom of the press became more explicit. In 1779, for example, the
Continental Congress attempted to discover the identity of an anonymous article in the Pennsylvania
Packet signed by the name "Leonidas." Leonidas, who actually was Dr. Benjamin Rush, had attacked the
members of Congress for causing inflation throughout the States and for engaging in embezzelment and
fraud. 13 Letters of Delegates to Congress 1774-1789, p. 141 n. 1 (G. Gawalt & R. Gephart eds. 1986).
Elbridge Gerry, a delegate from Massachusetts, moved to haul the printer of the newspaper before
Congress to answer questions concerning "Leonidas." Several members of Congress then rose to oppose
Gerry's motion on the ground that it invaded the freedom of the press. Merriweather Smith of Virginia
rose, quoted from the offending article with approval, and then finished with a declaration that "[w]hen
the liberty of the Press shall be restrained ... the liberties of the People will be at an end." Henry Laurens,
Notes of Debates, July 3, 1779, id., at 139. Supporting Smith, John Penn of North Carolina argued that
the writer "no doubt had good designs," and that "[t]he liberty of the Press ought not to be restrained."
Ibid. In the end, these arguments persuaded the assembled delegates, who "sat mute" in response to
Gerry's motion. Id., at 141. Neither the printer nor Dr. Rush ever appeared before Congress to answer for
their publication. D. Teeter, Press Freedom and the Public Printing: Pennsylvania, 1775-83, 45
Journalism Q. 445, 451 (1968). [514 U.S. 334, 338]
At least one of the state legislatures shared Congress' view that the freedom of the press protected
anonymous writing. Also in 1779, the upper house of the New Jersey State Legislature attempted to
punish the author of a satirical attack on the Governor and the College of New Jersey (now Princeton)
who had signed his work "Cincinnatus." R. Hixson, Isaac Collins: A Quaker Printer in 18th Century
America 95 (1968). Attempting to enforce the crime of seditious libel, the state Legislative Council
ordered Isaac Collins – the printer and editor of the newspaper in which the article had appeared – to

reveal the author's identity. Refusing, Collins declared: "`Were I to comply ... I conceive I should betray
the trust reposed in me, and be far from acting as a faithful guardian of the Liberty of the Press.'" Id., at
96. Apparently, the State Assembly agreed that anonymity was protected by the freedom of the press, as
it voted to support the editor and publisher by frustrating the Council's orders. Id., at 95.
By 1784, the same governor of New Jersey, William Livingston, was at work writing anonymous articles
that defended the right to publish anonymously as part of the freedom of the press. Under the pseudonym
"Scipio," Livingston wrote several articles attacking the Legislature's failure to lower taxes, and he
accused a state officer of stealing or losing state funds during the British invasion of New Jersey. Id., at
107-109; Scipio, Letter to the Printer, Feb. 24, 1784, The New-Jersey Gazette. Responding to the
allegations, the officer called upon Scipio "to avow your publication, give up your real name." S. Tucker,
To Scipio, Mar. 2, 1784, The New-Jersey Gazette. Livingston replied with a four-part series defending
"the Liberty of the Press." Although Livingston at first defended anonymity because it encouraged
authors to discuss politics without fear of reprisal, he ultimately invoked the liberty of the press as the
guardian for anonymous political writing. "I hope [514 U.S. 334, 339] [Tucker] is not seriously bent upon a
total subversion of our political system," Scipio wrote. "And pray may not a man, in a free country,
convey thro' the press his sentiments on publick grievances ... without being obliged to send a certified
copy of the baptismal register to prove his name." Scipio, On the Liberty of the Press IV, Apr. 26, 1784,
The New-Jersey Gazette.
To be sure, there was some controversy among newspaper editors over publishing anonymous articles
and pamphlets. But this controversy was resolved in a manner that indicates that the freedom of the press
protected an author's anonymity. The tempest began when a Federalist, writing anonymously himself,
expressed fear that "emissaries" of "foreign enemies" would attempt to scuttle the Constitution by
"fill[ing] the press with objections" against the proposal. Boston Independent Chronicle, Oct. 4, 1787, 13
Documentary History of the Ratification of the Constitution 315 (J. Kaminski & G. Saladino eds. 1981)
(hereinafter Documentary History). He called upon printers to refrain from publishing when the author
"chooses to remain concealed." Ibid. Benjamin Russell, the editor of the prominent Federalist newspaper
the Massachusetts Centinel, immediately adopted a policy of refusing to publish Anti-Federalist pieces
unless the author provided his identity to be "handed to the publick, if required." Massachusetts Centinel,
Oct. 10, 1787, id., at 312, 315-316. A few days later, the Massachusetts Gazette announced that it would
emulate the example set by the Massachusetts Centinel. Massachusetts Gazette, Oct. 16, 1787, id., at
317. In the same issue, the Gazette carried an article claiming that requiring an anonymous writer to
leave his name with the printer, so that anyone who wished to know his identity could be informed,
"appears perfectly reasonable, and is perfectly consistent with the liberty of the press." A Citizen,
Massachusetts Gazette, Oct. 16, 1787, id., at 316. Federalists expressed similar [514 U.S. 334, 340]
thoughts in Philadelphia. See A Philadelphia Mechanic, Philadelphia Independent Gazetteer, Oct. 29,
1787, id., at 318-319; Galba, Philadelphia Independent Gazetteer, Oct. 31, 1787, id., at 319. The Jewel,
Philadelphia Independent Gazetteer, Nov. 2, 1787, id., at 320.
Ordinarily, the fact that some Founding-era editors as a matter of policy decided not to publish
anonymous articles would seem to shed little light upon what the framers thought the government could
do. The widespread criticism raised by the Anti-Federalists, however, who were the driving force behind
the demand for a Bill of Rights, indicates that they believed the freedom of the press to include the right
to author anonymous political articles and pamphlets.[1] That most other Americans shared this
understanding is reflected in the Federalists' hasty retreat before the withering criticism of their assault on
the liberty of the press.

Opposition to Russell's declaration centered in Philadelphia. Three Philadelphia papers published the
"Citizen" piece that had run in the Massachusetts Gazette. Id., at 318-320.2 In response, one of the
leading Anti-Federalist writers, the "Federal Farmer," attacked Russell's policy: "What can be the views
of those gentlemen in Boston, who countenanced the Printers in shutting up the press against a fair and
free investigation of this important system in the usual [514 U.S. 334, 341] way?" Letter From the Federal
Farmer No. 5, Oct. 13, 1787, 2 The Complete Anti-Federalist 254 (H. Storing ed. 1981). Another
Anti-Federalist, "Philadelphiensis," also launched a substantial attack on Russell and his defenders for
undermining the freedom of the press. "In this desperate situation of affairs ... the friends of this despotic
scheme of government, were driven to the last and only alternative from which there was any probability
of success; namely, the abolition of the freedom of the Press." Philadelphiensis, Essay I, Independent
Gazetteer, Nov. 7, 1787, 3 id., at 102. In Philadelphiensis' eyes, Federalist attempts to suppress the
Anti-Federalist press by requiring the disclosure of authors' identities only foreshadowed the oppression
permitted by the new Constitution. "Here we see pretty plainly through [the Federalists'] excellent
regulation of the press, how things are to be carried on after the adoption of the new constitution." Id., at
103. According to Philadelphiensis, Federalist policies had already ruined freedom in Massachusetts: "In
Boston the liberty of the press is now completely abolished; and hence all other privileges and rights of
the people will in a short time be destroyed." Id., at 104.
Not limited to Philadelphia, the Anti-Federalist attack was repeated widely throughout the States. In New
York, one writer exclaimed that the Federalist effort to suppress anonymity would "reverse the important
doctrine of the freedom of the press," whose "truth" was "universally acknowledged." Detector, New
York Journal, Oct. 25, 1787, in Documentary History 318. "Detector" proceeded to proclaim that that
Russell's policy was "the introduction of this first trait of slavery into your country!" Ibid. Responding to
the Federalist editorial policy, a Rhode Island Anti-Federalist wrote: "The Liberty of the Press, or the
Liberty which every Person in the United States at present enjoys ... is a Privilege of infinite Importance
... for which ... we have fought [514 U.S. 334, 342] and bled," and that the attempt by "our aristocratical
Gentry, to have every Person's Name published who should write against the proposed Federal
Constitution, has given many of us a just Alarm." Argus, Providence United States Chronicle, Nov. 8,
1787, id., at 320-321. Edward Powars, editor of the Anti-Federalist Boston American Herald, proclaimed
that his pages would remain "free and open to all parties." Boston American Herald, Oct. 15, 1787, id., at
316. In the Boston Independent Chronicle of Oct. 18, 1787, "Solon" accused Russell of attempting to
undermine a "freedom and independence of sentiments" which "should never be checked in a free
country" and was "so essential to the existance of free Governments." Id., at 313.
The controversy over Federalist attempts to prohibit anonymous political speech is significant for several
reasons. First, the Anti-Federalists clearly believed the right to author and publish anonymous political
articles and pamphlets was protected by the liberty of the press. Second, although printers' editorial
policies did not constitute state action, the Anti-Federalists believed that the Federalists were merely
flexing the governmental powers they would fully exercise upon the Constitution's ratification. Third,
and perhaps most significantly, it appears that the Federalists agreed with the Anti-Federalist critique. In
Philadelphia, where opposition to the ban was strongest, there is no record that any newspaper adopted
the non-anonymity policy, nor that of any city or State aside from Russell's Massachusetts Centinel and
the Federalist Massachusetts Gazette. Moreover, these two papers' bark was worse than their bite. In the
face of widespread criticism, it appears that Russell retreated from his policy and, as he put it, "`readily'"
reprinted several anonymous Federalist and Anti-Federalist essays to show that claims that he had

suppressed freedom of the press "`had not any foundation in truth.'" 13 Documentary History 313-314.
[514 U.S. 334, 343] Likewise, the Massachusetts Gazette refused to release the names of Anti-Federalist
writers when requested. Ibid. When Federalist attempts to ban anonymity are followed by a sharp,
widespread Anti-Federalist defense in the name of the freedom of the press, and then by an open
Federalist retreat on the issue, I must conclude that both Anti-Federalists and Federalists believed that the
freedom of the press included the right to publish without revealing the author's name.
III
The historical record is not as complete or as full as I would desire. For example, there is no evidence
that, after the adoption of the First Amendment, the Federal Government attempted to require writers to
attach their names to political documents. Nor do we have any indication that the federal courts of the
early Republic would have squashed such an effort as a violation of the First Amendment. The
understanding described above, however, when viewed in light of the Framers' universal practice of
publishing anonymous articles and pamphlets, indicates that the Framers shared the belief that such
activity was firmly part of the freedom of the press. It is only an innovation of modern times that has
permitted the regulation of anonymous speech.
The large quantity of newspapers and pamphlets the Framers produced during the various crises of their
generation show the remarkable extent to which the Framers relied upon anonymity. During the break
with Great Britain, the revolutionaries employed pseudonyms both to conceal their identity from Crown
authorities and to impart a message. Often, writers would choose names to signal their point of view or to
invoke specific classical and modern "crusaders in an agelong struggle against tyranny." A. Schlesinger,
Prelude to Independence 35 (1958). Thus, leaders of the struggle for independence would adopt
descriptive names such as [514 U.S. 334, 344] "Common Sense," a "Farmer," or "A True Patriot," or
historical ones such as "Cato" (a name used by many to refer to the Roman Cato and to Cato's letters), or
"Mucius Scaevola." Id., at xii-xiii. The practice was even more prevalent during the great outpouring of
political argument and commentary that accompanied the ratification of the Constitution. Besides
"Publius," prominent Federalists signed their articles and pamphlets with names such as "An American
Citizen," "Marcus," "A Landholder," "Americanus"; Anti-Federalists replied with the pseudonyms
"Cato," "Centinel," "Brutus," the "Federal Farmer," and "The Impartial Examiner." See generally 1-2
Debate on the Constitution (B. Bailyn ed. 1993). The practice of publishing one's thoughts anonymously
or under pseudonym was so widespread that only two major Federalist or Anti-Federalist pieces appear
to have been signed by their true authors, and they may have had special reasons to do so.[3]
If the practice of publishing anonymous articles and pamphlets fell into disuse after the Ratification, one
might infer that the custom of anonymous political speech arose only in response to the unusual
conditions of the 1776-1787 period. After all, the Revolution and the Ratification were not "elections,"
per se, either for candidates or for discrete issues. Records from the first federal elections indicate,
however, that anonymous political pamphlets and newspaper articles remained the [514 U.S. 334, 345]
favorite medium for expressing views on candidates. In Pennsylvania, for example, writers for or against
the Federalist and Anti-Federalist candidates wrote under the names "Numa," "Pompilius," "A Friend to
Agriculture, Trade, and Good Laws," "A Federal Centinel," a "Freeman," "Centinel," "A Real Patriot to
All True Federalists," "A Mechanic," "Justice," "A German Federalist," and so on. See generally 1
Documentary History of the First Federal Elections 1788-1790, pp. 246-362 (M. Jensen & R. Becker
eds. 1976). This appears to have been the practice in all of the major states of which we have substantial

records today. See 1 id., at 446-464 (Massachusetts); 2 id., at 108-122, 175-229 (Maryland); 2 id., at
387-397 (Virginia); 3 id., at 204-216, 436-493 (New York). It seems that actual names were used rarely,
and usually only by candidates who wanted to explain their positions to the electorate.
The use of anonymous writing extended to issues as well as candidates. The ratification of the
Constitution was not the only issue discussed via anonymous writings in the press. James Madison and
Alexander Hamilton, for example, resorted to pseudonyms in the famous "Helvidius" and "Pacificus"
debates over President Washington's declaration of neutrality in the war between the British and French.
See Hamilton, Pacificus No. 1, June 29, 1793, 15 Papers of Alexander Hamilton 33-43 (H. Syrett ed.
1969); Madison, Helvidius No. 1, Aug. 24, 1793, 15 Papers of James Madison 66-73 (T. Mason et al.
eds. 1985). Anonymous writings continued in such Republican papers as the Aurora and Federalists
organs such as the Gazette of the United States at least until the election of Thomas Jefferson. See
generally, J. Smith, Freedom's Fetters (1956).
IV
This evidence leads me to agree with the majority's result, but not its reasoning. The majority fails to
seek [514 U.S. 334, 346] the original understanding of the First Amendment, and instead attempts to
answer the question in this case by resorting to three approaches. First, the majority recalls the historical
practice of anonymous writing from Shakespeare's works to the Federalist Papers to Mark Twain. Ante,
at 6-7, 23. Second, it finds that anonymous speech has an expressive value both to the speaker and to
society that outweighs public interest in disclosure. Third, it finds that 3599.09(A) cannot survive strict
scrutiny because it is a "content-based" restriction on speech.
I cannot join the majority's analysis because it deviates from our settled approach to interpreting the
Constitution and because it superimposes its modern theories concerning expression upon the
constitutional text. Whether "great works of literature" – by Voltaire or George Eliot have been published
anonymously should be irrelevant to our analysis, because it sheds no light on what the phrases "free
speech" or "free press" meant to the people who drafted and ratified the First Amendment. Similarly,
whether certain types of expression have "value" today has little significance; what is important is
whether the Framers in 1791 believed anonymous speech sufficiently valuable to deserve the protection
of the Bill of Rights. And although the majority faithfully follows our approach to "content-based"
speech regulations, we need not undertake this analysis when the original understanding provides the
answer.
While, like JUSTICE SCALIA, I am loath to overturn a century of practice shared by almost all of the
States, I believe the historical evidence from the framing outweighs recent tradition. When interpreting
other provisions of the Constitution, this Court has believed itself bound by the text of the Constitution
and by the intent of those who drafted and ratified it. It should hold itself to no less a standard when
interpreting the Speech [514 U.S. 334, 347] and Press Clauses. After reviewing the weight of the historical
evidence, it seems that the Framers understood the First Amendment to protect an author's right to
express his thoughts on political candidates or issues in an anonymous fashion. Because the majority has
adopted an analysis that is largely unconnected to the Constitution's text and history, I concur only in the
judgment.

Footnotes
[1] The Anti-Federalists recognized little difficulty in what today would be a state action problem,
because they considered Federalist conduct in supporting the Constitution as a preview of the tyranny to
come under the new Federal Government.
[2] As noted earlier, several pieces in support appeared in the Federalist newspaper, the Philadelphia
Independent Gazetteer. They were immediately answered by two Anti-Federalists in the Philadelphia
Freeman's Journal. These Anti-Federalists accused the Federalists of "preventing that freedom of
enquiry which truth and honour never dreads, but which tyrants and tyranny could never endure." 13
Documentary History, at 317-318.
[3] See Mason, Objections to the Constitution, Virginia Journal, Nov. 22, 1787, 1 Debate on the
Constitution 345 (B. Bailyn ed. 1993); Martin, The Genuine Information, Maryland Gazette, Dec. 28,
1787-Feb. 8, 1788, id., at 631. Both men may have made an exception to the general practice because
they both had attended the Philadelphia Convention, but had refused to sign the Constitution. As leaders
of the fight against ratification, both men may have believed that they owed a personal explanation to
their constituents of their decision not to sign. [514 U.S. 334, 334]

JUSTICE THOMAS, concurring in the judgment.
I agree with the majority's conclusion that Ohio's election law, Ohio Rev.
Code Ann. 3599.09(A), is inconsistent with the First Amendment. I would
apply, however, a different methodology to this case. Instead of asking
whether "an honorable tradition" of anonymous speech has existed throughout
American history, or what the "value" of anonymous speech might be, we
should determine whether the phrase "freedom of speech, or of the press," as
originally understood, protected anonymous political leafletting. I believe
that it did.
The First Amendment states that the government "shall make no law ...
abridging the freedom of speech, or of the press." U.S. Const., Amdt. 1.
When interpreting the Free Speech and Press Clauses, we must be guided by
their original meaning, for "[t]he Constitution is a written instrument. As
such its meaning does not alter. That which it meant when adopted, it means
now." South Carolina v. United States, 199 U.S. 437, 448 (1905). We have
long recognized that the meaning of the Constitution "must necessarily
depend on the words of the constitution [and] the meaning and [514 U.S. 334,
335] intention of the convention which framed and proposed it for adoption
and ratification to the conventions ... in the several states." Rhode Island
v. Massachusetts, 12 Pet. 657, 721 (1838). See also INS v. Chadha, 462 U.S.
919, 959 (1983). We should seek the original understanding when we interpret
the Speech and Press Clauses, just as we do when we read the Religion
Clauses of the First Amendment. When the Framers did not discuss the precise
question at issue, we have turned to "what history reveals was the
contemporaneous understanding of [the Establishment Clause's] guarantees."
Lynch v. Donnelly, 465 U.S. 668, 673 (1984). "[T]he line we must draw
between the permissible and the impermissible is one which accords with
history and faithfully reflects the understanding of the Founding Fathers."
Abington School Dist. v. Schempp, 374 U.S. 203, 294 (1963) (BRENNAN, J.,
concurring); see also Lee v. Weisman, 505 U.S. 577 (1992) (slip op., at 2-3)
(SCALIA, J., dissenting).
II
Unfortunately, we have no record of discussions of anonymous political

expression either in the First Congress, which drafted the Bill of Rights,
or in the state ratifying conventions. Thus, our analysis must focus on the
practices and beliefs held by the Founders concerning anonymous political
articles and pamphlets. As an initial matter, we can safely maintain that
the leaflets at issue in this case implicate the freedom of the press. When
the Framers thought of the press, they did not envision the large, corporate
newspaper and television establishments of our modern world. Instead, they
employed the term "the press" to refer to the many independent printers who
circulated small newspapers or published a writer's pamphlets for a fee. See
generally B. Bailyn & J. Hench, The Press & the American Revolution (1980);
L. Levy, Emergence of a Free Press (1985); [514 U.S. 334, 336] B. Bailyn,
The Ideological Origins of the American Revolution (1967). "It was in this
form -- as pamphlets -- that much of the most important and characteristic
writing of the American Revolution occurred." 1 B. Bailyn, Pamphlets of the
American Revolution 3 (1965). This practice continued during the struggle
for ratification. See, e.g., Pamphlets on the Constitution of the United
States (P. Ford, ed. 1888). Regardless of whether one designates the right
involved here as one of press or one of speech, however, it makes little
difference in terms of our analysis, which seeks to determine only whether
the First Amendment, as originally understood, protects anonymous writing.

There is little doubt that the Framers engaged in anonymous political

writing. The essays in the Federalist Papers, published under the pseudonym
of "Publius," are only the most famous example of the outpouring of
anonymous political writing that occurred during the ratification of the
Constitution. Of course, the simple fact that the Framers engaged in certain
conduct does not necessarily prove that they forbade its prohibition by the
government. See post, at 4 (SCALIA, J., dissenting). In this case, however,
the historical evidence indicates that Founding-era Americans opposed
attempts to require that anonymous authors reveal their identities on the
ground that forced disclosure violated the "freedom of the press."
For example, the earliest and most famous American experience with freedom
of the press, the 1735 Zenger trial, centered around anonymous political
pamphlets. The case involved a printer, John Peter Zenger, who refused to
reveal the anonymous authors of published attacks on the Crown governor of
New York. When the governor and his council could not discover the identity
of the authors, they prosecuted Zenger himself for seditious libel. See J.
Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 9-19
(S. Katz [514 U.S. 334, 337] ed. 1972). Although the case set the colonies
afire for its example of a jury refusing to convict a defendant of seditious
libel against Crown authorities, it also signified at an early moment the
extent to which anonymity and the freedom of the press were intertwined in
the early American mind.
During the Revolutionary and Ratification periods, the Framers'

understanding of the relationship between anonymity and freedom of the press
became more explicit. In 1779, for example, the Continental Congress
attempted to discover the identity of an anonymous article in the
Pennsylvania Packet signed by the name "Leonidas." Leonidas, who actually
was Dr. Benjamin Rush, had attacked the members of Congress for causing
inflation throughout the States and for engaging in embezzelment and fraud.
13 Letters of Delegates to Congress 1774-1789, p. 141 n. 1 (G. Gawalt & R.
Gephart eds. 1986). Elbridge Gerry, a delegate from Massachusetts, moved to
haul the printer of the newspaper before Congress to answer questions
concerning "Leonidas." Several members of Congress then rose to oppose
Gerry's motion on the ground that it invaded the freedom of the press.
Merriweather Smith of Virginia rose, quoted from the offending article with
approval, and then finished with a declaration that "[w]hen the liberty of
the Press shall be restrained ... the liberties of the People will be at an
end." Henry Laurens, Notes of Debates, July 3, 1779, id., at 139. Supporting
Smith, John Penn of North Carolina argued that the writer "no doubt had good
designs," and that "[t]he liberty of the Press ought not to be restrained."
Ibid. In the end, these arguments persuaded the assembled delegates, who
"sat mute" in response to Gerry's motion. Id., at 141. Neither the printer
nor Dr. Rush ever appeared before Congress to answer for their publication.
D. Teeter, Press Freedom and the Public Printing: Pennsylvania, 1775-83, 45
Journalism Q. 445, 451 (1968). [514 U.S. 334, 338]
At least one of the state legislatures shared Congress' view that the
freedom of the press protected anonymous writing. Also in 1779, the upper
house of the New Jersey State Legislature attempted to punish the author of
a satirical attack on the Governor and the College of New Jersey (now
Princeton) who had signed his work "Cincinnatus." R. Hixson, Isaac Collins:
A Quaker Printer in 18th Century America 95 (1968). Attempting to enforce
the crime of seditious libel, the state Legislative Council ordered Isaac
Collins -- the printer and editor of the newspaper in which the article had
appeared -- to reveal the author's identity. Refusing, Collins declared:
"`Were I to comply ... I conceive I should betray the trust reposed in me,
and be far from acting as a faithful guardian of the Liberty of the
Press.'" Id., at 96. Apparently, the State Assembly agreed that anonymity

was protected by the freedom of the press, as it voted to support the editor
and publisher by frustrating the Council's orders. Id., at 95.
By 1784, the same governor of New Jersey, William Livingston, was at work
writing anonymous articles that defended the right to publish anonymously as
part of the freedom of the press. Under the pseudonym "Scipio," Livingston
wrote several articles attacking the Legislature's failure to lower taxes,
and he accused a state officer of stealing or losing state funds during the
British invasion of New Jersey. Id., at 107-109; Scipio, Letter to the
Printer, Feb. 24, 1784, The New-Jersey Gazette. Responding to the
allegations, the officer called upon Scipio "to avow your publication, give
up your real name." S. Tucker, To Scipio, Mar. 2, 1784, The New-Jersey
Gazette. Livingston replied with a four-part series defending "the Liberty
of the Press." Although Livingston at first defended anonymity because it
encouraged authors to discuss politics without fear of reprisal, he
ultimately invoked the liberty of the press as the guardian for anonymous
political writing. "I hope [514 U.S. 334, 339] [Tucker] is not seriously
bent upon a total subversion of our political system," Scipio wrote. "And
pray may not a man, in a free country, convey thro' the press his sentiments
on publick grievances ... without being obliged to send a certified copy of
the baptismal register to prove his name." Scipio, On the Liberty of the
Press IV, Apr. 26, 1784, The New-Jersey Gazette.
To be sure, there was some controversy among newspaper editors over

publishing anonymous articles and pamphlets. But this controversy was
resolved in a manner that indicates that the freedom of the press protected
an author's anonymity. The tempest began when a Federalist, writing
anonymously himself, expressed fear that "emissaries" of "foreign enemies"
would attempt to scuttle the Constitution by "fill[ing] the press with
objections" against the proposal. Boston Independent Chronicle, Oct. 4,
1787, 13 Documentary History of the Ratification of the Constitution 315 (J.
Kaminski & G. Saladino eds. 1981) (hereinafter Documentary History). He
called upon printers to refrain from publishing when the author "chooses to
remain concealed." Ibid. Benjamin Russell, the editor of the prominent
Federalist newspaper the Massachusetts Centinel, immediately adopted a
policy of refusing to publish Anti-Federalist pieces unless the author
provided his identity to be "handed to the publick, if required."
Massachusetts Centinel, Oct. 10, 1787, id., at 312, 315-316. A few days
later, the Massachusetts Gazette announced that it would emulate the example
set by the Massachusetts Centinel. Massachusetts Gazette, Oct. 16, 1787,
id., at 317. In the same issue, the Gazette carried an article claiming that
requiring an anonymous writer to leave his name with the printer, so that
anyone who wished to know his identity could be informed, "appears perfectly
reasonable, and is perfectly consistent with the liberty of the press." A
Citizen, Massachusetts Gazette, Oct. 16, 1787, id., at 316. Federalists
expressed similar [514 U.S. 334, 340] thoughts in Philadelphia. See A
Philadelphia Mechanic, Philadelphia Independent Gazetteer, Oct. 29, 1787,
id., at 318-319; Galba, Philadelphia Independent Gazetteer, Oct. 31, 1787,
id., at 319. The Jewel, Philadelphia Independent Gazetteer, Nov. 2, 1787,
id., at 320.
Ordinarily, the fact that some Founding-era editors as a matter of policy

decided not to publish anonymous articles would seem to shed little light
upon what the framers thought the government could do. The widespread
criticism raised by the Anti-Federalists, however, who were the driving
force behind the demand for a Bill of Rights, indicates that they believed
the freedom of the press to include the right to author anonymous political
articles and pamphlets.[1] That most other Americans shared this
understanding is reflected in the Federalists' hasty retreat before the
withering criticism of their assault on the liberty of the press.

Opposition to Russell's declaration centered in Philadelphia. Three

Philadelphia papers published the "Citizen" piece that had run in the
Massachusetts Gazette. Id., at 318-320.2 In response, one of the leading
Anti-Federalist writers, the "Federal Farmer," attacked Russell's policy:
"What can be the views of those gentlemen in Boston, who countenanced the
Printers in shutting up the press against a fair and free investigation of
this important system in the usual [514 U.S. 334, 341] way?" Letter From
the Federal Farmer No. 5, Oct. 13, 1787, 2 The Complete Anti-Federalist 254
(H. Storing ed. 1981). Another Anti-Federalist, "Philadelphiensis," also
launched a substantial attack on Russell and his defenders for undermining
the freedom of the press. "In this desperate situation of affairs ... the
friends of this despotic scheme of government, were driven to the last and
only alternative from which there was any probability of success; namely,
the abolition of the freedom of the Press." Philadelphiensis, Essay I,
Independent Gazetteer, Nov. 7, 1787, 3 id., at 102. In Philadelphiensis'
eyes, Federalist attempts to suppress the Anti-Federalist press by requiring
the disclosure of authors' identities only foreshadowed the oppression
permitted by the new Constitution. "Here we see pretty plainly through [the
Federalists'] excellent regulation of the press, how things are to be
carried on after the adoption of the new constitution." Id., at 103.
According to Philadelphiensis, Federalist policies had already ruined
freedom in Massachusetts: "In Boston the liberty of the press is now
completely abolished; and hence all other privileges and rights of the
people will in a short time be destroyed." Id., at 104.
Not limited to Philadelphia, the Anti-Federalist attack was repeated widely

throughout the States. In New York, one writer exclaimed that the Federalist
effort to suppress anonymity would "reverse the important doctrine of the
freedom of the press," whose "truth" was "universally acknowledged."
Detector, New York Journal, Oct. 25, 1787, in Documentary History 318.
"Detector" proceeded to proclaim that that Russell's policy was "the
introduction of this first trait of slavery into your country!" Ibid.
Responding to the Federalist editorial policy, a Rhode Island
Anti-Federalist wrote: "The Liberty of the Press, or the Liberty which every
Person in the United States at present enjoys ... is a Privilege of infinite
Importance ... for which ... we have fought [514 U.S. 334, 342] and bled,"
and that the attempt by "our aristocratical Gentry, to have every Person's
Name published who should write against the proposed Federal Constitution,
has given many of us a just Alarm." Argus, Providence United States
Chronicle, Nov. 8, 1787, id., at 320-321. Edward Powars, editor of the
Anti-Federalist Boston American Herald, proclaimed that his pages would
remain "free and open to all parties." Boston American Herald, Oct. 15,
1787, id., at 316. In the Boston Independent Chronicle of Oct. 18, 1787,
"Solon" accused Russell of attempting to undermine a "freedom and
independence of sentiments" which "should never be checked in a free
country" and was "so essential to the existance of free Governments." Id.,
at 313.
The controversy over Federalist attempts to prohibit anonymous political

speech is significant for several reasons. First, the Anti-Federalists
clearly believed the right to author and publish anonymous political
articles and pamphlets was protected by the liberty of the press. Second,
although printers' editorial policies did not constitute state action, the
Anti-Federalists believed that the Federalists were merely flexing the
governmental powers they would fully exercise upon the Constitution's
ratification. Third, and perhaps most significantly, it appears that the
Federalists agreed with the Anti-Federalist critique. In Philadelphia,
where opposition to the ban was strongest, there is no record that any
newspaper adopted the non-anonymity policy, nor that of any city or State
aside from Russell's Massachusetts Centinel and the Federalist Massachusetts
Gazette. Moreover, these two papers' bark was worse than their bite. In the

face of widespread criticism, it appears that Russell retreated from his

policy and, as he put it, "`readily'" reprinted several anonymous
Federalist and Anti-Federalist essays to show that claims that he had
suppressed freedom of the press "`had not any foundation in truth.'" 13
Documentary History 313-314. [514 U.S. 334, 343] Likewise, the
Massachusetts Gazette refused to release the names of Anti-Federalist
writers when requested. Ibid. When Federalist attempts to ban anonymity are
followed by a sharp, widespread Anti-Federalist defense in the name of the
freedom of the press, and then by an open Federalist retreat on the issue, I
must conclude that both Anti-Federalists and Federalists believed that the
freedom of the press included the right to publish without revealing the
author's name.
III
The historical record is not as complete or as full as I would desire. For

example, there is no evidence that, after the adoption of the First
Amendment, the Federal Government attempted to require writers to attach
their names to political documents. Nor do we have any indication that the
federal courts of the early Republic would have squashed such an effort as a
violation of the First Amendment. The understanding described above,
however, when viewed in light of the Framers' universal practice of
publishing anonymous articles and pamphlets, indicates that the Framers
shared the belief that such activity was firmly part of the freedom of the
press. It is only an innovation of modern times that has permitted the
regulation of anonymous speech.
The large quantity of newspapers and pamphlets the Framers produced during
the various crises of their generation show the remarkable extent to which
the Framers relied upon anonymity. During the break with Great Britain, the
revolutionaries employed pseudonyms both to conceal their identity from
Crown authorities and to impart a message. Often, writers would choose names
to signal their point of view or to invoke specific classical and modern
"crusaders in an agelong struggle against tyranny." A. Schlesinger, Prelude
to Independence 35 (1958). Thus, leaders of the struggle for independence
would adopt descriptive names such as [514 U.S. 334, 344] "Common Sense," a
"Farmer," or "A True Patriot," or historical ones such as "Cato" (a name
used by many to refer to the Roman Cato and to Cato's letters), or "Mucius
Scaevola." Id., at xii-xiii. The practice was even more prevalent during the
great outpouring of political argument and commentary that accompanied the
ratification of the Constitution. Besides "Publius," prominent Federalists
signed their articles and pamphlets with names such as "An American
Citizen," "Marcus," "A Landholder," "Americanus"; Anti-Federalists replied
with the pseudonyms "Cato," "Centinel," "Brutus," the "Federal Farmer," and
"The Impartial Examiner." See generally 1-2 Debate on the Constitution (B.
Bailyn ed. 1993). The practice of publishing one's thoughts anonymously or
under pseudonym was so widespread that only two major Federalist or
Anti-Federalist pieces appear to have been signed by their true authors, and
they may have had special reasons to do so.[3]
If the practice of publishing anonymous articles and pamphlets fell into

disuse after the Ratification, one might infer that the custom of anonymous
political speech arose only in response to the unusual conditions of the
1776-1787 period. After all, the Revolution and the Ratification were not
"elections," per se, either for candidates or for discrete issues. Records
from the first federal elections indicate, however, that anonymous
political pamphlets and newspaper articles remained the [514 U.S. 334, 345]
favorite medium for expressing views on candidates. In Pennsylvania, for
example, writers for or against the Federalist and Anti-Federalist
candidates wrote under the names "Numa," "Pompilius," "A Friend to
Agriculture, Trade, and Good Laws," "A Federal Centinel," a "Freeman,"

"Centinel," "A Real Patriot to All True Federalists," "A Mechanic,"

"Justice," "A German Federalist," and so on. See generally 1 Documentary
History of the First Federal Elections 1788-1790, pp. 246-362 (M. Jensen &
R. Becker eds. 1976). This appears to have been the practice in all of the
major states of which we have substantial records today. See 1 id., at
446-464 (Massachusetts); 2 id., at 108-122, 175-229 (Maryland); 2 id., at
387-397 (Virginia); 3 id., at 204-216, 436-493 (New York). It seems that
actual names were used rarely, and usually only by candidates who wanted to
explain their positions to the electorate.
The use of anonymous writing extended to issues as well as candidates. The

ratification of the Constitution was not the only issue discussed via
anonymous writings in the press. James Madison and Alexander Hamilton, for
example, resorted to pseudonyms in the famous "Helvidius" and "Pacificus"
debates over President Washington's declaration of neutrality in the war
between the British and French. See Hamilton, Pacificus No. 1, June 29,
1793, 15 Papers of Alexander Hamilton 33-43 (H. Syrett ed. 1969); Madison,
Helvidius No. 1, Aug. 24, 1793, 15 Papers of James Madison 66-73 (T. Mason
et al. eds. 1985). Anonymous writings continued in such Republican papers as
the Aurora and Federalists organs such as the Gazette of the United States
at least until the election of Thomas Jefferson. See generally, J. Smith,
Freedom's Fetters (1956).
IV
This evidence leads me to agree with the majority's result, but not its
reasoning. The majority fails to seek [514 U.S. 334, 346] the original
understanding of the First Amendment, and instead attempts to answer the
question in this case by resorting to three approaches. First, the majority
recalls the historical practice of anonymous writing from Shakespeare's
works to the Federalist Papers to Mark Twain. Ante, at 6-7, 23. Second, it
finds that anonymous speech has an expressive value both to the speaker and
to society that outweighs public interest in disclosure. Third, it finds
that 3599.09(A) cannot survive strict scrutiny because it is a
"content-based" restriction on speech.
I cannot join the majority's analysis because it deviates from our settled
approach to interpreting the Constitution and because it superimposes its
modern theories concerning expression upon the constitutional text. Whether
"great works of literature" -- by Voltaire or George Eliot have been
published anonymously should be irrelevant to our analysis, because it sheds
no light on what the phrases "free speech" or "free press" meant to the
people who drafted and ratified the First Amendment. Similarly, whether
certain types of expression have "value" today has little significance; what
is important is whether the Framers in 1791 believed anonymous speech
sufficiently valuable to deserve the protection of the Bill of Rights. And
although the majority faithfully follows our approach to "content-based"
speech regulations, we need not undertake this analysis when the original
understanding provides the answer.
While, like JUSTICE SCALIA, I am loath to overturn a century of practice

shared by almost all of the States, I believe the historical evidence from
the framing outweighs recent tradition. When interpreting other provisions
of the Constitution, this Court has believed itself bound by the text of the
Constitution and by the intent of those who drafted and ratified it. It
should hold itself to no less a standard when interpreting the Speech [514
U.S. 334, 347] and Press Clauses. After reviewing the weight of the
historical evidence, it seems that the Framers understood the First
Amendment to protect an author's right to express his thoughts on political
candidates or issues in an anonymous fashion. Because the majority has
adopted an analysis that is largely unconnected to the Constitution's text

and history, I concur only in the judgment.
Footnotes
[1] The Anti-Federalists recognized little difficulty in what today would

be a state action problem, because they considered Federalist conduct in
supporting the Constitution as a preview of the tyranny to come under the
new Federal Government.
[2] As noted earlier, several pieces in support appeared in the Federalist

newspaper, the Philadelphia Independent Gazetteer. They were immediately
answered by two Anti-Federalists in the Philadelphia Freeman's Journal.
These Anti-Federalists accused the Federalists of "preventing that freedom
of enquiry which truth and honour never dreads, but which tyrants and
tyranny could never endure." 13 Documentary History, at 317-318.
[3] See Mason, Objections to the Constitution, Virginia Journal, Nov. 22,
1787, 1 Debate on the Constitution 345 (B. Bailyn ed. 1993); Martin, The
Genuine Information, Maryland Gazette, Dec. 28, 1787-Feb. 8, 1788, id., at
631. Both men may have made an exception to the general practice because
they both had attended the Philadelphia Convention, but had refused to sign
the Constitution. As leaders of the fight against ratification, both men may
have believed that they owed a personal explanation to their constituents of
their decision not to sign. [514 U.S. 334, 334]


JUSTICE SCALIA, with whom The Chief Justice joins, dissenting.
At a time when both political branches of Government and both political parties reflect a popular desire
to leave more decisionmaking authority to the States, today's decision moves in the opposite direction,
adding to the legacy of inflexible central mandates (irrevocable even by Congress) imposed by this
Court's constitutional jurisprudence. In an opinion which reads as though it is addressing some peculiar
law like the Los Angeles municipal ordinance at issue in Talley v. California, 362 U.S. 60 (1960), the
Court invalidates a species of protection for the election process that exists, in a variety of forms, in
every State except California, and that has a pedigree dating back to the end of the 19th century.
Preferring the views of the English utilitarian philosopher John Stuart Mill, ante, at 23, to the considered
judgment of the American people's elected representatives from coast to coast, the Court discovers a
hitherto unknown right-to-be-unknown while engaging in electoral politics. I dissent from this imposition
of free-speech imperatives that are demonstrably not those of the American people today, and that there
is inadequate [514 U.S. 334, 335] reason to believe were those of the society that begat the First
Amendment or the Fourteenth.
I
The question posed by the present case is not the easiest sort to answer for those who adhere to the
Court's (and the society's) traditional view that the Constitution bears its original meaning and is
unchanging. Under that view, "[o]n every question of construction, [we should] carry ourselves back to
the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of
trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the
probable one in which it was passed." T. Jefferson, Letter to William Johnson (June 12, 1823), in 15
Writings of Thomas Jefferson 439, 449 (A. Lipscomb ed. 1904). That technique is simple of application
when government conduct that is claimed to violate the Bill of Rights or the Fourteenth Amendment is
shown, upon investigation, to have been engaged in without objection at the very time the Bill of Rights
or the Fourteenth Amendment was adopted. There is no doubt, for example, that laws against libel and
obscenity do not violate "the freedom of speech" to which the First Amendment refers; they existed and
were universally approved in 1791. Application of the principle of an unchanging Constitution is also
simple enough at the other extreme, where the government conduct at issue was not engaged in at the
time of adoption, and there is ample evidence that the reason it was not engaged in is that it was thought
to violate the right embodied in the constitutional guarantee. Racks and thumbscrews, well known
instruments for inflicting pain, were not in use because they were regarded as cruel punishments.
The present case lies between those two extremes. Anonymous electioneering was not prohibited by law
in [514 U.S. 334, 336] 1791 or in 1868. In fact, it was widely practiced at the earlier date, an
understandable legacy of the revolutionary era in which political dissent could produce governmental
reprisal. I need not dwell upon the evidence of that, since it is described at length in today's concurrence.
See ante, at 3-13 (THOMAS, J., concurring in judgment). The practice of anonymous electioneering may
have been less general in 1868, when the Fourteenth Amendment was adopted, but at least as late as
1837 it was respectable enough to be engaged in by Abraham Lincoln. See 1 A. Beveridge, Abraham
Lincoln 1809-1858, pp. 215-216 (1928); 1 Uncollected Works of Abraham Lincoln 155-161 (R. Wilson
ed. 1947).

But to prove that anonymous electioneering was used frequently is not to establish that it is a
constitutional right. Quite obviously, not every restriction upon expression that did not exist in 1791 or in
1868 is ipso facto unconstitutional, or else modern election laws such as those involved in Burson v.
Freeman, 504 U.S. 191 (1992), and Buckley v. Valeo, 424 U.S. 1 (1976), would be prohibited, as would
(to mention only a few other categories) modern antinoise regulation of the sort involved in Kovacs v.
Cooper, 336 U.S. 77 (1949), and Ward v. Rock Against Racism, 491 U.S. 781 (1989), and modern
parade-permitting regulation of the sort involved in Cox v. New Hampshire, 312 U.S. 569 (1941).
Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far as I
am aware evidence that it was generally regarded as such is nonexistent. The concurrence points to
"freedom of the press" objections that were made against the refusal of some Federalist newspapers to
publish unsigned essays opposing the proposed constitution (on the ground that they might be the work
of foreign agents). See ante, at 7-9 (THOMAS, J., concurring in judgment). But of course if every partisan
cry of "freedom of the press" were accepted as valid, our Constitution would be [514 U.S. 334, 337]
unrecognizable; and if one were to generalize from these particular cries, the First Amendment would be
not only a protection for newspapers but a restriction upon them. Leaving aside, however, the fact that no
governmental action was involved, the Anti-Federalists had a point, inasmuch as the editorial
proscription of anonymity applied only to them, and thus had the vice of viewpoint discrimination.
(Hence the comment by Philadelphiensis, quoted in the concurrence: "`Here we see pretty plainly
through [the Federalists'] excellent regulation of the press, how things are to be carried on after the
adoption of the new constitution.'" Ante, at 8 (quoting Philadelphiensis, Essay I, Independent Gazetteer,
Nov. 7, 1787, in 3 Complete Anti-Federalist 103 (H. Storing ed. 1981)).)
The concurrence recounts other pre- and post-Revolution examples of defense of anonymity in the name
of "freedom of the press," but not a single one involves the context of restrictions imposed in connection
with a free, democratic election, which is all that is at issue here. For many of them, moreover, such as
the 1735 Zenger trial, ante, at 3-4, the 1779 "Leonidas" controversy in the Continental Congress, ante, at
4, and the 1779 action by the New Jersey Legislative Council against Isaac Collins, ante, at 5, the issue
of anonymity was incidental to the (unquestionably free-speech) issue of whether criticism of the
government could be punished by the state.
Thus, the sum total of the historical evidence marshalled by the concurrence for the principle of
constitutional entitlement to anonymous electioneering is partisan claims in the debate on ratification
(which was almost like an election) that a viewpoint-based restriction on anonymity by newspaper
editors violates freedom of speech. This absence of historical testimony concerning the point before us is
hardly remarkable. The issue of a governmental prohibition upon anonymous electioneering [514 U.S. 334,
338] in particular (as opposed to a government prohibition upon anonymous publication in general)
simply never arose. Indeed, there probably never arose even the abstract question of whether electoral
openness and regularity was worth such a governmental restriction upon the normal right to anonymous
speech. The idea of close government regulation of the electoral process is a more modern phenomenon,
arriving in this country in the late 1800's. See Burson v. Freeman, supra, at 203-205.
What we have, then, is the most difficult case for determining the meaning of the Constitution. No
accepted existence of governmental restrictions of the sort at issue here demonstrates their
constitutionality, but neither can their nonexistence clearly be attributed to constitutional objections. In
such a case, constitutional adjudication necessarily involves not just history but judgment: judgment as to
whether the government action under challenge is consonant with the concept of the protected freedom

(in this case, the freedom of speech and of the press) that existed when the constitutional protection was
accorded. In the present case, absent other indication I would be inclined to agree with the concurrence
that a society which used anonymous political debate so regularly would not regard as constitutional
even moderate restrictions made to improve the election process. (I would, however, want further
evidence of common practice in 1868, since I doubt that the Fourteenth Amendment time-warped the
post-Civil War States back to the Revolution.)
But there is other indication, of the most weighty sort: the widespread and longstanding traditions of our
people. Principles of liberty fundamental enough to have been embodied within constitutional guarantees
are not readily erased from the Nation's consciousness. A governmental practice that has become general
throughout the United States, and particularly one that has the [514 U.S. 334, 339] validation of long,
accepted usage, bears a strong presumption of constitutionality. And that is what we have before us here.
Section 3599.09(A) was enacted by the General Assembly of the State of Ohio almost 80 years ago. See
Act of May 27, 1915, 1915 Ohio Leg. Acts 350. Even at the time of its adoption, there was nothing
unique or extraordinary about it. The earliest statute of this sort was adopted by Massachusetts in 1890,
little more than 20 years after the Fourteenth Amendment was ratified. No less than 24 States had similar
laws by the end of World War I,[1] and today every State of the Union except California has one,[2] as
[514 U.S. 334, 340] does the District of Columbia, see D.C. Code Ann. 1-1420 (1992), and as does the
Federal Government where advertising relating to candidates for federal office is concerned, see 2 U.S.C.
441d(a). Such a universal[3] [514 U.S. 334, 341] and long established American legislative practice must
be given precedence, I think, over historical and academic speculation regarding a restriction that
assuredly does not go to the heart of free speech.
It can be said that we ignored a tradition as old, and almost as widespread, in Texas v. Johnson, 491 U.S.
397 (1989), where we held unconstitutional a state law prohibiting desecration of the United States flag.
See also United States v. Eichman, 496 U.S. 310 (1990). But those cases merely stand for the proposition
that post-adoption tradition cannot alter the core meaning of a constitutional guarantee. As we said in
Johnson, "[i]f 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 itself offensive or
disagreeable." 491 U.S., at 414 . Prohibition of expression of contempt for the flag, whether by
contemptuous words, see Street v. New York, 394 U.S. 576 (1969), or by burning the flag, came, we
said, within that "bedrock principle." The law at issue here, by contrast, forbids the expression of no idea,
but merely requires identification of the speaker when the idea is uttered in the electoral context. It is at
the periphery of the First Amendment, like the law at issue in Burson, where we took guidance from
tradition in upholding against constitutional attack restrictions upon electioneering in the vicinity of
polling places, see [514 U.S. 334, 342] 504 U.S., at 204-206 (plurality opinion); id., at 214-216 (SCALIA,
J., concurring in judgment).
II
The foregoing analysis suffices to decide this case for me. Where the meaning of a constitutional text
(such as "the freedom of speech") is unclear, the widespread and long-accepted practices of the American
people are the best indication of what fundamental beliefs it was intended to enshrine. Even if I were to
close my eyes to practice, however, and were to be guided exclusively by deductive analysis from our
case law, I would reach the same result.

Three basic questions must be answered to decide this case. Two of them are readily answered by our
precedents; the third is readily answered by common sense and by a decent regard for the practical
judgment of those more familiar with elections than we are. The first question is whether protection of
the election process justifies limitations upon speech that cannot constitutionally be imposed generally.
(If not, Talley v. California, which invalidated a flat ban on all anonymous leafletting, controls the
decision here.) Our cases plainly answer that question in the affirmative – indeed, they suggest that no
justification for regulation is more compelling than protection of the electoral process. "Other rights,
even the most basic, are illusory if the right to vote is undermined." Wesberry v. Sanders, 376 U.S. 1, 17
(1964). The State has a "compelling interest in preserving the integrity of its election process." Eu v. San
Francisco Cty. Democratic Central Comm., 489 U.S. 214, 231 (1989). So significant have we found the
interest in protecting the electoral process to be that we have approved the prohibition of political speech
entirely in areas that would impede that process. Burson, supra, at 204-206 (plurality opinion). [514 U.S.
334, 343]
The second question relevant to our decision is whether a "right to anonymity" is such a prominent value
in our constitutional system that even protection of the electoral process cannot be purchased at its
expense. The answer, again, is clear: no. Several of our cases have held that in peculiar circumstances the
compelled disclosure of a person's identity would unconstitutionally deter the exercise of First
Amendment associational rights. See, e.g., Brown v. Socialist Workers '74 Campaign Comm. (Ohio),
459 U.S. 87 (1982); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958). But those cases did not acknowledge any general right to anonymity, or even any
right on the part of all citizens to ignore the particular laws under challenge. Rather, they recognized a
right to an exemption from otherwise valid disclosure requirements on the part of someone who could
show a "reasonable probability" that the compelled disclosure would result in "threats, harassment, or
reprisals from either Government officials or private parties." This last quotation is from Buckley v.
Valeo, 424 U.S. 1, 74 (1976) (per curiam), which prescribed the safety-valve of a similar exemption in
upholding the disclosure requirements of the Federal Election Campaign Act. That is the answer our case
law provides to the Court's fear about the "tyranny of the majority," ante, at 23, and to its concern that
"`[p]ersecuted groups and sects from time to time throughout history have been able to criticize
oppressive practices and laws either anonymously or not at all,'" ante, at 8 (quoting Talley, 362 U.S., at
64 ). Anonymity can still be enjoyed by those who require it, without utterly destroying useful disclosure
laws. The record in this case contains not even a hint that Mrs. McIntyre feared "threats, harassment, or
reprisals"; indeed, she placed her name on some of her fliers and meant to place it on all of them. See
App. 12, 36-40. [514 U.S. 334, 344]
The existence of a generalized right of anonymity in speech was rejected by this Court in Lewis
Publishing Co. v. Morgan, 229 U.S. 288 (1913), which held that newspapers desiring the privilege of
second class postage could be required to provide to the Postmaster General, and to publish, a statement
of the names and addresses of their editors, publishers, business managers and owners. We rejected the
argument that the First Amendment forbade the requirement of such disclosure. Id., at 299. The provision
that gave rise to that case still exists, see 39 U.S.C. 3685, and is still enforced by the Postal Service. It is
one of several federal laws seemingly invalidated by today's opinion.
The Court's unprecedented protection for anonymous speech does not even have the virtue of
establishing a clear (albeit erroneous) rule of law. For after having announced that this statute, because it
"burdens core political speech," requires "exacting scrutiny" and must be "narrowly tailored to serve an

overriding state interest," ante, at 13 (ordinarily the kiss of death), the opinion goes on to proclaim
soothingly (and unhelpfully) that "a State's enforcement interest might justify a more limited
identification requirement." Ante, at 19. See also ante, at 2 (GINSBURG, J., concurring) ("We do not ...
hold that the State may not in other, larger circumstances, require the speaker to disclose its interest by
disclosing its identity.") Perhaps, then, not all the State statutes I have alluded to are invalid, but just
some of them; or indeed maybe all of them remain valid in "larger circumstances"! It may take decades
to work out the shape of this newly expanded right-to-speak-incognito, even in the elections field. And in
other areas, of course, a whole new boutique of wonderful First Amendment litigation opens its doors.
Must a parade permit, for example, be issued to a group that refuses to provide its identity, or that agrees
to do so only under assurance that the identity will not be made public? Must a [514 U.S. 334, 345]
municipally owned theater that is leased for private productions book anonymously sponsored
presentations? Must a government periodical that has a "letters to the editor" column disavow the policy
that most newspapers have against the publication of anonymous letters? Must a public university that
makes its facilities available for a speech by Louis Farrakhan or David Duke refuse to disclose the
on-campus or off-campus group that has sponsored or paid for the speech? Must a municipal
"public-access" cable channel permit anonymous (and masked) performers? The silliness that follows
upon a generalized right to anonymous speech has no end.
The third and last question relevant to our decision is whether the prohibition of anonymous campaigning
is effective in protecting and enhancing democratic elections. In answering this question no, the Justices
of the majority set their own views – on a practical matter that bears closely upon the real-life experience
of elected politicians and not upon that of unelected judges – up against the views of 49 (and perhaps all
50, see n. 4, supra) state legislatures and the federal Congress. We might also add to the list on the other
side the legislatures of foreign democracies: Australia, Canada, and England, for example, all have
prohibitions upon anonymous campaigning. See, e.g., Commonwealth Electoral Act 1918, 328
(Australia); Canada Elections Act, R.S.C., ch. E-2, 261 (1985); Representation of the People Act, 1983,
110 (England). How is it, one must wonder, that all of these elected legislators, from around the country
and around the world, could not see what six Justices of this Court see so clearly that they are willing to
require the entire Nation to act upon it: that requiring identification of the source of campaign literature
does not improve the quality of the campaign?
The Court says that the State has not explained "why it can more easily enforce the direct bans on
disseminating [514 U.S. 334, 346] false documents against anonymous authors and distributors than against
wrongdoers who might use false names and addresses in an attempt to avoid detection." Ante, at 19. I am
not sure what this complicated comparison means. I am sure, however, that (1) a person who is required
to put his name to a document is much less likely to lie than one who can lie anonymously, and (2) the
distributor of a leaflet which is unlawful because it is anonymous runs much more risk of immediate
detection and punishment than the distributor of a leaflet which is unlawful because it is false. Thus,
people will be more likely to observe a signing requirement than a naked "no falsity" requirement; and,
having observed that requirement, will then be significantly less likely to lie in what they have signed.
But the usefulness of a signing requirement lies not only in promoting observance of the law against
campaign falsehoods (though that alone is enough to sustain it). It lies also in promoting a civil and
dignified level of campaign debate – which the State has no power to command, but ample power to
encourage by such undemanding measures as a signature requirement. Observers of the past few national
elections have expressed concern about the increase of character assassination – "mudslinging" is the
colloquial term - engaged in by political candidates and their supporters to the detriment of the

democratic process. Not all of this, in fact not much of it, consists of actionable untruth; most is
innuendo, or demeaning characterization, or mere disclosure of items of personal life that have no
bearing upon suitability for office. Imagine how much all of this would increase if it could be done
anonymously. The principal impediment against it is the reluctance of most individuals and organizations
to be publicly associated with uncharitable and uncivil expression. Consider, moreover, the increased
potential for "dirty tricks." It is not unheard-of for campaign operatives to circulate [514 U.S. 334, 347]
material over the name of their opponents or their opponents' supporters (a violation of election laws) in
order to attract or alienate certain interest groups. See, e.g., B. Felknor, Political Mischief: Smear,
Sabotage, and Reform in U.S. Elections 111-112 (1992) (fake United Mine Workers' newspaper
assembled by the National Republican Congressional Committee); New York v. Duryea, 76 Misc. 2d
948, 351 N. Y. S. 2d 978 (Sup. 1974) (letters purporting to be from the "Action Committee for the
Liberal Party" sent by Republicans). How much easier – and sanction-free! – it would be to circulate
anonymous material (for example, a really tasteless, though not actionably false, attack upon one's own
candidate) with the hope and expectation that it will be attributed to, and held against, the other side.
The Court contends that demanding the disclosure of the pamphleteer's identity is no different from
requiring the disclosure of any other information that may reduce the persuasiveness of the pamphlet's
message. See ante, at 14-15. It cites Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974),
which held it unconstitutional to require a newspaper that had published an editorial critical of a
particular candidate to furnish space for that candidate to reply. But it is not usual for a speaker to put
forward the best arguments against himself, and it is a great imposition upon free speech to make him do
so. Whereas it is quite usual – it is expected – for a speaker to identify himself, and requiring that is (at
least when there are no special circumstances present) virtually no imposition at all.
We have approved much more onerous disclosure requirements in the name of fair elections. In Buckley
v. Valeo, 424 U.S. 1 (1976), we upheld provisions of the Federal Election Campaign Act that required
private individuals to report to the Federal Election Commission independent expenditures made for
communications advocating the election or defeat of a candidate for [514 U.S. 334, 348] federal office. Id.,
at 80. Our primary rationale for upholding this provision was that it served an "informational interest" by
"increas[ing] the fund of information concerning those who support the candidates," id., at 81. The
provision before us here serves the same informational interest, as well as more important interests,
which I have discussed above. The Court's attempt to distinguish Buckley, see ante, at 22-23, would be
unconvincing, even if it were accurate in its statement that the disclosure requirement there at issue
"reveals far less information" than requiring disclosure of the identity of the author of a specific
campaign statement. That happens not to be accurate, since the provision there at issue required not
merely "[d]isclosure of an expenditure and its use, without more," ante, at 22. It required, among other
things:
"the identification of each person to whom expenditures have been made ... within the
calendar year in an aggregate amount or value in excess of $100, the amount, date, and
purpose of each such expenditure and the name and address of, and office sought by, each
candidate on whose behalf such expenditure was made." 2 U.S.C. 434(b)(9) (1970 ed.,
Supp. IV) (emphasis added). See also 2 U.S.C. 434(e) (1970 ed., Supp. IV). (Both
reproduced in Appendix to Buckley, 424 U.S., at 158, 160).
Surely in many if not most cases, this information will readily permit identification of the particular
message that the would-be-anonymous campaigner sponsored. Besides which the burden of complying

with this provision, which includes the filing of quarterly reports, is infinitely more onerous than Ohio's
simple requirement for signature of campaign literature. If Buckley remains the law, this is an easy case.
[514 U.S. 334, 349]
***
I do not know where the Court derives its perception that "anonymous pamphleteering is not a
pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." Ante, at 23. I can
imagine no reason why an anonymous leaflet is any more honorable, as a general matter, than an
anonymous phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which
is ordinarily the very purpose of the anonymity. There are of course exceptions, and where anonymity is
needed to avoid "threats, harassment, or reprisals" the First Amendment will require an exemption from
the Ohio law. Cf. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). But to strike down the
Ohio law in its general application – and similar laws of 48 other States and the Federal Government –
on the ground that all anonymous communication is in our society traditionally sacrosanct, seems to me a
distortion of the past that will lead to a coarsening of the future.
I respectfully dissent.
Footnotes
[1] See Act of June 19, 1915, No. 171, 9, 1915 Ala. Acts 250, 254-255; Act of Mar. 12, 1917, ch. 47, 1,
1917 Ariz. Sess. Laws 62, 62-63; Act of Apr. 2, 1913, No. 308, 6, 1913 Ark. Gen. Acts 1252, 1255; Act
of Mar. 15, 1901, ch. 138, 1, 1901 Cal. Stats. 297; Act of June 6, 1913, ch. 6470, 9, 1913 Fla. Laws 268,
272-273; Act of June 26, 1917, 1, 1917 Ill. Laws 456, 456-457; Act of Mar. 14, 1911, ch. 137, 1, 1911
Kan. Sess. Laws 221; Act of July 11, 1912, No. 213, 14, 1912 La. Acts 447, 454; Act of June 3, 1890, ch.
381, 1890 Mass. Laws 342; Act of June 20, 1912, Ex. Sess. ch. 3, 7, 1912 Minn. Laws 23, 26; Act of
Apr. 21, 1906, S. B. No. 191, 1906 Miss. Gen. Laws 295 (enacting Miss. Code 3728 (1906)); Act of Apr.
9, 1917, 1, 1917 Mo. Laws 272, 273; Act of Nov. 1912, 35, 1912 Mont. Laws 593, 608; Act of Mar. 31,
1913, ch. 282, 34, 1913 Nev. Stats. 476, 486-487; Act of Apr. 21, 1915, ch. 169, 7, 1915 N. H. Laws
234, 236; Act of Apr. 20, 1911, ch. 188, 9, 1911 N. J. Laws 329, 334; Act of Mar. 12, 1913, ch. 164,
1(k), 1913 N.C. Sess. Laws 259, 261; Act of May 27, 1915, 1915 Ohio Leg. Acts 350; Act of June 23,
1908, ch. 3, 35, 1909 Ore. Laws 15, 30; Act of June 26, 1895, No. 275, 1895 Pa. Laws 389; Act of Mar.
13, 1917, ch. 92, 23, 1917 Utah Laws 258, 267; Act of Mar. 12, 1909, ch. 82, 8, 1909 Wash. Laws 169,
177-178; Act of Feb. 20, 1915, ch. 27, 13, 1915 W. Va. Acts 246, 255; Act of July 11, 1911, ch. 650,
94-14 to 94-16, 1911 Wis. Laws 883, 890.
[2] See Ala. Code 17-22A-13 (Supp. 1994); Alaska Stat. Ann. 15.56.010 (1988); Ariz. Rev. Stat. Ann.
16-912 (Supp. 1994); Ark. Code Ann. 7-1-103 (1993); Colo. Rev. Stat. 1-13-108 (Supp. 1994); Conn.
Gen. Stat. 9-333w (Supp. 1994); Del. Code Ann., Tit. 15, [514 U.S. 334, 340] 8021, 8023 (1993); Fla. Stat.
106.143 and 106.1437 (1992); Ga. Code Ann. 21-2-415 (1993); Haw. Rev. Stat. 11-215 (1988); Idaho
Code 67-6614A (Supp. 1994); Ill. Comp. Stat. 5/29-14 (1993); Ind. Code 3-14-1-4 (Supp. 1994); Iowa
Code 56.14 (1991); Kan. Stat. Ann. 25-2407 and 25-4156 (Supp. 1991); Ky. Rev. Stat. Ann. 121.190
(Baldwin Supp. 1994); La. Rev. Stat. Ann. 18:1463 (West Supp. 1994); Me. Rev. Stat. Ann., Tit. 21-A,
1014 (1993); Md. Ann. Code, Art. 33, 26-17 (1993); Mass. Gen. Laws 41 (1990); Mich. Comp. Laws
Ann. 169.247 (West 1989); Minn. Stat. 211B.04 (1994); Miss. Code Ann. 23-15-899 (1990); Mo. Rev.
Stat. 130.031 (Supp. 1994); Mont. Code Ann. 13-35-225 (1993); Neb. Rev. Stat. 49-1474.01 (1993);

Nev. Rev. Stat. 294A.320 (Supp. 1993); N. H. Rev. Stat. Ann. 664:14 (Supp. 1992); N. J. Stat. Ann.
19:34-38.1 (1989); N. M. Stat. Ann. 1-19-16 and 1-19-17 (1991); N. Y. Elec. Law 14-106 (McKinney
1978); N.C. Gen. Stat. 163-274 (Supp. 1994); N. D. Cent. Code 16.1-10-04.1 (1981); Ohio Rev. Code
Ann. 3599.09(A) (1988); Okla. Stat., Tit. 21, 1840 (Supp. 1995); Ore. Rev. Stat. 260.522 (1991); 25 Pa.
Cons. Stat. 3258 (1994); R. I. Gen. Laws 17-23-2 (1988); S. C. Code Ann. 8-13-1354 (Supp. 1993); S. D.
Comp. Laws Ann. 12-25-4.1 (Supp. 1994); Tenn. Code Ann. 2-19-120 (Supp. 1994); Tex. Elec. Code
Ann. 255.001 (Supp. 1995); Utah Code Ann. 20-14-24 (Supp. 1994); Vt. Stat. Ann., Tit. 17, 2022
(1982); Va. Code Ann. 24.2-1014 (1993); Wash. Rev. Code 42.17.510 (Supp. 1994); W. Va. Code
3-8-12 (1994); Wis. Stat. 11.30 (Supp. 1994); Wyo. Stat. 22-25-110 (1992).
Courts have declared some of these laws unconstitutional in recent years, relying upon our decision in
Talley v. California, 362 U.S. 60 (1960). See, e.g., State v. Burgess, 543 So.2d 1332 (La. 1989); State v.
North Dakota Ed. Assn., 262 N. W. 2d 731 (N. D. 1978); People v. Duryea, 76 Misc. 2d 948, 351 N. Y.
S. 2d 978 (Sup.), aff'd, 44 App. Div. 2d 663, 354 N. Y. S. 2d 129 (1974). Other decisions, including all
pre-Talley decisions I am aware of, have upheld the laws. See, e.g., Commonwealth v. Evans, 156 Pa.
Super. 321, 40 A. 2d 137 (1944); State v. Freeman, 143 Kan. 315, 55 P.2d 362 (1936); State v. Babst,
104 Ohio St. 167, 135 N. E. 525 (1922).
[3] It might be accurate to say that, insofar as the judicially unconstrained judgment of American
legislatures is concerned, approval of [514 U.S. 334, 341] the law before us here is universal. California,
although it had enacted an election disclosure requirement as early as 1901, see Act of Mar. 15, 1901, ch.
138, 1, 1901 Cal. Stats. 297, abandoned its law (then similar to Ohio's) in 1983, see Act of Sept. 11,
1983, ch. 668, 1983 Cal. Stats. 2621, after a California Court of Appeal, relying primarily on our
decision in Talley, had declared the provision unconstitutional, see Schuster v. Imperial County
Municipal Court, 109 Cal. App. 3d 887, 167 Cal. Rptr. 447 (1980), cert. denied, 450 U.S. 1042 (1981).
Page I.

JUSTICE SCALIA, with whom The Chief Justice joins, dissenting.
At a time when both political branches of Government and both political

parties reflect a popular desire to leave more decisionmaking authority to
the States, today's decision moves in the opposite direction, adding to the
legacy of inflexible central mandates (irrevocable even by Congress) imposed
by this Court's constitutional jurisprudence. In an opinion which reads as
though it is addressing some peculiar law like the Los Angeles municipal
ordinance at issue in Talley v. California, 362 U.S. 60 (1960), the Court
invalidates a species of protection for the election process that exists, in
a variety of forms, in every State except California, and that has a
pedigree dating back to the end of the 19th century. Preferring the views of
the English utilitarian philosopher John Stuart Mill, ante, at 23, to the
considered judgment of the American people's elected representatives from
coast to coast, the Court discovers a hitherto unknown right-to-be-unknown
while engaging in electoral politics. I dissent from this imposition of
free-speech imperatives that are demonstrably not those of the American
people today, and that there is inadequate [514 U.S. 334, 335] reason to
believe were those of the society that begat the First Amendment or the
Fourteenth.
The question posed by the present case is not the easiest sort to answer for
those who adhere to the Court's (and the society's) traditional view that
the Constitution bears its original meaning and is unchanging. Under that
view, "[o]n every question of construction, [we should] carry ourselves back
to the time when the Constitution was adopted; recollect the spirit
manifested in the debates; and instead of trying [to find] what meaning may
be squeezed out of the text, or invented against it, conform to the probable
one in which it was passed." T. Jefferson, Letter to William Johnson (June
12, 1823), in 15 Writings of Thomas Jefferson 439, 449 (A. Lipscomb ed.
1904). That technique is simple of application when government conduct that
is claimed to violate the Bill of Rights or the Fourteenth Amendment is
shown, upon investigation, to have been engaged in without objection at the
very time the Bill of Rights or the Fourteenth Amendment was adopted. There
is no doubt, for example, that laws against libel and obscenity do not
violate "the freedom of speech" to which the First Amendment refers; they
existed and were universally approved in 1791. Application of the principle
of an unchanging Constitution is also simple enough at the other extreme,
where the government conduct at issue was not engaged in at the time of
adoption, and there is ample evidence that the reason it was not engaged in
is that it was thought to violate the right embodied in the constitutional
guarantee. Racks and thumbscrews, well known instruments for inflicting
pain, were not in use because they were regarded as cruel punishments.
The present case lies between those two extremes. Anonymous electioneering
was not prohibited by law in [514 U.S. 334, 336] 1791 or in 1868. In fact,
it was widely practiced at the earlier date, an understandable legacy of the
revolutionary era in which political dissent could produce governmental
reprisal. I need not dwell upon the evidence of that, since it is described
at length in today's concurrence. See ante, at 3-13 (THOMAS, J., concurring
in judgment). The practice of anonymous electioneering may have been less
general in 1868, when the Fourteenth Amendment was adopted, but at least as
late as 1837 it was respectable enough to be engaged in by Abraham Lincoln.
See 1 A. Beveridge, Abraham Lincoln 1809-1858, pp. 215-216 (1928); 1
Uncollected Works of Abraham Lincoln 155-161 (R. Wilson ed. 1947).
But to prove that anonymous electioneering was used frequently is not to

establish that it is a constitutional right. Quite obviously, not every

restriction upon expression that did not exist in 1791 or in 1868 is ipso
facto unconstitutional, or else modern election laws such as those involved
in Burson v. Freeman, 504 U.S. 191 (1992), and Buckley v. Valeo, 424 U.S. 1
(1976), would be prohibited, as would (to mention only a few other
categories) modern antinoise regulation of the sort involved in Kovacs v.
Cooper, 336 U.S. 77 (1949), and Ward v. Rock Against Racism, 491 U.S. 781
(1989), and modern parade-permitting regulation of the sort involved in Cox
v. New Hampshire, 312 U.S. 569 (1941).
Evidence that anonymous electioneering was regarded as a constitutional

right is sparse, and as far as I am aware evidence that it was generally
regarded as such is nonexistent. The concurrence points to "freedom of the
press" objections that were made against the refusal of some Federalist
newspapers to publish unsigned essays opposing the proposed constitution (on
the ground that they might be the work of foreign agents). See ante, at 7-9
(THOMAS, J., concurring in judgment). But of course if every partisan cry of
"freedom of the press" were accepted as valid, our Constitution would be
[514 U.S. 334, 337] unrecognizable; and if one were to generalize from
these particular cries, the First Amendment would be not only a protection
for newspapers but a restriction upon them. Leaving aside, however, the fact
that no governmental action was involved, the Anti-Federalists had a point,
inasmuch as the editorial proscription of anonymity applied only to them,
and thus had the vice of viewpoint discrimination. (Hence the comment by
Philadelphiensis, quoted in the concurrence: "`Here we see pretty plainly
through [the Federalists'] excellent regulation of the press, how things are
to be carried on after the adoption of the new constitution.'" Ante, at 8
(quoting Philadelphiensis, Essay I, Independent Gazetteer, Nov. 7, 1787, in
3 Complete Anti-Federalist 103 (H. Storing ed. 1981)).)
The concurrence recounts other pre- and post-Revolution examples of defense

of anonymity in the name of "freedom of the press," but not a single one
involves the context of restrictions imposed in connection with a free,
democratic election, which is all that is at issue here. For many of them,
moreover, such as the 1735 Zenger trial, ante, at 3-4, the 1779 "Leonidas"
controversy in the Continental Congress, ante, at 4, and the 1779 action by
the New Jersey Legislative Council against Isaac Collins, ante, at 5, the
issue of anonymity was incidental to the (unquestionably free-speech) issue
of whether criticism of the government could be punished by the state.
Thus, the sum total of the historical evidence marshalled by the concurrence
for the principle of constitutional entitlement to anonymous electioneering
is partisan claims in the debate on ratification (which was almost like an
election) that a viewpoint-based restriction on anonymity by newspaper
editors violates freedom of speech. This absence of historical testimony
concerning the point before us is hardly remarkable. The issue of a
governmental prohibition upon anonymous electioneering [514 U.S. 334, 338]
in particular (as opposed to a government prohibition upon anonymous
publication in general) simply never arose. Indeed, there probably never
arose even the abstract question of whether electoral openness and
regularity was worth such a governmental restriction upon the normal right
to anonymous speech. The idea of close government regulation of the
electoral process is a more modern phenomenon, arriving in this country in
the late 1800's. See Burson v. Freeman, supra, at 203-205.
What we have, then, is the most difficult case for determining the meaning
of the Constitution. No accepted existence of governmental restrictions of
the sort at issue here demonstrates their constitutionality, but neither can
their nonexistence clearly be attributed to constitutional objections. In
such a case, constitutional adjudication necessarily involves not just
history but judgment: judgment as to whether the government action under

challenge is consonant with the concept of the protected freedom (in this
case, the freedom of speech and of the press) that existed when the
constitutional protection was accorded. In the present case, absent other
indication I would be inclined to agree with the concurrence that a society
which used anonymous political debate so regularly would not regard as
constitutional even moderate restrictions made to improve the election
process. (I would, however, want further evidence of common practice in
1868, since I doubt that the Fourteenth Amendment time-warped the post-Civil
War States back to the Revolution.)
But there is other indication, of the most weighty sort: the widespread and
longstanding traditions of our people. Principles of liberty fundamental
enough to have been embodied within constitutional guarantees are not
readily erased from the Nation's consciousness. A governmental practice that
has become general throughout the United States, and particularly one that
has the [514 U.S. 334, 339] validation of long, accepted usage, bears a
strong presumption of constitutionality. And that is what we have before us
here. Section 3599.09(A) was enacted by the General Assembly of the State of
Ohio almost 80 years ago. See Act of May 27, 1915, 1915 Ohio Leg. Acts 350.
Even at the time of its adoption, there was nothing unique or extraordinary
about it. The earliest statute of this sort was adopted by Massachusetts in
1890, little more than 20 years after the Fourteenth Amendment was ratified.
No less than 24 States had similar laws by the end of World War I,[1] and
today every State of the Union except California has one,[2] as [514 U.S.
334, 340] does the District of Columbia, see D.C. Code Ann. 1-1420 (1992),
and as does the Federal Government where advertising relating to candidates
for federal office is concerned, see 2 U.S.C. 441d(a). Such a universal[3]
[514 U.S. 334, 341] and long established American legislative practice must
be given precedence, I think, over historical and academic speculation
regarding a restriction that assuredly does not go to the heart of free
speech.
It can be said that we ignored a tradition as old, and almost as widespread,

in Texas v. Johnson, 491 U.S. 397 (1989), where we held unconstitutional a
state law prohibiting desecration of the United States flag. See also United
States v. Eichman, 496 U.S. 310 (1990). But those cases merely stand for the
proposition that post-adoption tradition cannot alter the core meaning of a
constitutional guarantee. As we said in Johnson, "[i]f 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
itself offensive or disagreeable." 491 U.S., at 414 . Prohibition of
expression of contempt for the flag, whether by contemptuous words, see
Street v. New York, 394 U.S. 576 (1969), or by burning the flag, came, we
said, within that "bedrock principle." The law at issue here, by contrast,
forbids the expression of no idea, but merely requires identification of the
speaker when the idea is uttered in the electoral context. It is at the
periphery of the First Amendment, like the law at issue in Burson, where we
took guidance from tradition in upholding against constitutional attack
restrictions upon electioneering in the vicinity of polling places, see [514
U.S. 334, 342] 504 U.S., at 204-206 (plurality opinion); id., at 214-216
(SCALIA, J., concurring in judgment).
II
The foregoing analysis suffices to decide this case for me. Where the
meaning of a constitutional text (such as "the freedom of speech") is
unclear, the widespread and long-accepted practices of the American people
are the best indication of what fundamental beliefs it was intended to
enshrine. Even if I were to close my eyes to practice, however, and were to
be guided exclusively by deductive analysis from our case law, I would reach
the same result.

Three basic questions must be answered to decide this case. Two of them are
readily answered by our precedents; the third is readily answered by common
sense and by a decent regard for the practical judgment of those more
familiar with elections than we are. The first question is whether
protection of the election process justifies limitations upon speech that
cannot constitutionally be imposed generally. (If not, Talley v. California,
which invalidated a flat ban on all anonymous leafletting, controls the
decision here.) Our cases plainly answer that question in the affirmative --
indeed, they suggest that no justification for regulation is more compelling
than protection of the electoral process. "Other rights, even the most
basic, are illusory if the right to vote is undermined." Wesberry v.
Sanders, 376 U.S. 1, 17 (1964). The State has a "compelling interest in
preserving the integrity of its election process." Eu v. San Francisco Cty.
Democratic Central Comm., 489 U.S. 214, 231 (1989). So significant have we
found the interest in protecting the electoral process to be that we have
approved the prohibition of political speech entirely in areas that would
impede that process. Burson, supra, at 204-206 (plurality opinion). [514
U.S. 334, 343]
The second question relevant to our decision is whether a "right to

anonymity" is such a prominent value in our constitutional system that even
protection of the electoral process cannot be purchased at its expense. The
answer, again, is clear: no. Several of our cases have held that in peculiar
circumstances the compelled disclosure of a person's identity would
unconstitutionally deter the exercise of First Amendment associational
rights. See, e.g., Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459
U.S. 87 (1982); Bates v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama
ex rel. Patterson, 357 U.S. 449 (1958). But those cases did not acknowledge
any general right to anonymity, or even any right on the part of all
citizens to ignore the particular laws under challenge. Rather, they
recognized a right to an exemption from otherwise valid disclosure
requirements on the part of someone who could show a "reasonable
probability" that the compelled disclosure would result in "threats,
harassment, or reprisals from either Government officials or private
parties." This last quotation is from Buckley v. Valeo, 424 U.S. 1, 74
(1976) (per curiam), which prescribed the safety-valve of a similar
exemption in upholding the disclosure requirements of the Federal Election
Campaign Act. That is the answer our case law provides to the Court's fear
about the "tyranny of the majority," ante, at 23, and to its concern that
"`[p]ersecuted groups and sects from time to time throughout history have
been able to criticize oppressive practices and laws either anonymously or
not at all,'" ante, at 8 (quoting Talley, 362 U.S., at 64 ). Anonymity can
still be enjoyed by those who require it, without utterly destroying useful
disclosure laws. The record in this case contains not even a hint that Mrs.
McIntyre feared "threats, harassment, or reprisals"; indeed, she placed her
name on some of her fliers and meant to place it on all of them. See App.
12, 36-40. [514 U.S. 334, 344]
The existence of a generalized right of anonymity in speech was rejected by

this Court in Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913), which
held that newspapers desiring the privilege of second class postage could be
required to provide to the Postmaster General, and to publish, a statement
of the names and addresses of their editors, publishers, business managers
and owners. We rejected the argument that the First Amendment forbade the
requirement of such disclosure. Id., at 299. The provision that gave rise to
that case still exists, see 39 U.S.C. 3685, and is still enforced by the
Postal Service. It is one of several federal laws seemingly invalidated by
today's opinion.
The Court's unprecedented protection for anonymous speech does not even have

the virtue of establishing a clear (albeit erroneous) rule of law. For after
having announced that this statute, because it "burdens core political
speech," requires "exacting scrutiny" and must be "narrowly tailored to
serve an overriding state interest," ante, at 13 (ordinarily the kiss of
death), the opinion goes on to proclaim soothingly (and unhelpfully) that "a
State's enforcement interest might justify a more limited identification
requirement." Ante, at 19. See also ante, at 2 (GINSBURG, J., concurring)
("We do not ... hold that the State may not in other, larger circumstances,
require the speaker to disclose its interest by disclosing its identity.")
Perhaps, then, not all the State statutes I have alluded to are invalid, but
just some of them; or indeed maybe all of them remain valid in "larger
circumstances"! It may take decades to work out the shape of this newly
expanded right-to-speak-incognito, even in the elections field. And in other
areas, of course, a whole new boutique of wonderful First Amendment
litigation opens its doors. Must a parade permit, for example, be issued to
a group that refuses to provide its identity, or that agrees to do so only
under assurance that the identity will not be made public? Must a [514 U.S.
334, 345] municipally owned theater that is leased for private productions
book anonymously sponsored presentations? Must a government periodical that
has a "letters to the editor" column disavow the policy that most newspapers
have against the publication of anonymous letters? Must a public university
that makes its facilities available for a speech by Louis Farrakhan or David
Duke refuse to disclose the on-campus or off-campus group that has sponsored
or paid for the speech? Must a municipal "public-access" cable channel
permit anonymous (and masked) performers? The silliness that follows upon a
generalized right to anonymous speech has no end.
The third and last question relevant to our decision is whether the
prohibition of anonymous campaigning is effective in protecting and
enhancing democratic elections. In answering this question no, the Justices
of the majority set their own views -- on a practical matter that bears
closely upon the real-life experience of elected politicians and not upon
that of unelected judges -- up against the views of 49 (and perhaps all 50,
see n. 4, supra) state legislatures and the federal Congress. We might also
add to the list on the other side the legislatures of foreign democracies:
Australia, Canada, and England, for example, all have prohibitions upon
anonymous campaigning. See, e.g., Commonwealth Electoral Act 1918, 328
(Australia); Canada Elections Act, R.S.C., ch. E-2, 261 (1985);
Representation of the People Act, 1983, 110 (England). How is it, one must
wonder, that all of these elected legislators, from around the country and
around the world, could not see what six Justices of this Court see so
clearly that they are willing to require the entire Nation to act upon it:
that requiring identification of the source of campaign literature does not
improve the quality of the campaign?
The Court says that the State has not explained "why it can more easily
enforce the direct bans on disseminating [514 U.S. 334, 346] false
documents against anonymous authors and distributors than against wrongdoers
who might use false names and addresses in an attempt to avoid detection."
Ante, at 19. I am not sure what this complicated comparison means. I am
sure, however, that (1) a person who is required to put his name to a
document is much less likely to lie than one who can lie anonymously, and
(2) the distributor of a leaflet which is unlawful because it is anonymous
runs much more risk of immediate detection and punishment than the
distributor of a leaflet which is unlawful because it is false. Thus, people
will be more likely to observe a signing requirement than a naked "no
falsity" requirement; and, having observed that requirement, will then be
significantly less likely to lie in what they have signed.
But the usefulness of a signing requirement lies not only in promoting

observance of the law against campaign falsehoods (though that alone is

enough to sustain it). It lies also in promoting a civil and dignified level
of campaign debate -- which the State has no power to command, but ample
power to encourage by such undemanding measures as a signature requirement.
Observers of the past few national elections have expressed concern about
the increase of character assassination -- "mudslinging" is the colloquial
term - engaged in by political candidates and their supporters to the
detriment of the democratic process. Not all of this, in fact not much of
it, consists of actionable untruth; most is innuendo, or demeaning
characterization, or mere disclosure of items of personal life that have no
bearing upon suitability for office. Imagine how much all of this would
increase if it could be done anonymously. The principal impediment against
it is the reluctance of most individuals and organizations to be publicly
associated with uncharitable and uncivil expression. Consider, moreover, the
increased potential for "dirty tricks." It is not unheard-of for campaign
operatives to circulate [514 U.S. 334, 347] material over the name of their
opponents or their opponents' supporters (a violation of election laws) in
order to attract or alienate certain interest groups. See, e.g., B. Felknor,
Political Mischief: Smear, Sabotage, and Reform in U.S. Elections 111-112
(1992) (fake United Mine Workers' newspaper assembled by the National
Republican Congressional Committee); New York v. Duryea, 76 Misc. 2d 948,
351 N. Y. S. 2d 978 (Sup. 1974) (letters purporting to be from the "Action
Committee for the Liberal Party" sent by Republicans). How much easier --
and sanction-free! -- it would be to circulate anonymous material (for
example, a really tasteless, though not actionably false, attack upon one's
own candidate) with the hope and expectation that it will be attributed to,
and held against, the other side.
The Court contends that demanding the disclosure of the pamphleteer's

identity is no different from requiring the disclosure of any other
information that may reduce the persuasiveness of the pamphlet's message.
See ante, at 14-15. It cites Miami Herald Publishing Co. v. Tornillo, 418
U.S. 241 (1974), which held it unconstitutional to require a newspaper that
had published an editorial critical of a particular candidate to furnish
space for that candidate to reply. But it is not usual for a speaker to put
forward the best arguments against himself, and it is a great imposition
upon free speech to make him do so. Whereas it is quite usual -- it is
expected -- for a speaker to identify himself, and requiring that is (at
least when there are no special circumstances present) virtually no
imposition at all.
We have approved much more onerous disclosure requirements in the name of

fair elections. In Buckley v. Valeo, 424 U.S. 1 (1976), we upheld provisions
of the Federal Election Campaign Act that required private individuals to
report to the Federal Election Commission independent expenditures made for
communications advocating the election or defeat of a candidate for [514
U.S. 334, 348] federal office. Id., at 80. Our primary rationale for
upholding this provision was that it served an "informational interest" by
"increas[ing] the fund of information concerning those who support the
candidates," id., at 81. The provision before us here serves the same
informational interest, as well as more important interests, which I have
discussed above. The Court's attempt to distinguish Buckley, see ante, at
22-23, would be unconvincing, even if it were accurate in its statement that
the disclosure requirement there at issue "reveals far less information"
than requiring disclosure of the identity of the author of a specific
campaign statement. That happens not to be accurate, since the provision
there at issue required not merely "[d]isclosure of an expenditure and its
use, without more," ante, at 22. It required, among other things:
"the identification of each person to whom expenditures have

been made ... within the calendar year in an aggregate
amount or value in excess of $100, the amount, date, and

purpose of each such expenditure and the name and address

of, and office sought by, each candidate on whose behalf
such expenditure was made." 2 U.S.C. 434(b)(9) (1970 ed.,
Supp. IV) (emphasis added). See also 2 U.S.C. 434(e)
(1970 ed., Supp. IV). (Both reproduced in Appendix to
Buckley, 424 U.S., at 158, 160).
Surely in many if not most cases, this information will readily permit
identification of the particular message that the would-be-anonymous
campaigner sponsored. Besides which the burden of complying with this
provision, which includes the filing of quarterly reports, is infinitely
more onerous than Ohio's simple requirement for signature of campaign
literature. If Buckley remains the law, this is an easy case. [514 U.S. 334,
349]
* * *
I do not know where the Court derives its perception that "anonymous
pamphleteering is not a pernicious, fraudulent practice, but an honorable
tradition of advocacy and of dissent." Ante, at 23. I can imagine no reason
why an anonymous leaflet is any more honorable, as a general matter, than an
anonymous phone call or an anonymous letter. It facilitates wrong by
eliminating accountability, which is ordinarily the very purpose of the
anonymity. There are of course exceptions, and where anonymity is needed to
avoid "threats, harassment, or reprisals" the First Amendment will require
an exemption from the Ohio law. Cf. NAACP v. Alabama ex rel. Patterson, 357
U.S. 449 (1958). But to strike down the Ohio law in its general application
-- and similar laws of 48 other States and the Federal Government -- on the
ground that all anonymous communication is in our society traditionally
sacrosanct, seems to me a distortion of the past that will lead to a
coarsening of the future.
I respectfully dissent.
Footnotes
[1] See Act of June 19, 1915, No. 171, 9, 1915 Ala. Acts 250, 254-255; Act
of Mar. 12, 1917, ch. 47, 1, 1917 Ariz. Sess. Laws 62, 62-63; Act of Apr. 2,
1913, No. 308, 6, 1913 Ark. Gen. Acts 1252, 1255; Act of Mar. 15, 1901, ch.
138, 1, 1901 Cal. Stats. 297; Act of June 6, 1913, ch. 6470, 9, 1913 Fla.
Laws 268, 272-273; Act of June 26, 1917, 1, 1917 Ill. Laws 456, 456-457; Act
of Mar. 14, 1911, ch. 137, 1, 1911 Kan. Sess. Laws 221; Act of July 11,
1912, No. 213, 14, 1912 La. Acts 447, 454; Act of June 3, 1890, ch. 381,
1890 Mass. Laws 342; Act of June 20, 1912, Ex. Sess. ch. 3, 7, 1912 Minn.
Laws 23, 26; Act of Apr. 21, 1906, S. B. No. 191, 1906 Miss. Gen. Laws 295
(enacting Miss. Code 3728 (1906)); Act of Apr. 9, 1917, 1, 1917 Mo. Laws
272, 273; Act of Nov. 1912, 35, 1912 Mont. Laws 593, 608; Act of Mar. 31,
1913, ch. 282, 34, 1913 Nev. Stats. 476, 486-487; Act of Apr. 21, 1915, ch.
169, 7, 1915 N. H. Laws 234, 236; Act of Apr. 20, 1911, ch. 188, 9, 1911 N.
J. Laws 329, 334; Act of Mar. 12, 1913, ch. 164, 1(k), 1913 N.C. Sess. Laws
259, 261; Act of May 27, 1915, 1915 Ohio Leg. Acts 350; Act of June 23,
1908, ch. 3, 35, 1909 Ore. Laws 15, 30; Act of June 26, 1895, No. 275, 1895
Pa. Laws 389; Act of Mar. 13, 1917, ch. 92, 23, 1917 Utah Laws 258, 267; Act
of Mar. 12, 1909, ch. 82, 8, 1909 Wash. Laws 169, 177-178; Act of Feb. 20,
1915, ch. 27, 13, 1915 W. Va. Acts 246, 255; Act of July 11, 1911, ch. 650,
94-14 to 94-16, 1911 Wis. Laws 883, 890.
[2] See Ala. Code 17-22A-13 (Supp. 1994); Alaska Stat. Ann. 15.56.010
(1988); Ariz. Rev. Stat. Ann. 16-912 (Supp. 1994); Ark. Code Ann. 7-1-103
(1993); Colo. Rev. Stat. 1-13-108 (Supp. 1994); Conn. Gen. Stat. 9-333w
(Supp. 1994); Del. Code Ann., Tit. 15, [514 U.S. 334, 340] 8021, 8023

(1993); Fla. Stat. 106.143 and 106.1437 (1992); Ga. Code Ann. 21-2-415
(1993); Haw. Rev. Stat. 11-215 (1988); Idaho Code 67-6614A (Supp. 1994);
Ill. Comp. Stat. 5/29-14 (1993); Ind. Code 3-14-1-4 (Supp. 1994); Iowa Code
56.14 (1991); Kan. Stat. Ann. 25-2407 and 25-4156 (Supp. 1991); Ky. Rev.
Stat. Ann. 121.190 (Baldwin Supp. 1994); La. Rev. Stat. Ann. 18:1463 (West
Supp. 1994); Me. Rev. Stat. Ann., Tit. 21-A, 1014 (1993); Md. Ann. Code,
Art. 33, 26-17 (1993); Mass. Gen. Laws 41 (1990); Mich. Comp. Laws Ann.
169.247 (West 1989); Minn. Stat. 211B.04 (1994); Miss. Code Ann. 23-15-899
(1990); Mo. Rev. Stat. 130.031 (Supp. 1994); Mont. Code Ann. 13-35-225
(1993); Neb. Rev. Stat. 49-1474.01 (1993); Nev. Rev. Stat. 294A.320 (Supp.
1993); N. H. Rev. Stat. Ann. 664:14 (Supp. 1992); N. J. Stat. Ann.
19:34-38.1 (1989); N. M. Stat. Ann. 1-19-16 and 1-19-17 (1991); N. Y. Elec.
Law 14-106 (McKinney 1978); N.C. Gen. Stat. 163-274 (Supp. 1994); N. D.
Cent. Code 16.1-10-04.1 (1981); Ohio Rev. Code Ann. 3599.09(A) (1988); Okla.
Stat., Tit. 21, 1840 (Supp. 1995); Ore. Rev. Stat. 260.522 (1991); 25 Pa.
Cons. Stat. 3258 (1994); R. I. Gen. Laws 17-23-2 (1988); S. C. Code Ann.
8-13-1354 (Supp. 1993); S. D. Comp. Laws Ann. 12-25-4.1 (Supp. 1994); Tenn.
Code Ann. 2-19-120 (Supp. 1994); Tex. Elec. Code Ann. 255.001 (Supp. 1995);
Utah Code Ann. 20-14-24 (Supp. 1994); Vt. Stat. Ann., Tit. 17, 2022 (1982);
Va. Code Ann. 24.2-1014 (1993); Wash. Rev. Code 42.17.510 (Supp. 1994); W.
Va. Code 3-8-12 (1994); Wis. Stat. 11.30 (Supp. 1994); Wyo. Stat. 22-25-110
(1992).
Courts have declared some of these laws unconstitutional in recent years,

relying upon our decision in Talley v. California, 362 U.S. 60 (1960). See,
e.g., State v. Burgess, 543 So.2d 1332 (La. 1989); State v. North Dakota Ed.
Assn., 262 N. W. 2d 731 (N. D. 1978); People v. Duryea, 76 Misc. 2d 948, 351
N. Y. S. 2d 978 (Sup.), aff'd, 44 App. Div. 2d 663, 354 N. Y. S. 2d 129
(1974). Other decisions, including all pre-Talley decisions I am aware of,
have upheld the laws. See, e.g., Commonwealth v. Evans, 156 Pa. Super. 321,
40 A. 2d 137 (1944); State v. Freeman, 143 Kan. 315, 55 P.2d 362 (1936);
State v. Babst, 104 Ohio St. 167, 135 N. E. 525 (1922).
[3] It might be accurate to say that, insofar as the judicially

unconstrained judgment of American legislatures is concerned, approval of
[514 U.S. 334, 341] the law before us here is universal. California,
although it had enacted an election disclosure requirement as early as 1901,
see Act of Mar. 15, 1901, ch. 138, 1, 1901 Cal. Stats. 297, abandoned its
law (then similar to Ohio's) in 1983, see Act of Sept. 11, 1983, ch. 668,
1983 Cal. Stats. 2621, after a California Court of Appeal, relying primarily
on our decision in Talley, had declared the provision unconstitutional, see
Schuster v. Imperial County Municipal Court, 109 Cal. App. 3d 887, 167 Cal.
Rptr. 447 (1980), cert. denied, 450 U.S. 1042 (1981). Page I.


The holding in this case continues undoing the damage done by the holding in Buckley v. Valeo, 424 U.S.
1 (1976), begun by the holding in Brown v. Socialist Workers', 459 U.S. 87 (1982). Buckley struck down
the limits on campaign spending, but upheld the limits on contributions and requirements for disclosure
of contributors and expenditures, and therefore forbade anonymous contributors, for electoral campaign
organizations. It left open a defense against disclosure requirements for organizations that could provide
evidence of official or private repression of disclosed supporters, which was exploited in Brown to yield
a holding that such organizations were exempt from campaign disclosure requirements.
The holding in McIntyre was that a person or organization has a First Amendment right to anonymously
publish in support of or opposition to legislation or a candidate. Carried to its logical conclusion, this
would reverse all the components of federal campaign legislation sustained by Buckley, including all the
disclosure requirements and contribution limits.
What is perhaps most interesting about this decision is how the Supreme Court justices dance around the
logical implications and avoid following the chain of logic. The only two justices that confront this logic
are Justice Thomas, who sets forth the logic without actually stating the obvious conclusion, and Justice
Scalia, who rejects the conclusion, and therefore rejects compliance with original understanding of the
Constitution.
It makes one wonder what it would take to get the justices to simply pursue every case to its logical
conclusion, and render sweeping holdings that would end or prevent all the cases, and all the injustice
they represent, that result from their failure to do so.
Text Version | Main Opinion | Contents | Home

The holding in this case continues undoing the damage done by the holding in
Buckley v. Valeo, 424 U.S. 1 (1976), begun by the holding in Brown v.
Socialist Workers', 459 U.S. 87 (1982). Buckley struck down the limits on
campaign spending, but upheld the limits on contributions and requirements
for disclosure of contributors and expenditures, and therefore forbade
anonymous contributors, for electoral campaign organizations. It left open a
defense against disclosure requirements for organizations that could provide
evidence of official or private repression of disclosed supporters, which
was exploited in Brown to yield a holding that such organizations were
exempt from campaign disclosure requirements.
The holding in McIntyre was that a person or organization has a First

Amendment right to anonymously publish in support of or opposition to
legislation or a candidate. Carried to its logical conclusion, this would
reverse all the components of federal campaign legislation sustained by
Buckley, including all the disclosure requirements and contribution limits.
What is perhaps most interesting about this decision is how the Supreme
Court justices dance around the logical implications and avoid following the
chain of logic. The only two justices that confront this logic are Justice
Thomas, who sets forth the logic without actually stating the obvious
conclusion, and Justice Scalia, who rejects the conclusion, and therefore
rejects compliance with original understanding of the Constitution.
It makes one wonder what it would take to get the justices to simply pursue
every case to its logical conclusion, and render sweeping holdings that
would end or prevent all the cases, and all the injustice they represent,
that result from their failure to do so.

U.S. v. Lopez - Syllabus
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 Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
UNITED STATES v. LOPEZ
Certiorari to the United States Court of Appeals for the Fifth Circuit No. 93-1260.
Argued November 8, 1994 - Decided April 26, 1995
After respondent, then a 12th-grade student, carried a concealed handgun into his high school, he was
charged with violating the Gun-Free School Zones Act of 1990, which forbids "any individual knowingly
to possess a firearm at a place that [he] knows . . . is a school zone,'' 18 U. S. C. 922(q)(1)(A). The
District Court denied his motion to dismiss the indictment, concluding that 922(q) is a constitutional
exercise of Congress' power to regulate activities in and affecting commerce. In reversing, the Court of
Appeals held that, in light of what it characterized as insufficient congressional findings and legislative
history, 922(q) is invalid as beyond Congress' power under the Commerce Clause.
Held: The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a
wide variety of congressional Acts regulating intrastate economic activity that substantially affected
interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity
that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section
922(q) is a criminal statute that by its terms has nothing to do with "commerce'' or any sort of economic
enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of
economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were
regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities
that arise out of or are connected with a commercial transaction, which viewed in the aggregate,
substantially affects interstate commerce. Second, 922(q) contains no jurisdictional element which would
ensure, through case-by-case inquiry, that the firearms possession in question has the requisite nexus
with interstate commerce. Respondent was a local student at a local school; there is no indication that he
had recently moved in interstate commerce, and there is no requirement that his possession of the firearm
have any concrete tie to interstate commerce. To uphold the Government's contention that 922(q) is
justified because firearms possession in a local school zone does indeed substantially affect interstate
commerce would require this Court to pile inference upon inference in a manner that would bid fair to
convert congressional Commerce Clause authority to a general police power of the sort held only by the
States. Pp. 2-19. 2 F. 3d 1342, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas,
JJ., joined. Kennedy, J., filed a concurring opinion, in which O'Connor, J., joined. Thomas, J., filed a
concurring opinion. Stevens, J., and Souter, J., filed dissenting opinions. Breyer, J., filed a dissenting
opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

U.S. v. Lopez - Syllabus
Constitution Society Home Page

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 Lumber Co., 200 U. S. 321, 337.
Syllabus
UNITED STATES v. LOPEZ

certiorari to the united states court of appeals for
the fifth circuit
No. 93-1260. Argued November 8, 1994-Decided April 26, 1995
After respondent, then a 12th-grade student, carried a concealed

handgun into his high school, he was charged with violating the
Gun-Free School Zones Act of 1990, which forbids `àny individual
knowingly to possess a firearm at a place that [he] knows . . . is a
school zone,'' 18 U. S. C. 922(q)(1)(A). The District Court denied
his motion to dismiss the indictment, concluding that 922(q) is a
constitutional exercise of Congress' power to regulate activities in
and affecting commerce. In reversing, the Court of Appeals held
that, in light of what it characterized as insufficient congressional
findings and legislative history, 922(q) is invalid as beyond Con-
gress' power under the Commerce Clause.
Held: The Act exceeds Congress' Commerce Clause authority. First,
although this Court has upheld a wide variety of congressional Acts
regulating intrastate economic activity that substantially affected
interstate commerce, the possession of a gun in a local school zone
is in no sense an economic activity that might, through repetition
elsewhere, have such a substantial effect on interstate commerce.
Section 922(q) is a criminal statute that by its terms has nothing to
do with ``commerce'' or any sort of economic enterprise, however
broadly those terms are defined. Nor is it an essential part of a
larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were regu-
lated. It cannot, therefore, be sustained under the Court's cases
upholding regulations of activities that arise out of or are connected
with a commercial transaction, which viewed in the aggregate, sub-
stantially affects interstate commerce. Second, 922(q) contains no
jurisdictional element which would ensure, through case-by-case
inquiry, that the firearms possession in question has the requisite
nexus with interstate commerce. Respondent was a local student at
a local school; there is no indication that he had recently moved in
interstate commerce, and there is no requirement that his possession
of the firearm have any concrete tie to interstate commerce. To
uphold the Government's contention that 922(q) is justified because
firearms possession in a local school zone does indeed substantially
affect interstate commerce would require this Court to pile inference
upon inference in a manner that would bid fair to convert congres-
sional Commerce Clause authority to a general police power of the
sort held only by the States. Pp. 2-19.
2 F. 3d 1342, affirmed.
Rehnquist, C. J., delivered the opinion of the Court, in which
O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J.,
filed a concurring opinion, in which O'Connor, J., joined. Thomas, J.,
filed a concurring opinion. Stevens, J., and Souter, J., filed dissent-
ing opinions. Breyer, J., filed a dissenting opinion, in which

Stevens, Souter, and Ginsburg, JJ., joined.

U.S. v. Lopez - Rehnquist
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the
United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.

No. 93-1260
UNITED STATES, PETITIONER v. ALFONSO LOPEZ, Jr.
on Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit
[April 26, 1995]
Chief Justice Rehnquist delivered the opinion of the Court.

In the Gun-Free School Zones Act of 1990, Congress made it a federal offense for any individual
knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is
a school zone. 18 U. S. C. 922(q)(1)(A) (1988 ed., Supp. V). The Act neither regulates a commercial
activity nor contains a requirement that the possession be connected in any way to interstate commerce.
We hold that the Act exceeds the authority of Congress [t]o regulate Commerce . . . among the several
States . . . . U. S. Const., Art. I, 8, cl. 3.
On March 10, 1992, respondent, who was then a 12th-grade student, arrived at Edison High School in
San Antonio, Texas, carrying a concealed .38 caliber handgun and five bullets. Acting upon an
anonymous tip, school authorities confronted respondent, who admitted that he was carrying the weapon.
He was arrested and charged under Texas law with firearm possession on school premises. See Tex.
Penal Code Ann. 46.03(a)(1) (Supp. 1994). The next day, the state charges were dismissed after federal
agents charged respondent by complaint with violating the Gun-Free School Zones Act of 1990. 18 U. S.
C. 922(q)(1)(A) (1988 ed., Supp. V).
A federal grand jury indicted respondent on one count of knowing possession of a firearm at a school
zone, in violation of 922(q). Respondent moved to dismiss his federal indictment on the ground that
922(q) is unconstitutional as it is beyond the power of Congress to legislate control over our public
schools. The District Court denied the motion, concluding that 922(q) is a constitutional exercise of
Congress' well-defined power to regulate activities in and affecting commerce, and the `business' of
elementary, middle and high schools . . . affects interstate commerce. App. to Pet. for Cert. 55a.
Respondent waived his right to a jury trial. The District Court conducted a bench trial, found him guilty
of violating 922(q), and sentenced him to six months' imprisonment and two years' supervised release.
On appeal, respondent challenged his conviction based on his claim that 922(q) exceeded Congress'
power to legislate under the Commerce Clause. The Court of Appeals for the Fifth Circuit agreed and
reversed respondent's conviction. It held that, in light of what it characterized as insufficient
congressional findings and legislative history, section 922(q), in the full reach of its terms, is invalid as
beyond the power of Congress under the Commerce Clause. 2 F. 3d 1342, 1367-1368 (1993). Because of
the importance of the issue, we granted certiorari, 511 U. S. ___ (1994), and we now affirm.

We start with first principles. The Constitution creates a Federal Government of enumerated powers. See
U. S. Const., Art. I, 8. As James Madison wrote, [t]he powers delegated by the proposed Constitution to
the federal government are few and defined. Those which are to remain in the State governments are
numerous and indefinite. The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). This constitutionally
mandated division of authority was adopted by the Framers to ensure protection of our fundamental
liberties. Gregory v. Ashcroft, 501 U. S. 452, 458 (1991) (internal quotation marks omitted). Just as the
separation and independence of the coordinate branches of the Federal Government serves to prevent the
accumulation of excessive power in any one branch, a healthy balance of power between the States and
the Federal Government will reduce the risk of tyranny and abuse from either front. Ibid.
The Constitution delegates to Congress the power [t]o regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes. U. S. Const., Art. I, 8, cl. 3. The Court, through
Chief Justice Marshall, first defined the nature of Congress' commerce power in Gibbons v. Ogden, 9
Wheat. 1, 189-190 (1824):
Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes
the commercial intercourse between nations, and parts of nations, in all its branches, and is
regulated by prescribing rules for carrying on that intercourse. The commerce power is the
power to regulate; that is, to prescribe the rule by which commerce is to be governed. This
power, like all others vested in Congress, is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations, other than are prescribed in the
constitution. Id., at 196.
The Gibbons Court, however, acknowledged that limitations on the commerce power are inherent in the
very language of the Commerce Clause.
It is not intended to say that these words comprehend that commerce, which is completely
internal, which is carried on between man and man in a State, or between different parts of
the same State, and which does not extend to or affect other States. Such a power would be
inconvenient, and is certainly unnecessary.
Comprehensive as the word àmong' is, it may very properly be restricted to that commerce
which concerns more States than one. . . . The enumeration presupposes something not
enumerated; and that something, if we regard the language or the subject of the sentence,
must be the exclusively internal commerce of a State. Id., at 194-195.
For nearly a century thereafter, the Court's Commerce Clause decisions dealt but rarely with the extent of
Congress' power, and almost entirely with the Commerce Clause as a limit on state legislation that
discriminated against interstate commerce. See, e.g., Veazie v. Moor, 14 How. 568, 573-575 (1853)
(upholding a state-created steamboat monopoly because it involved regulation of wholly internal
commerce); Kidd v. Pearson, 128 U. S. 1, 17, 20-22 (1888) (upholding a state prohibition on the
manufacture of intoxicating liquor because the commerce power does not comprehend the purely
domestic commerce of a State which is carried on between man and man within a State or between
different parts of the same State); see also L. Tribe, American Constitutional Law 306 (2d ed. 1988).
Under this line of precedent, the Court held that certain categories of activity such as production,
manufacturing, and mining were within the province of state governments, and thus were beyond the
power of Congress under the Commerce Clause. See Wickard v. Filburn, 317 U. S. 111, 121 (1942)
(describing development of Commerce Clause jurisprudence).

In 1887, Congress enacted the Interstate Commerce Act, 24 Stat. 379, and in 1890, Congress enacted the
Sherman Antitrust Act, 26 Stat. 209, as amended, 15 U. S. C. 1 et seq. These laws ushered in a new era
of federal regulation under the commerce power. When cases involving these laws first reached this
Court, we imported from our negative Commerce Clause cases the approach that Congress could not
regulate activities such as production, manufacturing, and mining. See, e.g., United States v. E. C. Knight
Co., 156 U. S. 1, 12 (1895) (Commerce succeeds to manufacture, and is not part of it); Carter v. Carter
Coal Co., 298 U. S. 238, 304 (1936) (Mining brings the subject matter of commerce into existence.
Commerce disposes of it). Simultaneously, however, the Court held that, where the interstate and
intrastate aspects of commerce were so mingled together that full regulation of interstate commerce
required incidental regulation of intrastate commerce, the Commerce Clause authorized such regulation.
See, e.g., Houston, E. & W. T. R. Co. v. United States, 234 U. S. 342 (1914) (Shreveport Rate Cases).
In A. L. A. Schecter Poultry Corp. v. United States, 295 U. S. 495, 550 (1935), the Court struck down
regulations that fixed the hours and wages of individuals employed by an intrastate business because the
activity being regulated related to interstate commerce only indirectly. In doing so, the Court
characterized the distinction between direct and indirect effects of intrastate transactions upon interstate
commerce as a fundamental one, essential to the maintenance of our constitutional system. Id., at 548.
Activities that affected interstate commerce directly were within Congress' power; activities that affected
interstate commerce indirectly were beyond Congress' reach. Id., at 546. The justification for this formal
distinction was rooted in the fear that otherwise there would be virtually no limit to the federal power and
for all practical purposes we should have a completely centralized government. Id., at 548.
Two years later, in the watershed case of NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), the
Court upheld the National Labor Relations Act against a Commerce Clause challenge, and in the process,
departed from the distinction between direct and indirect effects on interstate commerce. Id., at 36-38
(The question [of the scope of Congress' power] is necessarily one of degree). The Court held that
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 are within
Congress' power to regulate. Id., at 37.
In United States v. Darby, 312 U. S. 100 (1941), the Court upheld the Fair Labor Standards Act, stating:
The power of Congress over interstate commerce is not confined to the regulation of commerce among
the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of
the power of Congress over it as to make regulation of them appropriate means to the attainment of a
legitimate end, the exercise of the granted power of Congress to regulate interstate commerce. Id., at 118.
See also United States v. Wrightwood Dairy Co., 315 U. S. 110, 119 (1942) (the commerce power
extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of
the granted power).
In Wickard v. Filburn, the Court upheld the application of amendments to the Agricultural Adjustment
Act of 1938 to the production and consumption of homegrown wheat. 317 U. S., at 128-129. The
Wickard Court explicitly rejected earlier distinctions between direct and indirect effects on interstate
commerce, stating:
[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may
still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on

interstate commerce, and this irrespective of whether such effect is what might at some
earlier time have been defined as `direct' or ìndirect.' Id., at 125.
The Wickard Court emphasized that although Filburn's own contribution to the demand for wheat may
have been trivial by itself, that was not enough to remove him from the scope of federal regulation
where, as here, his contribution, taken together with that of many others similarly situated, is far from
trivial. Id., at 127-128.
Jones & Laughlin Steel, Darby, and Wickard ushered in an era of Commerce Clause jurisprudence that
greatly expanded the previously defined authority of Congress under that Clause. In part, this was a
recognition of the great changes that had occurred in the way business was carried on in this country.
Enterprises that had once been local or at most regional in nature had become national in scope. But the
doctrinal change also reflected a view that earlier Commerce Clause cases artificially had constrained the
authority of Congress to regulate interstate commerce.
But even these modern-era precedents which have expanded congressional power under the Commerce
Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned
that the scope of the interstate commerce power must be considered in the light of our dual system of
government and may not be extended so as to embrace effects upon interstate commerce so indirect and
remote that to embrace them, in view of our complex society, would effectually obliterate the distinction
between what is national and what is local and create a completely centralized government. 301 U. S., at
37; see also Darby, supra, at 119-120 (Congress may regulate intrastate activity that has a substantial
effect on interstate commerce); Wickard, supra, at 125 (Congress may regulate activity that exerts a
substantial economic effect on interstate commerce). Since that time, the Court has heeded that warning
and undertaken to decide whether a rational basis existed for concluding that a regulated activity
sufficiently affected interstate commerce. See, e.g., Hodel v. Virginia Surface Mining & Reclamation
Assn., Inc., 452 U. S. 264, 276-280 (1981); Perez v. United States, 402 U. S. 146, 155-156 (1971);
Katzenbach v. McClung, 379 U. S. 294, 299-301 (1964); Heart of Atlanta Motel, Inc. v. United States,
379 U. S. 241, 252-253 (1964).
Similarly, in Maryland v. Wirtz, 392 U. S. 183 (1968), the Court reaffirmed that the power to regulate
commerce, though broad indeed, has limits that [t]he Court has ample power to enforce. Id., at 196,
overruled on other grounds, National League of Cities v. Usery, 426 U. S. 833 (1976), overruled by
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985). In response to the dissent's
warnings that the Court was powerless to enforce the limitations on Congress' commerce powers because
[a]ll activities affecting commerce, even in the minutest degree, [Wickard], may be regulated and
controlled by Congress, 392 U. S., at 204 (Douglas, J., dissenting), the Wirtz Court replied that the
dissent had misread precedent as [n]either here nor in Wickard has the Court declared that Congress may
use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private
activities, id., at 197, n. 27. Rather, [t]he Court has said only that where a general regulatory statute bears
a substantial relation to commerce, the de minimis character of individual instances arising under that
statute is of no consequence. Ibid. (first emphasis added).
Consistent with this structure, we have identified three broad categories of activity that Congress may
regulate under its commerce power. Perez v. United States, supra, at 150; see also Hodel v. Virginia
Surface Mining & Reclamation Assn., supra, at 276-277. First, Congress may regulate the use of the
channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at

256 (`[T]he authority of Congress to keep the channels of interstate commerce free from immoral and
injurious uses has been frequently sustained, and is no longer open to question.' (quoting Caminetti v.
United States, 242 U. S. 470, 491 (1917)). Second, Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the
threat may come only from intrastate activities. See, e.g., Shreveport Rate Cases, 234 U. S. 342 (1914);
Southern R. Co. v. United States, 222 U. S. 20 (1911) (upholding amendments to Safety Appliance Act
as applied to vehicles used in intrastate commerce); Perez, supra, at 150 ([F]or example, the destruction
of an aircraft (18 U. S. C. 32), or . . . thefts from interstate shipments (18 U. S. C. 659)). Finally,
Congress' commerce authority includes the power to regulate those activities having a substantial relation
to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e., those activities that substantially
affect interstate commerce. Wirtz, supra, at 196, n. 27.
Within this final category, admittedly, our case law has not been clear whether an activity must affect or
substantially affect interstate commerce in order to be within Congress' power to regulate it under the
Commerce Clause. Compare Preseault v. ICC, 494 U. S. 1, 17 (1990), with Wirtz, supra, at 196, n. 27
(the Court has never declared that Congress may use a relatively trivial impact on commerce as an
excuse for broad general regulation of state or private activities). We conclude, consistent with the great
weight of our case law, that the proper test requires an analysis of whether the regulated activity
substantially affects interstate commerce.
We now turn to consider the power of Congress, in the light of this framework, to enact 922(q). The first
two categories of authority may be quickly disposed of: 922(q) is not a regulation of the use of the
channels of interstate commerce, nor is it an attempt to prohibit the interstate transportation of a
commodity through the channels of commerce; nor can 922(q) be justified as a regulation by which
Congress has sought to protect an instrumentality of interstate commerce or a thing in interstate
commerce. Thus, if 922(q) is to be sustained, it must be under the third category as a regulation of an
activity that substantially affects interstate commerce.
First, we have upheld a wide variety of congressional Acts regulating intrastate economic activity where
we have concluded that the activity substantially affected interstate commerce. Examples include the
regulation of intrastate coal mining; Hodel, supra, intrastate extortionate credit transactions, Perez, supra,
restaurants utilizing substantial interstate supplies, McClung, supra, inns and hotels catering to interstate
guests, Heart of Atlanta Motel, supra, and production and consumption of home-grown wheat, Wickard
v. Filburn, 317 U. S. 111 (1942). These examples are by no means exhaustive, but the pattern is clear.
Where economic activity substantially affects interstate commerce, legislation regulating that activity
will be sustained.
Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over
intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does
not. Roscoe Filburn operated a small farm in Ohio, on which, in the year involved, he raised 23 acres of
wheat. It was his practice to sow winter wheat in the fall, and after harvesting it in July to sell a portion
of the crop, to feed part of it to poultry and livestock on the farm, to use some in making flour for home
consumption, and to keep the remainder for seeding future crops. The Secretary of Agriculture assessed a
penalty against him under the Agricultural Adjustment Act of 1938 because he harvested about 12 acres
more wheat than his allotment under the Act permitted. The Act was designed to regulate the volume of
wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages, and
concomitant fluctuation in wheat prices, which had previously obtained. The Court said, in an opinion

sustaining the application of the Act to Filburn's activity:

One of the primary purposes of the Act in question was to increase the market price of
wheat and to that end to limit the volume thereof that could affect the market. It can hardly
be denied that a factor of such volume and variability as home-consumed wheat would have
a substantial influence on price and market conditions. This may arise because being in
marketable condition such wheat overhangs the market and, if induced by rising prices,
tends to flow into the market and check price increases. But if we assume that it is never
marketed, it supplies a need of the man who grew it which would otherwise be reflected by
purchases in the open market. Home-grown wheat in this sense competes with wheat in
commerce. 317 U. S., at 128.
Section 922(q) is a criminal statute that by its terms has nothing to do with commerce or any sort of
economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential
part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless
the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding
regulations of activities that arise out of or are connected with a commercial transaction, which viewed in
the aggregate, substantially affects interstate commerce.
Second, 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry,
that the firearm possession in question affects interstate commerce. For example, in United States v.
Bass, 404 U. S. 336 (1971), the Court interpreted former 18 U. S. C. 1202(a), which made it a crime for a
felon to receiv[e], posses[s], or transpor[t] in commerce or affecting commerce . . . any firearm. 404 U.
S., at 337. The Court interpreted the possession component of 1202(a) to require an additional nexus to
interstate commerce both because the statute was ambiguous and because unless Congress conveys its
purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Id., at 349.
The Bass Court set aside the conviction because although the Government had demonstrated that Bass
had possessed a firearm, it had failed to show the requisite nexus with interstate commerce. Id., at 347.
The Court thus interpreted the statute to reserve the constitutional question whether Congress could
regulate, without more, the mere possession of firearms. See id., at 339, n. 4; see also United States v.
Five Gambling Devices, 346 U. S. 441, 448 (1953) (plurality opinion) (The principle is old and deeply
imbedded in our jurisprudence that this Court will construe a statute in a manner that requires decision of
serious constitutional questions only if the statutory language leaves no reasonable alternative). Unlike
the statute in Bass, 922(q) has no express jurisdictional element which might limit its reach to a discrete
set of firearm possessions that additionally have an explicit connection with or effect on interstate
commerce.
Although as part of our independent evaluation of constitutionality under the Commerce Clause we of
course consider legislative findings, and indeed even congressional committee findings, regarding effect
on interstate commerce, see, e.g., Preseault v. ICC, 494 U. S. 1, 17 (1990), the Government concedes that
[n]either the statute nor its legislative history contain[s] express congressional findings regarding the
effects upon interstate commerce of gun possession in a school zone. Brief for United States 5-6. We
agree with the Government that Congress normally is not required to make formal findings as to the
substantial burdens that an activity has on interstate commerce. See McClung, 379 U. S., at 304; see also
Perez, 402 U. S., at 156 (Congress need [not] make particularized findings in order to legislate). But to
the extent that congressional findings would enable us to evaluate the legislative judgment that the
activity in question substantially affected interstate commerce, even though no such substantial effect

was visible to the naked eye, they are lacking here.

The Government argues that Congress has accumulated institutional expertise regarding the regulation of
firearms through previous enactments. Cf. Fullilove v. Klutznick, 448 U. S. 448, 503 (1980) (Powell, J.,
concurring). We agree, however, with the Fifth Circuit that importation of previous findings to justify
922(q) is especially inappropriate here because the prior federal enactments or Congressional findings
[do not] speak to the subject matter of section 922(q) or its relationship to interstate commerce. Indeed,
section 922(q) plows thoroughly new ground and represents a sharp break with the long-standing pattern
of federal firearms legislation. 2 F. 3d, at 1366.
The Government's essential contention, in fine, is that we may determine here that 922(q) is valid
because possession of a firearm in a local school zone does indeed substantially affect interstate
commerce. Brief for United States 17. The Government argues that possession of a firearm in a school
zone may result in violent crime and that violent crime can be expected to affect the functioning of the
national economy in two ways. First, the costs of violent crime are substantial, and, through the
mechanism of insurance, those costs are spread throughout the population. See United States v. Evans,
928 F. 2d 858, 862 (CA9 1991). Second, violent crime reduces the willingness of individuals to travel to
areas within the country that are perceived to be unsafe. Cf. Heart of Atlanta Motel, 379 U. S., at 253.
The Government also argues that the presence of guns in schools poses a substantial threat to the
educational process by threatening the learning environment. A handicapped educational process, in turn,
will result in a less productive citizenry. That, in turn, would have an adverse effect on the Nation's
economic well-being. As a result, the Government argues that Congress could rationally have concluded
that 922(q) substantially affects interstate commerce.
We pause to consider the implications of the Government's arguments. The Government admits, under its
costs of crime reasoning, that Congress could regulate not only all violent crime, but all activities that
might lead to violent crime, regardless of how tenuously they relate to interstate commerce. See Tr. of
Oral Arg. 8-9. Similarly, under the Government's national productivity reasoning, Congress could
regulate any activity that it found was related to the economic productivity of individual citizens: family
law (including marriage, divorce, and child custody), for example. Under the theories that the
Government presents in support of 922(q), it is difficult to perceive any limitation on federal power, even
in areas such as criminal law enforcement or education where States historically have been sovereign.
Thus, if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an
individual that Congress is without power to regulate.
Although Justice Breyer argues that acceptance of the Government's rationales would not authorize a
general federal police power, he is unable to identify any activity that the States may regulate but
Congress may not. Justice Breyer posits that there might be some limitations on Congress' commerce
power such as family law or certain aspects of education. Post, at 10-11. These suggested limitations,
when viewed in light of the dissent's expansive analysis, are devoid of substance.
Justice Breyer focuses, for the most part, on the threat that firearm possession in and near schools poses
to the educational process and the potential economic consequences flowing from that threat. Post, at 5-9.
Specifically, the dissent reasons that (1) gun-related violence is a serious problem; (2) that problem, in
turn, has an adverse effect on classroom learning; and (3) that adverse effect on classroom learning, in
turn, represents a substantial threat to trade and commerce. Post, at 9. This analysis would be equally
applicable, if not more so, to subjects such as family law and direct regulation of education.

For instance, if Congress can, pursuant to its Commerce Clause power, regulate activities that adversely
affect the learning environment, then, a fortiori, it also can regulate the educational process directly.
Congress could determine that a school's curriculum has a significant effect on the extent of classroom
learning. As a result, Congress could mandate a federal curriculum for local elementary and secondary
schools because what is taught in local schools has a significant effect on classroom learning, cf. post, at
9, and that, in turn, has a substantial effect on interstate commerce.
Justice Breyer rejects our reading of precedent and argues that Congress . . . could rationally conclude
that schools fall on the commercial side of the line. Post, at 16. Again, Justice Breyer's rationale lacks
any real limits because, depending on the level of generality, any activity can be looked upon as
commercial. Under the dissent's rationale, Congress could just as easily look at child rearing as fall[ing]
on the commercial side of the line because it provides a valuable service - namely, to equip [children]
with the skills they need to survive in life and, more specifically, in the workplace. Ibid. We do not doubt
that Congress has authority under the Commerce Clause to regulate numerous commercial activities that
substantially affect interstate commerce and also affect the educational process. That authority, though
broad, does not include the authority to regulate each and every aspect of local schools.
Admittedly, a determination whether an intrastate activity is commercial or noncommercial may in some
cases result in legal uncertainty. But, so long as Congress' authority is limited to those powers
enumerated in the Constitution, and so long as those enumerated powers are interpreted as having
judicially enforceable outer limits, congressional legislation under the Commerce Clause always will
engender legal uncertainty. Post, at 17. As Chief Justice Marshall stated in McCulloch v. Maryland, 4
Wheat. 316 (1819):
The [federal] government is acknowledged by all to be one of enumerated powers. The
principle, that it can exercise only the powers granted to it . . . is now universally admitted.
But the question respecting the extent of the powers actually granted, is perpetually arising,
and will probably continue to arise, as long as our system shall exist. Id., at 405.
See also Gibbons v. Ogden, 9 Wheat., at 195 (The enumeration presupposes something not enumerated).
The Constitution mandates this uncertainty by withholding from Congress a plenary police power that
would authorize enactment of every type of legislation. See U. S. Const., Art. I, 8. Congress has operated
within this framework of legal uncertainty ever since this Court determined that it was the judiciary's
duty to say what the law is. Marbury v. Madison, 1 Cranch. 137, 177 (1803) (Marshall, C. J.). Any
possible benefit from eliminating this legal uncertainty would be at the expense of the Constitution's
system of enumerated powers.
In Jones & Laughlin Steel, 301 U. S., at 37, we held that the question of congressional power under the
Commerce Clause is necessarily one of degree. To the same effect is the concurring opinion of Justice
Cardozo in Schecter Poultry:
There is a view of causation that would obliterate the distinction of what is national and
what is local in the activities of commerce. Motion at the outer rim is communicated
perceptibly, though minutely, to recording instruments at the center. A society such as ours
ìs an elastic medium which transmits all tremors throughout its territory; the only question
is of their size.' 295 U. S., at 554 (quoting United States v. A.L.A. Schecter Poultry Corp, 76
F. 2d 617, 624 (CA2 1935) (L. Hand, J., concurring)).

These are not precise formulations, and in the nature of things they cannot be. But we think they point
the way to a correct decision of this case. The possession of a gun in a local school zone is in no sense an
economic activity that might, through repetition elsewhere, substantially affect any sort of interstate
commerce. Respondent was a local student at a local school; there is no indication that he had recently
moved in interstate commerce, and there is no requirement that his possession of the firearm have any
concrete tie to interstate commerce.
To uphold the Government's contentions here, we would have to pile inference upon inference in a
manner that would bid fair to convert congressional authority under the Commerce Clause to a general
police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps
down that road, giving great deference to congressional action. See supra, at 8. The broad language in
these opinions has suggested the possibility of additional expansion, but we decline here to proceed any
further. To do so would require us to conclude that the Constitution's enumeration of powers does not
presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a
distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30.
This we are unwilling to do.
For the foregoing reasons the judgment of the Court of Appeals is
Affirmed.

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
--------
No. 93-1260
--------
UNITED STATES, PETITIONER v.
ALFONSO LOPEZ, Jr.
on writ of certiorari to the united states court
of appeals for the fifth circuit
[April 26, 1995]
Chief Justice Rehnquist delivered the opinion of the

Court.
In the Gun-Free School Zones Act of 1990, Congress
made it a federal offense -for any individual knowingly
to possess a firearm at a place that the individual
knows, or has reasonable cause to believe, is a school
zone.- 18 U. S. C. 922(q)(1)(A) (1988 ed., Supp. V).
The Act neither regulates a commercial activity nor
contains a requirement that the possession be connected
in any way to interstate commerce. We hold that the
Act exceeds the authority of Congress -[t]o regulate
Commerce . . . among the several States . . . .- U. S.
Const., Art. I, 8, cl. 3.
On March 10, 1992, respondent, who was then a 12th-
grade student, arrived at Edison High School in San
Antonio, Texas, carrying a concealed .38 caliber handgun
and five bullets. Acting upon an anonymous tip, school
authorities confronted respondent, who admitted that he
was carrying the weapon. He was arrested and charged
under Texas law with firearm possession on school
premises. See Tex. Penal Code Ann. 46.03(a)(1) (Supp.
1994). The next day, the state charges were dismissed
after federal agents charged respondent by complaint
with violating the Gun-Free School Zones Act of 1990.
18 U. S. C. 922(q)(1)(A) (1988 ed., Supp. V).
A federal grand jury indicted respondent on one count
of knowing possession of a firearm at a school zone, in
violation of 922(q). Respondent moved to dismiss his
federal indictment on the ground that 922(q) -is
unconstitutional as it is beyond the power of Congress
to legislate control over our public schools.- The District
Court denied the motion, concluding that 922(q) -is a
constitutional exercise of Congress' well-defined power to
regulate activities in and affecting commerce, and the
`business' of elementary, middle and high schools . . .
affects interstate commerce.- App. to Pet. for Cert. 55a.
Respondent waived his right to a jury trial. The
District Court conducted a bench trial, found him guilty
of violating 922(q), and sentenced him to six months'
imprisonment and two years' supervised release.
On appeal, respondent challenged his conviction based
on his claim that 922(q) exceeded Congress' power to
legislate under the Commerce Clause. The Court of
Appeals for the Fifth Circuit agreed and reversed
respondent's conviction. It held that, in light of what it
characterized as insufficient congressional findings and

legislative history, -section 922(q), in the full reach of its

terms, is invalid as beyond the power of Congress under
the Commerce Clause.- 2 F. 3d 1342, 1367-1368 (1993).
Because of the importance of the issue, we granted
certiorari, 511 U. S. ___ (1994), and we now affirm.
We start with first principles. The Constitution
creates a Federal Government of enumerated powers.
See U. S. Const., Art. I, 8. As James Madison wrote,
-[t]he powers delegated by the proposed Constitution to
the federal government are few and defined. Those
which are to remain in the State governments are
numerous and indefinite.- The Federalist No. 45, pp.
292-293 (C. Rossiter ed. 1961). This constitutionally
mandated division of authority -was adopted by the
Framers to ensure protection of our fundamental liber-
ties.- Gregory v. Ashcroft, 501 U. S. 452, 458 (1991)
(internal quotation marks omitted). -Just as the
separation and independence of the coordinate branches
of the Federal Government serves to prevent the
accumulation of excessive power in any one branch, a
healthy balance of power between the States and the
Federal Government will reduce the risk of tyranny and
abuse from either front.- Ibid.
The Constitution delegates to Congress the power -[t]o
regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes.- U. S.
Const., Art. I, 8, cl. 3. The Court, through Chief
Justice Marshall, first defined the nature of Congress'
commerce power in Gibbons v. Ogden, 9 Wheat. 1,
189-190 (1824):
-Commerce, undoubtedly, is traffic, but it is some-
thing more: it is intercourse. It describes the
commercial intercourse between nations, and parts
of nations, in all its branches, and is regulated by
prescribing rules for carrying on that intercourse.-
The commerce power -is the power to regulate; that is,
to prescribe the rule by which commerce is to be
governed. This power, like all others vested in Con-
gress, is complete in itself, may be exercised to its
utmost extent, and acknowledges no limitations, other
than are prescribed in the constitution.- Id., at 196.
The Gibbons Court, however, acknowledged that limita-
tions on the commerce power are inherent in the very
language of the Commerce Clause.
-It is not intended to say that these words com-
prehend that commerce, which is completely inter-
nal, which is carried on between man and man in a
State, or between different parts of the same State,
and which does not extend to or affect other States.
Such a power would be inconvenient, and is cer-
tainly unnecessary.
-Comprehensive as the word àmong' is, it may
very properly be restricted to that commerce which
concerns more States than one. . . . The enumera-
tion presupposes something not enumerated; and
that something, if we regard the language or the
subject of the sentence, must be the exclusively
internal commerce of a State.- Id., at 194-195.
For nearly a century thereafter, the Court's Commerce
Clause decisions dealt but rarely with the extent of
Congress' power, and almost entirely with the Commerce

Clause as a limit on state legislation that discriminated

against interstate commerce. See, e.g., Veazie v. Moor,
14 How. 568, 573-575 (1853) (upholding a state-created
steamboat monopoly because it involved regulation of
wholly internal commerce); Kidd v. Pearson, 128 U. S.
1, 17, 20-22 (1888) (upholding a state prohibition on the
manufacture of intoxicating liquor because the commerce
power -does not comprehend the purely domestic
commerce of a State which is carried on between man
and man within a State or between different parts of
the same State-); see also L. Tribe, American Constitu-
tional Law 306 (2d ed. 1988). Under this line of
precedent, the Court held that certain categories of
activity such as -production,- -manufacturing,- and
-mining- were within the province of state governments,
and thus were beyond the power of Congress under the
Commerce Clause. See Wickard v. Filburn, 317 U. S.
111, 121 (1942) (describing development of Commerce
Clause jurisprudence).
In 1887, Congress enacted the Interstate Commerce
Act, 24 Stat. 379, and in 1890, Congress enacted the
Sherman Antitrust Act, 26 Stat. 209, as amended, 15
U. S. C. 1 et seq. These laws ushered in a new era of
federal regulation under the commerce power. When
cases involving these laws first reached this Court, we
imported from our negative Commerce Clause cases the
approach that Congress could not regulate activities such
as -production,- -manufacturing,- and -mining.- See,
e.g., United States v. E. C. Knight Co., 156 U. S. 1, 12
(1895) (-Commerce succeeds to manufacture, and is not
part of it-); Carter v. Carter Coal Co., 298 U. S. 238,
304 (1936) (-Mining brings the subject matter of com-
merce into existence. Commerce disposes of it-). Simul-
taneously, however, the Court held that, where the
interstate and intrastate aspects of commerce were so
mingled together that full regulation of interstate
commerce required incidental regulation of intrastate
commerce, the Commerce Clause authorized such
regulation. See, e.g., Houston, E. & W. T. R. Co. v.
United States, 234 U. S. 342 (1914) (Shreveport Rate
Cases).
In A. L. A. Schecter Poultry Corp. v. United States,
295 U. S. 495, 550 (1935), the Court struck down
regulations that fixed the hours and wages of individuals
employed by an intrastate business because the activity
being regulated related to interstate commerce only
indirectly. In doing so, the Court characterized the
distinction between direct and indirect effects of intra-
state transactions upon interstate commerce as -a
fundamental one, essential to the maintenance of our
constitutional system.- Id., at 548. Activities that
affected interstate commerce directly were within
Congress' power; activities that affected interstate
commerce indirectly were beyond Congress' reach. Id.,
at 546. The justification for this formal distinction was
rooted in the fear that otherwise -there would be
virtually no limit to the federal power and for all
practical purposes we should have a completely central-
ized government.- Id., at 548.
Two years later, in the watershed case of NLRB v.
Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), the

Court upheld the National Labor Relations Act against

a Commerce Clause challenge, and in the process,
departed from the distinction between -direct- and
-indirect- effects on interstate commerce. Id., at 36-38
(-The question [of the scope of Congress' power] is
necessarily one of degree-). The Court held that
intrastate activities that -have such a close and substan-
tial relation to interstate commerce that their control is
essential or appropriate to protect that commerce from
burdens and obstructions- are within Congress' power to
regulate. Id., at 37.
In United States v. Darby, 312 U. S. 100 (1941), the
Court upheld the Fair Labor Standards Act, stating:
-The power of Congress over interstate commerce is
not confined to the regulation of commerce among
the states. It extends to those activities intrastate
which so affect interstate commerce or the exercise
of the power of Congress over it as to make regula-
tion of them appropriate means to the attainment of
a legitimate end, the exercise of the granted power
of Congress to regulate interstate commerce.- Id.,
at 118.
See also United States v. Wrightwood Dairy Co., 315
U. S. 110, 119 (1942) (the commerce power -extends to
those intrastate activities which in a substantial way
interfere with or obstruct the exercise of the granted
power-).
In Wickard v. Filburn, the Court upheld the applica-
tion of amendments to the Agricultural Adjustment Act
of 1938 to the production and consumption of home-
grown wheat. 317 U. S., at 128-129. The Wickard
Court explicitly rejected earlier distinctions between
direct and indirect effects on interstate commerce,
stating:
-[E]ven if appellee's activity be local and though it
may not be regarded as commerce, it may still,
whatever its nature, be reached by Congress if it
exerts a substantial economic effect on interstate
commerce, and this irrespective of whether such
effect is what might at some earlier time have been
defined as `direct' or ìndirect.'- Id., at 125.
The Wickard Court emphasized that although Filburn's
own contribution to the demand for wheat may have
been trivial by itself, that was not -enough to remove
him from the scope of federal regulation where, as here,
his contribution, taken together with that of many
others similarly situated, is far from trivial.- Id., at
127-128.
Jones & Laughlin Steel, Darby, and Wickard ushered
in an era of Commerce Clause jurisprudence that greatly
expanded the previously defined authority of Congress
under that Clause. In part, this was a recognition of
the great changes that had occurred in the way business
was carried on in this country. Enterprises that had
once been local or at most regional in nature had
become national in scope. But the doctrinal change also
reflected a view that earlier Commerce Clause cases
artificially had constrained the authority of Congress to
regulate interstate commerce.
But even these modern-era precedents which have
expanded congressional power under the Commerce

Clause confirm that this power is subject to outer limits.

In Jones & Laughlin Steel, the Court warned that the
scope of the interstate commerce power -must be
considered in the light of our dual system of government
and may not be extended so as to embrace effects upon
interstate commerce so indirect and remote that to
embrace them, in view of our complex society, would
effectually obliterate the distinction between what is
national and what is local and create a completely
centralized government.- 301 U. S., at 37; see also
Darby, supra, at 119-120 (Congress may regulate
intrastate activity that has a -substantial effect- on
interstate commerce); Wickard, supra, at 125 (Congress
may regulate activity that -exerts a substantial economic
effect on interstate commerce-). Since that time, the
Court has heeded that warning and undertaken to
decide whether a rational basis existed for concluding
that a regulated activity sufficiently affected interstate
commerce. See, e.g., Hodel v. Virginia Surface Mining
& Reclamation Assn., Inc., 452 U. S. 264, 276-280
(1981); Perez v. United States, 402 U. S. 146, 155-156
(1971); Katzenbach v. McClung, 379 U. S. 294, 299-301
(1964); Heart of Atlanta Motel, Inc. v. United States, 379
U. S. 241, 252-253 (1964).
Similarly, in Maryland v. Wirtz, 392 U. S. 183 (1968),
the Court reaffirmed that -the power to regulate com-
merce, though broad indeed, has limits- that -[t]he Court
has ample power- to enforce. Id., at 196, overruled on
other grounds, National League of Cities v. Usery, 426
U. S. 833 (1976), overruled by Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S. 528 (1985). In
response to the dissent's warnings that the Court was
powerless to enforce the limitations on Congress'
commerce powers because -[a]ll activities affecting
commerce, even in the minutest degree, [Wickard], may
be regulated and controlled by Congress,- 392 U. S., at
204 (Douglas, J., dissenting), the Wirtz Court replied
that the dissent had misread precedent as -[n]either
here nor in Wickard has the Court declared that
Congress may use a relatively trivial impact on com-
merce as an excuse for broad general regulation of state
or private activities,- id., at 197, n. 27. Rather, -[t]he
Court has said only that where a general regulatory
statute bears a substantial relation to commerce, the de
minimis character of individual instances arising under
that statute is of no consequence.- Ibid. (first emphasis
added).
Consistent with this structure, we have identified
three broad categories of activity that Congress may
regulate under its commerce power. Perez v. United
States, supra, at 150; see also Hodel v. Virginia Surface
Mining & Reclamation Assn., supra, at 276-277. First,
Congress may regulate the use of the channels of
interstate commerce. See, e.g., Darby, 312 U. S., at 114;
Heart of Atlanta Motel, supra, at 256 (-`[T]he authority
of Congress to keep the channels of interstate commerce
free from immoral and injurious uses has been fre-
quently sustained, and is no longer open to question.'-
(quoting Caminetti v. United States, 242 U. S. 470, 491
(1917)). Second, Congress is empowered to regulate and
protect the instrumentalities of interstate commerce, or

persons or things in interstate commerce, even though

the threat may come only from intrastate activities.
See, e.g., Shreveport Rate Cases, 234 U. S. 342 (1914);
Southern R. Co. v. United States, 222 U. S. 20 (1911)
(upholding amendments to Safety Appliance Act as
applied to vehicles used in intrastate commerce); Perez,
supra, at 150 (-[F]or example, the destruction of an
aircraft (18 U. S. C. 32), or . . . thefts from interstate
shipments (18 U. S. C. 659)-). Finally, Congress'
commerce authority includes the power to regulate those
activities having a substantial relation to interstate
commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e.,
those activities that substantially affect interstate
commerce. Wirtz, supra, at 196, n. 27.
Within this final category, admittedly, our case law
has not been clear whether an activity must -affect- or
-substantially affect- interstate commerce in order to be
within Congress' power to regulate it under the Com-
merce Clause. Compare Preseault v. ICC, 494 U. S. 1,
17 (1990), with Wirtz, supra, at 196, n. 27 (the Court
has never declared that -Congress may use a relatively
trivial impact on commerce as an excuse for broad
general regulation of state or private activities-). We
conclude, consistent with the great weight of our case
law, that the proper test requires an analysis of whether
the regulated activity -substantially affects- interstate
commerce.
We now turn to consider the power of Congress, in the
light of this framework, to enact 922(q). The first two
categories of authority may be quickly disposed of:
922(q) is not a regulation of the use of the channels of
interstate commerce, nor is it an attempt to prohibit the
interstate transportation of a commodity through the
channels of commerce; nor can 922(q) be justified as a
regulation by which Congress has sought to protect an
instrumentality of interstate commerce or a thing in
interstate commerce. Thus, if 922(q) is to be sustained,
it must be under the third category as a regulation
of an activity that substantially affects interstate
commerce.
First, we have upheld a wide variety of congressional
Acts regulating intrastate economic activity where we
have concluded that the activity substantially affected
interstate commerce. Examples include the regulation
of intrastate coal mining; Hodel, supra, intrastate
extortionate credit transactions, Perez, supra, restaurants
utilizing substantial interstate supplies, McClung, supra,
inns and hotels catering to interstate guests, Heart of
Atlanta Motel, supra, and production and consumption
of home-grown wheat, Wickard v. Filburn, 317 U. S. 111
(1942). These examples are by no means exhaustive,
but the pattern is clear. Where economic activity
substantially affects interstate commerce, legislation
regulating that activity will be sustained.
Even Wickard, which is perhaps the most far reaching
example of Commerce Clause authority over intrastate
activity, involved economic activity in a way that the
possession of a gun in a school zone does not. Roscoe
Filburn operated a small farm in Ohio, on which, in the
year involved, he raised 23 acres of wheat. It was his
practice to sow winter wheat in the fall, and after

harvesting it in July to sell a portion of the crop, to feed

part of it to poultry and livestock on the farm, to use
some in making flour for home consumption, and to keep
the remainder for seeding future crops. The Secretary
of Agriculture assessed a penalty against him under the
Agricultural Adjustment Act of 1938 because he har-
vested about 12 acres more wheat than his allotment
under the Act permitted. The Act was designed to
regulate the volume of wheat moving in interstate and
foreign commerce in order to avoid surpluses and
shortages, and concomitant fluctuation in wheat prices,
which had previously obtained. The Court said, in an
opinion sustaining the application of the Act to Filburn's
activity:
-One of the primary purposes of the Act in question
was to increase the market price of wheat and to
that end to limit the volume thereof that could
affect the market. It can hardly be denied that a
factor of such volume and variability as home-
consumed wheat would have a substantial influence
on price and market conditions. This may arise
because being in marketable condition such wheat
overhangs the market and, if induced by rising
prices, tends to flow into the market and check price
increases. But if we assume that it is never mar-
keted, it supplies a need of the man who grew it
which would otherwise be reflected by purchases in
the open market. Home-grown wheat in this sense
competes with wheat in commerce.- 317 U. S., at
128.
Section 922(q) is a criminal statute that by its terms
has nothing to do with -commerce- or any sort of
economic enterprise, however broadly one might define
those terms. Section 922(q) is not an essential part of
a larger regulation of economic activity, in which the
regulatory scheme could be undercut unless the intra-
state activity were regulated. It cannot, therefore, be
sustained under our cases upholding regulations of
activities that arise out of or are connected with a
commercial transaction, which viewed in the aggregate,
substantially affects interstate commerce.
Second, 922(q) contains no jurisdictional element
which would ensure, through case-by-case inquiry, that
the firearm possession in question affects interstate
commerce. For example, in United States v. Bass, 404
U. S. 336 (1971), the Court interpreted former 18
U. S. C. 1202(a), which made it a crime for a felon to
-receiv[e], posses[s], or transpor[t] in commerce or
affecting commerce . . . any firearm.- 404 U. S., at 337.
The Court interpreted the possession component of
1202(a) to require an additional nexus to interstate
commerce both because the statute was ambiguous and
because -unless Congress conveys its purpose clearly, it
will not be deemed to have significantly changed the
federal-state balance.- Id., at 349. The Bass Court set
aside the conviction because although the Government
had demonstrated that Bass had possessed a firearm, it
had failed -to show the requisite nexus with interstate
commerce.- Id., at 347. The Court thus interpreted the
statute to reserve the constitutional question whether
Congress could regulate, without more, the -mere

possession- of firearms. See id., at 339, n. 4; see also

United States v. Five Gambling Devices, 346 U. S. 441,
448 (1953) (plurality opinion) (-The principle is old and
deeply imbedded in our jurisprudence that this Court
will construe a statute in a manner that requires
decision of serious constitutional questions only if the
statutory language leaves no reasonable alternative-).
Unlike the statute in Bass, 922(q) has no express
jurisdictional element which might limit its reach to a
discrete set of firearm possessions that additionally have
an explicit connection with or effect on interstate
commerce.
Although as part of our independent evaluation of
constitutionality under the Commerce Clause we of
course consider legislative findings, and indeed even
congressional committee findings, regarding effect on
interstate commerce, see, e.g., Preseault v. ICC, 494
U. S. 1, 17 (1990), the Government concedes that
-[n]either the statute nor its legislative history contain[s]
express congressional findings regarding the effects upon
interstate commerce of gun possession in a school zone.-
Brief for United States 5-6. We agree with the Govern-
ment that Congress normally is not required to make
formal findings as to the substantial burdens that an
activity has on interstate commerce. See McClung, 379
U. S., at 304; see also Perez, 402 U. S., at 156 (-Con-
gress need [not] make particularized findings in order to
legislate-). But to the extent that congressional findings
would enable us to evaluate the legislative judgment
that the activity in question substantially affected
interstate commerce, even though no such substantial
effect was visible to the naked eye, they are lacking
here.
The Government argues that Congress has accumu-
lated institutional expertise regarding the regulation of
firearms through previous enactments. Cf. Fullilove v.
Klutznick, 448 U. S. 448, 503 (1980) (Powell, J., concur-
ring). We agree, however, with the Fifth Circuit that
importation of previous findings to justify 922(q) is
especially inappropriate here because the -prior federal
enactments or Congressional findings [do not] speak to
the subject matter of section 922(q) or its relationship to
interstate commerce. Indeed, section 922(q) plows
thoroughly new ground and represents a sharp break
with the long-standing pattern of federal firearms
legislation.- 2 F. 3d, at 1366.
The Government's essential contention, in fine, is that
we may determine here that 922(q) is valid because
possession of a firearm in a local school zone does
indeed substantially affect interstate commerce. Brief
for United States 17. The Government argues that
possession of a firearm in a school zone may result in
violent crime and that violent crime can be expected to
affect the functioning of the national economy in two
ways. First, the costs of violent crime are substantial,
and, through the mechanism of insurance, those costs
are spread throughout the population. See United States
v. Evans, 928 F. 2d 858, 862 (CA9 1991). Second,
violent crime reduces the willingness of individuals to
travel to areas within the country that are perceived to
be unsafe. Cf. Heart of Atlanta Motel, 379 U. S., at 253.

The Government also argues that the presence of guns

in schools poses a substantial threat to the educational
process by threatening the learning environment. A
handicapped educational process, in turn, will result in
a less productive citizenry. That, in turn, would have
an adverse effect on the Nation's economic well-being.
As a result, the Government argues that Congress could
rationally have concluded that 922(q) substantially
affects interstate commerce.
We pause to consider the implications of the
Government's arguments. The Government admits,
under its -costs of crime- reasoning, that Congress could
regulate not only all violent crime, but all activities that
might lead to violent crime, regardless of how tenuously
they relate to interstate commerce. See Tr. of Oral Arg.
8-9. Similarly, under the Government's -national
productivity- reasoning, Congress could regulate any
activity that it found was related to the economic
productivity of individual citizens: family law (including
marriage, divorce, and child custody), for example.
Under the theories that the Government presents in
support of 922(q), it is difficult to perceive any limita-
tion on federal power, even in areas such as criminal
law enforcement or education where States historically
have been sovereign. Thus, if we were to accept the
Government's arguments, we are hard-pressed to posit
any activity by an individual that Congress is without
power to regulate.
Although Justice Breyer argues that acceptance of
the Government's rationales would not authorize a
general federal police power, he is unable to identify any
activity that the States may regulate but Congress may
not. Justice Breyer posits that there might be some
limitations on Congress' commerce power such as family
law or certain aspects of education. Post, at 10-11.
These suggested limitations, when viewed in light of the
dissent's expansive analysis, are devoid of substance.
Justice Breyer focuses, for the most part, on the
threat that firearm possession in and near schools poses
to the educational process and the potential economic
consequences flowing from that threat. Post, at 5-9.
Specifically, the dissent reasons that (1) gun-related
violence is a serious problem; (2) that problem, in turn,
has an adverse effect on classroom learning; and (3) that
adverse effect on classroom learning, in turn, represents
a substantial threat to trade and commerce. Post, at 9.
This analysis would be equally applicable, if not more
so, to subjects such as family law and direct regulation
of education.
For instance, if Congress can, pursuant to its Com-
merce Clause power, regulate activities that adversely
affect the learning environment, then, a fortiori, it also
can regulate the educational process directly. Congress
could determine that a school's curriculum has a
-significant- effect on the extent of classroom learning.
As a result, Congress could mandate a federal curricu-
lum for local elementary and secondary schools because
what is taught in local schools has a significant -effect
on classroom learning,- cf. post, at 9, and that, in turn,
has a substantial effect on interstate commerce.
Justice Breyer rejects our reading of precedent and

argues that -Congress . . . could rationally conclude that

schools fall on the commercial side of the line.- Post, at
16. Again, Justice Breyer's rationale lacks any real
limits because, depending on the level of generality, any
activity can be looked upon as commercial. Under the
dissent's rationale, Congress could just as easily look at
child rearing as -fall[ing] on the commercial side of the
line- because it provides a -valuable service-namely, to
equip [children] with the skills they need to survive in
life and, more specifically, in the workplace.- Ibid. We
do not doubt that Congress has authority under the
Commerce Clause to regulate numerous commercial
activities that substantially affect interstate commerce
and also affect the educational process. That authority,
though broad, does not include the authority to regulate
each and every aspect of local schools.
Admittedly, a determination whether an intrastate
activity is commercial or noncommercial may in some
cases result in legal uncertainty. But, so long as
Congress' authority is limited to those powers enumer-
ated in the Constitution, and so long as those enu-
merated powers are interpreted as having judicially
enforceable outer limits, congressional legislation under
the Commerce Clause always will engender -legal un-
certainty.- Post, at 17. As Chief Justice Marshall
stated in McCulloch v. Maryland, 4 Wheat. 316 (1819):
-The [federal] government is acknowledged by all to
be one of enumerated powers. The principle, that it
can exercise only the powers granted to it . . . is
now universally admitted. But the question respect-
ing the extent of the powers actually granted, is
perpetually arising, and will probably continue to
arise, as long as our system shall exist.- Id., at
405.
See also Gibbons v. Ogden, 9 Wheat., at 195 (-The
enumeration presupposes something not enumerated-).
The Constitution mandates this uncertainty by withhold-
ing from Congress a plenary police power that would
authorize enactment of every type of legislation. See
U. S. Const., Art. I, 8. Congress has operated within
this framework of legal uncertainty ever since this
Court determined that it was the judiciary's duty -to
say what the law is.- Marbury v. Madison, 1 Cranch.
137, 177 (1803) (Marshall, C. J.). Any possible benefit
from eliminating this -legal uncertainty- would be at
the expense of the Constitution's system of enumerated
powers.
In Jones & Laughlin Steel, 301 U. S., at 37, we held
that the question of congressional power under the
Commerce Clause -is necessarily one of degree.- To the
same effect is the concurring opinion of Justice Cardozo
in Schecter Poultry:
-There is a view of causation that would obliterate
the distinction of what is national and what is local
in the activities of commerce. Motion at the outer
rim is communicated perceptibly, though minutely,
to recording instruments at the center. A society
such as ours ìs an elastic medium which transmits
all tremors throughout its territory; the only ques-
tion is of their size.'- 295 U. S., at 554 (quoting
United States v. A.L.A. Schecter Poultry Corp, 76

F. 2d 617, 624 (CA2 1935) (L. Hand, J.,

concurring)).
These are not precise formulations, and in the nature
of things they cannot be. But we think they point the
way to a correct decision of this case. The possession of
a gun in a local school zone is in no sense an economic
activity that might, through repetition elsewhere, sub-
stantially affect any sort of interstate commerce. Re-
spondent was a local student at a local school; there is
no indication that he had recently moved in interstate
commerce, and there is no requirement that his posses-
sion of the firearm have any concrete tie to interstate
commerce.
To uphold the Government's contentions here, we
would have to pile inference upon inference in a manner
that would bid fair to convert congressional authority
under the Commerce Clause to a general police power of
the sort retained by the States. Admittedly, some of
our prior cases have taken long steps down that road,
giving great deference to congressional action. See
supra, at 8. The broad language in these opinions has
suggested the possibility of additional expansion, but we
decline here to proceed any further. To do so would
require us to conclude that the Constitution's enumera-
tion of powers does not presuppose something not enu-
merated, cf. Gibbons v. Ogden, supra, at 195, and that
there never will be a distinction between what is truly
national and what is truly local, cf. Jones & Laughlin
Steel, supra, at 30. This we are unwilling to do.
For the foregoing reasons the judgment of the Court of
Appeals is
Affirmed.

U.S. v. Lopez - Kennedy

No. 93-1260
[April 26, 1995]
Justice Kennedy, with whom Justice O'Connor joins, concurring.

The history of the judicial struggle to interpret the Commerce Clause during the transition from the
economic system the Founders knew to the single, national market still emergent in our own era counsels
great restraint before the Court determines that the Clause is insufficient to support an exercise of the
national power. That history gives me some pause about today's decision, but I join the Court's opinion
with these observations on what I conceive to be its necessary though limited holding.
Chief Justice Marshall announced that the national authority reaches that commerce which concerns
more States than one and that the commerce power is complete in itself, may be exercised to its utmost
extent, and acknowledges no limitations, other than are prescribed in the constitution. Gibbons v. Ogden,
9 Wheat. 1, 194, 196 (1824). His statements can be understood now as an early and authoritative
recognition that the Commerce Clause grants Congress extensive power and ample discretion to
determine its appropriate exercise. The progression of our Commerce Clause cases from Gibbons to the
present was not marked, however, by a coherent or consistent course of interpretation; for neither the
course of technological advance nor the foundational principles for the jurisprudence itself were
self-evident to the courts that sought to resolve contemporary disputes by enduring principles.
Furthermore, for almost a century after the adoption of the Constitution, the Court's Commerce Clause
decisions did not concern the authority of Congress to legislate. Rather, the Court faced the related but
quite distinct question of the authority of the States to regulate matters that would be within the
commerce power had Congress chosen to act. The simple fact was that in the early years of the Republic,
Congress seldom perceived the necessity to exercise its power in circumstances where its authority
would be called into question. The Court's initial task, therefore, was to elaborate the theories that would
permit the States to act where Congress had not done so. Not the least part of the problem was the
unresolved question whether the congressional power was exclusive, a question reserved by Chief Justice
Marshall in Gibbons v. Ogden, supra, at 209-210.
At the midpoint of the 19th century, the Court embraced the principle that the States and the National
Government both have authority to regulate certain matters absent the congressional determination to
displace local law or the necessity for the Court to invalidate local law because of the dormant national
power. Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 318-321 (1852). But the
utility of that solution was not at once apparent, see generally F. Frankfurter, The Commerce Clause
under Marshall, Taney and Waite (1937) (hereinafter Frankfurter), and difficulties of application
persisted, see Leisy v. Hardin, 135 U. S. 100, 122-125 (1890).
One approach the Court used to inquire into the lawfulness of state authority was to draw content-based
or subject-matter distinctions, thus defining by semantic or formalistic categories those activities that
were commerce and those that were not. For instance, in deciding that a State could prohibit the in-state

manufacture of liquor intended for out-of-state shipment, it distinguished between manufacture and
commerce. No distinction is more popular to the common mind, or more clearly expressed in economic
and political literature, than that between manufactur[e] and commerce. Manufacture is transformation -
the fashioning of raw materials into a change of form for use. The functions of commerce are different.
Kidd v. Pearson, 128 U. S. 1, 20 (1888). Though that approach likely would not have survived even if
confined to the question of a State's authority to enact legislation, it was not at all propitious when
applied to the quite different question of what subjects were within the reach of the national power when
Congress chose to exercise it.
This became evident when the Court began to confront federal economic regulation enacted in response
to the rapid industrial development in the late 19th century. Thus, it relied upon the
manufacture-commerce dichotomy in United States v. E. C. Knight Co., 156 U. S. 1 (1895), where a
manufacturers' combination controlling some 98% of the Nation's domestic sugar refining capacity was
held to be outside the reach of the Sherman Act. Conspiracies to control manufacture, agriculture,
mining, production, wages, or prices, the Court explained, had too indirect an effect on interstate
commerce. Id., at 16. And in Adair v. United States, 208 U. S. 161 (1908), the Court rejected the view
that the commerce power might extend to activities that, although local in the sense of having originated
within a single state, nevertheless had a practical effect on interstate commercial activity. The Court
concluded that there was not a legal or logical connection . . . between an employee's membership in a
labor organization and the carrying on of interstate commerce, id., at 178, and struck down a federal
statute forbidding the discharge of an employee because of his membership in a labor organization. See
also The Employers' Liability Cases, 207 U. S. 463, 497 (1908) (invalidating statute creating negligence
action against common carriers for personal injuries of employees sustained in the course of
employment, because the statute regulates the persons because they engage in interstate commerce and
does not alone regulate the business of interstate commerce).
Even before the Court committed itself to sustaining federal legislation on broad principles of economic
practicality, it found it necessary to depart from these decisions. The Court disavowed E. C. Knight's
reliance on the manufacturing-commerce distinction in Standard Oil Co. of New Jersey v. United States,
221 U. S. 1, 68-69 (1911), declaring that approach unsound. The Court likewise rejected the rationale of
Adair when it decided, in Texas & New Orleans R. Co. v. Railway Clerks, 281 U. S. 548, 570-571
(1930), that Congress had the power to regulate matters pertaining to the organization of railroad
workers.
In another line of cases, the Court addressed Congress' efforts to impede local activities it considered
undesirable by prohibiting the interstate movement of some essential element. In the Lottery Case, 188
U. S. 321 (1903), the Court rejected the argument that Congress lacked power to prohibit the interstate
movement of lottery tickets because it had power only to regulate, not to prohibit. See also Hipolite Egg
Co. v. United States, 220 U. S. 45 (1911); Hoke v. United States, 227 U. S. 308 (1913). In Hammer v.
Dagenhart, 247 U. S. 251 (1918), however, the Court insisted that the power to regulate commerce is
directly the contrary of the assumed right to forbid commerce from moving, id., at 269-270, and struck
down a prohibition on the interstate transportation of goods manufactured in violation of child labor
laws.
Even while it was experiencing difficulties in finding satisfactory principles in these cases, the Court was
pursuing a more sustainable and practical approach in other lines of decisions, particularly those
involving the regulation of railroad rates. In the Minnesota Rate Cases, 230 U. S. 352 (1913), the Court

upheld a state rate order, but observed that Congress might be empowered to regulate in this area if by
reason of the interblending of the interstate and intrastate operations of interstate carriers the regulation
of interstate rates could not be maintained without restrictions on intrastate rates which substantially
affect the former. Id., at 432-433. And in the Shreveport Rate Cases, 234 U. S. 342 (1914), the Court
upheld an ICC order fixing railroad rates with the explanation that congressional authority, extending to
these interstate carriers as instruments of interstate commerce, necessarily embraces the right to control
their operations in all matters having such a close and substantial relation to interstate traffic that the
control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service,
and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms
and without molestation or hindrance. Id., at 351.
Even the most confined interpretation of commerce would embrace transportation between the States, so
the rate cases posed much less difficulty for the Court than cases involving manufacture or production.
Nevertheless, the Court's recognition of the importance of a practical conception of the commerce power
was not altogether confined to the rate cases. In Swift & Co. v. United States, 196 U. S. 375 (1905), the
Court upheld the application of federal antitrust law to a combination of meat dealers that occurred in
one State but that restrained trade in cattle sent for sale from a place in one State, with the expectation
that they will end their transit . . . in another. Id., at 398. The Court explained that commerce among the
States is not a technical legal conception, but a practical one, drawn from the course of business. Id., at
398. Chief Justice Taft followed the same approach in upholding federal regulation of stockyards in
Stafford v. Wallace, 258 U. S. 495 (1922). Speaking for the Court, he rejected a nice and technical
inquiry, id., at 519, when the local transactions at issue could not be separated from the movement to
which they contribute, id., at 516.
Reluctance of the Court to adopt that approach in all of its cases caused inconsistencies in doctrine to
persist, however. In addressing New Deal legislation the Court resuscitated the abandoned abstract
distinction between direct and indirect effects on interstate commerce. See Carter v. Carter Coal Co., 298
U. S. 238, 309 (1936) (Act regulating price of coal and wages and hours for miners held to have only
secondary and indirect effect on interstate commerce); Railroad Retirement Bd. v. Alton R. Co., 295 U.
S. 330, 368 (1935) (compulsory retirement and pension plan for railroad carrier employees too remote
from any regulation of commerce as such); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S.
495, 548 (1935) (wage and hour law provision of National Industrial Recovery Act had no direct relation
to interstate commerce).
The case that seems to mark the Court's definitive commitment to the practical conception of the
commerce power is NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), where the Court
sustained labor laws that applied to manufacturing facilities, making no real attempt to distinguish Carter,
supra, and Schechter, supra. 301 U. S., at 40-41. The deference given to Congress has since been
confirmed. United States v. Darby, 312 U. S. 100, 116-117 (1941), overruled Hammer v. Dagenhart,
supra. And in Wickard v. Filburn, 317 U. S. 111 (1942), the Court disapproved E. C. Knight and the
entire line of direct-indirect and manufacture-production cases, explaining that broader interpretations of
the Commerce Clause [were] destined to supersede the earlier ones, id., at 122, and whatever
terminology is used, the criterion is necessarily one of degree and must be so defined. This does not
satisfy those who seek mathematical or rigid formulas. But such formulas are not provided by the great
concepts of the Constitution, id., at 123, n. 24. Later examples of the exercise of federal power where
commercial transactions were the subject of regulation include Heart of Atlanta Motel, Inc. v. United
States, 379 U. S. 241 (1964), Katzenbach v. McClung, 379 U. S. 294 (1964), and Perez v. United States,

402 U. S. 146 (1971). These and like authorities are within the fair ambit of the Court's practical
conception of commercial regulation and are not called in question by our decision today.
The history of our Commerce Clause decisions contains at least two lessons of relevance to this case. The
first, as stated at the outset, is the imprecision of content-based boundaries used without more to define
the limits of the Commerce Clause. The second, related to the first but of even greater consequence, is
that the Court as an institution and the legal system as a whole have an immense stake in the stability of
our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force
in counseling us not to call in question the essential principles now in place respecting the congressional
power to regulate transactions of a commercial nature. That fundamental restraint on our power
forecloses us from reverting to an understanding of commerce that would serve only an 18th-century
economy, dependent then upon production and trading practices that had changed but little over the
preceding centuries; it also mandates against returning to the time when congressional authority to
regulate undoubted commercial activities was limited by a judicial determination that those matters had
an insufficient connection to an interstate system. Congress can regulate in the commercial sphere on the
assumption that we have a single market and a unified purpose to build a stable national economy.
In referring to the whole subject of the federal and state balance, we said this just three Terms ago:
This framework has been sufficiently flexible over the past two centuries to allow for
enormous changes in the nature of government. The Federal Government undertakes
activities today that would have been unimaginable to the Framers in two senses: first,
because the Framers would not have conceived that any government would conduct such
activities; and second, because the Framers would not have believed that the Federal
Government, rather than the States, would assume such responsibilities. Yet the powers
conferred upon the Federal Government by the Constitution were phrased in language broad
enough to allow for the expansion of the Federal Government's role. New York v. United
States, 505 U. S. ___, ___ (1992) (slip op., at 9-10) (emphasis omitted).
It does not follow, however, that in every instance the Court lacks the authority and responsibility to
review congressional attempts to alter the federal balance. This case requires us to consider our place in
the design of the Government and to appreciate the significance of federalism in the whole structure of
the Constitution.
Of the various structural elements in the Constitution, separation of powers, checks and balances, judicial
review, and federalism, only concerning the last does there seem to be much uncertainty respecting the
existence, and the content, of standards that allow the judiciary to play a significant role in maintaining
the design contemplated by the Framers. Although the resolution of specific cases has proved difficult,
we have derived from the Constitution workable standards to assist in preserving separation of powers
and checks and balances. See, e.g., Prize Cases, 2 Black 635 (1863); Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579 (1952); United States v. Nixon, 418 U. S. 683 (1974); Buckley v. Valeo, 424 U.
S. 1 (1976); INS v. Chadha, 462 U. S. 919 (1983); Bowsher v. Synar, 478 U. S. 714 (1986); Plaut v.
Spendthrift Farm, ___ U. S. ___ (1995). These standards are by now well accepted. Judicial review is
also established beyond question, Marbury v. Madison, 1 Cranch 137 (1803), and though we may differ
when applying its principles, see, e.g., Planned Parenthood of Southeastern Pennsylvania v. Casey, 505
U. S. ___ (1992), its legitimacy is undoubted. Our role in preserving the federal balance seems more
tenuous.

There is irony in this, because of the four structural elements in the Constitution just mentioned,
federalism was the unique contribution of the Framers to political science and political theory. See
Friendly, Federalism: A Forward, 86 Yale L. J. 1019 (1977); G. Wood, The Creation of the American
Republic, 1776-1787, pp. 524-532, 564 (1969). Though on the surface the idea may seem
counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two
governments, not one. In the compound republic of America, the power surrendered by the people is first
divided between two distinct governments, and then the portion allotted to each subdivided among
distinct and separate departments. Hence a double security arises to the rights of the people. The different
governments will control each other, at the same time that each will be controlled by itself. The
Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison). See also Gregory v. Ashcroft, 501 U. S.
452, 458-459 (1991) (Just as the separation and independence of the coordinate branches of the Federal
Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance
of power between the States and the Federal Government will reduce the risk of tyranny and abuse from
either front. . . . In the tension between federal and state power lies the promise of liberty); New York v.
United States, supra, at ___ (slip op., at 34) ([T]he Constitution divides authority between federal and
state governments for the protection of individuals. State sovereignty is not just an end in itself: `Rather,
federalism secures to citizens the liberties that derive from the diffusion of sovereign power') (quoting
Coleman v. Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J., dissenting)).
The theory that two governments accord more liberty than one requires for its realization two distinct and
discernable lines of political accountability: one between the citizens and the Federal Government; the
second between the citizens and the States. If, as Madison expected, the federal and state governments
are to control each other, see The Federalist No. 51, and hold each other in check by competing for the
affections of the people, see The Federalist No. 46, those citizens must have some means of knowing
which of the two governments to hold accountable for the failure to perform a given function. Federalism
serves to assign political responsibility, not to obscure it. FTC v. Ticor Title Ins. Co., 504 U. S. 621, 636
(1992). Were the Federal Government to take over the regulation of entire areas of traditional state
concern, areas having nothing to do with the regulation of commercial activities, the boundaries between
the spheres of federal and state authority would blur and political responsibility would become illusory.
See New York v. United States, supra, at ___; FERC v. Mississippi, 456 U. S. 742, 787 (1982)
(O'Connor, J., concurring in judgment in part and dissenting in part). The resultant inability to hold either
branch of the government answerable to the citizens is more dangerous even than devolving too much
authority to the remote central power.
To be sure, one conclusion that could be drawn from The Federalist Papers is that the balance between
national and state power is entrusted in its entirety to the political process. Madison's observation that the
people ought not surely to be precluded from giving most of their confidence where they may discover it
to be most due, The Federalist No. 46, p. 295 (C. Rossiter ed. 1961), can be interpreted to say that the
essence of responsibility for a shift in power from the State to the Federal Government rests upon a
political judgment, though he added assurance that the State governments could have little to apprehend,
because it is only within a certain sphere that the federal power can, in the nature of things, be
advantageously administered, ibid. Whatever the judicial role, it is axiomatic that Congress does have
substantial discretion and control over the federal balance.
For these reasons, it would be mistaken and mischievous for the political branches to forget that the
sworn obligation to preserve and protect the Constitution in maintaining the federal balance is their own
in the first and primary instance. In the Webster-Hayne Debates, see The Great Speeches and Orations of

Daniel Webster 227-272 (E. Whipple ed. 1879), and the debates over the Civil Rights Acts, see Hearings
on S. 1732 before the Senate Committee on Commerce, 88th Cong., 1st Sess., pts. 1-3 (1963), some
Congresses have accepted responsibility to confront the great questions of the proper federal balance in
terms of lasting consequences for the constitutional design. The political branches of the Government
must fulfill this grave constitutional obligation if democratic liberty and the federalism that secures it are
to endure.
At the same time, the absence of structural mechanisms to require those officials to undertake this
principled task, and the momentary political convenience often attendant upon their failure to do so,
argue against a complete renunciation of the judicial role. Although it is the obligation of all officers of
the Government to respect the constitutional design, see Public Citizen v. Department of Justice, 491 U.
S. 440, 466 (1989); Rostker v. Goldberg, 453 U. S. 57, 64 (1981), the federal balance is too essential a
part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability
to intervene when one or the other level of Government has tipped the scales too far.
In the past this Court has participated in maintaining the federal balance through judicial exposition of
doctrines such as abstention, see, e.g., Younger v. Harris, 401 U. S. 37 (1971); Railroad Comm'n of
Texas v. Pullman Co., 312 U. S. 496 (1941); Burford v. Sun Oil Co., 319 U. S. 315 (1943), the rules for
determining the primacy of state law, see, e.g., Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), the
doctrine of adequate and independent state grounds, see, e.g., Murdock v. City of Memphis, 87 U. S. 590
(1875); Michigan v. Long, 463 U. S. 1032 (1983), the whole jurisprudence of preemption, see, e.g., Rice
v. Santa Fe Elevator Corp., 331 U. S. 218 (1947); Cipollone v. Liggett Group, Inc., 505 U. S. ___ (1992),
and many of the rules governing our habeas jurisprudence, see, e.g., Coleman v. Thompson, supra;
McCleskey v. Zant, 499 U. S. 467 (1991); Teague v. Lane, 489 U. S. 288 (1989); Rose v. Lundy, 455 U.
S. 509 (1982); Wainwright v. Sykes, 433 U. S. 72 (1977).
Our ability to preserve this principle under the Commerce Clause has presented a much greater
challenge. See supra, at 1-7. This clause has throughout the Court's history been the chief source of its
adjudications regarding federalism, and no other body of opinions affords a fairer or more revealing test
of judicial qualities. Frankfurter 66-67. But as the branch whose distinctive duty it is to declare what the
law is, Marbury v. Madison, 1 Cranch, at 177, we are often called upon to resolve questions of
constitutional law not susceptible to the mechanical application of bright and clear lines. The substantial
element of political judgment in Commerce Clause matters leaves our institutional capacity to intervene
more in doubt than when we decide cases, for instance, under the Bill of Rights even though clear and
bright lines are often absent in the latter class of disputes. See County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 630 (1989) (O'Connor, J., concurring in part
and concurring in judgment) (We cannot avoid the obligation to draw lines, often close and difficult lines
in adjudicating constitutional rights). But our cases do not teach that we have no role at all in determining
the meaning of the Commerce Clause.
Our position in enforcing the dormant Commerce Clause is instructive. The Court's doctrinal approach in
that area has likewise taken some turns. Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U. S. ___,
___ (1995) (slip op., at 4). Yet in contrast to the prevailing skepticism that surrounds our ability to give
meaning to the explicit text of the Commerce Clause, there is widespread acceptance of our authority to
enforce the dormant Commerce Clause, which we have but inferred from the constitutional structure as a
limitation on the power of the States. One element of our dormant Commerce Clause jurisprudence has
been the principle that the States may not impose regulations that place an undue burden on interstate

commerce, even where those regulations do not discriminate between in-state and out-of-state
businesses. See Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 573, 579
(1986) (citing Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970)). Distinguishing between
regulations that do place an undue burden on interstate commerce and regulations that do not depends
upon delicate judgments. True, if we invalidate a state law, Congress can in effect overturn our judgment,
whereas in a case announcing that Congress has transgressed its authority, the decision is more
consequential, for its stands unless Congress can revise its law to demonstrate its commercial character.
This difference no doubt informs the circumspection with which we invalidate an Act of Congress, but it
does not mitigate our duty to recognize meaningful limits on the commerce power of Congress.
The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of
the commerce power, and our intervention is required. As the Chief Justice explains, unlike the earlier
cases to come before the Court here neither the actors nor their conduct have a commercial character, and
neither the purposes nor the design of the statute have an evident commercial nexus. See ante, at 10-12.
The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a
criminal offense. In a sense any conduct in this interdependent world of ours has an ultimate commercial
origin or consequence, but we have not yet said the commerce power may reach so far. If Congress
attempts that extension, then at the least we must inquire whether the exercise of national power seeks to
intrude upon an area of traditional state concern.
An interference of these dimensions occurs here, for it is well established that education is a traditional
concern of the States. Milliken v. Bradley, 418 U. S. 717, 741-742 (1974); Epperson v. Arkansas, 393 U.
S. 97, 104 (1968). The proximity to schools, including of course schools owned and operated by the
States or their subdivisions, is the very premise for making the conduct criminal. In these circumstances,
we have a particular duty to insure that the federal-state balance is not destroyed. Cf. Rice, supra, at 230
([W]e start with the assumption that the historic police powers of the States- are not displaced by a
federal statute -unless that was the clear and manifest purpose of Congress); Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U. S. 132, 146 (1963).
While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to
allow students to carry guns on school premises, considerable disagreement exists about how best to
accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the
States may perform their role as laboratories for experimentation to devise various solutions where the
best solution is far from clear. See San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1,
49-50 (1973); New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting)).
If a State or municipality determines that harsh criminal sanctions are necessary and wise to deter
students from carrying guns on school premises, the reserved powers of the States are sufficient to enact
those measures. Indeed, over 40 States already have criminal laws outlawing the possession of firearms
on or near school grounds. See, e.g., Alaska Stat. Ann. 11.61.195(a)(2)(A), 11.61.220(a)(4)(A) (Supp.
1994); Cal. Penal Code Ann. 626.9 (West Supp. 1994); Mass. Gen. Laws 269:10(j) (1992); N. J. Stat.
Ann. 2C:39-5(e) (West Supp. 1994); Va. Code Ann. 18.2-308.1 (1988); Wis. Stat. 948.605 (1991-1992).
Other, more practicable means to rid the schools of guns may be thought by the citizens of some States to
be preferable for the safety and welfare of the schools those States are charged with maintaining. See
Brief for National Conference of State Legislatures et al., as Amici Curiae 26-30 (injection of federal
officials into local problems causes friction and diminishes political accountability of state and local

governments). These might include inducements to inform on violators where the information leads to
arrests or confiscation of the guns, see C. Lima, Schools May Launch Weapons Hot Line, L. A. Times,
Jan. 13, 1995, part B, p. 1, col. 5; Reward for Tips on Guns in Tucson Schools, The Arizona Republic,
Jan. 7, 1995, p. B2; programs to encourage the voluntary surrender of guns with some provision for
amnesty, see A. Zaidan, Akron Rallies to Save Youths, The Plain Dealer, Mar. 2, 1995, p. 1B; M. Swift,
Legislators Consider Plan to Get Guns Off Streets, Hartford Courant, Apr. 29, 1992, p. A4; penalties
imposed on parents or guardians for failure to supervise the child, see, e.g., Okla. Stat., Tit. 21, 858
(Supp. 1995) (fining parents who allow students to possess firearm at school); Tenn. Code Ann.
39-17-1312 (Supp. 1992) (misdemeanor for parents to allow student to possess firearm at school);
Straight Shooter: Gov. Casey's Reasonable Plan to Control Assault Weapons, Pittsburgh Post-Gazette,
Mar. 14, 1994, p. B2 (proposed bill); E. Bailey, Anti-Crime Measures Top Legislators' Agenda, L. A.
Times, Mar. 7, 1994, part B, p. 1, col. 2 (same); G. Krupa, New Gun-Control Plans Could Tighten Local
Law, The Boston Globe, June 20, 1993, p. 29; laws providing for suspension or expulsion of gun-toting
students, see, e.g., Ala. Code 16-1-24.1 (Supp. 1994); Ind. Code 20-8.1-5-4(b)(1)(D) (1993); Ky. Rev.
Stat. Ann. 158.150(1)(a) (Michie 1992); Wash. Rev. Code 9.41.280 (1994), or programs for expulsion
with assignment to special facilities, see J. Martin, Legislators Poised to Take Harsher Stand on Guns in
Schools, The Seattle Times, Feb. 1, 1995, p. B1 (automatic-year-long expulsion for students with guns
and intense semester-long reentry program).
The statute now before us forecloses the States from experimenting and exercising their own judgment in
an area to which States lay claim by right of history and expertise, and it does so by regulating an activity
beyond the realm of commerce in the ordinary and usual sense of that term. The tendency of this statute
to displace state regulation in areas of traditional state concern is evident from its territorial operation.
There are over 100,000 elementary and secondary schools in the United States. See U. S. Dept. of
Education, National Center for Education Statistics, Digest of Education Statistics 73, 104 (NCES
94-115, 1994) (Tables 63, 94). Each of these now has an invisible federal zone extending 1,000 feet
beyond the (often irregular) boundaries of the school property. In some communities no doubt it would
be difficult to navigate without infringing on those zones. Yet throughout these areas, school officials
would find their own programs for the prohibition of guns in danger of displacement by the federal
authority unless the State chooses to enact a parallel rule.
This is not a case where the etiquette of federalism has been violated by a formal command from the
National Government directing the State to enact a certain policy, cf. New York v. United States, 505 U.
S. ___ (1992), or to organize its governmental functions in a certain way, cf. FERC v. Mississippi, 456
U. S., at 781 (O'Connor, J., concurring in judgment in part and dissenting in part). While the intrusion on
state sovereignty may not be as severe in this instance as in some of our recent Tenth Amendment cases,
the intrusion is nonetheless significant. Absent a stronger connection or identification with commercial
concerns that are central to the Commerce Clause, that interference contradicts the federal balance the
Framers designed and that this Court is obliged to enforce.
For these reasons, I join in the opinion and judgment of the Court.


--------
No. 93-1260
--------
ALFONSO LOPEZ, Jr.
[April 26, 1995]
Justice Kennedy, with whom Justice O'Connor

joins, concurring.
The history of the judicial struggle to interpret the
Commerce Clause during the transition from the
economic system the Founders knew to the single,
national market still emergent in our own era counsels
great restraint before the Court determines that the
Clause is insufficient to support an exercise of the
national power. That history gives me some pause
about today's decision, but I join the Court's opinion
with these observations on what I conceive to be its
necessary though limited holding.
Chief Justice Marshall announced that the national
authority reaches -that commerce which concerns more
States than one- and that the commerce power -is
complete in itself, may be exercised to its utmost extent,
and acknowledges no limitations, other than are pre-
scribed in the constitution.- Gibbons v. Ogden, 9 Wheat.
1, 194, 196 (1824). His statements can be understood
now as an early and authoritative recognition that the
Commerce Clause grants Congress extensive power and
ample discretion to determine its appropriate exercise.
The progression of our Commerce Clause cases from
Gibbons to the present was not marked, however, by a
coherent or consistent course of interpretation; for
neither the course of technological advance nor the
foundational principles for the jurisprudence itself were
self-evident to the courts that sought to resolve contem-
porary disputes by enduring principles.
Furthermore, for almost a century after the adoption
of the Constitution, the Court's Commerce Clause
decisions did not concern the authority of Congress to
legislate. Rather, the Court faced the related but quite
distinct question of the authority of the States to
regulate matters that would be within the commerce
power had Congress chosen to act. The simple fact was
that in the early years of the Republic, Congress seldom
perceived the necessity to exercise its power in circum-
stances where its authority would be called into ques-
tion. The Court's initial task, therefore, was to elabo-
rate the theories that would permit the States to act
where Congress had not done so. Not the least part of
the problem was the unresolved question whether the
congressional power was exclusive, a question reserved
by Chief Justice Marshall in Gibbons v. Ogden, supra,
at 209-210.
At the midpoint of the 19th century, the Court em-
braced the principle that the States and the National
Government both have authority to regulate certain
matters absent the congressional determination to
displace local law or the necessity for the Court to

invalidate local law because of the dormant national

power. Cooley v. Board of Wardens of Port of Philadel-
phia, 12 How. 299, 318-321 (1852). But the utility of
that solution was not at once apparent, see generally F.
Frankfurter, The Commerce Clause under Marshall,
Taney and Waite (1937) (hereinafter Frankfurter), and
difficulties of application persisted, see Leisy v. Hardin,
135 U. S. 100, 122-125 (1890).
One approach the Court used to inquire into the
lawfulness of state authority was to draw content-based
or subject-matter distinctions, thus defining by semantic
or formalistic categories those activities that were com-
merce and those that were not. For instance, in
deciding that a State could prohibit the in-state manu-
facture of liquor intended for out-of-state shipment, it
distinguished between manufacture and commerce. -No
distinction is more popular to the common mind, or
more clearly expressed in economic and political litera-
ture, than that between manufactur[e] and commerce.
Manufacture is transformation-the fashioning of raw
materials into a change of form for use. The functions
of commerce are different.- Kidd v. Pearson, 128 U. S.
1, 20 (1888). Though that approach likely would not
have survived even if confined to the question of a
State's authority to enact legislation, it was not at all
propitious when applied to the quite different question
of what subjects were within the reach of the national
power when Congress chose to exercise it.
This became evident when the Court began to confront
federal economic regulation enacted in response to the
rapid industrial development in the late 19th century.
Thus, it relied upon the manufacture-commerce dichot-
omy in United States v. E. C. Knight Co., 156 U. S. 1
(1895), where a manufacturers' combination controlling
some 98% of the Nation's domestic sugar refining
capacity was held to be outside the reach of the Sher-
man Act. Conspiracies to control manufacture, agricul-
ture, mining, production, wages, or prices, the Court
explained, had too -indirect- an effect on interstate
commerce. Id., at 16. And in Adair v. United States,
208 U. S. 161 (1908), the Court rejected the view that
the commerce power might extend to activities that,
although local in the sense of having originated within
a single state, nevertheless had a practical effect on
interstate commercial activity. The Court concluded that
there was not a -legal or logical connection . . . between
an employ-'s membership in a labor organization and
the carrying on of interstate commerce,- id., at 178, and
struck down a federal statute forbidding the discharge
of an employee because of his membership in a labor
organization. See also The Employers' Liability Cases,
207 U. S. 463, 497 (1908) (invalidating statute creating
negligence action against common carriers for personal
injuries of employees sustained in the course of employ-
ment, because the statute -regulates the persons because
they engage in interstate commerce and does not alone
regulate the business of interstate commerce-).
Even before the Court committed itself to sustaining
federal legislation on broad principles of economic
practicality, it found it necessary to depart from these
decisions. The Court disavowed E. C. Knight's reliance

on the manufacturing-commerce distinction in Standard

Oil Co. of New Jersey v. United States, 221 U. S. 1,
68-69 (1911), declaring that approach -unsound.- The
Court likewise rejected the rationale of Adair when it
decided, in Texas & New Orleans R. Co. v. Railway
Clerks, 281 U. S. 548, 570-571 (1930), that Congress
had the power to regulate matters pertaining to the
organization of railroad workers.
In another line of cases, the Court addressed Congress'
efforts to impede local activities it considered undesir-
able by prohibiting the interstate movement of some
essential element. In the Lottery Case, 188 U. S. 321
(1903), the Court rejected the argument that Congress
lacked power to prohibit the interstate movement of
lottery tickets because it had power only to regulate, not
to prohibit. See also Hipolite Egg Co. v. United States,
220 U. S. 45 (1911); Hoke v. United States, 227 U. S.
308 (1913). In Hammer v. Dagenhart, 247 U. S. 251
(1918), however, the Court insisted that the power to
regulate commerce -is directly the contrary of the
assumed right to forbid commerce from moving,- id., at
269-270, and struck down a prohibition on the interstate
transportation of goods manufactured in violation of
child labor laws.
Even while it was experiencing difficulties in finding
satisfactory principles in these cases, the Court was
pursuing a more sustainable and practical approach in
other lines of decisions, particularly those involving the
regulation of railroad rates. In the Minnesota Rate
Cases, 230 U. S. 352 (1913), the Court upheld a state
rate order, but observed that Congress might be empow-
ered to regulate in this area if -by reason of the
interblending of the interstate and intrastate operations
of interstate carriers- the regulation of interstate rates
could not be maintained without restrictions on -intra-
state rates which substantially affect the former.- Id.,
at 432-433. And in the Shreveport Rate Cases, 234
U. S. 342 (1914), the Court upheld an ICC order fixing
railroad rates with the explanation that congressional
authority, -extending to these interstate carriers as
instruments of interstate commerce, necessarily embraces
the right to control their operations in all matters
having such a close and substantial relation to interstate
traffic that the control is essential or appropriate to the
security of that traffic, to the efficiency of the interstate
service, and to the maintenance of conditions under
which interstate commerce may be conducted upon fair
terms and without molestation or hindrance.- Id., at
351.
Even the most confined interpretation of -commerce-
would embrace transportation between the States, so the
rate cases posed much less difficulty for the Court than
cases involving manufacture or production. Neverthe-
less, the Court's recognition of the importance of a
practical conception of the commerce power was not
altogether confined to the rate cases. In Swift & Co. v.
United States, 196 U. S. 375 (1905), the Court upheld
the application of federal antitrust law to a combination
of meat dealers that occurred in one State but that
restrained trade in cattle -sent for sale from a place in
one State, with the expectation that they will end their

transit . . . in another.- Id., at 398. The Court ex-

plained that -commerce among the States is not a
technical legal conception, but a practical one, drawn
from the course of business.- Id., at 398. Chief Justice
Taft followed the same approach in upholding federal
regulation of stockyards in Stafford v. Wallace, 258 U. S.
495 (1922). Speaking for the Court, he rejected a -nice
and technical inquiry,- id., at 519, when the local
transactions at issue could not -be separated from the
movement to which they contribute,- id., at 516.
Reluctance of the Court to adopt that approach in all
of its cases caused inconsistencies in doctrine to persist,
however. In addressing New Deal legislation the Court
resuscitated the abandoned abstract distinction between
direct and indirect effects on interstate commerce. See
Carter v. Carter Coal Co., 298 U. S. 238, 309 (1936) (Act
regulating price of coal and wages and hours for miners
held to have only -secondary and indirect- effect on
interstate commerce); Railroad Retirement Bd. v. Alton
R. Co., 295 U. S. 330, 368 (1935) (compulsory retirement
and pension plan for railroad carrier employees too
-remote from any regulation of commerce as such-);
A. L. A. Schechter Poultry Corp. v. United States, 295
U. S. 495, 548 (1935) (wage and hour law provision of
National Industrial Recovery Act had -no direct relation
to interstate commerce-).
The case that seems to mark the Court's definitive
commitment to the practical conception of the commerce
power is NLRB v. Jones & Laughlin Steel Corp., 301
U. S. 1 (1937), where the Court sustained labor laws
that applied to manufacturing facilities, making no real
attempt to distinguish Carter, supra, and Schechter,
supra. 301 U. S., at 40-41. The deference given to
Congress has since been confirmed. United States v.
Darby, 312 U. S. 100, 116-117 (1941), overruled Ham-
mer v. Dagenhart, supra. And in Wickard v. Filburn,
317 U. S. 111 (1942), the Court disapproved E. C.
Knight and the entire line of direct-indirect and manu-
facture-production cases, explaining that -broader
interpretations of the Commerce Clause [were] destined
to supersede the earlier ones,- id., at 122, and -whatever
terminology is used, the criterion is necessarily one of
degree and must be so defined. This does not satisfy
those who seek mathematical or rigid formulas. But
such formulas are not provided by the great concepts of
the Constitution,- id., at 123, n. 24. Later examples of
the exercise of federal power where commercial transac-
tions were the subject of regulation include Heart of
Atlanta Motel, Inc. v. United States, 379 U. S. 241
(1964), Katzenbach v. McClung, 379 U. S. 294 (1964),
and Perez v. United States, 402 U. S. 146 (1971). These
and like authorities are within the fair ambit of the
Court's practical conception of commercial regulation and
are not called in question by our decision today.
The history of our Commerce Clause decisions contains
at least two lessons of relevance to this case. The first,
as stated at the outset, is the imprecision of content-
based boundaries used without more to define the limits
of the Commerce Clause. The second, related to the
first but of even greater consequence, is that the Court
as an institution and the legal system as a whole have

an immense stake in the stability of our Commerce

Clause jurisprudence as it has evolved to this point.
Stare decisis operates with great force in counseling us
not to call in question the essential principles now in
place respecting the congressional power to regulate
transactions of a commercial nature. That fundamental
restraint on our power forecloses us from reverting to an
understanding of commerce that would serve only an
18th-century economy, dependent then upon production
and trading practices that had changed but little over
the preceding centuries; it also mandates against
returning to the time when congressional authority to
regulate undoubted commercial activities was limited by
a judicial determination that those matters had an
insufficient connection to an interstate system. Congress
can regulate in the commercial sphere on the assump-
tion that we have a single market and a unified purpose
to build a stable national economy.
In referring to the whole subject of the federal and
state balance, we said this just three Terms ago:
-This framework has been sufficiently flexible over
the past two centuries to allow for enormous changes
in the nature of government. The Federal Govern-
ment undertakes activities today that would have been
unimaginable to the Framers in two senses: first,
because the Framers would not have conceived that
any government would conduct such activities; and
second, because the Framers would not have believed
that the Federal Government, rather than the States,
would assume such responsibilities. Yet the powers
conferred upon the Federal Government by the
Constitution were phrased in language broad enough
to allow for the expansion of the Federal Government's
role.- New York v. United States, 505 U. S. ___, ___
(1992) (slip op., at 9-10) (emphasis omitted).
It does not follow, however, that in every instance the
Court lacks the authority and responsibility to review
congressional attempts to alter the federal balance. This
case requires us to consider our place in the design of
the Government and to appreciate the significance of
federalism in the whole structure of the Constitution.
Of the various structural elements in the Constitution,
separation of powers, checks and balances, judicial
review, and federalism, only concerning the last does
there seem to be much uncertainty respecting the
existence, and the content, of standards that allow the
judiciary to play a significant role in maintaining the
design contemplated by the Framers. Although the
resolution of specific cases has proved difficult, we have
derived from the Constitution workable standards to
assist in preserving separation of powers and checks and
balances. See, e.g., Prize Cases, 2 Black 635 (1863);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579
(1952); United States v. Nixon, 418 U. S. 683 (1974);
Buckley v. Valeo, 424 U. S. 1 (1976); INS v. Chadha,
462 U. S. 919 (1983); Bowsher v. Synar, 478 U. S. 714
(1986); Plaut v. Spendthrift Farm, ___ U. S. ___ (1995).
These standards are by now well accepted. Judicial
review is also established beyond question, Marbury v.
Madison, 1 Cranch 137 (1803), and though we may
differ when applying its principles, see, e.g., Planned

Parenthood of Southeastern Pennsylvania v. Casey, 505

U. S. ___ (1992), its legitimacy is undoubted. Our role
in preserving the federal balance seems more tenuous.
There is irony in this, because of the four structural
elements in the Constitution just mentioned, federalism
was the unique contribution of the Framers to political
science and political theory. See Friendly, Federalism:
A Forward, 86 Yale L. J. 1019 (1977); G. Wood, The
Creation of the American Republic, 1776-1787, pp.
524-532, 564 (1969). Though on the surface the idea
may seem counterintuitive, it was the insight of the
Framers that freedom was enhanced by the creation of
two governments, not one. -In the compound republic of
America, the power surrendered by the people is first
divided between two distinct governments, and then the
portion allotted to each subdivided among distinct and
separate departments. Hence a double security arises to
the rights of the people. The different governments will
control each other, at the same time that each will be
controlled by itself.- The Federalist No. 51, p. 323 (C.
Rossiter ed. 1961) (J. Madison). See also Gregory v.
Ashcroft, 501 U. S. 452, 458-459 (1991) (-Just as the
separation and independence of the coordinate branches
of the Federal Government serve to prevent the accumu-
lation of excessive power in any one branch, a healthy
balance of power between the States and the Federal
Government will reduce the risk of tyranny and abuse
from either front. . . . In the tension between federal
and state power lies the promise of liberty-); New York
v. United States, supra, at ___ (slip op., at 34) (-[T]he
Constitution divides authority between federal and state
governments for the protection of individuals. State
sovereignty is not just an end in itself: `Rather, federal-
ism secures to citizens the liberties that derive from the
diffusion of sovereign power'-) (quoting Coleman v.
Thompson, 501 U. S. 722, 759 (1991) (Blackmun, J.,
dissenting)).
The theory that two governments accord more liberty
than one requires for its realization two distinct and
discernable lines of political accountability: one between
the citizens and the Federal Government; the second
between the citizens and the States. If, as Madison
expected, the federal and state governments are to
control each other, see The Federalist No. 51, and hold
each other in check by competing for the affections of
the people, see The Federalist No. 46, those citizens
must have some means of knowing which of the two
governments to hold accountable for the failure to
perform a given function. -Federalism serves to assign
political responsibility, not to obscure it.- FTC v. Ticor
Title Ins. Co., 504 U. S. 621, 636 (1992). Were the
Federal Government to take over the regulation of entire
areas of traditional state concern, areas having nothing
to do with the regulation of commercial activities, the
boundaries between the spheres of federal and state
authority would blur and political responsibility would
become illusory. See New York v. United States, supra,
at ___; FERC v. Mississippi, 456 U. S. 742, 787 (1982)
(O'Connor, J., concurring in judgment in part and
dissenting in part). The resultant inability to hold
either branch of the government answerable to the

citizens is more dangerous even than devolving too much

authority to the remote central power.
To be sure, one conclusion that could be drawn from
The Federalist Papers is that the balance between
national and state power is entrusted in its entirety to
the political process. Madison's observation that -the
people ought not surely to be precluded from giving most
of their confidence where they may discover it to be
most due,- The Federalist No. 46, p. 295 (C. Rossiter ed.
1961), can be interpreted to say that the essence of
responsibility for a shift in power from the State to the
Federal Government rests upon a political judgment,
though he added assurance that -the State governments
could have little to apprehend, because it is only within
a certain sphere that the federal power can, in the
nature of things, be advantageously administered,- ibid.
Whatever the judicial role, it is axiomatic that Congress
does have substantial discretion and control over the
federal balance.
For these reasons, it would be mistaken and mischie-
vous for the political branches to forget that the sworn
obligation to preserve and protect the Constitution in
maintaining the federal balance is their own in the first
and primary instance. In the Webster-Hayne Debates,
see The Great Speeches and Orations of Daniel Webster
227-272 (E. Whipple ed. 1879), and the debates over the
Civil Rights Acts, see Hearings on S. 1732 before the
Senate Committee on Commerce, 88th Cong., 1st Sess.,
pts. 1-3 (1963), some Congresses have accepted responsi-
bility to confront the great questions of the proper
federal balance in terms of lasting consequences for the
constitutional design. The political branches of the
Government must fulfill this grave constitutional obliga-
tion if democratic liberty and the federalism that secures
it are to endure.
At the same time, the absence of structural mecha-
nisms to require those officials to undertake this
principled task, and the momentary political convenience
often attendant upon their failure to do so, argue
against a complete renunciation of the judicial role.
Although it is the obligation of all officers of the
Government to respect the constitutional design, see
Public Citizen v. Department of Justice, 491 U. S. 440,
466 (1989); Rostker v. Goldberg, 453 U. S. 57, 64 (1981),
the federal balance is too essential a part of our consti-
tutional structure and plays too vital a role in securing
freedom for us to admit inability to intervene when one
or the other level of Government has tipped the scales
too far.
In the past this Court has participated in maintaining
the federal balance through judicial exposition of
doctrines such as abstention, see, e.g., Younger v. Harris,
401 U. S. 37 (1971); Railroad Comm'n of Texas v.
Pullman Co., 312 U. S. 496 (1941); Burford v. Sun Oil
Co., 319 U. S. 315 (1943), the rules for determining the
primacy of state law, see, e.g., Erie R. Co. v. Tompkins,
304 U. S. 64 (1938), the doctrine of adequate and
independent state grounds, see, e.g., Murdock v. City of
Memphis, 87 U. S. 590 (1875); Michigan v. Long, 463
U. S. 1032 (1983), the whole jurisprudence of pre-
emption, see, e.g., Rice v. Santa Fe Elevator Corp., 331

U. S. 218 (1947); Cipollone v. Liggett Group, Inc., 505

U. S. ___ (1992), and many of the rules governing our
habeas jurisprudence, see, e.g., Coleman v. Thompson,
supra; McCleskey v. Zant, 499 U. S. 467 (1991); Teague
v. Lane, 489 U. S. 288 (1989); Rose v. Lundy, 455 U. S.
509 (1982); Wainwright v. Sykes, 433 U. S. 72 (1977).
Our ability to preserve this principle under the
Commerce Clause has presented a much greater chal-
lenge. See supra, at 1-7. -This clause has throughout
the Court's history been the chief source of its adjudica-
tions regarding federalism,- and -no other body of
opinions affords a fairer or more revealing test of
judicial qualities.- Frankfurter 66-67. But as the
branch whose distinctive duty it is to declare -what the
law is,- Marbury v. Madison, 1 Cranch, at 177, we are
often called upon to resolve questions of constitutional
law not susceptible to the mechanical application of
bright and clear lines. The substantial element of
political judgment in Commerce Clause matters leaves
our institutional capacity to intervene more in doubt
than when we decide cases, for instance, under the Bill
of Rights even though clear and bright lines are often
absent in the latter class of disputes. See County of
Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U. S. 573, 630 (1989) (O'Con-
nor, J., concurring in part and concurring in judgment)
(-We cannot avoid the obligation to draw lines, often
close and difficult lines- in adjudicating constitutional
rights). But our cases do not teach that we have no
role at all in determining the meaning of the Commerce
Clause.
Our position in enforcing the dormant Commerce
Clause is instructive. The Court's doctrinal approach in
that area has likewise -taken some turns.- Oklahoma
Tax Comm'n v. Jefferson Lines, Inc., 514 U. S. ___, ___
(1995) (slip op., at 4). Yet in contrast to the prevailing
skepticism that surrounds our ability to give meaning to
the explicit text of the Commerce Clause, there is
widespread acceptance of our authority to enforce the
dormant Commerce Clause, which we have but inferred
from the constitutional structure as a limitation on the
power of the States. One element of our dormant
Commerce Clause jurisprudence has been the principle
that the States may not impose regulations that place
an undue burden on interstate commerce, even where
those regulations do not discriminate between in-state
and out-of-state businesses. See Brown-Forman Distill-
ers Corp. v. New York State Liquor Authority, 476 U. S.
573, 579 (1986) (citing Pike v. Bruce Church, Inc., 397
U. S. 137, 142 (1970)). Distinguishing between regula-
tions that do place an undue burden on interstate
commerce and regulations that do not depends upon
delicate judgments. True, if we invalidate a state law,
Congress can in effect overturn our judgment, whereas
in a case announcing that Congress has transgressed its
authority, the decision is more consequential, for its
stands unless Congress can revise its law to demonstrate
its commercial character. This difference no doubt
informs the circumspection with which we invalidate an
Act of Congress, but it does not mitigate our duty to
recognize meaningful limits on the commerce power of

Congress.
The statute before us upsets the federal balance to a
degree that renders it an unconstitutional assertion of
the commerce power, and our intervention is required.
As the Chief Justice explains, unlike the earlier cases
to come before the Court here neither the actors nor
their conduct have a commercial character, and neither
the purposes nor the design of the statute have an
evident commercial nexus. See ante, at 10-12. The
statute makes the simple possession of a gun within
1,000 feet of the grounds of the school a criminal
offense. In a sense any conduct in this interdependent
world of ours has an ultimate commercial origin or
consequence, but we have not yet said the commerce
power may reach so far. If Congress attempts that
extension, then at the least we must inquire whether
the exercise of national power seeks to intrude upon an
area of traditional state concern.
An interference of these dimensions occurs here, for it
is well established that education is a traditional
concern of the States. Milliken v. Bradley, 418 U. S.
717, 741-742 (1974); Epperson v. Arkansas, 393 U. S.
97, 104 (1968). The proximity to schools, including of
course schools owned and operated by the States or their
subdivisions, is the very premise for making the conduct
criminal. In these circumstances, we have a particular
duty to insure that the federal-state balance is not
destroyed. Cf. Rice, supra, at 230 (-[W]e start with the
assumption that the historic police powers of the States-
are not displaced by a federal statute -unless that was
the clear and manifest purpose of Congress-); Florida
Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132,
146 (1963).
While it is doubtful that any State, or indeed any
reasonable person, would argue that it is wise policy to
allow students to carry guns on school premises, consid-
erable disagreement exists about how best to accomplish
that goal. In this circumstance, the theory and utility
of our federalism are revealed, for the States may
perform their role as laboratories for experimentation to
devise various solutions where the best solution is far
from clear. See San Antonio Independent School Dist.
v. Rodriguez, 411 U. S. 1, 49-50 (1973); New State Ice
Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis,
J., dissenting)).
If a State or municipality determines that harsh crimi-
nal sanctions are necessary and wise to deter students
from carrying guns on school premises, the reserved
powers of the States are sufficient to enact those
measures. Indeed, over 40 States already have criminal
laws outlawing the possession of firearms on or near
school grounds. See, e.g., Alaska Stat. Ann.
11.61.195(a)(2)(A), 11.61.220(a)(4)(A) (Supp. 1994); Cal.
Penal Code Ann. 626.9 (West Supp. 1994); Mass. Gen.
Laws 269:10(j) (1992); N. J. Stat. Ann. 2C:39-5(e)
(West Supp. 1994); Va. Code Ann. 18.2-308.1 (1988);
Wis. Stat. 948.605 (1991-1992).
Other, more practicable means to rid the schools of
guns may be thought by the citizens of some States to
be preferable for the safety and welfare of the schools
those States are charged with maintaining. See Brief

for National Conference of State Legislatures et al., as

Amici Curiae 26-30 (injection of federal officials into
local problems causes friction and diminishes political
accountability of state and local governments). These
might include inducements to inform on violators where
the information leads to arrests or confiscation of the
guns, see C. Lima, Schools May Launch Weapons Hot
Line, L. A. Times, Jan. 13, 1995, part B, p. 1, col. 5;
Reward for Tips on Guns in Tucson Schools, The
Arizona Republic, Jan. 7, 1995, p. B2; programs to
encourage the voluntary surrender of guns with some
provision for amnesty, see A. Zaidan, Akron Rallies to
Save Youths, The Plain Dealer, Mar. 2, 1995, p. 1B; M.
Swift, Legislators Consider Plan to Get Guns Off
Streets, Hartford Courant, Apr. 29, 1992, p. A4; penal-
ties imposed on parents or guardians for failure to
supervise the child, see, e.g., Okla. Stat., Tit. 21, 858
(Supp. 1995) (fining parents who allow students to
possess firearm at school); Tenn. Code Ann. 39-17-1312
(Supp. 1992) (misdemeanor for parents to allow student
to possess firearm at school); Straight Shooter: Gov.
Casey's Reasonable Plan to Control Assault Weapons,
Pittsburgh Post-Gazette, Mar. 14, 1994, p. B2 (proposed
bill); E. Bailey, Anti-Crime Measures Top Legislators'
Agenda, L. A. Times, Mar. 7, 1994, part B, p. 1, col. 2
(same); G. Krupa, New Gun-Control Plans Could Tighten
Local Law, The Boston Globe, June 20, 1993, p. 29; laws
providing for suspension or expulsion of gun-toting
students, see, e.g., Ala. Code 16-1-24.1 (Supp. 1994);
Ind. Code 20-8.1-5-4(b)(1)(D) (1993); Ky. Rev. Stat.
Ann. 158.150(1)(a) (Michie 1992); Wash. Rev. Code
9.41.280 (1994), or programs for expulsion with assign-
ment to special facilities, see J. Martin, Legislators
Poised to Take Harsher Stand on Guns in Schools, The
Seattle Times, Feb. 1, 1995, p. B1 (automatic-year-long
expulsion for students with guns and intense semester-
long reentry program).
The statute now before us forecloses the States from
experimenting and exercising their own judgment in an
area to which States lay claim by right of history and
expertise, and it does so by regulating an activity
beyond the realm of commerce in the ordinary and usual
sense of that term. The tendency of this statute to
displace state regulation in areas of traditional state
concern is evident from its territorial operation. There
are over 100,000 elementary and secondary schools in
the United States. See U. S. Dept. of Education,
National Center for Education Statistics, Digest of
Education Statistics 73, 104 (NCES 94-115, 1994)
(Tables 63, 94). Each of these now has an invisible
federal zone extending 1,000 feet beyond the (often
irregular) boundaries of the school property. In some
communities no doubt it would be difficult to navigate
without infringing on those zones. Yet throughout these
areas, school officials would find their own programs for
the prohibition of guns in danger of displacement by the
federal authority unless the State chooses to enact a
parallel rule.
This is not a case where the etiquette of federalism
has been violated by a formal command from the
National Government directing the State to enact a

certain policy, cf. New York v. United States, 505 U. S.

___ (1992), or to organize its governmental functions in
a certain way, cf. FERC v. Mississippi, 456 U. S., at 781
(O'Connor, J., concurring in judgment in part and
dissenting in part). While the intrusion on state
sovereignty may not be as severe in this instance as in
some of our recent Tenth Amendment cases, the intru-
sion is nonetheless significant. Absent a stronger
connection or identification with commercial concerns
that are central to the Commerce Clause, that interfer-
ence contradicts the federal balance the Framers
designed and that this Court is obliged to enforce.
For these reasons, I join in the opinion and judgment
of the Court.

U.S. v. Lopez - Thomas

No. 93-1260
[April 26, 1995]
Justice Thomas, concurring.

The Court today properly concludes that the Commerce Clause does not grant Congress the authority to
prohibit gun possession within 1,000 feet of a school, as it attempted to do in the Gun-Free School Zones
Act of 1990, Pub. L. 101-647, 104 Stat. 4844. Although I join the majority, I write separately to observe
that our case law has drifted far from the original understanding of the Commerce Clause. In a future
case, we ought to temper our Commerce Clause jurisprudence in a manner that both makes sense of our
more recent case law and is more faithful to the original understanding of that Clause.
We have said that Congress may regulate not only Commerce . . . among the several states, U. S. Const.,
Art. I, 8, cl. 3, but also anything that has a substantial effect on such commerce. This test, if taken to its
logical extreme, would give Congress a police power over all aspects of American life. Unfortunately,
we have never come to grips with this implication of our substantial effects formula. Although we have
supposedly applied the substantial effects test for the past 60 years, we always have rejected readings of
the Commerce Clause and the scope of federal power that would permit Congress to exercise a police
power; our cases are quite clear that there are real limits to federal power. See New York v. United
States, 505 U. S. ___, ___ (1992) (slip op., at 7) ([N]o one disputes the proposition that `[t]he
Constitution created a Federal Government of limited powers') (quoting Gregory v. Ashcroft, 501 U. S.
452, 457 (1991); Maryland v. Wirtz, 392 U. S. 183, 196 (1968); NLRB v. Jones & Laughlin Steel Corp.,
301 U. S. 1, 37 (1937). Cf. Chisholm v. Georgia, 2 Dall. 419, 435 (1793) (Iredell, J.) (Each State in the
Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States
have no claim to any authority but such as the States have surrendered to them). Indeed, on this crucial
point, the majority and Justice Breyer agree in principle: the Federal Government has nothing
approaching a police power. Compare ante, at 7-9 with post, at 10-11.
While the principal dissent concedes that there are limits to federal power, the sweeping nature of our
current test enables the dissent to argue that Congress can regulate gun possession. But it seems to me
that the power to regulate commerce can by no means encompass authority over mere gun possession,
any more than it empowers the Federal Government to regulate marriage, littering, or cruelty to animals,
throughout the 50 States. Our Constitution quite properly leaves such matters to the individual States,
notwithstanding these activities' effects on interstate commerce. Any interpretation of the Commerce
Clause that even suggests that Congress could regulate such matters is in need of reexamination.
In an appropriate case, I believe that we must further reconsider our substantial effects test with an eye
toward constructing a standard that reflects the text and history of the Commerce Clause without totally
rejecting our more recent Commerce Clause jurisprudence.
Today, however, I merely support the Court's conclusion with a discussion of the text, structure, and
history of the Commerce Clause and an analysis of our early case law. My goal is simply to show how

far we have departed from the original understanding and to demonstrate that the result we reach today is
by no means radical, see post, at 1 (Stevens, J., dissenting). I also want to point out the necessity of
refashioning a coherent test that does not tend to obliterate the distinction between what is national and
what is local and create a completely centralized government. Jones & Laughlin Steel Corp, supra, at 37.
I
At the time the original Constitution was ratified, commerce consisted of selling, buying, and bartering,
as well as transporting for these purposes. See 1 S. Johnson, A Dictionary of the English Language 361
(4th ed. 1773) (defining commerce as Intercour[s]e; exchange of one thing for another; interchange of
any thing; trade; traffick); N. Bailey, An Universal Etymological English Dictionary (26th ed. 1789)
(trade or traffic); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (Exchange
of one thing for another; trade, traffick). This understanding finds support in the etymology of the word,
which literally means with merchandise. See 3 Oxford English Dictionary 552 (2d ed. 1989) (com-with;
merci-merchandise). In fact, when Federalists and Anti-Federalists discussed the Commerce Clause
during the ratification period, they often used trade (in its selling/bartering sense) and commerce
interchangeably. See The Federalist No. 4, p. 22 (J. Jay) (asserting that countries will cultivate our
friendship when our trade is prudently regulated by Federal Government); id., No. 7, at 39-40 (A.
Hamilton) (discussing competitions of commerce between States resulting from state regulations of
trade); id., No. 40, at 262 (J. Madison) (asserting that it was an acknowledged object of the Convention . .
. that the regulation of trade should be submitted to the general government); Lee, Letters of a Federal
Farmer No. 5, in Pamphlets on the Constitution of the United States 319 (P. Ford ed. 1888); Smith, An
Address to the People of the State of New-York, in id., at 107.
As one would expect, the term commerce was used in contradistinction to productive activities such as
manufacturing and agriculture. Alexander Hamilton, for example, repeatedly treated commerce,
agriculture, and manufacturing as three separate endeavors. See, e.g., The Federalist No. 36, at 224
(referring to agriculture, commerce, manufactures); id., No. 21, at 133 (distinguishing commerce, arts,
and industry); id., No. 12, at 74 (asserting that commerce and agriculture have shared interests). The
same distinctions were made in the state ratification conventions. See e.g., 2 Debates in the Several State
Conventions on the Adoption of the Federal Constitution 57 (J. Elliot ed. 1836) (hereinafter Debates) (T.
Dawes at Massachusetts convention); id., at 336 (M. Smith at New York convention).
Moreover, interjecting a modern sense of commerce into the Constitution generates significant textual
and structural problems. For example, one cannot replace commerce with a different type of enterprise,
such as manufacturing. When a manufacturer produces a car, assembly cannot take place with a foreign
nation or with the Indian Tribes. Parts may come from different States or other nations and hence may
have been in the flow of commerce at one time, but manufacturing takes place at a discrete site.
Agriculture and manufacturing involve the production of goods; commerce encompasses traffic in such
articles.
The Port Preference Clause also suggests that the term commerce denoted sale and/or transport rather
than business generally. According to that Clause, [n]o Preference shall be given by any Regulation of
Commerce or Revenue to the Ports of one State over those of another. U. S. Const., Art. I, 9, cl. 6.
Although it is possible to conceive of regulations of manufacturing or farming that prefer one port over
another, the more natural reading is that the Clause prohibits Congress from using its commerce power to
channel commerce through certain favored ports.

The Constitution not only uses the word commerce in a narrower sense than our case law might suggest,
it also does not support the proposition that Congress has authority over all activities that substantially
affect interstate commerce. The Commerce Clause does not state that Congress may regulate matters that
substantially affect commerce with foreign Nations, and among the several States, and with the Indian
Tribes. In contrast, the Constitution itself temporarily prohibited amendments that would affect Congress'
lack of authority to prohibit or restrict the slave trade or to enact unproportioned direct taxation. U. S.
Const., Art. V. Clearly, the Framers could have drafted a Constitution that contained a substantially
affects interstate commerce clause had that been their objective.
In addition to its powers under the Commerce Clause, Congress has the authority to enact such laws as
are necessary and proper to carry into execution its power to regulate commerce among the several
States. U. S. Const., Art. I, 8, cl. 18. But on this Court's understanding of congressional power under
these two Clauses, many of Congress' other enumerated powers under Art. I, 8 are wholly superfluous.
After all, if Congress may regulate all matters that substantially affect commerce, there is no need for the
Constitution to specify that Congress may enact bankruptcy laws, cl. 4, or coin money and fix the
standard of weights and measures, cl. 5, or punish counterfeiters of United States coin and securities, cl.
6. Likewise, Congress would not need the separate authority to establish post offices and post roads, cl.
7, or to grant patents and copyrights, cl. 8, or to punish Piracies and Felonies committed on the high Seas,
cl. 10. It might not even need the power to raise and support an Army and Navy, cls. 12 and 13, for fewer
people would engage in commercial shipping if they thought that a foreign power could expropriate their
property with ease. Indeed, if Congress could regulate matters that substantially affect interstate
commerce, there would have been no need to specify that Congress can regulate international trade and
commerce with the Indians. As the Framers surely understood, these other branches of trade substantially
affect interstate commerce.
Put simply, much if not all of Art. I, 8 (including portions of the Commerce Clause itself) would be
surplusage if Congress had been given authority over matters that substantially affect interstate
commerce. An interpretation of cl. 3 that makes the rest of 8 superfluous simply cannot be correct. Yet
this Court's Commerce Clause jurisprudence has endorsed just such an interpretation: the power we have
accorded Congress has swallowed Art. I, 8.
Indeed, if a substantial effects test can be appended to the Commerce Clause, why not to every other
power of the Federal Government. There is no reason for singling out the Commerce Clause for special
treatment. Accordingly, Congress could regulate all matters that substantially affect the Army and Navy,
bankruptcies, tax collection, expenditures, and so on. In that case, the clauses of 8 all mutually overlap,
something we can assume the Founding Fathers never intended.
Our construction of the scope of congressional authority has the additional problem of coming close to
turning the Tenth Amendment on its head. Our case law could be read to reserve to the United States all
powers not expressly prohibited by the Constitution. Taken together, these fundamental textual problems
should, at the very least, convince us that the substantial effects test should be reexamined.
II
The exchanges during the ratification campaign reveal the relatively limited reach of the Commerce
Clause and of federal power generally. The Founding Fathers confirmed that most areas of life (even
many matters that would have substantial effects on commerce) would remain outside the reach of the

Federal Government. Such affairs would continue to be under the exclusive control of the States.
Early Americans understood that commerce, manufacturing, and agriculture, while distinct activities,
were intimately related and dependent on each other - that each substantially affected the others. After
all, items produced by farmers and manufacturers were the primary articles of commerce at the time. If
commerce was more robust as a result of federal superintendence, farmers and manufacturers could
benefit. Thus, Oliver Ellsworth of Connecticut attempted to convince farmers of the benefits of
regulating commerce. Your property and riches depend on a ready demand and generous price for the
produce you can annually spare, he wrote, and these conditions exist where trade flourishes and when the
merchant can freely export the produce of the country to nations that will pay the highest price. A
Landholder No. 1, Connecticut Courant, Nov. 5, 1787, in 3 Documentary History of the Ratification of
the Constitution 399 (M. Jensen ed. 1978) (hereinafter Documentary History). See also The Federalist
No. 35, at 219 (A. Hamilton) ([D]iscerning citizens are well aware that the mechanic and manufacturing
arts furnish the materials of mercantile enterprise and industry. Many of them indeed are immediately
connected with the operations of commerce. They know that the merchant is their natural patron and
friend); id., at 221 (Will not the merchant . . . be disposed to cultivate . . . the interests of the mechanic
and manufacturing arts to which his commerce is so nearly allied); A Jerseyman: To the Citizens of New
Jersey, Trenton Mercury, Nov. 6, 1787, in 3 Documentary History 147 (noting that agriculture will serve
as a source of commerce); Marcus, The New Jersey Journal, Nov. 14, 1787, id., at 152 (both the
mechanic and the farmer benefit from the prosperity of commerce). William Davie, a delegate to the
North Carolina Convention, illustrated the close link best: Commerce, sir, is the nurse of [agriculture and
manufacturing]. The merchant furnishes the planter with such articles as he cannot manufacture himself,
and finds him a market for his produce. Agriculture cannot flourish if commerce languishes; they are
mutually dependent on each other. 4 Debates 20.
Yet, despite being well aware that agriculture, manufacturing, and other matters substantially affected
commerce, the founding generation did not cede authority over all these activities to Congress. Hamilton,
for instance, acknowledged that the Federal Government could not regulate agriculture and like concerns:
The administration of private justice between the citizens of the same State, the supervision
of agriculture and of other concerns of a similar nature, all those things in short which are
proper to be provided for by local legislation, can never be desirable cares of a general
jurisdiction. The Federalist No. 17, at 106.
In the unlikely event that the Federal Government would attempt to exercise authority over
such matters, its effort would be as troublesome as it would be nugatory. Ibid.
The comments of Hamilton and others about federal power reflected the well-known truth that the new
Government would have only the limited and enumerated powers found in the Constitution. See, e.g., 2
Debates 267-268 (A. Hamilton at New York convention) (noting that there would be just cause for
rejecting the Constitution if it would enable the Federal Government to alter, or abrogate . . . [a state's]
civil and criminal institutions [or] penetrate the recesses of domestic life, and control, in all respects, the
private conduct of individuals); The Federalist No. 45, at 313 (J. Madison); 3 Debates 259 (J. Madison)
(Virginia convention); R. Sherman & O. Ellsworth, Letter to Governor Huntington, Sept. 26, 1787, in 3
Documentary History 352; J. Wilson, Speech in the State House Yard, Oct. 6, 1787, in 2 id., at 167-168.
Agriculture and manufacture, since they were not surrendered to the Federal Government, were state
concerns. See The Federalist No. 34, at 212-213 (A. Hamilton) (observing that the internal

encouragement of agriculture and manufactures was an object of state expenditure). Even before the
passage of the Tenth Amendment, it was apparent that Congress would possess only those powers herein
granted by the rest of the Constitution. U. S. Const., Art. I, 1.
Where the Constitution was meant to grant federal authority over an activity substantially affecting
interstate commerce, the Constitution contains an enumerated power over that particular activity. Indeed,
the Framers knew that many of the other enumerated powers in 8 dealt with matters that substantially
affected interstate commerce. Madison, for instance, spoke of the bankruptcy power as being intimately
connected with the regulation of commerce. The Federalist No. 42, at 287. Likewise, Hamilton urged that
[i]f we mean to be a commercial people or even to be secure on our Atlantic side, we must endeavour as
soon as possible to have a navy. Id., No. 24, at 157 (A. Hamilton).
In short, the Founding Fathers were well aware of what the principal dissent calls èconomic . . .
realities.' See post, at 11-12 (Breyer, J.) (citing North American Co. v. SEC, 327 U. S. 686, 705 (1946)).
Even though the boundary between commerce and other matters may ignore economic reality and thus
seem arbitrary or artificial to some, we must nevertheless respect a constitutional line that does not grant
Congress power over all that substantially affects interstate commerce.
III
If the principal dissent's understanding of our early case law were correct, there might be some reason to
doubt this view of the original understanding of the Constitution. According to that dissent, Chief Justice
Marshall's opinion in Gibbons v. Ogden, 9 Wheat. 1 (1824) established that Congress may control all
local activities that significantly affect interstate commerce, post, at 1. And, with the exception of one
wrong turn subsequently corrected, this has been the traditiona[l] method of interpreting the Commerce
Clause. Post, at 18 (citing Gibbons and United States v. Darby, 312 U. S. 100, 116-117 (1941)).
In my view, the dissent is wrong about the holding and reasoning of Gibbons. Because this error leads
the dissent to characterize the first 150 years of this Court's case law as a wrong turn, I feel compelled to
put the last 50 years in proper perspective.
In Gibbons, the Court examined whether a federal law that licensed ships to engage in the coasting trade
pre-empted a New York law granting a 30-year monopoly to Robert Livingston and Robert Fulton to
navigate the State's waterways by steamship. In concluding that it did, the Court noted that Congress
could regulate navigation because [a]ll America . . . has uniformly understood, the word `commerce,' to
comprehend navigation. It was so understood, and must have been so understood, when the constitution
was framed. 9 Wheat., at 190. The Court also observed that federal power over commerce among the
several States meant that Congress could regulate commerce conducted partly within a State. Because a
portion of interstate commerce and foreign commerce would almost always take place within one or
more States, federal power over interstate and foreign commerce necessarily would extend into the
States. Id., at 194-196.
At the same time, the Court took great pains to make clear that Congress could not regulate commerce
which is completely internal, which is carried on between man and man in a State, or between different
parts of the same State, and which does not extend to or affect other States. Id., at 194. Moreover, while

suggesting that the Constitution might not permit States to regulate interstate or foreign commerce, the
Court observed that [i]nspection laws, quarantine laws, health laws of every description, as well as laws
for regulating the internal commerce of a State were but a small part of that immense mass of legislation .
. . not surrendered to a general government. Id., at 203. From an early moment, the Court rejected the
notion that Congress can regulate everything that affects interstate commerce. That the internal
commerce of the States and the numerous state inspection, quarantine, and health laws had substantial
effects on interstate commerce cannot be doubted. Nevertheless, they were not surrendered to the general
government.
Of course, the principal dissent is not the first to misconstrue Gibbons. For instance, the Court has stated
that Gibbons described the federal commerce power with a breadth never yet exceeded. Wickard v.
Filburn, 317 U. S. 111, 120 (1942). See also Perez v. United States, 402 U. S. 146, 151 (1971) (claiming
that with Darby and Wickard, the broader view of the Commerce Clause announced by Chief Justice
Marshall had been restored). I believe that this misreading stems from two statements in Gibbons.
First, the Court made the uncontroversial claim that federal power does not encompass commerce that
does not extend to or affect other States. 9 Wheat., at 194 (emphasis added). From this statement, the
principal dissent infers that whenever an activity affects interstate commerce, it necessarily follows that
Congress can regulate such activities. Of course, Chief Justice Marshall said no such thing and the
inference the dissent makes cannot be drawn.
There is a much better interpretation of the affect[s] language: because the Court had earlier noted that
the commerce power did not extend to wholly intrastate commerce, the Court was acknowledging that
although the line between intrastate and interstate/foreign commerce would be difficult to draw, federal
authority could not be construed to cover purely intrastate commerce. Commerce that did not affect
another State could never be said to be commerce among the several States.
But even if one were to adopt the dissent's reading, the affect[s] language, at most, permits Congress to
regulate only intrastate commerce that substantially affects interstate and foreign commerce. There is no
reason to believe that Chief Justice Marshall was asserting that Congress could regulate all activities that
affect interstate commerce. See Ibid.
The second source of confusion stems from the Court's praise for the Constitution's division of power
between the States and the Federal Government:
The genius and character of the whole government seem to be, that its action is to be applied
to all the external concerns of the nation, and to those internal concerns which affect the
States generally; but not to those which are completely within a particular State, which do
not affect other States, and with which it is not necessary to interfere, for the purpose of
executing some of the general powers of the government. Id., at 195.
In this passage, the Court merely was making the well understood point that the Constitution commits
matters of national concern to Congress and leaves local matters to the States. The Court was not saying
that whatever Congress believes is a national matter becomes an object of federal control. The matters of
national concern are enumerated in the Constitution: war, taxes, patents, and copyrights, uniform rules of
naturalization and bankruptcy, types of commerce, and so on. See generally U. S. Const., Art. I, 8.
Gibbons' emphatic statements that Congress could not regulate many matters that affect commerce
confirm that the Court did not read the Commerce Clause as granting Congress control over matters that

affect the States generally. Gibbons simply cannot be construed as the principal dissent would have it.
I am aware of no cases prior to the New Deal that characterized the power flowing from the Commerce
Clause as sweepingly as does our substantial effects test. My review of the case law indicates that the
substantial effects test is but an innovation of the 20th century.
Even before Gibbons, Chief Justice Marshall, writing for the Court in Cohens v. Virginia, 6 Wheat. 264
(1821), noted that Congress had no general right to punish murder committed within any of the States,
id., at 426, and that it was clear that congress cannot punish felonies generally, id., at 428. The Court's
only qualification was that Congress could enact such laws for places where it enjoyed plenary powers -
for instance, over the District of Columbia. Id., at 426. Thus, whatever effect ordinary murders, or
robbery, or gun possession might have on interstate commerce (or on any other subject of federal
concern) was irrelevant to the question of congressional power.
United States v. Dewitt, 9 Wall. 41 (1870), marked the first time the Court struck down a federal law as
exceeding the power conveyed by the Commerce Clause. In a two-page opinion, the Court invalidated a
nationwide law prohibiting all sales of naphtha and illuminating oils. In so doing, the Court remarked
that the Commerce Clause has always been understood as limited by its terms; and as a virtual denial of
any power to interfere with the internal trade and business of the separate States. Id., at 44. The law in
question was plainly a regulation of police, which could have constitutional application only where
Congress had exclusive authority, such as the territories. Id., at 44-45. See also License Tax Cases, 5
Wall. 462, 470-471 (1867) (Congress cannot interfere with the internal commerce and business of a
State); Trade-Mark Cases, 100 U. S. 82 (1879) (Congress cannot regulate internal commerce and thus
may not establish national trademark registration).
In United States v. E. C. Knight Co., 156 U. S. 1 (1895), this Court held that mere attempts to
monopolize the manufacture of sugar could not be regulated pursuant to the Commerce Clause. Raising
echoes of the discussions of the Framers regarding the intimate relationship between commerce and
manufacturing, the Court declared that [c]ommerce succeeds to manufacture, and is not a part of it. Id., at
12. The Court also approvingly quoted from Kidd v. Pearson, 128 U. S. 1, 20 (1888):
`No distinction is more popular to the common mind, or more clearly expressed in economic
and political literature, than that between manufacture and commerce . . . . If it be held that
the term [commerce] includes the regulation of all such manufactures as are intended to be
the subject of commercial transactions in the future, it is impossible to deny that it would
also include all productive industries that contemplate the same thing. The result would be
that Congress would be invested . . . with the power to regulate, not only manufactures, but
also agriculture, horticulture, stock raising, domestic fisheries, mining-in short, every branch
of human industry.' E. C. Knight, 156 U. S., at 14.
If federal power extended to these types of production comparatively little of business operations and
affairs would be left for state control. Id., at 16. See also Newberry v. United States, 256 U. S. 232, 257
(1921) (It is settled . . . that the power to regulate interstate and foreign commerce does not reach
whatever is essential thereto. Without agriculture, manufacturing, mining, etc., commerce could not
exist, but this fact does not suffice to subject them to the control of Congress). Whether or not
manufacturing, agriculture, or other matters substantially affected interstate commerce was irrelevant.

As recently as 1936, the Court continued to insist that the Commerce Clause did not reach the wholly
internal business of the States. See Carter v. Carter Coal Co., 298 U. S. 238, 308 (1936) (Congress may
not regulate mine labor because [t]he relation of employer and employee is a local relation); see also A.
L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 543-550 (1935) (holding that Congress
may not regulate intrastate sales of sick chickens or the labor of employees involved in intrastate poultry
sales). The Federal Government simply could not reach such subjects regardless of their effects on
interstate commerce.
These cases all establish a simple point: from the time of the ratification of the Constitution to the
mid-1930's, it was widely understood that the Constitution granted Congress only limited powers,
notwithstanding the Commerce Clause. Moreover, there was no question that activities wholly separated
from business, such as gun possession, were beyond the reach of the commerce power. If anything, the
wrong turn was the Court's dramatic departure in the 1930's from a century and a half of precedent.
IV
Apart from its recent vintage and its corresponding lack of any grounding in the original understanding
of the Constitution, the substantial effects test suffers from the further flaw that it appears to grant
Congress a police power over the Nation. When asked at oral argument if there were any limits to the
Commerce Clause, the Government was at a loss for words. Tr. of Oral Arg. 5. Likewise, the principal
dissent insists that there are limits, but it cannot muster even one example. Post, at 10-11. Indeed, the
dissent implicitly concedes that its reading has no limits when it criticizes the Court for threaten[ing]
legal uncertainty in an area of law that . . . seemed reasonably well settled. Post, at 17-18. The one
advantage of the dissent's standard is certainty: it is certain that under its analysis everything may be
regulated under the guise of the Commerce Clause.
The substantial effects test suffers from this flaw, in part, because of its aggregation principle. Under
so-called class of activities statutes, Congress can regulate whole categories of activities that are not
themselves either interstate or commerce. In applying the effects test, we ask whether the class of
activities as a whole substantially affects interstate commerce, not whether any specific activity within
the class has such effects when considered in isolation. See Maryland v. Wirtz, 392 U. S., at 192-193 (if
class of activities is `within the reach of federal power,' courts may not excise individual applications as
trivial) (quoting Darby, 312 U. S., at 120-121).
The aggregation principle is clever, but has no stopping point. Suppose all would agree that gun
possession within 1,000 feet of a school does not substantially affect commerce, but that possession of
weapons generally (knives, brass knuckles, nunchakus, etc.) does. Under our substantial effects doctrine,
even though Congress cannot single out gun possession, it can prohibit weapon possession generally. But
one always can draw the circle broadly enough to cover an activity that, when taken in isolation, would
not have substantial effects on commerce. Under our jurisprudence, if Congress passed an omnibus
substantially affects interstate commerce statute, purporting to regulate every aspect of human existence,
the Act apparently would be constitutional. Even though particular sections may govern only trivial
activities, the statute in the aggregate regulates matters that substantially affect commerce.

V
This extended discussion of the original understanding and our first century and a half of case law does
not necessarily require a wholesale abandonment of our more recent opinions. It simply reveals that our
substantial effects test is far removed from both the Constitution and from our early case law and that the
Court's opinion should not be viewed as radical or another wrong turn that must be corrected in the
future. The analysis also suggests that we ought to temper our Commerce Clause jurisprudence.
Unless the dissenting Justices are willing to repudiate our long-held understanding of the limited nature
of federal power, I would think that they too must be willing to reconsider the substantial effects test in a
future case. If we wish to be true to a Constitution that does not cede a police power to the Federal
Government, our Commerce Clause's boundaries simply cannot be defined as being `commensurate with
the national needs' or self-consciously intended to let the Federal Government `defend itself against
economic forces that Congress decrees inimical or destructive of the national economy.' See post, at
12-13 ) Breyer, J., dissenting) (quoting North American Co. v. SEC, 327 U. S. 686, 705 (1946)). Such a
formulation of federal power is no test at all: it is a blank check.
At an appropriate juncture, I think we must modify our Commerce Clause jurisprudence. Today, it is
easy enough to say that the Clause certainly does not empower Congress to ban gun possession within
1,000 feet of a school.


--------
No. 93-1260
--------
ALFONSO LOPEZ, Jr.
[April 26, 1995]

The Court today properly concludes that the Commerce
Clause does not grant Congress the authority to prohibit
gun possession within 1,000 feet of a school, as it
attempted to do in the Gun-Free School Zones Act of
1990, Pub. L. 101-647, 104 Stat. 4844. Although I join
the majority, I write separately to observe that our case
law has drifted far from the original understanding of
the Commerce Clause. In a future case, we ought to
temper our Commerce Clause jurisprudence in a manner
that both makes sense of our more recent case law and
is more faithful to the original understanding of that
Clause.
We have said that Congress may regulate not only
-Commerce . . . among the several states,- U. S. Const.,
Art. I, 8, cl. 3, but also anything that has a -substan-
tial effect- on such commerce. This test, if taken to its
logical extreme, would give Congress a -police power-
over all aspects of American life. Unfortunately, we
have never come to grips with this implication of our
substantial effects formula. Although we have sup-
posedly applied the substantial effects test for the past
60 years, we always have rejected readings of the Com-
merce Clause and the scope of federal power that would
permit Congress to exercise a police power; our cases are
quite clear that there are real limits to federal power.
See New York v. United States, 505 U. S. ___, ___ (1992)
(slip op., at 7) (-[N]o one disputes the proposition that
`[t]he Constitution created a Federal Government of lim-
ited powers'-) (quoting Gregory v. Ashcroft, 501 U. S.
452, 457 (1991); Maryland v. Wirtz, 392 U. S. 183, 196
(1968); NLRB v. Jones & Laughlin Steel Corp., 301
U. S. 1, 37 (1937). Cf. Chisholm v. Georgia, 2 Dall. 419,
435 (1793) (Iredell, J.) (-Each State in the Union is sov-
ereign as to all the powers reserved. It must neces-
sarily be so, because the United States have no claim to
any authority but such as the States have surrendered
to them-). Indeed, on this crucial point, the majority
and Justice Breyer agree in principle: the Federal Gov-
ernment has nothing approaching a police power. Com-
pare ante, at 7-9 with post, at 10-11.
While the principal dissent concedes that there are
limits to federal power, the sweeping nature of our
current test enables the dissent to argue that Congress
can regulate gun possession. But it seems to me that
the power to regulate -commerce- can by no means
encompass authority over mere gun possession, any more
than it empowers the Federal Government to regulate
marriage, littering, or cruelty to animals, throughout the
50 States. Our Constitution quite properly leaves such
matters to the individual States, notwithstanding these

activities' effects on interstate commerce. Any interpre-

tation of the Commerce Clause that even suggests that
Congress could regulate such matters is in need of
reexamination.
In an appropriate case, I believe that we must further
reconsider our -substantial effects- test with an eye
toward constructing a standard that reflects the text and
history of the Commerce Clause without totally rejecting
our more recent Commerce Clause jurisprudence.
Today, however, I merely support the Court's conclu-
sion with a discussion of the text, structure, and history
of the Commerce Clause and an analysis of our early
case law. My goal is simply to show how far we have
departed from the original understanding and to demon-
strate that the result we reach today is by no means
-radical,- see post, at 1 (Stevens, J., dissenting). I also
want to point out the necessity of refashioning a
coherent test that does not tend to -obliterate the
distinction between what is national and what is local
and create a completely centralized government.- Jones
& Laughlin Steel Corp, supra, at 37.
I
At the time the original Constitution was ratified,
-commerce- consisted of selling, buying, and bartering,
as well as transporting for these purposes. See 1 S.
Johnson, A Dictionary of the English Language 361 (4th
ed. 1773) (defining commerce as -Intercour[s]e; exchange
of one thing for another; interchange of any thing; trade;
traffick-); N. Bailey, An Universal Etymological English
Dictionary (26th ed. 1789) (-trade or traffic-); T. Sheri-
dan, A Complete Dictionary of the English Language
(6th ed. 1796) (-Exchange of one thing for another;
trade, traffick-). This understanding finds support in
the etymology of the word, which literally means -with
merchandise.- See 3 Oxford English Dictionary 552 (2d
ed. 1989) (com--with-; merci--merchandise-). In fact,
when Federalists and Anti-Federalists discussed the
Commerce Clause during the ratification period, they
often used trade (in its selling/bartering sense) and
commerce interchangeably. See The Federalist No. 4,
p. 22 (J. Jay) (asserting that countries will cultivate our
friendship when our -trade- is prudently regulated by
Federal Government); id., No. 7, at 39-40 (A. Hamilton)
(discussing -competitions of commerce- between States
resulting from state -regulations of trade-); id., No. 40,
at 262 (J. Madison) (asserting that it was an -acknowl-
edged object of the Convention . . . that the regulation
of trade should be submitted to the general govern-
ment-); Lee, Letters of a Federal Farmer No. 5, in Pam-
phlets on the Constitution of the United States 319
(P. Ford ed. 1888); Smith, An Address to the People of
the State of New-York, in id., at 107.
As one would expect, the term -commerce- was used
in contradistinction to productive activities such as
manufacturing and agriculture. Alexander Hamilton, for
example, repeatedly treated commerce, agriculture, and
manufacturing as three separate endeavors. See, e.g.,
The Federalist No. 36, at 224 (referring to -agriculture,
commerce, manufactures-); id., No. 21, at 133 (distin-
guishing commerce, arts, and industry); id., No. 12, at

74 (asserting that commerce and agriculture have shared

interests). The same distinctions were made in the state
ratification conventions. See e.g., 2 Debates in the Sev-
eral State Conventions on the Adoption of the Federal
Constitution 57 (J. Elliot ed. 1836) (hereinafter Debates)
(T. Dawes at Massachusetts convention); id., at 336
(M. Smith at New York convention).
Moreover, interjecting a modern sense of commerce
into the Constitution generates significant textual and
structural problems. For example, one cannot replace
-commerce- with a different type of enterprise, such as
manufacturing. When a manufacturer produces a car,
assembly cannot take place -with a foreign nation- or
-with the Indian Tribes.- Parts may come from different
States or other nations and hence may have been in the
flow of commerce at one time, but manufacturing takes
place at a discrete site. Agriculture and manufacturing
involve the production of goods; commerce encompasses
traffic in such articles.
The Port Preference Clause also suggests that the
term -commerce- denoted sale and/or transport rather
than business generally. According to that Clause, -[n]o
Preference shall be given by any Regulation of Com-
merce or Revenue to the Ports of one State over those
of another.- U. S. Const., Art. I, 9, cl. 6. Although it
is possible to conceive of regulations of manufacturing or
farming that prefer one port over another, the more
natural reading is that the Clause prohibits Congress
from using its commerce power to channel commerce
through certain favored ports.
The Constitution not only uses the word -commerce-
in a narrower sense than our case law might suggest, it
also does not support the proposition that Congress has
authority over all activities that -substantially affect-
interstate commerce. The Commerce Clause does not
state that Congress may -regulate matters that substan-
tially affect commerce with foreign Nations, and among
the several States, and with the Indian Tribes.- In
contrast, the Constitution itself temporarily prohibited
amendments that would -affect- Congress' lack of au-
thority to prohibit or restrict the slave trade or to enact
unproportioned direct taxation. U. S. Const., Art. V.
Clearly, the Framers could have drafted a Constitution
that contained a -substantially affects interstate com-
merce- clause had that been their objective.
In addition to its powers under the Commerce Clause,
Congress has the authority to enact such laws as are
-necessary and proper- to carry into execution its power
to regulate commerce among the several States. U. S.
Const., Art. I, 8, cl. 18. But on this Court's under-
standing of congressional power under these two Claus-
es, many of Congress' other enumerated powers under
Art. I, 8 are wholly superfluous. After all, if Congress
may regulate all matters that substantially affect com-
merce, there is no need for the Constitution to specify
that Congress may enact bankruptcy laws, cl. 4, or coin
money and fix the standard of weights and measures,
cl. 5, or punish counterfeiters of United States coin and
securities, cl. 6. Likewise, Congress would not need the
separate authority to establish post offices and post
roads, cl. 7, or to grant patents and copyrights, cl. 8, or

to -punish Piracies and Felonies committed on the high

Seas,- cl. 10. It might not even need the power to raise
and support an Army and Navy, cls. 12 and 13, for
fewer people would engage in commercial shipping if
they thought that a foreign power could expropriate
their property with ease. Indeed, if Congress could reg-
ulate matters that substantially affect interstate com-
merce, there would have been no need to specify that
Congress can regulate international trade and commerce
with the Indians. As the Framers surely understood,
these other branches of trade substantially affect inter-
state commerce.
Put simply, much if not all of Art. I, 8 (including
portions of the Commerce Clause itself) would be
surplusage if Congress had been given authority over
matters that substantially affect interstate commerce.
An interpretation of cl. 3 that makes the rest of 8
superfluous simply cannot be correct. Yet this Court's
Commerce Clause jurisprudence has endorsed just such
an interpretation: the power we have accorded Congress
has swallowed Art. I, 8.
Indeed, if a -substantial effects- test can be appended
to the Commerce Clause, why not to every other power
of the Federal Government? There is no reason for sin-
gling out the Commerce Clause for special treatment.
Accordingly, Congress could regulate all matters that
-substantially affect- the Army and Navy, bankruptcies,
tax collection, expenditures, and so on. In that case, the
clauses of 8 all mutually overlap, something we can
assume the Founding Fathers never intended.
Our construction of the scope of congressional author-
ity has the additional problem of coming close to turning
the Tenth Amendment on its head. Our case law could
be read to reserve to the United States all powers not
expressly prohibited by the Constitution. Taken to-
gether, these fundamental textual problems should, at
the very least, convince us that the -substantial effects-
test should be reexamined.
II
The exchanges during the ratification campaign reveal
the relatively limited reach of the Commerce Clause and
of federal power generally. The Founding Fathers con-
firmed that most areas of life (even many matters that
would have substantial effects on commerce) would
remain outside the reach of the Federal Government.
Such affairs would continue to be under the exclusive
control of the States.
Early Americans understood that commerce, manufac-
turing, and agriculture, while distinct activities, were
intimately related and dependent on each other-that
each -substantially affected- the others. After all, items
produced by farmers and manufacturers were the
primary articles of commerce at the time. If commerce
was more robust as a result of federal superintendence,
farmers and manufacturers could benefit. Thus, Oliver
Ellsworth of Connecticut attempted to convince farmers
of the benefits of regulating commerce. -Your property
and riches depend on a ready demand and generous
price for the produce you can annually spare,- he wrote,
and these conditions exist -where trade flourishes and

when the merchant can freely export the produce of the

country- to nations that will pay the highest price. A
Landholder No. 1, Connecticut Courant, Nov. 5, 1787, in
3 Documentary History of the Ratification of the Con-
stitution 399 (M. Jensen ed. 1978) (hereinafter Docu-
mentary History). See also The Federalist No. 35, at
219 (A. Hamilton) (-[D]iscerning citizens are well aware
that the mechanic and manufacturing arts furnish the
materials of mercantile enterprise and industry. Many
of them indeed are immediately connected with the
operations of commerce. They know that the merchant
is their natural patron and friend-); id., at 221 (-Will
not the merchant . . . be disposed to cultivate . . . the
interests of the mechanic and manufacturing arts to
which his commerce is so nearly allied?-); A Jerseyman:
To the Citizens of New Jersey, Trenton Mercury, Nov. 6,
1787, in 3 Documentary History 147 (noting that agricul-
ture will serve as a -source of commerce-); Marcus, The
New Jersey Journal, Nov. 14, 1787, id., at 152 (both the
mechanic and the farmer benefit from the prosperity of
commerce). William Davie, a delegate to the North
Carolina Convention, illustrated the close link best:
-Commerce, sir, is the nurse of [agriculture and manu-
facturing]. The merchant furnishes the planter with
such articles as he cannot manufacture himself, and
finds him a market for his produce. Agriculture cannot
flourish if commerce languishes; they are mutually de-
pendent on each other.- 4 Debates 20.
Yet, despite being well aware that agriculture, manu-
facturing, and other matters substantially affected com-
merce, the founding generation did not cede authority
over all these activities to Congress. Hamilton, for
instance, acknowledged that the Federal Government
could not regulate agriculture and like concerns:
-The administration of private justice between the
citizens of the same State, the supervision of agri-
culture and of other concerns of a similar nature, all
those things in short which are proper to be pro-
vided for by local legislation, can never be desirable
cares of a general jurisdiction.- The Federalist
No. 17, at 106.
In the unlikely event that the Federal Government
would attempt to exercise authority over such matters,
its effort -would be as troublesome as it would be
nugatory.- Ibid.
The comments of Hamilton and others about federal
power reflected the well-known truth that the new Gov-
ernment would have only the limited and enumerated
powers found in the Constitution. See, e.g., 2 Debates
267-268 (A. Hamilton at New York convention) (noting
that there would be just cause for rejecting the Constitu-
tion if it would enable the Federal Government to -alter,
or abrogate . . . [a state's] civil and criminal institutions
[or] penetrate the recesses of domestic life, and control,
in all respects, the private conduct of individuals-); The
Federalist No. 45, at 313 (J. Madison); 3 Debates 259
(J. Madison) (Virginia convention); R. Sherman &
O. Ellsworth, Letter to Governor Huntington, Sept. 26,
1787, in 3 Documentary History 352; J. Wilson, Speech
in the State House Yard, Oct. 6, 1787, in 2 id., at
167-168. Agriculture and manufacture, since they were

not surrendered to the Federal Government, were state

concerns. See The Federalist No. 34, at 212-213
(A. Hamilton) (observing that the -internal encourage-
ment of agriculture and manufactures- was an object of
state expenditure). Even before the passage of the
Tenth Amendment, it was apparent that Congress would
possess only those powers -herein granted- by the rest
of the Constitution. U. S. Const., Art. I, 1.
Where the Constitution was meant to grant federal
authority over an activity substantially affecting in-
terstate commerce, the Constitution contains an enu-
merated power over that particular activity. Indeed, the
Framers knew that many of the other enumerated pow-
ers in 8 dealt with matters that substantially affected
interstate commerce. Madison, for instance, spoke of the
bankruptcy power as being -intimately connected with
the regulation of commerce.- The Federalist No. 42, at
287. Likewise, Hamilton urged that -[i]f we mean to be
a commercial people or even to be secure on our Atlantic
side, we must endeavour as soon as possible to have a
navy.- Id., No. 24, at 157 (A. Hamilton).
In short, the Founding Fathers were well aware of what
the principal dissent calls -èconomic . . . realities.'-
See post, at 11-12 (Breyer, J.) (citing North American
Co. v. SEC, 327 U. S. 686, 705 (1946)). Even though
the boundary between commerce and other matters may
ignore -economic reality- and thus seem arbitrary or
artificial to some, we must nevertheless respect a
constitutional line that does not grant Congress power
over all that substantially affects interstate commerce.
III
If the principal dissent's understanding of our early
case law were correct, there might be some reason to
doubt this view of the original understanding of the
Constitution. According to that dissent, Chief Justice
Marshall's opinion in Gibbons v. Ogden, 9 Wheat. 1
(1824) established that Congress may control all local
activities that -significantly affect interstate commerce,-
post, at 1. And, -with the exception of one wrong turn
subsequently corrected,- this has been the -traditiona[l]-
method of interpreting the Commerce Clause. Post, at
18 (citing Gibbons and United States v. Darby, 312 U. S.
100, 116-117 (1941)).
In my view, the dissent is wrong about the holding
and reasoning of Gibbons. Because this error leads the
dissent to characterize the first 150 years of this Court's
case law as a -wrong turn,- I feel compelled to put the
last 50 years in proper perspective.
A
In Gibbons, the Court examined whether a federal law
that licensed ships to engage in the -coasting trade- pre-
empted a New York law granting a 30-year monopoly to
Robert Livingston and Robert Fulton to navigate the
State's waterways by steamship. In concluding that it
did, the Court noted that Congress could regulate -navi-
gation- because -[a]ll America . . . has uniformly under-
stood, the word `commerce,' to comprehend navigation.
It was so understood, and must have been so under-
stood, when the constitution was framed.- 9 Wheat.,

at 190. The Court also observed that federal power over

commerce -among the several States- meant that Con-
gress could regulate commerce conducted partly within
a State. Because a portion of interstate commerce and
foreign commerce would almost always take place within
one or more States, federal power over interstate and
foreign commerce necessarily would extend into the
States. Id., at 194-196.
At the same time, the Court took great pains to make
clear that Congress could not regulate commerce -which
is completely internal, which is carried on between man
and man in a State, or between different parts of the
same State, and which does not extend to or affect other
States.- Id., at 194. Moreover, while suggesting that
the Constitution might not permit States to regulate
interstate or foreign commerce, the Court observed that
-[i]nspection laws, quarantine laws, health laws of every
description, as well as laws for regulating the internal
commerce of a State- were but a small part -of that
immense mass of legislation . . . not surrendered to a
general government.- Id., at 203. From an early
moment, the Court rejected the notion that Congress can
regulate everything that affects interstate commerce.
That the internal commerce of the States and the
numerous state inspection, quarantine, and health laws
had substantial effects on interstate commerce cannot be
doubted. Nevertheless, they were not -surrendered to
the general government.-
Of course, the principal dissent is not the first to
misconstrue Gibbons. For instance, the Court has stated
that Gibbons -described the federal commerce power
with a breadth never yet exceeded.- Wickard v. Filburn,
317 U. S. 111, 120 (1942). See also Perez v. United
States, 402 U. S. 146, 151 (1971) (claiming that with
Darby and Wickard, -the broader view of the Commerce
Clause announced by Chief Justice Marshall had been
restored-). I believe that this misreading stems from
two statements in Gibbons.
First, the Court made the uncontroversial claim that
federal power does not encompass -commerce- that -does
not extend to or affect other States.- 9 Wheat., at 194
(emphasis added). From this statement, the principal
dissent infers that whenever an activity affects inter-
state commerce, it necessarily follows that Congress can
regulate such activities. Of course, Chief Justice
Marshall said no such thing and the inference the
dissent makes cannot be drawn.
There is a much better interpretation of the -affect[s]-
language: because the Court had earlier noted that the
commerce power did not extend to wholly intrastate com-
merce, the Court was acknowledging that although the
line between intrastate and interstate/foreign commerce
would be difficult to draw, federal authority could not be
construed to cover purely intrastate commerce. Com-
merce that did not affect another State could never be
said to be commerce -among the several States.-
But even if one were to adopt the dissent's reading,
the -affect[s]- language, at most, permits Congress to
regulate only intrastate commerce that substantially
affects interstate and foreign commerce. There is no
reason to believe that Chief Justice Marshall was as-

serting that Congress could regulate all activities that

affect interstate commerce. See Ibid.
The second source of confusion stems from the Court's
praise for the Constitution's division of power between
the States and the Federal Government:
-The genius and character of the whole government
seem to be, that its action is to be applied to all the
external concerns of the nation, and to those inter-
nal concerns which affect the States generally; but
not to those which are completely within a particu-
lar State, which do not affect other States, and with
which it is not necessary to interfere, for the pur-
pose of executing some of the general powers of the
government.- Id., at 195.
In this passage, the Court merely was making the well
understood point that the Constitution commits matters
of -national- concern to Congress and leaves -local- mat-
ters to the States. The Court was not saying that
whatever Congress believes is a national matter
becomes an object of federal control. The matters of
national concern are enumerated in the Constitution:
war, taxes, patents, and copyrights, uniform rules of
naturalization and bankruptcy, types of commerce, and
so on. See generally U. S. Const., Art. I, 8. Gibbons'
emphatic statements that Congress could not regulate
many matters that affect commerce confirm that the
Court did not read the Commerce Clause as granting
Congress control over matters that -affect the States
generally.- Gibbons simply cannot be construed as the
principal dissent would have it.
B
I am aware of no cases prior to the New Deal that
characterized the power flowing from the Commerce
Clause as sweepingly as does our substantial effects
test. My review of the case law indicates that the sub-
stantial effects test is but an innovation of the 20th
century.
Even before Gibbons, Chief Justice Marshall, writing
for the Court in Cohens v. Virginia, 6 Wheat. 264
(1821), noted that Congress had -no general right to
punish murder committed within any of the States,- id.,
at 426, and that it was -clear that congress cannot pun-
ish felonies generally,- id., at 428. The Court's only
qualification was that Congress could enact such laws
for places where it enjoyed plenary powers-for in-
stance, over the District of Columbia. Id., at 426.
Thus, whatever effect ordinary murders, or robbery, or
gun possession might have on interstate commerce (or
on any other subject of federal concern) was irrelevant
to the question of congressional power.
United States v. Dewitt, 9 Wall. 41 (1870), marked the
first time the Court struck down a federal law as ex-
ceeding the power conveyed by the Commerce Clause.
In a two-page opinion, the Court invalidated a nation-
wide law prohibiting all sales of naphtha and illuminat-
ing oils. In so doing, the Court remarked that the
Commerce Clause -has always been understood as limit-
ed by its terms; and as a virtual denial of any power to
interfere with the internal trade and business of the
separate States.- Id., at 44. The law in question was

-plainly a regulation of police,- which could have consti-

tutional application only where Congress had exclusive
authority, such as the territories. Id., at 44-45. See
also License Tax Cases, 5 Wall. 462, 470-471 (1867)
(Congress cannot interfere with the internal commerce
and business of a State); Trade-Mark Cases, 100 U. S.
82 (1879) (Congress cannot regulate internal com-
merce and thus may not establish national trademark
registration).
In United States v. E. C. Knight Co., 156 U. S. 1
(1895), this Court held that mere attempts to monopo-
lize the manufacture of sugar could not be regulated
pursuant to the Commerce Clause. Raising echoes of
the discussions of the Framers regarding the intimate
relationship between commerce and manufacturing, the
Court declared that -[c]ommerce succeeds to manufac-
ture, and is not a part of it.- Id., at 12. The Court
also approvingly quoted from Kidd v. Pearson, 128 U. S.
1, 20 (1888):
-`No distinction is more popular to the common
mind, or more clearly expressed in economic and
political literature, than that between manufacture
and commerce . . . . If it be held that the term
[commerce] includes the regulation of all such man-
ufactures as are intended to be the subject of com-
mercial transactions in the future, it is impossible
to deny that it would also include all productive
industries that contemplate the same thing. The
result would be that Congress would be invested
. . . with the power to regulate, not only manufac-
tures, but also agriculture, horticulture, stock rais-
ing, domestic fisheries, mining-in short, every
branch of human industry.'- E. C. Knight, 156
U. S., at 14.
If federal power extended to these types of production
-comparatively little of business operations and affairs
would be left for state control.- Id., at 16. See also
Newberry v. United States, 256 U. S. 232, 257 (1921)
(-It is settled . . . that the power to regulate interstate
and foreign commerce does not reach whatever is essen-
tial thereto. Without agriculture, manufacturing, min-
ing, etc., commerce could not exist, but this fact does
not suffice to subject them to the control of Congress-).
Whether or not manufacturing, agriculture, or other
matters substantially affected interstate commerce was
irrelevant.
As recently as 1936, the Court continued to insist that
the Commerce Clause did not reach the wholly internal
business of the States. See Carter v. Carter Coal Co.,
298 U. S. 238, 308 (1936) (Congress may not regulate
mine labor because -[t]he relation of employer and em-
ployee is a local relation-); see also A. L. A. Schechter
Poultry Corp. v. United States, 295 U. S. 495, 543-550
(1935) (holding that Congress may not regulate intra-
state sales of sick chickens or the labor of employees
involved in intrastate poultry sales). The Federal Gov-
ernment simply could not reach such subjects regardless
of their effects on interstate commerce.
These cases all establish a simple point: from the time
of the ratification of the Constitution to the mid-1930's,
it was widely understood that the Constitution granted

Congress only limited powers, notwithstanding the

Commerce Clause. Moreover, there was no question
that activities wholly separated from business, such as
gun possession, were beyond the reach of the commerce
power. If anything, the -wrong turn- was the Court's
dramatic departure in the 1930's from a century and a
half of precedent.
IV
Apart from its recent vintage and its corresponding
lack of any grounding in the original understanding of
the Constitution, the substantial effects test suffers from
the further flaw that it appears to grant Congress a
police power over the Nation. When asked at oral argu-
ment if there were any limits to the Commerce Clause,
the Government was at a loss for words. Tr. of Oral
Arg. 5. Likewise, the principal dissent insists that
there are limits, but it cannot muster even one example.
Post, at 10-11. Indeed, the dissent implicitly concedes
that its reading has no limits when it criticizes the
Court for -threaten[ing] legal uncertainty in an area of
law that . . . seemed reasonably well settled.- Post, at
17-18. The one advantage of the dissent's standard is
certainty: it is certain that under its analysis everything
may be regulated under the guise of the Commerce
Clause.
The substantial effects test suffers from this flaw, in
part, because of its -aggregation principle.- Under so-
called -class of activities- statutes, Congress can regu-
late whole categories of activities that are not them-
selves either -interstate- or -commerce.- In applying
the effects test, we ask whether the class of activities as
a whole substantially affects interstate commerce, not
whether any specific activity within the class has such
effects when considered in isolation. See Maryland v.
Wirtz, 392 U. S., at 192-193 (if class of activities is
-`within the reach of federal power,'- courts may not
excise individual applications as trivial) (quoting Darby,
312 U. S., at 120-121).
The aggregation principle is clever, but has no stop-
ping point. Suppose all would agree that gun posses-
sion within 1,000 feet of a school does not substantially
affect commerce, but that possession of weapons gener-
ally (knives, brass knuckles, nunchakus, etc.) does.
Under our substantial effects doctrine, even though
Congress cannot single out gun possession, it can pro-
hibit weapon possession generally. But one always can
draw the circle broadly enough to cover an activity that,
when taken in isolation, would not have substantial ef-
fects on commerce. Under our jurisprudence, if Con-
gress passed an omnibus -substantially affects interstate
commerce- statute, purporting to regulate every aspect
of human existence, the Act apparently would be consti-
tutional. Even though particular sections may govern
only trivial activities, the statute in the aggregate regu-
lates matters that substantially affect commerce.
V
This extended discussion of the original understanding
and our first century and a half of case law does not
necessarily require a wholesale abandonment of our

more recent opinions. It simply reveals that our sub-

stantial effects test is far removed from both the Consti-
tution and from our early case law and that the Court's
opinion should not be viewed as -radical- or another
-wrong turn- that must be corrected in the future.
The analysis also suggests that we ought to temper our
Commerce Clause jurisprudence.
Unless the dissenting Justices are willing to repudiate
our long-held understanding of the limited nature of
federal power, I would think that they too must be
willing to reconsider the substantial effects test in a
future case. If we wish to be true to a Constitution
that does not cede a police power to the Federal Gov-
ernment, our Commerce Clause's boundaries simply
cannot be -defined- as being -`commensurate with the
national needs'- or self-consciously intended to let the
Federal Government -`defend itself against economic
forces that Congress decrees inimical or destructive of
the national economy.'- See post, at 12-13 )Breyer, J.,
dissenting) (quoting North American Co. v. SEC, 327
U. S. 686, 705 (1946)). Such a formulation of federal
power is no test at all: it is a blank check.
At an appropriate juncture, I think we must modify
our Commerce Clause jurisprudence. Today, it is easy
enough to say that the Clause certainly does not em-
power Congress to ban gun possession within 1,000 feet
of a school.

Caron v. United States, 524 U.S. 308 (1998): Syllabus
Caron v. United States

524 U.S. 308 (1998)
Syllabus

CARON v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 97-6270. Argued April 21, 1998–Decided June 22, 1998
Federal law forbids a person convicted of a serious offense to possess any firearm, 18 U.S. C. §922(g)(1),
and requires that a three-time violent felon who violates §922(g) receive an enhanced sentence, §924(e).
However, a previous conviction is not a predicate for the substantive offense or the enhanced sentence if
the offender’s civil rights have been restored, “unless such … restoration … expressly provides that the
person may not … possess … firearms.” §921(a)(20). Petitioner, who has an extensive criminal record,
was convicted of possessing, inter alia, six rifles and shotguns in violation of §922(g). The District Court
enhanced his sentence based on one California conviction and three Massachusetts convictions, but the
First Circuit vacated the sentence, concluding that his civil rights had been restored by operation of a
Massachusetts law that permitted him to possess rifles but restricted his right to carry handguns. On
remand, the District Court disregarded the Massachusetts convictions, finding that, because
Massachusetts law allowed petitioner to possess rifles, §921(a)(20)’s “unless clause” was not activated,
and that the handgun restriction was irrelevant because the case involved rifles and shotguns. The First
Circuit reversed, counting the convictions because petitioner remained subject to significant firearms
restrictions.
Held: The handgun restriction activates the unless clause, making the Massachusetts convictions count
under federal law. The phrase “may not … possess … firearms” must be interpreted under either of two
“all-or-nothing” approaches: either it applies when the State forbids one or more types of firearms, as the
Government contends; or it does not apply if the State permits one or more types of firearms, regardless
of the one possessed in the particular case. This Court agrees with the Government’s approach, under
which a state weapons limitation activates the uniform federal ban on possessing any firearms at all.
Even if a State permitted an offender to have the guns he possessed, federal law uses the State’s
determination that the offender is more dangerous than law-abiding citizens to impose its own broader
stricture. Under petitioner’s approach, if he had possessed a handgun in violation of state law, the unless
clause would not apply because he could have possessed a rifle. This approach contradicts a likely, and
rational, congressional intent. Congress, believing that existing state laws provided less than positive
assurance that a repeat violent offender no longer poses an unacceptable risk of dangerousness, intended
to keep guns away from all offenders who might cause harm, even if they were not deemed dangerous by
the States. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119, 120. To provide the missing

Caron v. United States, 524 U.S. 308 (1998): Syllabus
assurance, federal law must reach primary conduct not covered by state law. The fact that state law
determines the restoration of civil rights does not mean that state law also controls the unless clause: As
to weapons possession, the Federal Government has an interest in a single, national, protective policy,
broader than required by state law. The rule of lenity does not apply here, since petitioner relies on an
implausible reading of the congressional purpose. See United States v. Shabani, 513 U.S. 10, 17. Pp. 4-8.
Affirmed.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor,
Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion, in which Scalia and Souter, JJ.,
joined.


524 U.S. 308 (1998)
Syllabus
CARON v. UNITED STATES

APPEALS FOR THE FIRST CIRCUIT
No. 97-6270. Argued April 21, 1998 -- Decided June 22, 1998
Federal law forbids a person convicted of a serious offense to possess

any firearm, 18 U.S. C. §922(g)(1), and requires that a three-time
violent felon who violates §922(g) receive an enhanced sentence,
§924(e). However, a previous conviction is not a predicate for the
substantive offense or the enhanced sentence if the offender’s civil
rights have been restored, "unless such ... restoration ... expressly
provides that the person may not ... possess ... firearms." §921(a)(20).
Petitioner, who has an extensive criminal record, was convicted of
possessing, inter alia, six rifles and shotguns in violation of §922(g).
The District Court enhanced his sentence based on one California
conviction and three Massachusetts convictions, but the First Circuit
vacated the sentence, concluding that his civil rights had been restored
by operation of a Massachusetts law that permitted him to possess rifles
but restricted his right to carry handguns. On remand, the District
Court disregarded the Massachusetts convictions, finding that, because
Massachusetts law allowed petitioner to possess rifles, §921(a)(20)’s
"unless clause" was not activated, and that the handgun restriction was
irrelevant because the case involved rifles and shotguns. The First
Circuit reversed, counting the convictions because petitioner remained
subject to significant firearms restrictions.
Held: The handgun restriction activates the unless clause, making the
Massachusetts convictions count under federal law. The phrase "may not
... possess ... firearms" must be interpreted under either of two
"all-or-nothing" approaches: either it applies when the State forbids
one or more types of firearms, as the Government contends; or it does
not apply if the State permits one or more types of firearms, regardless
of the one possessed in the particular case. This Court agrees with the
Government’s approach, under which a state weapons limitation activates
the uniform federal ban on possessing any firearms at all. Even if a
State permitted an offender to have the guns he possessed, federal law
uses the State’s determination that the offender is more dangerous than
law-abiding citizens to impose its own broader stricture. Under
petitioner’s approach, if he had possessed a handgun in violation of
state law, the unless clause would not apply because he could have
possessed a rifle. This approach contradicts a likely, and rational,
congressional intent. Congress, believing that existing state laws
provided less than positive assurance that a repeat violent offender no
longer poses an unacceptable risk of dangerousness, intended to keep
guns away from all offenders who might cause harm, even if they were not
deemed dangerous by the States. Dickerson v. New Banner Institute, Inc.,

460 U.S. 103, 119, 120. To provide the missing assurance, federal law
must reach primary conduct not covered by state law. The fact that state
law determines the restoration of civil rights does not mean that state
law also controls the unless clause: As to weapons possession, the
Federal Government has an interest in a single, national, protective
policy, broader than required by state law. The rule of lenity does not
apply here, since petitioner relies on an implausible reading of the
congressional purpose. See United States v. Shabani, 513 U.S. 10, 17.
Pp. 4-8.
Affirmed.
Kennedy, J., delivered the opinion of the Court, in which Rehnquist,

C. J., and Stevens, O’Connor, Ginsburg, and Breyer, JJ., joined. Thomas,
J., filed a dissenting opinion, in which Scalia and Souter, JJ., joined.

Caron v. United States, 524 U.S. 308 (1998): Kennedy, opinion

524 U.S. 308 (1998)
Opinion of the Court

No. 97-6270
GERALD R. CARON, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT
[June 22, 1998]

Justice Kennedy delivered the opinion of the Court.
Under federal law, a person convicted of a crime punishable by more than one year in prison may not
possess any firearm. 18 U.S.C. § 922(g)(1). If he has three violent felony convictions and violates the
statute, he must receive an enhanced sentence. §924(e). A previous conviction is a predicate for neither
the substantive offense nor the sentence enhancement if the offender has had his civil rights restored,
“unless such … restoration of civil rights expressly provides that the person may not … possess …
firearms.” §921(a)(20). This is the so-called “unless clause” we now must interpret. As the ellipses
suggest, the statute is more complex, but the phrase as quoted presents the issue for our decision.
The parties, reflecting a similar division among various Courts of Appeals, disagree over the
interpretation of the unless clause in the following circumstance. What if the State restoring the
offender’s rights forbids possession of some firearms, say pistols, but not others, say rifles? In one sense,
he “may not … possess … firearms” under the unless clause because the ban on specified weapons is a
ban on “firearms.” In another sense, he can possess firearms under the unless clause because the state ban
is not absolute. Compare, e.g., United States v. Estrella, 104 F.3d 3, 8 (CA1) (adopting former reading),
cert. denied, 521 U.S. ___ (1997) and United States v. Driscoll, 970 F.2d 1472, 1480-1481 (CA6 1992)
(same), cert. denied, 506 U S. 1083 (1993), with United States v. Qualls, ___ F.3d ___, No. 95-50378,
1998 WL 149393, *2 (CA9, Apr. 2, 1998) (en banc) (intermediate position), and United States v.
Shoemaker, 2 F.3d 53, 55-56 (CA4 1993) (same), cert. denied, 510 U.S. 1047 (1994).
The Government contends the class of criminals who “may not … possess … firearms” includes those
forbidden to have some guns but not others. On this reading, the restoration of rights is of no effect here,
the previous offenses are chargeable, and petitioner’s sentence must be enhanced. On appeal, the
Government’s position prevailed in the Court of Appeals for the First Circuit, and we now affirm its
judgment.

I
Petitioner Gerald Caron has an extensive criminal record, including felonies. In Massachusetts state
court, he was convicted in 1958 of attempted breaking and entering at night and, in 1959 and 1963, of
breaking and entering at night. In California state court, he was convicted in 1970 of assault with intent
to commit murder and attempted murder.
In July 1993, petitioner walked into the home of Walter Miller, carrying a semiautomatic rifle. He
threatened Miller, brandished the rifle in his face, and pointed it at his wife, his daughters, and his
3-year-old grandson. Police officers disarmed and arrested petitioner.
In September 1993, a federal agent called on petitioner at home to determine if he had other unlawful
firearms. Petitioner said he had only flintlock or other antique weapons (not forbidden by law) and
owned no conventional firearms. Federal law, the agent told him, forbade his possession of firearms and
was not superseded by state law. In December 1993, agents executed a search warrant at petitioner’s
house, seizing six rifles and shotguns and 6,823 rounds of ammunition.
A federal jury convicted petitioner of four counts of possessing a firearm or ammunition after having
been convicted of a serious offense. See 18 U.S.C. § 922(g)(1). The District Court enhanced his sentence
because he was at least a three-time violent felon, based on his one California and three Massachusetts
convictions. See §924(e). Petitioner claimed the Court should not have counted his Massachusetts
convictions because his civil rights had been restored by operation of Massachusetts law. Massachusetts
law allowed petitioner to possess rifles or shotguns, as he had the necessary firearm permit and his felony
convictions were more than five years old. Mass. Gen. Laws §§140:123, 140:129B, 140:129C (1996).
The law forbade him to possess handguns outside his home or business. See §§140:121, 140:131, 269:10.
At first, the District Court rejected the claim that Massachusetts had restored petitioner’s civil rights. It
held civil rights had to be restored by an offender-specific action rather than by operation of law. The
First Circuit disagreed, vacating the sentence and remanding the case. United States v. Caron, 77 F.3d 1,
2, 6 (1996) (en banc). We denied certiorari. 518 U.S. 1027 (1996). On remand, the District Court,
interpreting the unless clause of the federal statute, disregarded the Massachusetts convictions. It ruled
Massachusetts law did not forbid petitioner’s possession of firearms because he could possess rifles. 941
F. Supp. 238, 251-254 (Mass. 1996). Though Massachusetts restricted petitioner’s right to carry a
handgun, the District Court considered the restriction irrelevant because his case involved rifles and
shotguns. See ibid. The First Circuit reversed, counting the convictions because petitioner remained
subject to significant firearms restrictions. We granted certiorari. 522 U.S. ___ (1998).
II
A federal statute forbids possession of firearms by those convicted of serious offenses. An abbreviated
version of the statute is as follows:
“It shall be unlawful for any person–
“(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding
one year;
.....

“to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm
or ammunition; or to receive any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.” 18 U.S.C. § 922(g).
Three-time violent felons who violate §922(g) face enhanced sentences of at least 15 years’
imprisonment. §924(e)(1). “Violent felony” is defined to include burglary and other crimes creating a
serious risk of physical injury. §924(e)(2)(B)(ii). This term includes petitioner’s previous offenses
discussed above.
Not all violent felony convictions, however, count for purposes of §922(g) or §924(e). Until 1986,
federal law alone determined whether a state conviction counted, regardless of whether the State had
expunged the conviction. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 119-122 (1983).
Congress modified this aspect of Dickerson by adopting the following language:
“What constitutes a conviction of such a crime shall be determined in accordance with the law of the
jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside
or for which a person has been pardoned or has had civil rights restored shall not be considered a
conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights
expressly provides that the person may not ship, transport, possess, or receive firearms.” §921(a)(20).
The first sentence and the first clause of the second sentence define convictions, pardons, expungements,
and restorations of civil rights by reference to the law of the convicting jurisdiction. See Beecham v.
United States, 511 U.S. 368, 371 (1994).
Aside from the unless clause, the parties agree Massachusetts law has restored petitioner’s civil rights.
As for the unless clause, state law permits him to possess rifles and shotguns but forbids him to possess
handguns outside his home or business. The question presented is whether the handgun restriction
activates the unless clause, making the convictions count under federal law.
We note these preliminary points. First, Massachusetts restored petitioner’s civil rights by operation of
law rather than by pardon or the like. This fact makes no difference. Nothing in the text of §921(a)(20)
requires a case-by-case decision to restore civil rights to this particular offender. While the term “pardon”
connotes a case-by-case determination, “restoration of civil rights” does not. Massachusetts has chosen a
broad rule to govern this situation, and federal law gives effect to its rule. All Courts of Appeals to
address the point agree. See Caron, 77 F.3d, at 2; McGrath v. United States, 60 F.3d 1005, 1008 (CA2
1995), cert. denied, 516 U.S. 1121 (1996); United States v. Hall, 20 F.3d 1066, 1068-1069 (CA10 1994);
United States v. Glaser, 14 F.3d 1213, 1218 (CA7 1994); United States v. Thomas, 991 F.2d 206,
212-213 (CA5), cert. denied, 510 U.S. 1014 (1993); United States v. Dahms, 938 F.2d 131, 133-134
(CA9 1991); United States v. Essick, 935 F.2d 28, 30-31 (CA4 1991); United States v. Cassidy, 899 F.2d
543, 550, and n. 14 (CA6 1990).
Second, the District Court ruled, and petitioner urges here, that the unless clause allows an offender to
possess what state law permits him to possess, and nothing more. Here, petitioner’s shotguns and rifles
were permitted by state law, so, under their theory, the weapons would not be covered by the unless
clause. While we do not dispute the common sense of this approach, the words of the statute do not
permit it. The unless clause is activated if a restoration of civil rights “expressly provides that the person
may not … possess … firearms.” 18 U.S.C. § 921(a)(20). Either the restorations forbade possession of

“firearms” and the convictions count for all purposes, or they did not and the convictions count not at all.
The unless clause looks to the terms of the past restorations alone and does not refer to the weapons at
issue in the present case. So if the Massachusetts convictions count for some purposes, they count for all
and bar possession of all guns.
III
The phrase “may not … possess … firearms,” then, must be interpreted under either of what the
parties call the two “all-or-nothing” approaches. Either it applies when the State forbids one or more
types of firearms, as the Government contends; or it does not apply if state law permits one or more types
of firearms, regardless of the one possessed in the particular case.
Under the Government’s approach, a state weapons limitation on an offender activates the uniform
federal ban on possessing any firearms at all. This is so even if the guns the offender possessed were ones
the State permitted him to have. The State has singled out the offender
as more dangerous than law-abiding citizens, and federal law uses this determination to impose its own
broader stricture.
Although either reading creates incongruities, petitioner’s approach yields results contrary to a likely,
and rational, congressional policy. If permission to possess one firearm entailed permission to possess
all, then state permission to have a pistol would allow possession of an assault weapon as well. Under
this view, if petitioner, in violation of state law, had possessed a handgun, the unless clause would still
not apply because he could have possessed a rifle. Not only would this strange result be inconsistent with
any conceivable federal policy, but it also would arise often enough to impair the working of the federal
statute. Massachusetts, in this case, and some 15 other States choose to restore civil rights while
restricting firearm rights in part. The permissive reading would make these partial restrictions a nullity
under federal law, indeed in the egregious cases with the most dangerous weapons. Congress cannot have
intended this bizarre result.
Under petitioner’s all-or-nothing argument, federal law would forbid only a subset of activities already
criminal under state law. This limitation would contradict the intent of Congress. In Congress’ view,
existing state laws “provide less than positive assurance that the person in question no longer poses an
unacceptable risk of dangerousness.” Dickerson, 460 U.S., at 120. Congress meant to keep guns away
from all offenders who, the Federal Government feared, might cause harm, even if those persons were
not deemed dangerous by States. See id., at 119. If federal law is to provide the missing “positive
assurance,” it must reach primary conduct not covered by state law. The need for this caution is borne out
by petitioner’s rifle attack on the Miller family, in which petitioner used a gun permitted by state law.
Any other result would reduce federal law to a sentence enhancement for some state-law violations, a
result inconsistent with the congressional intent we recognized in Dickerson. Permission to possess one
gun cannot mean permission to possess all.
Congress responded to our ruling in Dickerson by providing that the law of the State of conviction, not
federal law, determines the restoration of civil rights as a rule. While state law is the source of law for
restorations of other civil rights, however, it does not follow that state law also controls the unless clause.
Under the Government’s approach, with which we agree, the federal policy still governs the
interpretation of the unless clause. We see nothing contradictory in this analysis. Restoration of the right
to vote, the right to hold office, and the right to sit on a jury turns on so many complexities and nuances
that state law is the most convenient source for definition. As to the possession of weapons, however, the

Federal Government has an interest in a single, national, protective policy, broader than required by state
law. Petitioner’s approach would undermine this protective purpose.
As a final matter, petitioner says his reading is required by the rule of lenity, but his argument is
unavailing. The rule of lenity is not invoked by a grammatical possibility. It does not apply if the
ambiguous reading relied on is an implausible reading of the congressional purpose. See United States v.
Shabani, 513 U.S. 10, 17 (1994) (requiring use of traditional tools of statutory construction to resolve
ambiguities before resorting to the rule of lenity). For the reasons we have explained, petitioner’s reading
is not plausible enough to satisfy this condition.
In sum, Massachusetts treats petitioner as too dangerous to trust with handguns, though it accords this
right to law-abiding citizens. Federal law uses this state finding of dangerousness in forbidding petitioner
to have any guns. The judgment of the Court of Appeals is


524 U.S. 308 (1998)
No. 97-6270
GERALD R. CARON, PETITIONER v. UNITED

STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 22, 1998]
Justice Kennedy delivered the opinion of the Court.
Under federal law, a person convicted of a crime punishable by more

than one year in prison may not possess any firearm. 18 U.S.C. §
922(g)(1). If he has three violent felony convictions and violates the
statute, he must receive an enhanced sentence. §924(e). A previous
conviction is a predicate for neither the substantive offense nor the
sentence enhancement if the offender has had his civil rights restored,
"unless such ... restoration of civil rights expressly provides that the
person may not ... possess ... firearms." §921(a)(20). This is the
so-called "unless clause" we now must interpret. As the ellipses
suggest, the statute is more complex, but the phrase as quoted presents
the issue for our decision.
The parties, reflecting a similar division among various Courts of

Appeals, disagree over the interpretation of the unless clause in the
following circumstance. What if the State restoring the offender’s
rights forbids possession of some firearms, say pistols, but not others,
say rifles? In one sense, he "may not ... possess ... firearms" under
the unless clause because the ban on specified weapons is a ban on
"firearms." In another sense, he can possess firearms under the unless
clause because the state ban is not absolute. Compare, e.g., United
States v. Estrella, 104 F.3d 3, 8 (CA1) (adopting former reading), cert.
denied, 521 U.S. ___ (1997) and United States v. Driscoll, 970 F.2d
1472, 1480-1481 (CA6 1992) (same), cert. denied, 506 U S. 1083 (1993),
with United States v. Qualls, ___ F.3d ___, No. 95-50378, 1998 WL
149393, *2 (CA9, Apr. 2, 1998) (en banc) (intermediate position), and
United States v. Shoemaker, 2 F.3d 53, 55-56 (CA4 1993) (same), cert.
denied, 510 U.S. 1047 (1994).
The Government contends the class of criminals who "may not ...
possess ... firearms" includes those forbidden to have some guns but not
others. On this reading, the restoration of rights is of no effect here,
the previous offenses are chargeable, and petitioner’s sentence must be
enhanced. On appeal, the Government’s position prevailed in the Court of
Appeals for the First Circuit, and we now affirm its judgment.

Petitioner Gerald Caron has an extensive criminal record, including

felonies. In Massachusetts state court, he was convicted in 1958 of
attempted breaking and entering at night and, in 1959 and 1963, of
breaking and entering at night. In California state court, he was
convicted in 1970 of assault with intent to commit murder and attempted
murder.
In July 1993, petitioner walked into the home of Walter Miller,

carrying a semiautomatic rifle. He threatened Miller, brandished the
rifle in his face, and pointed it at his wife, his daughters, and his
3-year-old grandson. Police officers disarmed and arrested petitioner.
In September 1993, a federal agent called on petitioner at home to

determine if he had other unlawful firearms. Petitioner said he had only
flintlock or other antique weapons (not forbidden by law) and owned no
conventional firearms. Federal law, the agent told him, forbade his
possession of firearms and was not superseded by state law. In December
1993, agents executed a search warrant at petitioner’s house, seizing
six rifles and shotguns and 6,823 rounds of ammunition.
A federal jury convicted petitioner of four counts of possessing a

firearm or ammunition after having been convicted of a serious offense.
See 18 U.S.C. § 922(g)(1). The District Court enhanced his sentence
because he was at least a three-time violent felon, based on his one
California and three Massachusetts convictions. See §924(e). Petitioner
claimed the Court should not have counted his Massachusetts convictions
because his civil rights had been restored by operation of Massachusetts
law. Massachusetts law allowed petitioner to possess rifles or shotguns,
as he had the necessary firearm permit and his felony convictions were
more than five years old. Mass. Gen. Laws §§140:123, 140:129B, 140:129C
(1996). The law forbade him to possess handguns outside his home or
business. See §§140:121, 140:131, 269:10.
At first, the District Court rejected the claim that Massachusetts

had restored petitioner’s civil rights. It held civil rights had to be
restored by an offender-specific action rather than by operation of law.
The First Circuit disagreed, vacating the sentence and remanding the
case. United States v. Caron, 77 F.3d 1, 2, 6 (1996) (en banc). We
denied certiorari. 518 U.S. 1027 (1996). On remand, the District Court,
interpreting the unless clause of the federal statute, disregarded the
Massachusetts convictions. It ruled Massachusetts law did not forbid
petitioner’s possession of firearms because he could possess rifles. 941
F. Supp. 238, 251-254 (Mass. 1996). Though Massachusetts restricted
petitioner’s right to carry a handgun, the District Court considered the
restriction irrelevant because his case involved rifles and shotguns.
See ibid. The First Circuit reversed, counting the convictions because
petitioner remained subject to significant firearms restrictions. We
granted certiorari. 522 U.S. ___ (1998).
II
A federal statute forbids possession of firearms by those convicted of

serious offenses. An abbreviated version of the statute is as follows:
"It shall be unlawful for any person --
"(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
. . . . .

"to ship or transport in interstate or foreign commerce, or possess in

or affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce." 18 U.S.C. § 922(g).
Three-time violent felons who violate §922(g) face enhanced

sentences of at least 15 years’ imprisonment. §924(e)(1). "Violent
felony" is defined to include burglary and other crimes creating a
serious risk of physical injury. §924(e)(2)(B)(ii). This term includes
petitioner’s previous offenses discussed above.
Not all violent felony convictions, however, count for purposes of

§922(g) or §924(e). Until 1986, federal law alone determined whether a
state conviction counted, regardless of whether the State had expunged
the conviction. Dickerson v. New Banner Institute, Inc., 460 U.S. 103,
119-122 (1983). Congress modified this aspect of Dickerson by adopting
the following language:
"What constitutes a conviction of such a crime shall be determined in

accordance with the law of the jurisdiction in which the proceedings
were held. Any conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil rights restored shall
not be considered a conviction for purposes of this chapter, unless such
pardon, expungement, or restoration of civil rights expressly provides
that the person may not ship, transport, possess, or receive firearms."
§921(a)(20).
The first sentence and the first clause of the second sentence define
convictions, pardons, expungements, and restorations of civil rights by
reference to the law of the convicting jurisdiction. See Beecham v.
United States, 511 U.S. 368, 371 (1994).
Aside from the unless clause, the parties agree Massachusetts law
has restored petitioner’s civil rights. As for the unless clause, state
law permits him to possess rifles and shotguns but forbids him to
possess handguns outside his home or business. The question presented is
whether the handgun restriction activates the unless clause, making the
convictions count under federal law.
We note these preliminary points. First, Massachusetts restored

petitioner’s civil rights by operation of law rather than by pardon or
the like. This fact makes no difference. Nothing in the text of
§921(a)(20) requires a case-by-case decision to restore civil rights to
this particular offender. While the term "pardon" connotes a
case-by-case determination, "restoration of civil rights" does not.
Massachusetts has chosen a broad rule to govern this situation, and
federal law gives effect to its rule. All Courts of Appeals to address
the point agree. See Caron, 77 F.3d, at 2; McGrath v. United States, 60
F.3d 1005, 1008 (CA2 1995), cert. denied, 516 U.S. 1121 (1996); United
States v. Hall, 20 F.3d 1066, 1068-1069 (CA10 1994); United States v.
Glaser, 14 F.3d 1213, 1218 (CA7 1994); United States v. Thomas, 991 F.2d
206, 212-213 (CA5), cert. denied, 510 U.S. 1014 (1993); United States v.
Dahms, 938 F.2d 131, 133-134 (CA9 1991); United States v. Essick, 935
F.2d 28, 30-31 (CA4 1991); United States v. Cassidy, 899 F.2d 543, 550,
and n. 14 (CA6 1990).
Second, the District Court ruled, and petitioner urges here, that
the unless clause allows an offender to possess what state law permits
him to possess, and nothing more. Here, petitioner’s shotguns and rifles
were permitted by state law, so, under their theory, the weapons would

not be covered by the unless clause. While we do not dispute the common
sense of this approach, the words of the statute do not permit it. The
unless clause is activated if a restoration of civil rights "expressly
provides that the person may not ... possess ... firearms." 18 U.S.C. §
921(a)(20). Either the restorations forbade possession of "firearms" and
the convictions count for all purposes, or they did not and the
convictions count not at all. The unless clause looks to the terms of
the past restorations alone and does not refer to the weapons at issue
in the present case. So if the Massachusetts convictions count for some
purposes, they count for all and bar possession of all guns.
III
The phrase "may not ... possess ... firearms," then, must be
interpreted under either of what the parties call the two
"all-or-nothing" approaches. Either it applies when the State forbids
one or more types of firearms, as the Government contends; or it does
not apply if state law permits one or more types of firearms, regardless
of the one possessed in the particular case.
Under the Government’s approach, a state weapons limitation on an

offender activates the uniform federal ban on possessing any firearms at
all. This is so even if the guns the offender possessed were ones the
State permitted him to have. The State has singled out the offender as
more dangerous than law-abiding citizens, and federal law uses this
determination to impose its own broader stricture.
Although either reading creates incongruities, petitioner’s approach

yields results contrary to a likely, and rational, congressional policy.
If permission to possess one firearm entailed permission to possess all,
then state permission to have a pistol would allow possession of an
assault weapon as well. Under this view, if petitioner, in violation of
state law, had possessed a handgun, the unless clause would still not
apply because he could have possessed a rifle. Not only would this
strange result be inconsistent with any conceivable federal policy, but
it also would arise often enough to impair the working of the federal
statute. Massachusetts, in this case, and some 15 other States choose to
restore civil rights while restricting firearm rights in part. The
permissive reading would make these partial restrictions a nullity under
federal law, indeed in the egregious cases with the most dangerous
weapons. Congress cannot have intended this bizarre result.
Under petitioner’s all-or-nothing argument, federal law would forbid

only a subset of activities already criminal under state law. This
limitation would contradict the intent of Congress. In Congress’ view,
existing state laws "provide less than positive assurance that the
person in question no longer poses an unacceptable risk of
dangerousness." Dickerson, 460 U.S., at 120. Congress meant to keep guns
away from all offenders who, the Federal Government feared, might cause
harm, even if those persons were not deemed dangerous by States. See
id., at 119. If federal law is to provide the missing "positive
assurance," it must reach primary conduct not covered by state law. The
need for this caution is borne out by petitioner’s rifle attack on the
Miller family, in which petitioner used a gun permitted by state law.
Any other result would reduce federal law to a sentence enhancement for
some state-law violations, a result inconsistent with the congressional
intent we recognized in Dickerson. Permission to possess one gun cannot
mean permission to possess all.
Congress responded to our ruling in Dickerson by providing that the

law of the State of conviction, not federal law, determines the

restoration of civil rights as a rule. While state law is the source of

law for restorations of other civil rights, however, it does not follow
that state law also controls the unless clause. Under the Government’s
approach, with which we agree, the federal policy still governs the
interpretation of the unless clause. We see nothing contradictory in
this analysis. Restoration of the right to vote, the right to hold
office, and the right to sit on a jury turns on so many complexities and
nuances that state law is the most convenient source for definition. As
to the possession of weapons, however, the Federal Government has an
interest in a single, national, protective policy, broader than required
by state law. Petitioner’s approach would undermine this protective
purpose.
As a final matter, petitioner says his reading is required by the

rule of lenity, but his argument is unavailing. The rule of lenity is
not invoked by a grammatical possibility. It does not apply if the
ambiguous reading relied on is an implausible reading of the
congressional purpose. See United States v. Shabani, 513 U.S. 10, 17
(1994) (requiring use of traditional tools of statutory construction to
resolve ambiguities before resorting to the rule of lenity). For the
reasons we have explained, petitioner’s reading is not plausible enough
to satisfy this condition.
In sum, Massachusetts treats petitioner as too dangerous to trust

with handguns, though it accords this right to law-abiding citizens.
Federal law uses this state finding of dangerousness in forbidding
petitioner to have any guns. The judgment of the Court of Appeals is

Caron v. United States, 524 U.S. 308 (1998): Thomas dissenting

524 U.S. 308 (1998)
Thomas, J., dissenting

No. 97-6270
GERALD R. CARON, PETITIONER v. UNITED STATES

FIRST CIRCUIT
[June 22, 1998]

Justice Thomas, with whom Justice Scalia and Justice Souter join, dissenting.
The only limitation that Massachusetts law imposed on petitioner’s possession of firearms was that he
could not carry handguns outside his home or business. See ante, at 3. In my view, Massachusetts law
did not “expressly provid[e]” that petitioner “may not … possess … firearms,” 18 U.S.C. § 921(a)(20),
and thus petitioner cannot be sentenced as an armed career criminal under 18 U.S.C. § 924(e). Because
the Court holds to the contrary, I respectfully dissent.
Petitioner’s prior Massachusetts convictions qualify as violent felonies for purposes of §924(e) only if
the “restoration of [his] civil rights” by operation of Massachusetts law “expressly provide[d] that
[petitioner] may not … possess … firearms.” 18 U.S.C. § 921(a)(20). In 1994, Massachusetts law did not
expressly provide that petitioner could not possess firearms. To the contrary: Petitioner was permitted by
Massachusetts law to possess shotguns, rifles, and handguns. See ante, at 3; Mass. Gen. Stat. §§140:123,
140:129B, 140:129C. (1998). Indeed, Massachusetts provided petitioner with a firearm identification
card that enabled him to possess such firearms.* The only restriction Massachusetts law placed on
petitioner’s possession of firearms was that he could not carry handguns outside his home or business.
See §269:10(A). By prohibiting petitioner from possessing only certain firearms (handguns) in only
certain places (outside his home or office), Massachusetts law did not expressly provide that petitioner
could not possess firearms.
The plain meaning of §921(a)(20) thus resolves this case. The Court, however, rejects this plain
meaning on the basis of “a likely, and rational, congressional policy” of prohibiting firearms possession
by all ex-felons whose ability to possess certain firearms is in any way restricted by state law. Ante, at 7.
According to the Court, Congress could not have intended the “bizarre result” that a conviction would
not count as a violent felony if a State only partially restricts the possession of firearms by the ex-felon.
But this would not be a bizarre result at all. Under §921(a)(20), state law limitations on firearms
possession are only relevant once it has been established that an ex-felon’s other civil rights, such as the

Caron v. United States, 524 U.S. 308 (1998): Thomas dissenting
right to vote, the right to seek and to hold public office, and the right to serve on a jury, have been
restored. See 77 F.3d 1, 2 (CA1 1996). In restoring those rights, the State has presumably deemed such
ex-felons worthy of participating in civic life. Once a State makes such a decision, it is entirely rational
(and certainly not bizarre) for Congress to authorize the increased sentences in §924(e) only when the
State additionally prohibits those ex-felons from possessing firearms altogether.
Moreover, as the Court concedes, its own interpretation creates “incongruities.” Ante, at 7. Under the
statute, whether a prior state conviction qualifies as a violent felony conviction under §924(e) turns
entirely on state law. Given the primacy of state law in the statutory scheme, it is bizarre to hold that the
legal possession of firearms under state law subjects a person to a sentence enhancement under federal
law. That, however, is precisely the conclusion the Court reaches in this case. It is simply not true, as the
Court reasons, that federal law “must reach primary conduct not covered by state law.” Ante, at 7. It is
entirely plausible that Congress simply intended to create stiffer penalties for weapons possessions that
are already illegal under state law. And such a purpose is consistent with the statutory direction that state
law controls what constitutes a conviction for a violent felony.
I believe that the plain meaning of the statute is that Massachusetts did not “expressly provid[e]” that
petitioner “may not … possess … firearms.” At the very least, this interpretation is a plausible one.
Indeed, both the Government and the Court concede as much. See Brief for United States 16
(“grammatically possible” to read statute to say that its condition is not satisfied if the State does permit
its felons to possess some firearms); ante, at 8 (this “reading is not plausible enough”). Accordingly, it is
far from clear under the statute that a prior state conviction counts as a violent felony conviction for
purposes of §924(e) just because the State imposes some restriction, no matter how slight, on firearms
possession by ex-felons. The rule of lenity must therefore apply: “[T]he Court will not interpret a federal
criminal statute so as to increase the penalty that it places on an individual when such an interpretation
can be based on no more than a guess as to what Congress intended.” Ladner v. United States, 358 U.S.
169, 178 (1958). Ex-felons cannot be expected to realize that a federal statute that explicitly relies on
state law prohibits behavior that state law allows.
The Court rejects the rule of lenity in this case because it thinks the purported statutory ambiguity rests
on a “grammatical possibility” and “an implausible reading of the congressional purpose.” Ante, at 8. But
the alleged ambiguity does not result from a mere grammatical possibility; it exists because of an
interpretation that, for the reasons I have described, both accords with a natural reading of the statutory
language and is consistent with the statutory purpose.
The plain meaning of §921(a)(20) is that Massachusetts law did not “expressly provid[e] that
[petitioner] may not … possess . . . firearms.” This interpretation is, at the very least, a plausible one, and
the rule of lenity must apply. I would therefore reverse the judgment below.
Notes
1. * Petitioner was “entitled to” a firearm identification card five years after his release from prison. See
Mass. Gen. Stat. §140:129B; see also Commonwealth v. Landry, 6 Mass. App. 404, 406 376 N. E. 2d
1243, 1245, (1978) (firearm identification card can be obtained as a “matter of right”).


524 U.S. 308 (1998)
Thomas, J., dissenting
No. 97-6270
GERALD R. CARON, PETITIONER v. UNITED

STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT
[June 22, 1998]
Justice Thomas, with whom Justice Scalia and Justice Souter join,
dissenting.
The only limitation that Massachusetts law imposed on petitioner’s

possession of firearms was that he could not carry handguns outside his
home or business. See ante, at 3. In my view, Massachusetts law did not
"expressly provid[e]" that petitioner "may not ... possess ...
firearms," 18 U.S.C. § 921(a)(20), and thus petitioner cannot be
sentenced as an armed career criminal under 18 U.S.C. § 924(e). Because
the Court holds to the contrary, I respectfully dissent.
Petitioner’s prior Massachusetts convictions qualify as violent

felonies for purposes of §924(e) only if the "restoration of [his] civil
rights" by operation of Massachusetts law "expressly provide[d] that
[petitioner] may not ... possess ... firearms." 18 U.S.C. § 921(a)(20).
In 1994, Massachusetts law did not expressly provide that petitioner
could not possess firearms. To the contrary: Petitioner was permitted by
Massachusetts law to possess shotguns, rifles, and handguns. See ante,
at 3; Mass. Gen. Stat. §§140:123, 140:129B, 140:129C. (1998). Indeed,
Massachusetts provided petitioner with a firearm identification card
that enabled him to possess such firearms.* The only restriction
Massachusetts law placed on petitioner’s possession of firearms was that
he could not carry handguns outside his home or business. See
§269:10(A). By prohibiting petitioner from possessing only certain
firearms (handguns) in only certain places (outside his home or office),
Massachusetts law did not expressly provide that petitioner could not
possess firearms.
The plain meaning of §921(a)(20) thus resolves this case. The Court,
however, rejects this plain meaning on the basis of "a likely, and
rational, congressional policy" of prohibiting firearms possession by
all ex-felons whose ability to possess certain firearms is in any way
restricted by state law. Ante, at 7. According to the Court, Congress
could not have intended the "bizarre result" that a conviction would not
count as a violent felony if a State only partially restricts the
possession of firearms by the ex-felon. But this would not be a bizarre
result at all. Under §921(a)(20), state law limitations on firearms
possession are only relevant once it has been established that an

ex-felon’s other civil rights, such as the right to vote, the right to
seek and to hold public office, and the right to serve on a jury, have
been restored. See 77 F.3d 1, 2 (CA1 1996). In restoring those rights,
the State has presumably deemed such ex-felons worthy of participating
in civic life. Once a State makes such a decision, it is entirely
rational (and certainly not bizarre) for Congress to authorize the
increased sentences in §924(e) only when the State additionally
prohibits those ex-felons from possessing firearms altogether.
Moreover, as the Court concedes, its own interpretation creates

"incongruities." Ante, at 7. Under the statute, whether a prior state
conviction qualifies as a violent felony conviction under §924(e) turns
entirely on state law. Given the primacy of state law in the statutory
scheme, it is bizarre to hold that the legal possession of firearms
under state law subjects a person to a sentence enhancement under
federal law. That, however, is precisely the conclusion the Court
reaches in this case. It is simply not true, as the Court reasons, that
federal law "must reach primary conduct not covered by state law." Ante,
at 7. It is entirely plausible that Congress simply intended to create
stiffer penalties for weapons possessions that are already illegal under
state law. And such a purpose is consistent with the statutory direction
that state law controls what constitutes a conviction for a violent
felony.
I believe that the plain meaning of the statute is that

Massachusetts did not "expressly provid[e]" that petitioner "may not ...
possess ... firearms." At the very least, this interpretation is a
plausible one. Indeed, both the Government and the Court concede as
much. See Brief for United States 16 ("grammatically possible" to read
statute to say that its condition is not satisfied if the State does
permit its felons to possess some firearms); ante, at 8 (this "reading
is not plausible enough"). Accordingly, it is far from clear under the
statute that a prior state conviction counts as a violent felony
conviction for purposes of §924(e) just because the State imposes some
restriction, no matter how slight, on firearms possession by ex-felons.
The rule of lenity must therefore apply: "[T]he Court will not interpret
a federal criminal statute so as to increase the penalty that it places
on an individual when such an interpretation can be based on no more
than a guess as to what Congress intended." Ladner v. United States, 358
U.S. 169, 178 (1958). Ex-felons cannot be expected to realize that a
federal statute that explicitly relies on state law prohibits behavior
that state law allows.
The Court rejects the rule of lenity in this case because it thinks
the purported statutory ambiguity rests on a "grammatical possibility"
and "an implausible reading of the congressional purpose." Ante, at 8.
But the alleged ambiguity does not result from a mere grammatical
possibility; it exists because of an interpretation that, for the
reasons I have described, both accords with a natural reading of the
statutory language and is consistent with the statutory purpose.
The plain meaning of §921(a)(20) is that Massachusetts law did not

"expressly provid[e] that [petitioner] may not ... possess . . .
firearms." This interpretation is, at the very least, a plausible one,
and the rule of lenity must apply. I would therefore reverse the
judgment below.
Notes

1. * Petitioner was "entitled to" a firearm identification card five

years after his release from prison. See Mass. Gen. Stat. §140:129B; see
also Commonwealth v. Landry, 6 Mass. App. 404, 406 376 N. E. 2d 1243,
1245, (1978) (firearm identification card can be obtained as a "matter
of right").

Caron v. United States, 524 U.S. 308 (1998): Commentary by Jon Roland
Caron v. United States, 524 U.S. 308 (1998)

This case demonstrates how politics or public policy, without a grounding in constitutional fundamentals,
can yield a morass of contradictions and unjust outcomes. It arises out of the 1986 Firearms Owners
Protection Act, as amended, which forbids a person convicted of a serious offense to possess any firearm,
18 U.S.C. §922(g)(1), and requires that a three-time violent felon who violates §922(g) receive an
enhanced sentence, §924(e). However, a previous conviction is not a predicate for the substantive offense
or the enhanced sentence if the offender’s civil rights have been restored, “unless such … restoration …
expressly provides that the person may not … possess … firearms.” §921(a)(20) (emphasis added). The
petitioner in this case was convicted under the Act for possession of some rifles and shotguns, even
though on one of his original convictions he had had his civil rights restored by operation of a
Massachusetts law that permitted him to possess rifles but restricted his right to carry handguns. The
decision of the Court was to uphold the conviction and longer sentence, on the argument that, although
he had a right under Massachusetts law to possess the rifles and shotguns, the disability for carrying
handguns made the federal charge applicable under the above "unless" clause, even though he didn't have
any, so that if there were any limitations on firearms ownership remaining after a restoration of rights,
the federal law prohibited such person from possessing any firearms. That is, even if the state specifically
said the person could have certain firearms, the federal law would not recognize that. Justices Thomas,
Scalia, and Suter dissented on this argument, but neglected to examine the more fundamental issues that
invalidate the entire Act.
The case arose from enforcement of The Brady Handgun Violence Prevention Act, 18 U.S.C. §§ 921- 22
(1994), a political compromise in which the NRA accepted and supported its "instant check" system by
the FBI on prospective purchases of firearms, forbidding purchases to certain categories of persons, as an
alternative to new gun laws. The FBI has claimed that this system has prevented sales of firearms to
hundreds of thousands of "felons" and other "dangerous persons", but what seems like a good public
safety outcome is often unjust, besides being unconstitutional using the criteria and methods on which
the sales are rejected. Where political compromises are involved, constitutional principles tend to be
compromised along with the policy preferences, making moot the presumption of the constitutionality of
legislation.
Before we examine the constitutional fundamentals, however, let us examine some the difficulties of
defining a class of "felons" or "serious offenders" or "dangerous persons" whose rights to keep and bear
arms are to be legislatively disabled:
● "Felons" are not always violent people who would misuse a firearm. Some laws are drafted so
broadly that penalties that meet the simplistic definitions used in the 1986 Firearms Owners
Protection Act are imposed on widely different behaviors. Despite the fact that the Act specifies
"violent" felonies, the enforcement of the Act has considered all felonies "violent" just because
they are "felonies".
❍ Lewd behavior is a "felony" in some states, but can include anything from relieving oneself
in the wrong place, to social protest, to topless sunbathing, to flashing.
❍ Pornography is a felony by some local standards, but what is pornographic changes. The
term has been applied to books now considered classics, to classical art such as naked Greek
statues, or to parents who innocently took pictures of their children as naked babies.

❍In many states gambling is a felony, depending on the game played and the amount bet.
❍ Impregnating a woman, even if one later marries her, or even nonmarital cohabitation, can
be a felony in some states.
❍ Procuring an abortion was once a felony in most states. If one did it when it was illegal and
was convicted, one would be a "felon" for the purposes of the federal Act.
❍ Income tax evasion, or filling out government forms incorrectly, can be a felony. So can
donating too much money to a political campaign, defending oneself from attack by a
dangerous animal that happens to be a member of an endangered species, filling in a part of
one's backyard that some bureaucrat decides is a "wetland", and some types of illegal
dumping. Many of these laws do not require criminal intent.
❍ Many states have similar names for crimes, some of which are felonies and some are not.
Larceny "over" a certain value may be a "felony", and "under" that value a "misdemeanor",
but the value varies from state to state, and even within a state, the laws and values may
change.
❍ Penalties for the same offenses have often increased from one year to the next. Conviction
of drunk driving in Massachusetts in 1993 would not have disqualified one from having a
firearm, but would have done so beginning in 1994.
● Although the Brady Act requires the FBI to destroy the records of checks, that provision is being
ignored, and the "instant check" system establishes not just a national gun registration system but a
national dossier and tracking system of all citizens. Previously forbidden from maintaining
dossiers on individuals unless they were the subjects of a criminal investigation, the federal
government is now compiling massive amounts of information on everyone. Not all of that
information is correct, yet people are being prosecuted on the basis of that incorrect information.
❍ Each state has different laws and standards. There is no uniform labeling of crimes or
characterization of offenses as misdemeanors or felonies. In many states, the older criminal
records are not in good order.
❍ Until fairly recently, all records were kept by hand locally. Different courts kept their
records in different ways. There were differences in the way judges handled cases.
❍ Many states have methods which allow the judge to impose court supervision without giving
the accused a criminal record. Terms such as "pre-trial diversion," "pre-trial probation,"
"continuance without a finding," "placing on file," "conditional dismissal," and "suspended
finding," describe dispositions which do not result in giving the accused a criminal record.
Because judges believed nothing more than a fine would result from such dispositions, they
were quick to impose them without much thought to the guilt or innocence of the accused.
❍ In some areas, records of closed cases have been destroyed leaving only cryptic entries
describing the charges but not the disposition of the case. When the NCIC check is
conducted, it frequently turns up these partial records. The "instant check" FBI staff assume
the worst, even though the records were ambiguous.
❍ Although not authorized by law to do so, the "instant check" also looks at the NCIC records
of arrests. If no follow up entry was made in that data base indicating what happened after
the arrest, the government tends to treat the reported arrest as if it were a conviction. The
citizen is then forced to prove he was not convicted.
❍ There is no time limit on convictions. A check could turn up a record 60 years old. Tracking

down older public records to establish nonconviction or to correct erroneous information

can be very difficult.
❍ A criminal conviction remains forever unless one is pardoned, has the record expunged, or
one lives in a state that automatically expunges a record on the passage of time. Most states
do not automatically expunge records, and some that are supposed to do so, don't.
❍ Some states seal records after a period of time. The sealing of a record does not remove the
conviction, it simply hides it from the general public, and perhaps from the person
convicted. If one knows or suspects he may have a sealed record, he should consult with his
attorney before answering any governmental questionnaire that asks about convictions.
● Court interpretations of the Firearms Owners Protection Act have resulted in serious problems.
❍ For a time, the federal government refused to recognize state pardons of people with felony
convictions and refused to recognize the state classification of a crime as a misdemeanor if
the potential penalty was greater than two years. This led to people who committed offenses
which were misdemeanors under state law being prosecuted under federal law as though the
state offenses had been felonies.
❍ People who had received pardons or who had their right to own firearms restored under state
law acquired firearms in good faith, believing they were in compliance with the law, only to
be prosecuted by the federal government as felons in possession of firearms. To avoid this
the Firearms Owners Protection Act was amended to provide that, "Any conviction which
has been expunged, or set aside or for which a person has been pardoned or has had civil
rights restored shall not be considered a conviction under this chapter, unless such pardon,
expungement, or restoration of civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms."
❍ But this provision has been interpreted by a number of federal district and circuit courts in
different and conflicting ways.
■ One argument was that the rights were restored or limited under federal law to the
same extent they were restored or limited under state law. This was the argument
favored by the dissenting opinion in the Caron case.
■ The other argument was that a restoration of rights had to be full. If any limitation
was placed on firearms ownership, the "unless" section applied. This was the
argument that prevailed in the Caron case, the basis for which was a Massachusetts
law that restored a person's right to own rifles, shotguns, and handguns five years
after a conviction for a felony, but not his right to carry handguns outside his home.[1]
● The other categories, not issues in Caron, such as persons with a "history" of "mental disorder" or
"alcoholism", or the recently added "domestic violence" or "subject of a protective order"
provisions of the Lautenberg Amendment to the Act, present similar difficulties of definition,
different state and local standards, incomplete, incorrect, or misleading records, and uncertainty for
a reasonable and law-abiding person as to whether one of the categories applies to him.
❍ Many persons are routinely required to have a mental examination, without any indication
of mental disorder, yet the fact of the order of commitment or examination represents a
"history" that could be used to make possession of a firearm a federal crime.
❍ In most states, the results of medical examinations, but perhaps not the fact of them, are
sealed under privacy laws and not available for reporting or inquiry without a court order,

preventing the subject from being able to establish that the result of the examination was
that he had no disorder.
❍ Some persons cooperate in getting a mental health examination without ever knowing there
is a court order.
❍ Mental health examinations can include those made of unruly children who later turn out
fine.
❍ There are many kinds and degrees of alcoholism, most of which do not result in violent
behavior, and many alcoholics completely recover.
❍ Angry spouses can falsely accuse their partners of abuse to strengthen their position in
anticipated divorce proceedings, and create an arrest record for the subject, without guilt
ever being decided by a court of law.
❍ In many divorce proceedings, protective orders are routinely issued without any basis in
reported violent behavior. Sometimes the order is just filed away and never served on the
subject.
While all this might indicate a need to tune the standards, standardize the definitions, and improve state
and federal recordkeeping, there is a fundamental problem that was not addressed in this case: legislative
disablement of a civil right, even upon "conviction" of a "felony". The thesis of this paper is that it
violates the constitutional prohibitions against bills of attainder and ex post facto laws, and the
requirement for due process, and that this case was wrongly decided, as was the earlier case of Lewis v.
United States, 445 U.S. 55 (1980).

No Bill of Attainder or ex post facto Law shall be passed.
No State shall ... pass any Bill of Attainder, ex post facto Law, ...
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
No person shall be ... deprived of life, liberty, or property, without due process of law;
The powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.
Let us first consider the Fifth Amendment. What rights are protected by it, what is due process, what
does it mean to deprive a person of such a right, and what is a person?
Due process is a judicial proceeding, not a legislative or executive proceeding. It begins with a petition to
a court, and ends with an order granting or denying the petition, and perhaps with the execution of the

order. In between are procedures to insure that the legitimate interests of everyone affected are protected
from injustice. There are two main kinds of due process, a civil proceeding and a criminal proceeding.
What distinguishes them is the kind of right that can be lawfully disabled by each. A civil proceeding
may only disable a right to property. A criminal proceeding may also disable the rights to life, limb, and
liberty. For convenience, all constitutional rights are grouped into those categories.
Let us now turn to the prohibitions against bills of attainder and ex post facto laws. Established
precedents tend to define these terms narrowly, and discussion during the Federal Convention limited
them to criminal disablements, but examined more carefully, they are actually just a complementary way
to restate the requirement for due process in the Fifth Amendment, and include property as well as life
and liberty. The Fifth Amendment says constitutional rights may only be deprived by judicial due
process, and the prohibitions are against doing that by legislative process or executive process not based
on a court order. Together, they emphasize that any disablement of a constitutional right must be by
order of a court of competent jurisdiction upon petition and proof under due process protections of the
rights of the defendant.
Returning to the issue in this case, how can Congress legislatively disable the right to keep and bear arms
for the class of persons defined as those having been convicted of a felony, or even just indicted for one?
It does so on the alleged authority of public safety, that is, a police power, and the power to regulate
interstate commerce. But does that work? No, it does not. If it could, it would make the rights to due
process and the complementary rights against bills of attainder and ex post facto laws meaningless.
What the legislative branch can do is prescribe the penalties to be imposed upon conviction of a crime.
Indeed it must prescribe some such penalties for it to be a crime.
To understand this point, let us conduct a thought experiment. Suppose someone petitions a criminal
court to prosecute an accused person for some offense, say, "parting one's hair on the left", and he seeks
the death penalty. The first thing he would have to do is get an indictment from a grand jury. Could he
get one? Of course. The grand jury is not supposed to return a bill of indictment on a charge that is not
authorized by a lawful penal statute, but they might be willing to indict a ham sandwich, so they might
do it anyway.
So the newly authorized prosecutor asks for a trial date, and the defendant's counsel moves for dismissal
on the grounds that there is no statute authorizing the charge. The judge is supposed to dismiss the case
on those grounds, but suppose he doesn't. Happens all the time. So it goes to trial, and the defendant
demands and gets a jury.
Now, could the jury convict the accused of parting his hair on the left? Sure it could. The accused admits
he parts his hair on the left. There are plenty of witnesses with evidence that he does so regularly. Now,
the jury is not supposed to find the defendant guilty of the offense, because, logically, to be guilty of an
offense requires not only that he did it as a matter of fact, but that what he did is an offense of the kind he
is being charged with doing, in other words, that it really is a criminal offense, an act which the
constitution authorizes the legislative branch to pass legislation to prohibit, with criminal penalties for
those convicted of doing it. So let's suppose the jury unanimously votes to convict anyway.
Now there is a verdict. The accused has been convicted. Has he been deprived of any rights by that
event? No. All the verdict does is authorize the judge, or the jury itself if it has the power to prescribe the
penalty, to set the penalty, and the judge to issue the sentencing order.

What does the sentencing order do? It does three things. First, it disables one or more rights. That is, it
restricts their exercise. In legal theory, constitutional rights are never "lost" or "terminated", but only
"disabled", and disabilities can be removed, whereas rights, since they don't come from government, but
pre-exist it, could not be restored if ever "lost". Second, it penalizes, or imposes a loss of life, limb,
liberty, or property that has been enabled by the disablement of the rights of the defendant. Third, it
authorizes and directs an official to carry out the penalty. These three components may be collapsed into
a few words, but an analysis of what a proper sentencing order does can always be resolved into these
three phases.
So let's return to our thought experiment. The jury has brought a verdict of guilty, and thereby authorized
the judge to issue a sentencing order. But the prosecutor has demanded the death penalty. Can the judge
impose that penalty, even though neither the offense or such a penalty is authorized by law? He is not
supposed to. He is limited to those penalties which the legislature has prescribed for that offense, and if
there are no penalties, there is no offense, even if the defendant has been "convicted".
So let's assume the judge has finally looked up the statute which the defendant is accused of violating,
and finds there is no such statute, or maybe it is only an administrative statute governing the proper
grooming for government employees, with the only penalty being to fire them. Since the defendant is not
a government employee, what does the judge do at this point? Sentence the defendant to death anyway?
He had better not, if he respects the law. Of course, some judges don't. But what he is supposed to do is
only impose the penalties authorized by statute, if any, regardless of what the prosecution is seeking.
So could the legislature prescribe as a penalty the disablement and deprivation of the right to keep and
bear arms, as the penalty for some offense, or even for all "felonies", or perhaps all "violent" felonies?
Yes it could. It could prescribe a penalty of, say, ten years in prison, and no right to keep and bear arms
for life. But suppose the judge, either through mercy or incompetence, sentenced the defendant to ten
years, but omitted to explicitly disable and deprive the right to keep and bear arms. If it's not in the
sentencing order, can some prosecutor come back on an appeal of the sentence and get the right to keep
and bear arms included in the sentence? In general, court rules and the law do not permit a sentence to be
revisited and increased in this way, or offer only limited time for doing so. At some point, the sentence is
final, and may not be further increased. If there was a mandatory sentence, and the judge did not impose
it, the only recourse is against the judge. Nothing further can be done to increase the penalties imposed
on the defendant.
So where does the notion come from that a defendant "loses all rights" upon conviction, rather than just
those rights disabled and deprived in the sentencing order? Incompetent legal thinking, aided by the lack
of political clout by convicted felons and a general public attitude of "let's get tough on crime", but it is
unconstitutional.
So now we can see what the statute that is the subject of this case does. It legislatively imposes a criminal
penalty (although it would make no difference if it was civil) on the class of persons convicted (or even
just indicted) of a crime, in many cases retroactively, without prescribing it as part of what is to be
imposed in the sentencing order. Logically, that is a violation of the requirement for due process and of
the prohibitions against bills of attainder and ex post facto laws. It makes no difference that persons
convicted or indicted for a crime might present a threat to public safety. So do law enforcement officials
There is also a fundamental constitutional problem with officials of one sovereign imposing a penalty,

either civil or criminal, based in whole or in part on the actions of officials of another sovereign. It is a
violation of federalism and the separation of powers. Each branch and level of government is accountable
solely to its own electors, and may not delegate authority to officials of another branch or level. In this
case, what happens if the federal government convicts and sentences someone of the offence of carrying
a firearm, on the basis of a conviction of a felony in a state court, and then the state offense is pardoned
or overturned on appeal? It simply does not work, constitutionally, for the decisions of a state court to
determine whether an act is a federal crime. That applies not only to state criminal proceedings, but to
things like protective orders, competency hearings and commitment orders, indictments, arrests, issuance
of licenses or permits, or any other official action.
This case should never have made it past the grand jury. The statute, and others like it, are
unconstitutional, as are most of the precedents that led to the decision and opinions on both sides in this
case.[2]
Notes:
1. The preceding list of points borrows heavily from an article by Karen L. MacNutt in Gun Week
magazine.
2. See also Lewis v. United States, 445 U.S. 55 (1980) and the commentary by Jon Roland at
http://www.constitution.org/ussc/445-055jr.htm.
Syllabus | Contents | Text Version


Caron v. United States, 524 U.S. 308 (1998)
This case demonstrates how politics or public policy, without a

grounding in constitutional fundamentals, can yield a morass of
contradictions and unjust outcomes. It arises out of the 1986 Firearms
Owners Protection Act, as amended, which forbids a person convicted of a
serious offense to possess any firearm, 18 U.S.C. §922(g)(1), and
requires that a three-time violent felon who violates §922(g) receive an
enhanced sentence, §924(e). However, a previous conviction is not a
predicate for the substantive offense or the enhanced sentence if the
offender’s civil rights have been restored, "unless such ... restoration
... expressly provides that the person may not ... possess ...
firearms." §921(a)(20) (emphasis added). The petitioner in this case was
convicted under the Act for possession of some rifles and shotguns, even
though on one of his original convictions he had had his civil rights
restored by operation of a Massachusetts law that permitted him to
possess rifles but restricted his right to carry handguns. The decision
of the Court was to uphold the conviction and longer sentence, on the
argument that, although he had a right under Massachusetts law to
possess the rifles and shotguns, the disability for carrying handguns
made the federal charge applicable under the above "unless" clause, even
though he didn't have any, so that if there were any limitations on
firearms ownership remaining after a restoration of rights, the federal
law prohibited such person from possessing any firearms. That is, even
if the state specifically said the person could have certain firearms,
the federal law would not recognize that. Justices Thomas, Scalia, and
Suter dissented on this argument, but neglected to examine the more
fundamental issues that invalidate the entire Act.
The case arose from enforcement of The Brady Handgun Violence Prevention
Act, 18 U.S.C. §§ 921- 22 (1994), a political compromise in which the
NRA accepted and supported its "instant check" system by the FBI on
prospective purchases of firearms, forbidding purchases to certain
categories of persons, as an alternative to new gun laws. The FBI has
claimed that this system has prevented sales of firearms to hundreds of
thousands of "felons" and other "dangerous persons", but what seems like
a good public safety outcome is often unjust, besides being
unconstitutional using the criteria and methods on which the sales are
rejected. Where political compromises are involved, constitutional
principles tend to be compromised along with the policy preferences,
making moot the presumption of the constitutionality of legislation.
Before we examine the constitutional fundamentals, however, let us

examine some the difficulties of defining a class of "felons" or
"serious offenders" or "dangerous persons" whose rights to keep and bear
arms are to be legislatively disabled:
"Felons" are not always violent people who would misuse a

firearm. Some laws are drafted so broadly that penalties that meet
the simplistic definitions used in the 1986 Firearms Owners
Protection Act are imposed on widely different behaviors. Despite
the fact that the Act specifies "violent" felonies, the enforcement of
the Act has considered all felonies "violent" just because they are
"felonies".
Lewd behavior is a "felony" in some states, but can include

anything from relieving oneself in the wrong place, to social
protest, to topless sunbathing, to flashing.

Pornography is a felony by some local standards, but what

is pornographic changes. The term has been applied to
books now considered classics, to classical art such as
naked Greek statues, or to parents who innocently took
pictures of their children as naked babies.
In many states gambling is a felony, depending on the game

played and the amount bet.
Impregnating a woman, even if one later marries her, or

even nonmarital cohabitation, can be a felony in some
states.
Procuring an abortion was once a felony in most states. If

one did it when it was illegal and was convicted, one would
be a "felon" for the purposes of the federal Act.
Income tax evasion, or filling out government forms

incorrectly, can be a felony. So can donating too much
money to a political campaign, defending oneself from
attack by a dangerous animal that happens to be a member
of an endangered species, filling in a part of one's backyard
that some bureaucrat decides is a "wetland", and some
types of illegal dumping. Many of these laws do not require
criminal intent.
Many states have similar names for crimes, some of which

are felonies and some are not. Larceny "over" a certain
value may be a "felony", and "under" that value a
"misdemeanor", but the value varies from state to state, and
even within a state, the laws and values may change.
Penalties for the same offenses have often increased from

one year to the next. Conviction of drunk driving in
Massachusetts in 1993 would not have disqualified one
from having a firearm, but would have done so beginning in
1994.
Although the Brady Act requires the FBI to destroy the records of
checks, that provision is being ignored, and the "instant check"
system establishes not just a national gun registration system but a
national dossier and tracking system of all citizens. Previously
forbidden from maintaining dossiers on individuals unless they
were the subjects of a criminal investigation, the federal
government is now compiling massive amounts of information on
everyone. Not all of that information is correct, yet people are
being prosecuted on the basis of that incorrect information.
Each state has different laws and standards. There is no

uniform labeling of crimes or characterization of offenses as
misdemeanors or felonies. In many states, the older criminal
records are not in good order.
Until fairly recently, all records were kept by hand locally.

Different courts kept their records in different ways. There
were differences in the way judges handled cases.
Many states have methods which allow the judge to impose

court supervision without giving the accused a criminal
record. Terms such as "pre-trial diversion," "pre-trial
probation," "continuance without a finding," "placing on file,"

"conditional dismissal," and "suspended finding," describe

dispositions which do not result in giving the accused a
criminal record. Because judges believed nothing more than
a fine would result from such dispositions, they were quick
to impose them without much thought to the guilt or
innocence of the accused.
In some areas, records of closed cases have been

destroyed leaving only cryptic entries describing the charges
but not the disposition of the case. When the NCIC check
is conducted, it frequently turns up these partial records.
The "instant check" FBI staff assume the worst, even
though the records were ambiguous.
Although not authorized by law to do so, the "instant check"

also looks at the NCIC records of arrests. If no follow up
entry was made in that data base indicating what happened
after the arrest, the government tends to treat the reported
arrest as if it were a conviction. The citizen is then forced to
prove he was not convicted.
There is no time limit on convictions. A check could turn up

a record 60 years old. Tracking down older public records
to establish nonconviction or to correct erroneous
information can be very difficult.
A criminal conviction remains forever unless one is

pardoned, has the record expunged, or one lives in a state
that automatically expunges a record on the passage of
time. Most states do not automatically expunge records,
and some that are supposed to do so, don't.
Some states seal records after a period of time. The sealing

of a record does not remove the conviction, it simply hides
it from the general public, and perhaps from the person
convicted. If one knows or suspects he may have a sealed
record, he should consult with his attorney before
answering any governmental questionnaire that asks about
convictions.
Court interpretations of the Firearms Owners Protection Act have

resulted in serious problems.
For a time, the federal government refused to recognize

state pardons of people with felony convictions and refused
to recognize the state classification of a crime as a
misdemeanor if the potential penalty was greater than two
years. This led to people who committed offenses which
were misdemeanors under state law being prosecuted
under federal law as though the state offenses had been
felonies.
People who had received pardons or who had their right to

own firearms restored under state law acquired firearms in
good faith, believing they were in compliance with the law,
only to be prosecuted by the federal government as felons
in possession of firearms. To avoid this the Firearms
Owners Protection Act was amended to provide that, "Any
conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil rights
restored shall not be considered a conviction under this

chapter, unless such pardon, expungement, or restoration of

civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms."
But this provision has been interpreted by a number of

federal district and circuit courts in different and conflicting
ways.
One argument was that the rights were restored or

limited under federal law to the same extent they
were restored or limited under state law. This was
the argument favored by the dissenting opinion in the
Caron case.
The other argument was that a restoration of rights

had to be full. If any limitation was placed on
firearms ownership, the "unless" section applied. This
was the argument that prevailed in the Caron case,
the basis for which was a Massachusetts law that
restored a person's right to own rifles, shotguns, and
handguns five years after a conviction for a felony,
but not his right to carry handguns outside his home.[1]
The other categories, not issues in Caron, such as persons with a

"history" of "mental disorder" or "alcoholism", or the recently
added "domestic violence" or "subject of a protective order"
provisions of the Lautenberg Amendment to the Act, present
similar difficulties of definition, different state and local standards,
incomplete, incorrect, or misleading records, and uncertainty for a
reasonable and law-abiding person as to whether one of the
categories applies to him.
Many persons are routinely required to have a mental

examination, without any indication of mental disorder, yet
the fact of the order of commitment or examination
represents a "history" that could be used to make
possession of a firearm a federal crime.
In most states, the results of medical examinations, but

perhaps not the fact of them, are sealed under privacy laws
and not available for reporting or inquiry without a court
order, preventing the subject from being able to establish
that the result of the examination was that he had no
disorder.
Some persons cooperate in getting a mental health

examination without ever knowing there is a court order.
Mental health examinations can include those made of
unruly children who later turn out fine.
There are many kinds and degrees of alcoholism, most of

which do not result in violent behavior, and many alcoholics
completely recover.
Angry spouses can falsely accuse their partners of abuse to

strengthen their position in anticipated divorce proceedings,
and create an arrest record for the subject, without guilt
ever being decided by a court of law.
In many divorce proceedings, protective orders are

routinely issued without any basis in reported violent

behavior. Sometimes the order is just filed away and never

served on the subject.
While all this might indicate a need to tune the standards, standardize
the definitions, and improve state and federal recordkeeping, there is a
fundamental problem that was not addressed in this case: legislative
disablement of a civil right, even upon "conviction" of a "felony". The
thesis of this paper is that it violates the constitutional prohibitions
against bills of attainder and ex post facto laws, and the requirement
for due process, and that this case was wrongly decided, as was the
earlier case of Lewis v. United States, 445 U.S. 55 (1980).
No Bill of Attainder or ex post facto Law shall be

passed.
No State shall ... pass any Bill of Attainder, ex post

facto Law, ...
A well regulated Militia, being necessary to the security

of a free State, the right of the people to keep and bear
Arms, shall not be infringed.
No person shall be ... deprived of life, liberty, or

property, without due process of law;
The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.
Let us first consider the Fifth Amendment. What rights are protected by
it, what is due process, what does it mean to deprive a person of such a
right, and what is a person?
Due process is a judicial proceeding, not a legislative or executive

proceeding. It begins with a petition to a court, and ends with an order
granting or denying the petition, and perhaps with the execution of the
order. In between are procedures to insure that the legitimate interests
of everyone affected are protected from injustice. There are two main
kinds of due process, a civil proceeding and a criminal proceeding. What
distinguishes them is the kind of right that can be lawfully disabled by
each. A civil proceeding may only disable a right to property. A
criminal proceeding may also disable the rights to life, limb, and
liberty. For convenience, all constitutional rights are grouped into
those categories.
Let us now turn to the prohibitions against bills of attainder and ex

post facto laws. Established precedents tend to define these terms
narrowly, and discussion during the Federal Convention limited them to
criminal disablements, but examined more carefully, they are actually
just a complementary way to restate the requirement for due process in
the Fifth Amendment, and include property as well as life and liberty.

The Fifth Amendment says constitutional rights may only be deprived by

judicial due process, and the prohibitions are against doing that by
legislative process or executive process not based on a court order.
Together, they emphasize that any disablement of a constitutional right
must be by order of a court of competent jurisdiction upon petition and
proof under due process protections of the rights of the defendant.
Returning to the issue in this case, how can Congress legislatively

disable the right to keep and bear arms for the class of persons defined
as those having been convicted of a felony, or even just indicted for
one? It does so on the alleged authority of public safety, that is, a
police power, and the power to regulate interstate commerce. But does
that work? No, it does not. If it could, it would make the rights to due
process and the complementary rights against bills of attainder and ex
post facto laws meaningless.
What the legislative branch can do is prescribe the penalties to be

imposed upon conviction of a crime. Indeed it must prescribe some such
penalties for it to be a crime.
To understand this point, let us conduct a thought experiment. Suppose

someone petitions a criminal court to prosecute an accused person for
some offense, say, "parting one's hair on the left", and he seeks the
death penalty. The first thing he would have to do is get an indictment
from a grand jury. Could he get one? Of course. The grand jury is not
supposed to return a bill of indictment on a charge that is not
authorized by a lawful penal statute, but they might be willing to
indict a ham sandwich, so they might do it anyway.
So the newly authorized prosecutor asks for a trial date, and the
defendant's counsel moves for dismissal on the grounds that there is no
statute authorizing the charge. The judge is supposed to dismiss the
case on those grounds, but suppose he doesn't. Happens all the time. So
it goes to trial, and the defendant demands and gets a jury.
Now, could the jury convict the accused of parting his hair on the left?
Sure it could. The accused admits he parts his hair on the left. There
are plenty of witnesses with evidence that he does so regularly. Now, the
jury is not supposed to find the defendant guilty of the offense,
because, logically, to be guilty of an offense requires not only that he
did it as a matter of fact, but that what he did is an offense of the
kind he is being charged with doing, in other words, that it really is a
criminal offense, an act which the constitution authorizes the
legislative branch to pass legislation to prohibit, with criminal
penalties for those convicted of doing it. So let's suppose the jury
unanimously votes to convict anyway.
Now there is a verdict. The accused has been convicted. Has he been
deprived of any rights by that event? No. All the verdict does is
authorize the judge, or the jury itself if it has the power to prescribe
the penalty, to set the penalty, and the judge to issue the sentencing
order.
What does the sentencing order do? It does three things. First, it
disables one or more rights. That is, it restricts their exercise. In
legal theory, constitutional rights are never "lost" or "terminated",
but only "disabled", and disabilities can be removed, whereas rights,
since they don't come from government, but pre-exist it, could not be
restored if ever "lost". Second, it penalizes, or imposes a loss of
life, limb, liberty, or property that has been enabled by the
disablement of the rights of the defendant. Third, it authorizes and

directs an official to carry out the penalty. These three components may
be collapsed into a few words, but an analysis of what a proper
sentencing order does can always be resolved into these three phases.
So let's return to our thought experiment. The jury has brought a

verdict of guilty, and thereby authorized the judge to issue a
sentencing order. But the prosecutor has demanded the death penalty. Can
the judge impose that penalty, even though neither the offense or such a
penalty is authorized by law? He is not supposed to. He is limited to
those penalties which the legislature has prescribed for that offense,
and if there are no penalties, there is no offense, even if the
defendant has been "convicted".
So let's assume the judge has finally looked up the statute which the
defendant is accused of violating, and finds there is no such statute,
or maybe it is only an administrative statute governing the proper
grooming for government employees, with the only penalty being to fire
them. Since the defendant is not a government employee, what does the
judge do at this point? Sentence the defendant to death anyway? He had
better not, if he respects the law. Of course, some judges don't. But
what he is supposed to do is only impose the penalties authorized by
statute, if any, regardless of what the prosecution is seeking.
So could the legislature prescribe as a penalty the disablement and

deprivation of the right to keep and bear arms, as the penalty for some
offense, or even for all "felonies", or perhaps all "violent" felonies?
Yes it could. It could prescribe a penalty of, say, ten years in prison,
and no right to keep and bear arms for life. But suppose the judge,
either through mercy or incompetence, sentenced the defendant to ten
years, but omitted to explicitly disable and deprive the right to keep
and bear arms. If it's not in the sentencing order, can some prosecutor
come back on an appeal of the sentence and get the right to keep and
bear arms included in the sentence? In general, court rules and the law
do not permit a sentence to be revisited and increased in this way, or
offer only limited time for doing so. At some point, the sentence is
final, and may not be further increased. If there was a mandatory
sentence, and the judge did not impose it, the only recourse is against
the judge. Nothing further can be done to increase the penalties imposed
on the defendant.
So where does the notion come from that a defendant "loses all rights"
upon conviction, rather than just those rights disabled and deprived in
the sentencing order? Incompetent legal thinking, aided by the lack of
political clout by convicted felons and a general public attitude of
"let's get tough on crime", but it is unconstitutional.
So now we can see what the statute that is the subject of this case
does. It legislatively imposes a criminal penalty (although it would
make no difference if it was civil) on the class of persons convicted
(or even just indicted) of a crime, in many cases retroactively, without
prescribing it as part of what is to be imposed in the sentencing order.
Logically, that is a violation of the requirement for due process and of
the prohibitions against bills of attainder and ex post facto laws. It
makes no difference that persons convicted or indicted for a crime might
present a threat to public safety. So do law enforcement officials
There is also a fundamental constitutional problem with officials of one

sovereign imposing a penalty, either civil or criminal, based in whole
or in part on the actions of officials of another sovereign. It is a
violation of federalism and the separation of powers. Each branch and

level of government is accountable solely to its own electors, and may

not delegate authority to officials of another branch or level. In this
case, what happens if the federal government convicts and sentences
someone of the offence of carrying a firearm, on the basis of a
conviction of a felony in a state court, and then the state offense is
pardoned or overturned on appeal? It simply does not work,
constitutionally, for the decisions of a state court to determine
whether an act is a federal crime. That applies not only to state
criminal proceedings, but to things like protective orders, competency
hearings and commitment orders, indictments, arrests, issuance of
licenses or permits, or any other official action.
This case should never have made it past the grand jury. The statute,
and others like it, are unconstitutional, as are most of the precedents
that led to the decision and opinions on both sides in this case.
Notes:
1. The preceding list of points borrows heavily from an article by Karen

L. MacNutt in Gun Week magazine.
2. See also Lewis v. United States, 445 U.S. 55 (1980) and the
commentary by Jon Roland at http://www.constitution.org/ussc/445-055jr.htm.

United States v. Morrison
UNITED STATES v. MORRISON (99-5)

169 F.3d 820, affirmed.

United States v. Morrison et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 99-5. Argued January 11, 2000 — Decided May 15, 2000[1]
Syllabus
Petitioner Brzonkala filed suit, alleging, inter alia, that she was raped by respondents while the three
were students at the Virginia Polytechnic Institute, and that this attack violated 42 U.S.C. § 13981 which
provides a federal civil remedy for the victims of gender-motivated violence. Respondents moved to
dismiss on the grounds that the complaint failed to state a claim and that §13981’s civil remedy is
unconstitutional. Petitioner United States intervened to defend the section’s constitutionality. In
dismissing the complaint, the District Court held that it stated a claim against respondents, but that
Congress lacked authority to enact §13981 under either §8 of the Commerce Clause or §5 of the
Fourteenth Amendment, which Congress had explicitly identified as the sources of federal authority for
§13981. The en banc Fourth Circuit affirmed.
Held: Section 13981 cannot be sustained under the Commerce Clause or §5 of the Fourteenth
Amendment. Pp. 7-28.
(a) The Commerce Clause does not provide Congress with authority to enact §13981’s federal civil
remedy. A congressional enactment will be invalidated only upon a plain showing that Congress has
exceeded its constitutional bounds. See United States v. Lopez, 514 U.S. 549, 568, 577-578. Petitioners
assert that §13981 can be sustained under Congress’ commerce power as a regulation of activity that
substantially affects interstate commerce. The proper framework for analyzing such a claim is provided
by the principles the Court set out in Lopez. First, in Lopez, the noneconomic, criminal nature of
possessing a firearm in a school zone was central to the Court’s conclusion that Congress lacks authority
to regulate such possession. Similarly, gender-motivated crimes of violence are not, in any sense,
economic activity. Second, like the statute at issue in Lopez, §13981 contains no jurisdictional element
establishing that the federal cause of action is in pursuance of Congress’ regulation of interstate
commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the
argument that §13981 is sufficiently tied to interstate commerce to come within Congress’ authority,
Congress elected to cast §13981’s remedy over a wider, and more purely intrastate, body of violent
crime. Third, although §13981, unlike the Lopez statute, is supported by numerous findings regarding the
serious impact of gender-motivated violence on victims and their families, these findings are

substantially weakened by the fact that they rely on reasoning that this Court has rejected, namely a
but-for causal chain from the initial occurrence of violent crime to every attenuated effect upon interstate
commerce. If accepted, this reasoning would allow Congress to regulate any crime whose nationwide,
aggregated impact has substantial effects on employment, production, transit, or consumption. Moreover,
such reasoning will not limit Congress to regulating violence, but may be applied equally as well to
family law and other areas of state regulation since the aggregate effect of marriage, divorce, and
childrearing on the national economy is undoubtedly significant. The Constitution requires a distinction
between what is truly national and what is truly local, and there is no better example of the police power,
which the Founders undeniably left reposed in the States and denied the central government, than the
suppression of violent crime and vindication of its victims. Congress therefore may not regulate
noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate
commerce. Pp. 7-19.
(b) Section 5 of the Fourteenth Amendment, which permits Congress to enforce by appropriate
legislation the constitutional guarantee that no State shall deprive any person of life, liberty, or property,
without due process or deny any person equal protection of the laws, City of Boerne v. Flores, 521 U.S.
507, 517, also does not give Congress the authority to enact §13981. Petitioners’ assertion that there is
pervasive bias in various state justice systems against victims of gender-motivated violence is supported
by a voluminous congressional record. However, the Fourteenth Amendment places limitations on the
manner in which Congress may attack discriminatory conduct. Foremost among them is the principle that
the Amendment prohibits only state action, not private conduct. This was the conclusion reached in
United States v. Harris, 106 U.S. 629, and the Civil Rights Cases, 109 U.S. 3, which were both decided
shortly after the Amendment’s adoption. The force of the doctrine of stare decisis behind these decisions
stems not only from the length of time they have been on the books, but also from the insight attributable
to the Members of the Court at that time, who all had intimate knowledge and familiarity with the events
surrounding the Amendment’s adoption. Neither United States v. Guest, 383 U.S. 745, nor District of
Columbia v. Carter, 409 U.S. 418, casts any doubt on the enduring vitality of the Civil Rights Cases and
Harris. Assuming that there has been gender-based disparate treatment by state authorities in this case, it
would not be enough to save §13981’s civil remedy, which is directed not at a State or state actor but at
individuals who have committed criminal acts motivated by gender bias. Section 13981 visits no
consequence on any Virginia public official involved in investigating or prosecuting Brzonkala’s assault,
and it is thus unlike any of the §5 remedies this Court has previously upheld. See e.g., South Carolina v.
Katzenbach, 383 U.S. 301. Section 13981 is also different from previously upheld remedies in that it
applies uniformly throughout the Nation, even though Congress’ findings indicate that the problem
addressed does not exist in all, or even most, States. In contrast, the §5 remedy in Katzenbach was
directed only to those States in which Congress found that there had been discrimination. Pp. 19-27.
Rehnquist, C. J., delivered the opinion of the Court, in which O’Connor, Scalia, Kennedy, and
Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J., filed a dissenting opinion, in
which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens,
J., joined, and in which Souter and Ginsburg, JJ., joined as to Part I-A.

Notes
1. Together with No. 99-29, Brzonkala v. Morrison et al., also on certiorari to the same court.

http://supct.law.cornell.edu/supct/html/99-5.ZS.html
United States v. Morrison et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 99-5. Argued January 11, 2000 - Decided May 15, 20001
Petitioner Brzonkala filed suit, alleging, inter alia, that she was
raped by respondents while the three were students at the Virginia
Polytechnic Institute, and that this attack violated 42 U.S.C. § 13981
which provides a federal civil remedy for the victims of
gender-motivated violence. Respondents moved to dismiss on the grounds
that the complaint failed to state a claim and that §13981’s civil
remedy is unconstitutional. Petitioner United States intervened to
defend the section’s constitutionality. In dismissing the complaint, the
District Court held that it stated a claim against respondents, but that
Congress lacked authority to enact §13981 under either §8 of the
Commerce Clause or §5 of the Fourteenth Amendment, which Congress had
explicitly identified as the sources of federal authority for §13981.
The en banc Fourth Circuit affirmed.
Held: Section 13981 cannot be sustained under the Commerce Clause or §5

of the Fourteenth Amendment. Pp. 7-28.
(a) The Commerce Clause does not provide Congress with authority to
enact §13981’s federal civil remedy. A congressional enactment will be
invalidated only upon a plain showing that Congress has exceeded its
constitutional bounds. See United States v. Lopez, 514 U.S. 549, 568,
577-578. Petitioners assert that §13981 can be sustained under Congress’
commerce power as a regulation of activity that substantially affects
interstate commerce. The proper framework for analyzing such a claim is
provided by the principles the Court set out in Lopez. First, in Lopez,
the noneconomic, criminal nature of possessing a firearm in a school
zone was central to the Court’s conclusion that Congress lacks authority
to regulate such possession. Similarly, gender-motivated crimes of
violence are not, in any sense, economic activity. Second, like the
statute at issue in Lopez, §13981 contains no jurisdictional element
establishing that the federal cause of action is in pursuance of
Congress’ regulation of interstate commerce. Although Lopez makes clear
that such a jurisdictional element would lend support to the argument
that §13981 is sufficiently tied to interstate commerce to come within
Congress’ authority, Congress elected to cast §13981’s remedy over a
wider, and more purely intrastate, body of violent crime. Third,
although §13981, unlike the Lopez statute, is supported by numerous
findings regarding the serious impact of gender-motivated violence on
victims and their families, these findings are substantially weakened by
the fact that they rely on reasoning that this Court has rejected,
namely a but-for causal chain from the initial occurrence of violent
crime to every attenuated effect upon interstate commerce. If accepted,
this reasoning would allow Congress to regulate any crime whose
nationwide, aggregated impact has substantial effects on employment,
production, transit, or consumption. Moreover, such reasoning will not
limit Congress to regulating violence, but may be applied equally as
well to family law and other areas of state regulation since the
aggregate effect of marriage, divorce, and childrearing on the national

economy is undoubtedly significant. The Constitution requires a

distinction between what is truly national and what is truly local, and
there is no better example of the police power, which the Founders
undeniably left reposed in the States and denied the central government,
than the suppression of violent crime and vindication of its victims.
Congress therefore may not regulate noneconomic, violent criminal
conduct based solely on the conduct’s aggregate effect on interstate
commerce. Pp. 7-19.
(b) Section 5 of the Fourteenth Amendment, which permits Congress

to enforce by appropriate legislation the constitutional guarantee that
no State shall deprive any person of life, liberty, or property, without
due process or deny any person equal protection of the laws, City of
Boerne v. Flores, 521 U.S. 507, 517, also does not give Congress the
authority to enact §13981. Petitioners’ assertion that there is
pervasive bias in various state justice systems against victims of
gender-motivated violence is supported by a voluminous congressional
record. However, the Fourteenth Amendment places limitations on the
manner in which Congress may attack discriminatory conduct. Foremost
among them is the principle that the Amendment prohibits only state
action, not private conduct. This was the conclusion reached in United
States v. Harris, 106 U.S. 629, and the Civil Rights Cases, 109 U.S. 3,
which were both decided shortly after the Amendment’s adoption. The
force of the doctrine of stare decisis behind these decisions stems not
only from the length of time they have been on the books, but also from
the insight attributable to the Members of the Court at that time, who
all had intimate knowledge and familiarity with the events surrounding
the Amendment’s adoption. Neither United States v. Guest, 383 U.S. 745,
nor District of Columbia v. Carter, 409 U.S. 418, casts any doubt on the
enduring vitality of the Civil Rights Cases and Harris. Assuming that
there has been gender-based disparate treatment by state authorities in
this case, it would not be enough to save §13981’s civil remedy, which
is directed not at a State or state actor but at individuals who have
committed criminal acts motivated by gender bias. Section 13981 visits
no consequence on any Virginia public official involved in investigating
or prosecuting Brzonkala’s assault, and it is thus unlike any of the §5
remedies this Court has previously upheld. See e.g., South Carolina v.
Katzenbach, 383 U.S. 301. Section 13981 is also different from
previously upheld remedies in that it applies uniformly throughout the
Nation, even though Congress’ findings indicate that the problem
addressed does not exist in all, or even most, States. In contrast, the
§5 remedy in Katzenbach was directed only to those States in which
Congress found that there had been discrimination. Pp. 19-27.
Rehnquist, C. J., delivered the opinion of the Court, in which

O’Connor, Scalia, Kennedy, and Thomas, JJ., joined. Thomas, J., filed a
concurring opinion. Souter, J., filed a dissenting opinion, in which
Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a
dissenting opinion, in which Stevens, J., joined, and in which Souter
and Ginsburg, JJ., joined as to Part I-A.
Notes
1. Together with No. 99-29, Brzonkala v. Morrison et al., also on

certiorari to the same court.



Nos. 99-5 and 99-29
UNITED STATES, PETITIONER

CHRISTY BRZONKALA, PETITIONER
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[May 15, 2000]

Chief Justice Rehnquist delivered the opinion of the Court.
In these cases we consider the constitutionality of 42 U.S.C. § 13981 which provides a federal civil
remedy for the victims of gender-motivated violence. The United States Court of Appeals for the Fourth
Circuit, sitting en banc, struck down §13981 because it concluded that Congress lacked constitutional
authority to enact the section’s civil remedy. Believing that these cases are controlled by our decisions in
United States v. Lopez, 514 U.S. 549 (1995), United States v. Harris, 106 U.S. 629 (1883), and the Civil
Rights Cases, 109 U.S. 3 (1883), we affirm.
I
Petitioner Christy Brzonkala enrolled at Virginia Polytechnic Institute (Virginia Tech) in the fall of
1994. In September of that year, Brzonkala met respondents Antonio Morrison and James Crawford, who
were both students at Virginia Tech and members of its varsity football team. Brzonkala alleges that,
within 30 minutes of meeting Morrison and Crawford, they assaulted and repeatedly raped her. After the
attack, Morrison allegedly told Brzonkala, “You better not have any … diseases.” Complaint ¶22. In the
months following the rape, Morrison also allegedly announced in the dormitory’s dining room that he
“like[d] to get girls drunk and … .” Id., ¶31. The omitted portions, quoted verbatim in the briefs on file
with this Court, consist of boasting, debased remarks about what Morrison would do to women, vulgar
remarks that cannot fail to shock and offend.
Brzonkala alleges that this attack caused her to become severely emotionally disturbed and depressed.
She sought assistance from a university psychiatrist, who prescribed antidepressant medication. Shortly
after the rape Brzonkala stopped attending classes and withdrew from the university.
In early 1995, Brzonkala filed a complaint against respondents under Virginia Tech’s Sexual Assault
Policy. During the school-conducted hearing on her complaint, Morrison admitted having sexual contact
with her despite the fact that she had twice told him “no.” After the hearing, Virginia Tech’s Judicial
Committee found insufficient evidence to punish Crawford, but found Morrison guilty of sexual assault

and sentenced him to immediate suspension for two semesters.

Virginia Tech’s dean of students upheld the judicial committee’s sentence. However, in July 1995,
Virginia Tech informed Brzonkala that Morrison intended to initiate a court challenge to his conviction
under the Sexual Assault Policy. University officials told her that a second hearing would be necessary to
remedy the school’s error in prosecuting her complaint under that policy, which had not been widely
circulated to students. The university therefore conducted a second hearing under its Abusive Conduct
Policy, which was in force prior to the dissemination of the Sexual Assault Policy. Following this second
hearing the Judicial Committee again found Morrison guilty and sentenced him to an identical 2-semester
suspension. This time, however, the description of Morrison’s offense was, without explanation, changed
from “sexual assault” to “using abusive language.”
Morrison appealed his second conviction through the university’s administrative system. On August
21, 1995, Virginia Tech’s senior vice president and provost set aside Morrison’s punishment. She
concluded that it was “ ‘excessive when compared with other cases where there has been a finding of
violation of the Abusive Conduct Policy,’ ” 132 F.3d 950, 955 (CA4 1997). Virginia Tech did not inform
Brzonkala of this decision. After learning from a newspaper that Morrison would be returning to Virginia
Tech for the fall 1995 semester, she dropped out of the university.
In December 1995, Brzonkala sued Morrison, Crawford, and Virginia Tech in the United States
District Court for the Western District of Virginia. Her complaint alleged that Morrison’s and Crawford’s
attack violated §13981 and that Virginia Tech’s handling of her complaint violated Title IX of the
Education Amendments of 1972, 86 Stat. 373-375, 20 U.S.C. § 1681-1688. Morrison and Crawford
moved to dismiss this complaint on the grounds that it failed to state a claim and that §13981’s civil
remedy is unconstitutional. The United States, petitioner in No. 99-5, intervened to defend §13981’s
constitutionality.
The District Court dismissed Brzonkala’s Title IX claims against Virginia Tech for failure to state a
claim upon which relief can be granted. See Brzonkala v. Virginia Polytechnic and State Univ., 935 F.
Supp. 772 (WD Va. 1996). It then held that Brzonkala’s complaint stated a claim against Morrison and
Crawford under §13981, but dismissed the complaint because it concluded that Congress lacked
authority to enact the section under either the Commerce Clause or §5 of the Fourteenth Amendment.
Brzonkala v. Virginia Polytechnic and State Univ., 935 F. Supp. 779 (WD Va. 1996).
A divided panel of the Court of Appeals reversed the District Court, reinstating Brzonkala’s §13981
claim and her Title IX hostile environment claim.[1] Brzonkala v. Virginia Polytechnic and State Univ.,
132 F.3d 949 (CA4 1997). The full Court of Appeals vacated the panel’s opinion and reheard the case en
banc. The en banc court then issued an opinion affirming the District Court’s conclusion that Brzonkala
stated a claim under §13981 because her complaint alleged a crime of violence and the allegations of
Morrison’s crude and derogatory statements regarding his treatment of women sufficiently indicated that
his crime was motivated by gender animus.[2] Nevertheless, the court by a divided vote affirmed the
District Court’s conclusion that Congress lacked constitutional authority to enact §13981’s civil remedy.
Brzonkala v. Virginia Polytechnic and State Univ., 169 F.3d 820 (CA4 1999). Because the Court of
Appeals invalidated a federal statute on constitutional grounds, we granted certiorari. 527 U.S. 1068
(1999).
Section 13981 was part of the Violence Against Women Act of 1994, §40302, 108 Stat. 1941-1942. It

states that “[a]ll persons within the United States shall have the right to be free from crimes of violence
motivated by gender.” 42 U.S.C. § 13981(b). To enforce that right, subsection (c) declares:
“A person (including a person who acts under color of any statute, ordinance, regulation, custom, or
usage of any State) who commits a crime of violence motivated by gender and thus deprives another of
the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the
recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief
as a court may deem appropriate.”
Section 13981 defines a “crim[e] of violence motivated by gender” as “a crime of violence committed
because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s
gender.” §13981(d)(1). It also provides that the term “crime of violence” includes any
“(A) … act or series of acts that would constitute a felony against the person or that would constitute a
felony against property if the conduct presents a serious risk of physical injury to another, and that would
come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not
those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those
acts were committed in the special maritime, territorial, or prison jurisdiction of the United States; and
“(B) includes an act or series of acts that would constitute a felony described in subparagraph (A) but
for the relationship between the person who takes such action and the individual against whom such
action is taken.” §13981(d)(2).
Further clarifying the broad scope of §13981’s civil remedy, subsection (e)(2) states that “[n]othing in
this section requires a prior criminal complaint, prosecution, or conviction to establish the elements of a
cause of action under subsection (c) of this section.” And subsection (e)(3) provides a §13981 litigant
with a choice of forums: Federal and state courts “shall have concurrent jurisdiction” over complaints
brought under the section.
Although the foregoing language of §13981 covers a wide swath of criminal conduct, Congress placed
some limitations on the section’s federal civil remedy. Subsection (e)(1) states that “[n]othing in this
section entitles a person to a cause of action under subsection (c) of this section for random acts of
violence unrelated to gender or for acts that cannot be demonstrated, by a preponderance of the evidence,
to be motivated by gender.” Subsection (e)(4) further states that §13981 shall not be construed “to confer
on the courts of the United States jurisdiction over any State law claim seeking the establishment of a
divorce, alimony, equitable distribution of marital property, or child custody decree.”
Every law enacted by Congress must be based on one or more of its powers enumerated in the
Constitution. “The powers of the legislature are defined and limited; and that those limits may not be
mistaken or forgotten, the constitution is written.” Marbury v. Madison, 1 Cranch 137, 176 (1803)
(Marshall, C. J.). Congress explicitly identified the sources of federal authority on which it relied in
enacting §13981. It said that a “federal civil rights cause of action” is established “[p]ursuant to the
affirmative power of Congress … under section 5 of the Fourteenth Amendment to the Constitution, as
well as under section 8 of Article I of the Constitution.” 42 U.S.C. § 13981(a). We address Congress’
authority to enact this remedy under each of these constitutional provisions in turn.
II
Due respect for the decisions of a coordinate branch of Government demands that we invalidate a

congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.
See United States v. Lopez, 514 U.S., at 568, 577-578 (Kennedy, J., concurring); United States v. Harris,
106 U.S., at 635. With this presumption of constitutionality in mind, we turn to the question whether
§13981 falls within Congress’ power under Article I, §8, of the Constitution. Brzonkala and the United
States rely upon the third clause of the Article, which gives Congress power “[t]o regulate Commerce
with foreign Nations, and among the several States, and with the Indian Tribes.”
As we discussed at length in Lopez, our interpretation of the Commerce Clause has changed as our
Nation has developed. See Lopez, 514 U.S., at 552-557; id., at 568-574 (Kennedy, J., concurring); id., at
584, 593-599 (Thomas, J., concurring). We need not repeat that detailed review of the Commerce
Clause’s history here; it suffices to say that, in the years since NLRB v. Jones & Laughlin Steel Corp.,
301 U.S. 1 (1937), Congress has had considerably greater latitude in regulating conduct and transactions
under the Commerce Clause than our previous case law permitted. See Lopez, 514 U.S., at 555-556; id.,
at 573-574 (Kennedy, J., concurring).
Lopez emphasized, however, that even under our modern, expansive interpretation of the Commerce
Clause, Congress’ regulatory authority is not without effective bounds. Id., at 557.
“[E]ven [our] modern-era precedents which have expanded congressional power under the Commerce
Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned
that the scope of the interstate commerce power ‘must be considered in the light of our dual system of
government and may not be extended so as to embrace effects upon interstate commerce so indirect and
remote that to embrace them, in view of our complex society, would effectually obliterate the distinction
between what is national and what is local and create a completely centralized government.’ ” Id., at
556-557 (quoting Jones & Laughlin Steel, supra, at 37).[3]
As we observed in Lopez, modern Commerce Clause jurisprudence has “identified three broad
categories of activity that Congress may regulate under its commerce power.” 514 U.S., at 558 (citing
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277 (1981); Perez v.
United States, 402 U.S. 146, 150 (1971)). “First, Congress may regulate the use of the channels of
interstate commerce.” 514 U.S., at 558 (citing Heart of Atlanta Motel, Inc. v. United States, 379 U.S.
241, 256 (1964); United States v. Darby, 312 U.S. 100, 114 (1941)). “Second, Congress is empowered to
regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from intrastate activities.” 514 U.S., at 558 (citing
Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911);
Perez, supra, at 150). “Finally, Congress’ commerce authority includes the power to regulate those
activities having a substantial relation to interstate commerce, … i.e., those activities that substantially
affect interstate commerce.” 514 U.S., at 558-559 (citing Jones & Laughlin Steel, supra, at 37).
Petitioners do not contend that these cases fall within either of the first two of these categories of
Commerce Clause regulation. They seek to sustain §13981 as a regulation of activity that substantially
affects interstate commerce. Given §13981’s focus on gender-motivated violence wherever it occurs
(rather than violence directed at the instrumentalities of interstate commerce, interstate markets, or things
or persons in interstate commerce), we agree that this is the proper inquiry.
Since Lopez most recently canvassed and clarified our case law governing this third category of
Commerce Clause regulation, it provides the proper framework for conducting the required analysis of

§13981. In Lopez, we held that the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), which
made it a federal crime to knowingly possess a firearm in a school zone, exceeded Congress’ authority
under the Commerce Clause. See 514 U.S., at 551. Several significant considerations contributed to our
decision.
First, we observed that §922(q) was “a criminal statute that by its terms has nothing to do with
‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Id., at
561. Reviewing our case law, we noted that “we have upheld a wide variety of congressional Acts
regulating intrastate economic activity where we have concluded that the activity substantially affected
interstate commerce.” Id., at 559. Although we cited only a few examples, including Wickard v. Filburn,
317 U.S. 111 (1942); Hodel, supra; Perez, supra; Katzenbach v. McClung, 379 U.S. 294 (1964); and
Heart of Atlanta Motel, supra, we stated that the pattern of analysis is clear. Lopez, 514 U.S., at 559-560.
“Where economic activity substantially affects interstate commerce, legislation regulating that activity
will be sustained.” Id., at 560.
Both petitioners and Justice Souter’s dissent downplay the role that the economic nature of the
regulated activity plays in our Commerce Clause analysis. But a fair reading of Lopez shows that the
noneconomic, criminal nature of the conduct at issue was central to our decision in that case. See, e.g.,
id., at 551 (“The Act [does not] regulat[e] a commercial activity”), 560 (“Even Wickard, which is
perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved
economic activity in a way that the possession of a gun in a school zone does not”), 561 (“Section 922(q)
is not an essential part of a larger regulation of economic activity”), 566 (“Admittedly, a determination
whether an intrastate activity is commercial or noncommercial may in some cases result in legal
uncertainty. But, so long as Congress’ authority is limited to those powers enumerated in the
Constitution, and so long as those enumerated powers are interpreted as having judicially enforceable
outer limits, congressional legislation under the Commerce Clause always will engender ‘legal
uncertainty’ ”), 567 (“The possession of a gun in a local school zone is in no sense an economic activity
that might, through repetition elsewhere, substantially affect any sort of interstate commerce”); see also
id., at 573-574 (Kennedy, J., concurring) (stating that Lopez did not alter our “practical conception of
commercial regulation” and that Congress may “regulate in the commercial sphere on the assumption
that we have a single market and a unified purpose to build a stable national economy”), 577 (“Were the
Federal Government to take over the regulation of entire areas of traditional state concern, areas having
nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal
and state authority would blur”), 580 (“[U]nlike the earlier cases to come before the Court here neither
the actors nor their conduct has a commercial character, and neither the purposes nor the design of the
statute has an evident commercial nexus. The statute makes the simple possession of a gun within 1,000
feet of the grounds of the school a criminal offense. In a sense any conduct in this interdependent world
of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power
may reach so far” (citation omitted)). Lopez’s review of Commerce Clause case law demonstrates that in
those cases where we have sustained federal regulation of intrastate activity based upon the activity’s
substantial effects on interstate commerce, the activity in question has been some sort of economic
endeavor. See id., at 559-560.[4]
The second consideration that we found important in analyzing §922(q) was that the statute contained
“no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that
additionally have an explicit connection with or effect on interstate commerce.” Id., at 562. Such a
jurisdictional element may establish that the enactment is in pursuance of Congress’ regulation of

Third, we noted that neither §922(q) “ ‘nor its legislative history contain[s] express congressional
findings regarding the effects upon interstate commerce of gun possession in a school zone.’ ” Ibid.
(quoting Brief for United States, O.T. 1994, No. 93-1260, pp. 5-6). While “Congress normally is not
required to make formal findings as to the substantial burdens that an activity has on interstate
commerce,” 514 U.S., at 562 (citing McClung, 379 U.S., at 304; Perez, 402 U.S., at 156), the existence
of such findings may “enable us to evaluate the legislative judgment that the activity in question
substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the
naked eye.” 514 U.S., at 563.
Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a
substantial effect on interstate commerce was attenuated. Id., at 563-567. The United States argued that
the possession of guns may lead to violent crime, and that violent crime “can be expected to affect the
functioning of the national economy in two ways. First, the costs of violent crime are substantial, and,
through the mechanism of insurance, those costs are spread throughout the population. Second, violent
crime reduces the willingness of individuals to travel to areas within the country that are perceived to be
unsafe.” Id., at 563-564 (citation omitted). The Government also argued that the presence of guns at
schools poses a threat to the educational process, which in turn threatens to produce a less efficient and
productive workforce, which will negatively affect national productivity and thus interstate commerce.
Ibid.
We rejected these “costs of crime” and “national productivity” arguments because they would permit
Congress to “regulate not only all violent crime, but all activities that might lead to violent crime,
regardless of how tenuously they relate to interstate commerce.” Id., at 564. We noted that, under this
but-for reasoning:
“Congress could regulate any activity that it found was related to the economic productivity of individual
citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories
… , it is difficult to perceive any limitation on federal power, even in areas such as criminal law
enforcement or education where States historically have been sovereign. Thus, if we were to accept the
Government’s arguments, we are hard pressed to posit any activity by an individual that Congress is
without power to regulate.” Ibid.
With these principles underlying our Commerce Clause jurisprudence as reference points, the proper
resolution of the present cases is clear. Gender-motivated crimes of violence are not, in any sense of the
phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of
any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have
upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.
See, e.g., id., at 559-560, and the cases cited therein.
Like the Gun-Free School Zones Act at issue in Lopez, §13981 contains no jurisdictional element
establishing that the federal cause of action is in pursuance of Congress’ power to regulate interstate
commerce. Although Lopez makes clear that such a jurisdictional element would lend support to the
argument that §13981 is sufficiently tied to interstate commerce, Congress elected to cast §13981’s
remedy over a wider, and more purely intrastate, body of violent crime.[5]
In contrast with the lack of congressional findings that we faced in Lopez, §13981 is supported by

numerous findings regarding the serious impact that gender-motivated violence has on victims and their
families. See, e.g., H. R. Conf. Rep. No. 103-711, p. 385 (1994); S. Rep. No. 103-138, p. 40 (1993); S.
Rep. No. 101-545, p. 33 (1990). But the existence of congressional findings is not sufficient, by itself, to
sustain the constitutionality of Commerce Clause legislation. As we stated in Lopez, “ ‘[S]imply because
Congress may conclude that a particular activity substantially affects interstate commerce does not
necessarily make it so.’ ” 514 U.S., at 557, n. 2 (quoting Hodel, 452 U.S., at 311 (Rehnquist, J.,
concurring in judgment)). Rather, “ ‘[w]hether particular operations affect interstate commerce
sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial
rather than a legislative question, and can be settled finally only by this Court.’ ” 514 U.S., at 557, n. 2
(quoting Heart of Atlanta Motel, 379 U.S., at 273 (Black, J., concurring)).
In these cases, Congress’ findings are substantially weakened by the fact that they rely so heavily on a
method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution’s
enumeration of powers. Congress found that gender-motivated violence affects interstate commerce
“by deterring potential victims from traveling interstate, from engaging in employment in
interstate business, and from transacting with business, and in places involved in interstate
commerce; … by diminishing national productivity, increasing medical and other costs, and
decreasing the supply of and the demand for interstate products.”
H. R. Conf. Rep. No. 103-711, at 385.
Accord, S. Rep. No. 103-138, at 54. Given these findings and petitioners’ arguments, the concern that we
expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the
Constitution’s distinction between national and local authority seems well founded. See Lopez, supra, at
564. The reasoning that petitioners advance seeks to follow the but-for causal chain from the initial
occurrence of violent crime (the suppression of which has always been the prime object of the States’
police power) to every attenuated effect upon interstate commerce. If accepted, petitioners’ reasoning
would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime
has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may
regulate gender-motivated violence, it would be able to regulate murder or any other type of violence
since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic
impacts than the larger class of which it is a part.
Petitioners’ reasoning, moreover, will not limit Congress to regulating violence but may, as we
suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation
since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly
significant. Congress may have recognized this specter when it expressly precluded §13981 from being
used in the family law context.[6] See 42 U.S.C. § 13981(e)(4). Under our written Constitution, however,
the limitation of congressional authority is not solely a matter of legislative grace.[7] See Lopez, supra, at
575-579 (Kennedy, J., concurring); Marbury, 1 Cranch, at 176-178.
We accordingly reject the argument that Congress may regulate noneconomic, violent criminal
conduct based solely on that conduct’s aggregate effect on interstate commerce. The Constitution
requires a distinction between what is truly national and what is truly local. Lopez, 514 U.S., at 568
(citing Jones & Laughlin Steel, 301 U.S., at 30). In recognizing this fact we preserve one of the few
principles that has been consistent since the Clause was adopted. The regulation and punishment of
intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate

commerce has always been the province of the States. See, e.g., Cohens v. Virginia, 6 Wheat. 264, 426,
428 (1821) (Marshall, C. J.) (stating that Congress “has no general right to punish murder committed
within any of the States,” and that it is “clear … that congress cannot punish felonies generally”). Indeed,
we can think of no better example of the police power, which the Founders denied the National
Government and reposed in the States, than the suppression of violent crime and vindication of its
victims.[8] See, e.g., Lopez, 514 U.S., at 566 (“The Constitution … withhold[s] from Congress a plenary
police power”); id., at 584-585 (Thomas, J., concurring) (“[W]e always have rejected readings of the
Commerce Clause and the scope of federal power that would permit Congress to exercise a police
power”), 596-597, and n. 6 (noting that the first Congresses did not enact nationwide punishments for
criminal conduct under the Commerce Clause).
III
Because we conclude that the Commerce Clause does not provide Congress with authority to enact
§13981, we address petitioners’ alternative argument that the section’s civil remedy should be upheld as
an exercise of Congress’ remedial power under §5 of the Fourteenth Amendment. As noted above,
Congress expressly invoked the Fourteenth Amendment as a source of authority to enact §13981.
The principles governing an analysis of congressional legislation under §5 are well settled. Section 5
states that Congress may “ ‘enforce,’ by ‘appropriate legislation’ the constitutional guarantee that no
State shall deprive any person of ‘life, liberty or property, without due process of law,’ nor deny any
person ‘equal protection of the laws.’ ” City of Boerne v. Flores, 521 U.S. 507, 517 (1997). Section 5 is
“a positive grant of legislative power,” Katzenbach v. Morgan, 384 U.S. 641, 651 (1966), that includes
authority to “prohibit conduct which is not itself unconstitutional and [to] intrud[e] into ‘legislative
spheres of autonomy previously reserved to the States.’ ” Flores, supra, at 518 (quoting Fitzpatrick v.
Bitzer, 427 U.S. 445, 455 (1976)); see also Kimel v. Florida Bd. of Regents, 528 U.S. ___, ___ (2000)
(slip op., at 16). However, “[a]s broad as the congressional enforcement power is, it is not unlimited.”
Oregon v. Mitchell, 400 U.S. 112, 128 (1970); see also Kimel, supra, at ___-___ (slip op., at 16-17). In
fact, as we discuss in detail below, several limitations inherent in §5’s text and constitutional context
have been recognized since the Fourteenth Amendment was adopted.
Petitioners’ §5 argument is founded on an assertion that there is pervasive bias in various state justice
systems against victims of gender-motivated violence. This assertion is supported by a voluminous
congressional record. Specifically, Congress received evidence that many participants in state justice
systems are perpetuating an array of erroneous stereotypes and assumptions. Congress concluded that
these discriminatory stereotypes often result in insufficient investigation and prosecution of
gender-motivated crime, inappropriate focus on the behavior and credibility of the victims of that crime,
and unacceptably lenient punishments for those who are actually convicted of gender-motivated
violence. See H. R. Conf. Rep. No. 103-711, at 385-386; S. Rep. No. 103-138, at 38, 41-55; S. Rep. No.
102-197, at 33-35, 41, 43-47. Petitioners contend that this bias denies victims of gender-motivated
violence the equal protection of the laws and that Congress therefore acted appropriately in enacting a
private civil remedy against the perpetrators of gender-motivated violence to both remedy the States’ bias
and deter future instances of discrimination in the state courts.
As our cases have established, state-sponsored gender discrimination violates equal protection unless it
“ ‘serves “important governmental objectives and … the discriminatory means employed” are
“substantially related to the achievement of those objectives.” ’ ” United States v. Virginia, 518 U.S. 515,

533 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982), in turn quoting
Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980)). See also Craig v. Boren, 429 U.S. 190,
198-199 (1976). However, the language and purpose of the Fourteenth Amendment place certain
limitations on the manner in which Congress may attack discriminatory conduct. These limitations are
necessary to prevent the Fourteenth Amendment from obliterating the Framers’ carefully crafted balance
of power between the States and the National Government. See Flores, supra, at 520-524 (reviewing the
history of the Fourteenth Amendment’s enactment and discussing the contemporary belief that the
Amendment “does not concentrate power in the general government for any purpose of police
government within the States”) (quoting T. Cooley, Constitutional Limitations 294, n. 1 (2d ed. 1871)).
Foremost among these limitations is the time-honored principle that the Fourteenth Amendment, by its
very terms, prohibits only state action. “[T]he principle has become firmly embedded in our
constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such
action as may fairly be said to be that of the States. That Amendment erects no shield against merely
private conduct, however discriminatory or wrongful.” Shelley v. Kraemer, 334 U.S. 1, 13, and n. 12
(1948).
Shortly after the Fourteenth Amendment was adopted, we decided two cases interpreting the
Amendment’s provisions, United States v. Harris, 106 U.S. 629 (1883), and the Civil Rights Cases, 109
U.S. 3 (1883). In Harris, the Court considered a challenge to §2 of the Civil Rights Act of 1871. That
section sought to punish “private persons” for “conspiring to deprive any one of the equal protection of
the laws enacted by the State.” 106 U.S., at 639. We concluded that this law exceeded Congress’ §5
power because the law was “directed exclusively against the action of private persons, without reference
to the laws of the State, or their administration by her officers.” Id., at 640. In so doing, we reemphasized
our statement from Virginia v. Rives, 100 U.S. 313, 318 (1880), that “ ‘these provisions of the fourteenth
amendment have reference to State action exclusively, and not to any action of private individuals.’ ”
Harris, supra, at 639 (misquotation in Harris).
We reached a similar conclusion in the Civil Rights Cases. In those consolidated cases, we held that
the public accommodation provisions of the Civil Rights Act of 1875, which applied to purely private
conduct, were beyond the scope of the §5 enforcement power. 109 U.S., at 11 (“Individual invasion of
individual rights is not the subject-matter of the [Fourteenth] [A]mendment”). See also, e.g., Romer v.
Evans, 517 U.S. 620, 628 (1996) (“[I]t was settled early that the Fourteenth Amendment did not give
Congress a general power to prohibit discrimination in public accommodations”); Lugar v. Edmondson
Oil Co., 457 U.S. 922, 936 (1982) (“Careful adherence to the ‘state action’ requirement preserves an area
of individual freedom by limiting the reach of federal law and federal judicial power”); Blum v. Yaretsky,
457 U.S. 991, 1002 (1982); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972); Adickes v. S. H.
Kress & Co., 398 U.S. 144, 147 n. 2 (1970); United States v. Cruikshank, 92 U.S. 542, 554 (1876) (“The
fourteenth amendment prohibits a state from depriving any person of life, liberty, or property, without
due process of law; but this adds nothing to the rights of one citizen as against another. It simply
furnishes an additional guaranty against any encroachment by the States upon the fundamental rights
which belong to every citizen as a member of society”).
The force of the doctrine of stare decisis behind these decisions stems not only from the length of time
they have been on the books, but also from the insight attributable to the Members of the Court at that
time. Every Member had been appointed by President Lincoln, Grant, Hayes, Garfield, or Arthur–and
each of their judicial appointees obviously had intimate knowledge and familiarity with the events

surrounding the adoption of the Fourteenth Amendment.
Petitioners contend that two more recent decisions have in effect overruled this longstanding limitation
on Congress’ §5 authority. They rely on United States v. Guest, 383 U.S. 745 (1966), for the proposition
that the rule laid down in the Civil Rights Cases is no longer good law. In Guest, the Court reversed the
construction of an indictment under 18 U.S.C. § 241 saying in the course of its opinion that “we deal here
with issues of statutory construction, not with issues of constitutional power.” 383 U.S., at 749. Three
Members of the Court, in a separate opinion by Justice Brennan, expressed the view that the Civil Rights
Cases were wrongly decided, and that Congress could under §5 prohibit actions by private individuals.
383 U.S., at 774 (opinion concurring in part and dissenting in part). Three other Members of the Court,
who joined the opinion of the Court, joined a separate opinion by Justice Clark which in two or three
sentences stated the conclusion that Congress could “punis[h] all conspiracies–with or without state
action–that interfere with Fourteenth Amendment rights.” Id., at 762 (concurring opinion). Justice
Harlan, in another separate opinion, commented with respect to the statement by these Justices:
“The action of three of the Justices who joined the Court’s opinion in nonetheless cursorily pronouncing
themselves on the far-reaching constitutional questions deliberately not reached in Part II seems to me, to
say the very least, extraordinary.” Id., at 762, n. 1 (opinion concurring in part and dissenting in part).
Though these three Justices saw fit to opine on matters not before the Court in Guest, the Court had no
occasion to revisit the Civil Rights Cases and Harris, having determined “the indictment [charging
private individuals with conspiring to deprive blacks of equal access to state facilities] in fact contain[ed]
an express allegation of state involvement.” 383 U.S., at 756. The Court concluded that the implicit
allegation of “active connivance by agents of the State” eliminated any need to decide “the threshold
level that state action must attain in order to create rights under the Equal Protection Clause.” Ibid. All of
this Justice Clark explicitly acknowledged. See id., at 762 (concurring opinion) (“The Court’s
interpretation of the indictment clearly avoids the question whether Congress, by appropriate legislation,
has the power to punish private conspiracies that interfere with Fourteenth Amendment rights, such as
the right to utilize public facilities”).
To accept petitioners’ argument, moreover, one must add to the three Justices joining Justice
Brennan’s reasoned explanation for his belief that the Civil Rights Cases were wrongly decided, the three
Justices joining Justice Clark’s opinion who gave no explanation whatever for their similar view. This is
simply not the way that reasoned constitutional adjudication proceeds. We accordingly have no hesitation
in saying that it would take more than the naked dicta contained in Justice Clark’s opinion, when added
to Justice Brennan’s opinion, to cast any doubt upon the enduring vitality of the Civil Rights Cases and
Harris.
Petitioners also rely on District of Columbia v. Carter, 409 U.S. 418 (1973). Carter was a case
addressing the question whether the District of Columbia was a “State” within the meaning of Rev. Stat.
§1979, 42 U.S.C. § 1983–a section which by its terms requires state action before it may be employed. A
footnote in that opinion recites the same litany respecting Guest that petitioners rely on. This litany is of
course entirely dicta, and in any event cannot rise above its source. We believe that the description of the
§5 power contained in the Civil Rights Cases is correct:
“But where a subject has not submitted to the general legislative power of Congress, but is only
submitted thereto for the purpose of rendering effective some prohibition against particular [s]tate

legislation or [s]tate action in reference to that subject, the power given is limited by its object, any
legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract
and redress the operation of such prohibited state laws or proceedings of [s]tate officers.” 109 U.S., at 18.
Petitioners alternatively argue that, unlike the situation in the Civil Rights Cases, here there has been
gender-based disparate treatment by state authorities, whereasin those cases there was no indication of
such stateaction. There is abundant evidence, however, to show that the Congresses that enacted the Civil
Rights Acts of 1871 and 1875 had a purpose similar to that of Congress in enacting §13981: There were
state laws on the books bespeaking equality of treatment, but in the administration of these laws there
was discrimination against newly freed slaves. The statement of Representative Garfield in the House
and that of Senator Sumner in the Senate are representative:
“[T]he chief complaint is not that the laws of the State are unequal, but that even where the
laws are just and equal on their face, yet, by a systematic maladministration of them, or a
neglect or refusal to enforce their provisions, a portion of the people are denied equal
protection under them.”
Cong. Globe, 42d Cong., 1st Sess., App. 153 (1871) (statement of Rep. Garfield).
“The Legislature of South Carolina has passed a law giving precisely the rights contained in your
‘supplementary civil rights bill.’ But such a law remains a dead letter on her statute-books, because the
State courts, comprised largely of those whom the Senator wishes to obtain amnesty for, refuse to
enforce it.” Cong. Globe, 42d Cong., 2d Sess., 430 (1872) (statement of Sen. Sumner).
See also, e.g., Cong. Globe, 42d Cong., 1st Sess., at 653 (statement of Sen. Osborn); id., at 457
(statement of Rep. Coburn); id., at App. 78 (statement of Rep. Perry); 2 Cong. Rec. 457 (1874)
(statement of Rep. Butler); 3 Cong. Rec. 945 (1875) (statement of Rep. Lynch).
But even if that distinction were valid, we do not believe it would save §13981’s civil remedy. For the
remedy is simply not “corrective in its character, adapted to counteract and redress the operation of such
prohibited [s]tate laws or proceedings of [s]tate officers.” Civil Rights Cases, 109 U.S., at 18. Or, as we
have phrased it in more recent cases, prophylactic legislation under §5 must have a “ ‘congruence and
proportionality between the injury to be prevented or remedied and the means adopted to that end.”
Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 639 (1999);
Flores, 521 U.S., at 526. Section 13981 is not aimed at proscribing discrimination by officials which the
Fourteenth Amendment might not itself proscribe; it is directed not at any State or state actor, but at
individuals who have committed criminal acts motivated by gender bias.
In the present cases, for example, §13981 visits no consequence whatever on any Virginia public
official involved in investigating or prosecuting Brzonkala’s assault. The section is, therefore, unlike any
of the §5 remedies that we have previously upheld. For example, in Katzenbach v. Morgan, 384 U.S. 641
(1966), Congress prohibited New York from imposing literacy tests as a prerequisite for voting because
it found that such a requirement disenfranchised thousands of Puerto Rican immigrants who had been
educated in the Spanish language of their home territory. That law, which we upheld, was directed at
New York officials who administered the State’s election law and prohibited them from using a
provision of that law. In South Carolina v. Katzenbach, 383 U.S. 301 (1966), Congress imposed voting
rights requirements on States that, Congress found, had a history of discriminating against blacks in
voting. The remedy was also directed at state officials in those States. Similarly, in Ex parte Virginia,
100 U.S. 339 (1880), Congress criminally punished state officials who intentionally discriminated in jury

selection; again, the remedy was directed to the culpable state official.
Section 13981 is also different from these previously upheld remedies in that it applies uniformly
throughout the Nation. Congress’ findings indicate that the problem of discrimination against the victims
of gender-motivated crimes does not exist in all States, or even most States. By contrast, the §5 remedy
upheld in Katzenbach v. Morgan, supra, was directed only to the State where the evil found by Congress
existed, and in South Carolina v. Katzenbach, supra, the remedy was directed only to those States in
which Congress found that there had been discrimination.
For these reasons, we conclude that Congress’ power under §5 does not extend to the enactment of
§13981.
IV
Petitioner Brzonkala’s complaint alleges that she was the victim of a brutal assault. But Congress’
effort in §13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause
nor under §5 of the Fourteenth Amendment. If the allegations here are true, no civilized system of justice
could fail to provide her a remedy for the conduct of respondent Morrison. But under our federal system
that remedy must be provided by the Commonwealth of Virginia, and not by the United States. The
judgment of the Court of Appeals is
Affirmed.
Notes
1. The panel affirmed the dismissal of Brzonkala’s Title IX disparate treatment claim. See 132 F.3d, at
961-962.
2. The en banc Court of Appeals affirmed the District Court’s conclusion that Brzonkala failed to state a
claim alleging disparate treatment under Title IX, but vacated the District Court’s dismissal of her hostile
environment claim and remanded with instructions for the District Court to hold the claim in abeyance
pending this Court’s decision in Davis v. Monroe County Bd. of Ed., 526 U.S. 629 (1999). Brzonkala v.
Virginia Polytechnic and State Univ., 169 F.3d 820, 827, n. 2 (CA4 1999). Our grant of certiorari did not
encompass Brzonkala’s Title IX claims, and we thus do not consider them in this opinion.
3. Justice Souter’s dissent takes us to task for allegedly abandoning Jones & Laughlin Steel in favor of
an inadequate “federalism of some earlier time.” Post, at 15-17, 29. As the foregoing language from
Jones & Laughlin Steel makes clear however, this Court has always recognized a limit on the commerce
power inherent in “our dual system of government.” 301 U.S., at 37. It is the dissent’s remarkable theory
that the commerce power is without judicially enforceable boundaries that disregards the Court’s caution
in Jones & Laughlin Steel against allowing that power to “effectually obliterate the distinction between
what is national and what is local.” Ibid.
4. Justice Souter’s dissent does not reconcile its analysis with our holding in Lopez because it apparently
would cast that decision aside. See post, at 10-16. However, the dissent cannot persuasively contradict
Lopez’s conclusion that, in every case where we have sustained federal regulation under Wickard’s
aggregation principle, the regulated activity was of an apparent commercial character. See, e.g., Lopez,

514 U.S., at 559-560, 580.

5. Title 42 U.S.C. § 13981 is not the sole provision of the Violence Against Women Act of 1994 to
provide a federal remedy for gender-motivated crime. Section 40221(a) of the Act creates a federal
criminal remedy to punish “interstate crimes of abuse including crimes committed against spouses or
intimate partners during interstate travel and crimes committed by spouses or intimate partners who cross
State lines to continue the abuse.” S. Rep. No. 103-138, p. 43 (1993). That criminal provision has been
codified at 18 U.S.C. § 2261(a)(1), which states: “A person who travels across a State line or enters or
leaves Indian country with the intent to injure, harass, or intimidate that person’s spouse or intimate
partner, and who, in the course of or as a result of such travel, intentionally commits a crime of violence
and thereby causes bodily injury to such spouse or intimate partner, shall be punished as provided in
subsection (b).” The Courts of Appeals have uniformly upheld this criminal sanction as an appropriate
exercise of Congress’ Commerce Clause authority, reasoning that “[t]he provision properly falls within
the first of Lopez’s categories as it regulates the use of channels of interstate commerce–i.e., the use of
the interstate transportation routes through which persons and goods move.” United States v. Lankford,
196 F.3d 563, 571-572 (CA5 1999) (collecting cases) (internal quotation marks omitted).
6. We are not the first to recognize that the but-for causal chain must have its limits in the Commerce
Clause area. In Lopez, 514 U.S., at 567, we quoted Justice Cardozo’s concurring opinion in A. L. A.
Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935): “There is a view of causation that would
obliterate the distinction between what is national and what is local in the activities of commerce. Motion
at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A
society such as ours ‘is an elastic medium which transmits all tremors throughout its territory; the only
question is of their size.’ ” Id., at 554 (quoting United States v. A. L. A. Schechter Poultry Corp., 76 F.2d
617, 624 (CA2 1935) (L. Hand, J., concurring)).
7. Justice Souter’s dissent theory that Gibbons v. Ogden, 9 Wheat. 1 (1824), Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985), and the Seventeenth Amendment provide the
answer to these cases, see post, at 19-26, is remarkable because it undermines this central principle of our
constitutional system. As we have repeatedly noted, the Framers crafted the federal system of
government so that the people’s rights would be secured by the division of power. See, e.g., Arizona v.
Evans, 514 U.S. 1, 30 (1995) (Ginsburg, J., dissenting); Gregory v. Ashcroft, 501 U.S. 452, 458-459
(1991) (cataloging the benefits of the federal design); Atascadero State Hospital v. Scanlon, 473 U.S.
234, 242 (1985) (“The ‘constitutionally mandated balance of power’ between the States and the Federal
Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties’ ”)
(quoting Garcia, supra, at 572 (Powell, J., dissenting)). Departing from their parliamentary past, the
Framers adopted a written Constitution that further divided authority at the federal level so that the
Constitution’s provisions would not be defined solely by the political branches nor the scope of
legislative power limited only by public opinion and the legislature’s self-restraint. See, e.g., Marbury v.
Madison, 1 Cranch 137, 176 (1803) (Marshall, C. J.) (“The powers of the legislature are defined and
limited; and that those limits may not be mistaken or forgotten, the constitution is written”). It is thus a
“ ‘permanent and indispensable feature of our constitutional system’ ” that “ ‘the federal judiciary is
supreme in the exposition of the law of the Constitution.’ ” Miller v. Johnson, 515 U.S. 900, 922-923
(1995) (quoting Cooper v. Aaron, 358 U.S. 1, 18 (1958)). No doubt the political branches have a role in
interpreting andapplying the Constitution, but ever since Marbury this Court has remained the ultimate
expositor of the constitutional text. As we emphasized in United States v. Nixon, 418 U.S. 683 (1974),
“[I]n the performance of assigned constitutional duties each branch of the Government must initially

interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the
others… . Many decisions of this Court, however, have unequivocally reaffirmed the holding of
Marbury … that ‘[i]t is emphatically the province and duty of the judicial department to say what the law
is.’ ” Id., at 703 (citation omitted). Contrary to Justice Souter’s suggestion, see post, at 19-21, and n. 14,
Gibbons did not exempt the commerce power from this cardinal rule of constitutional law. His assertion
that, from Gibbons on, public opinion has been the only restraint on the congressional exercise of the
commerce power is true only insofar as it contends that political accountability is and has been the only
limit on Congress’ exercise of the commerce power within that power’s outer bounds. As the language
surrounding that relied upon by Justice Souter makes clear, Gibbons did not remove from this Court the
authority to define that boundary. See Gibbons, supra, at 194-195 (“It is not intended to say that these
words comprehend that commerce, which is completely internal, which is carried on between man and
man in a State, or between different parts of the same State, and which does not extend to or affect other
States… . Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce
which concerns more States than one. The phrase is not one which would probably have been selected to
indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the
enumeration of the particular classes of commerce to which the power was to be extended, would not
have been made, had the intention been to extend the power to every description. The enumeration
presupposes something not enumerated; and that something, if we regard the language or the subject of
the sentence, must be the exclusively internal commerce of a State”).
8. Justice Souter disputes our assertion that the Constitution reserves the general police power to the
States, noting that the Founders failed to adopt several proposals for additional guarantees against federal
encroachment on state authority. See post, at 19-22, and n. 14. This argument is belied by the entire
structure of the Constitution. With its careful enumeration of federal powers and explicit statement that
all powers not granted to the Federal Government are reserved, the Constitution cannot realistically be
interpreted as granting the Federal Government an unlimited license to regulate. See, e.g., New York v.
United States, 505 U.S. 144, 156-157 (1992). And, as discussed above, the Constitution’s separation of
federal power and the creation of the Judicial Branch indicate that disputes regarding the extent of
congressional power are largely subject to judicial review. See n. 7, supra. Moreover, the principle that
“ ‘[t]he Constitution created a Federal Government of limited powers,’ ” while reserving a generalized
police power to the States is deeply ingrained in our constitutional history. New York, supra, at 155
(quoting Gregory v. Ashcroft, supra, at 457; see also Lopez, 514 U.S., at 584-599 (Thomas, J.,
concurring) (discussing the history of the debates surrounding the adoption of the Commerce Clause and
our subsequent interpretation of the Clause); Maryland v. Wirtz, 392 U.S. 183, 196 (1968).


Thomas, J., concurring

Nos. 99—5 and 99—29

[May 15, 2000]

The majority opinion correctly applies our decision in United States v. Lopez, 514 U.S. 549 (1995),
and I join it in full. I write separately only to express my view that the very notion of a “substantial
effects” test under the Commerce Clause is inconsistent with the original understanding of Congress’
powers and with this Court’s early Commerce Clause cases. By continuing to apply this rootless and
malleable standard, however circumscribed, the Court has encouraged the Federal Government to persist
in its view that the Commerce Clause has virtually no limits. Until this Court replaces its existing
Commerce Clause jurisprudence with a standard more consistent with the original understanding, we will
continue to see Congress appropriating state police powers under the guise of regulating commerce.
http://www.constitution.org/ussc/99-0005b.htm [1/9/2001 8:42:14 PM]


Souter, J., dissenting

Nos. 99-5 and 99-29

[May 15, 2000]

Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.
The Court says both that it leaves Commerce Clause precedent undisturbed and that the Civil Rights
Remedy of the Violence Against Women Act of 1994, 42 U.S.C. § 13981 exceeds Congress’s power
under that Clause. I find the claims irreconcilable and respectfully dissent.1
I
Our cases, which remain at least nominally undisturbed, stand for the following propositions. Congress
has the power to legislate with regard to activity that, in the aggregate, has a substantial effect on
interstate commerce. See Wickard v. Filburn, 317 U.S. 111, 124-128 (1942); Hodel v. Virginia Surface
Mining & Reclamation Assn., 452 U.S. 264, 277 (1981). The fact of such a substantial effect is not an
issue for the courts in the first instance, ibid., but for the Congress, whose institutional capacity for
gathering evidence and taking testimony far exceeds ours. By passing legislation, Congress indicates its
conclusion, whether explicitly or not, that facts support its exercise of the commerce power. The business
of the courts is to review the congressional assessment, not for soundness but simply for the rationality of
concluding that a jurisdictional basis exists in fact. See ibid. Any explicit findings that Congress chooses
to make, though not dispositive of the question of rationality, may advance judicial review by identifying
factual authority on which Congress relied. Applying those propositions in these cases can lead to only
one conclusion.
One obvious difference from United States v. Lopez, 514 U.S. 549 (1995), is the mountain of data
assembled by Congress, here showing the effects of violence against women on interstate commerce.2
Passage of the Act in 1994 was preceded by four years of hearings,3 which included testimony from
physicians and law professors; 4 from survivors of rape and domestic violence; 5 and from

representatives of state law enforcement and private business.6 The record includes reports on gender
bias from task forces in 21 States,7 and we have the benefit of specific factual findings in the eight
separate Reports issued by Congress and its committees over the long course leading to enactment.8
Compare Hodel, 452 U.S., at 278-279 (noting “extended hearings,” “vast amounts of testimony and
documentary evidence,” and “years of the most thorough legislative consideration”).
With respect to domestic violence, Congress received evidence for the following findings:
“Three out of four American women will be victims of violent crimes sometime during their life.”
H. R. Rep. No. 103-395 p. 25 (1993) (citing U.S. Dept. of Justice, Report to the Nation on Crime and
Justice 29 (2d ed. 1988)).
“Violence is the leading cause of injuries to women ages 15 to 44 … .” S. Rep. No. 103-138, p. 38
(1993) (citing Surgeon General Antonia Novello, From the Surgeon General, U.S. Public Health
Services, 267 JAMA 3132 (1992)).
“[A]s many as 50 percent of homeless women and children are fleeing domestic violence.” S. Rep. No.
101-545, p. 37 (1990) (citing E. Schneider, Legal Reform Efforts for Battered Women: Past, Present, and
Future (July 1990)).
“Since 1974, the assault rate against women has outstripped the rate for men by at least twice for some
age groups and far more for others.” S. Rep. No. 101-545, at 30 (citing Bureau of Justice Statistics,
Criminal Victimization in the United States (1974) (Table 5)).
“[B]attering ‘is the single largest cause of injury to women in the United States.’ ” S. Rep.
No. 101-545, at 37 (quoting Van Hightower & McManus, Limits of State Constitutional Guarantees:
Lessons from Efforts to Implement Domestic Violence Policies, 49 Pub. Admin. Rev. 269 (May/June
1989).
“An estimated 4 million American women are battered each year by their husbands or partners.” H. R.
Rep. No. 103-395, at 26 (citing Council on Scientific Affairs, American Medical Assn., Violence Against
Women: Relevance for Medical Practitioners, 267 JAMA 3184, 3185 (1992).
“Over 1 million women in the United States seek medical assistance each year for injuries sustained
[from] their husbands or other partners.” S. Rep. No. 101-545, at 37 (citing Stark & Flitcraft, Medical
Therapy as Repression: The Case of the Battered Woman, Health & Medicine (Summer/Fall 1982).
“Between 2,000 and 4,000 women die every year from [domestic] abuse.” S. Rep. No. 101-545, at 36
(citing Schneider, supra).
“[A]rrest rates may be as low as 1 for every 100 domestic assaults.” S. Rep. No. 101-545, at 38 (citing
Dutton, Profiling of Wife Assaulters: Preliminary Evidence for Trimodal Analysis, 3 Violence and
Victims 5-30 (1988)).
“Partial estimates show that violent crime against women costs this country at least 3 billion–not
million, but billion–dollars a year.” S. Rep. No. 101-545, at 33 (citing Schneider, supra, at 4).
“[E]stimates suggest that we spend $5 to $10 billion a year on health care, criminal justice, and other
social costs of domestic violence.” S. Rep. No. 103-138, at 41 (citing Biden, Domestic Violence: A
Crime, Not a Quarrel, Trial 56 (June 1993)).

The evidence as to rape was similarly extensive, supporting these conclusions:

“[The incidence of] rape rose four times as fast as the total national crime rate over the past 10 years.”
S. Rep. No. 101-545, at 30 (citing Federal Bureau of Investigation Uniform Crime Reports (1988)).
“According to one study, close to half a million girls now in high school will be raped before they
graduate.” S. Rep. No. 101-545, at 31 (citing R. Warshaw, I Never Called it Rape 117 (1988)).
“[One hundred twenty&nbhyph;five thousand] college women can expect to be raped during this–or
any–year.” S. Rep. No. 101-545, at 43 (citing testimony of Dr. Mary Koss before the Senate Judiciary
Committee, Aug. 29, 1990).
“[T]hree-quarters of women never go to the movies alone after dark because of the fear of rape and
nearly 50 percent do not use public transit alone after dark for the same reason.” S. Rep. No. 102-197,
p. 38 (1991) (citing M. Gordon & S. Riger, The Female Fear 15 (1989)).
“[Forty-one] percent of judges surveyed believed that juries give sexual assault victims less credibility
than other crime victims.” S. Rep. No. 102-197, at 47 (citing Colorado Supreme Court Task Force on
Gender Bias in the Courts, Gender Justice in the Colorado Courts 91 (1990)).
“Less than 1 percent of all [rape] victims have collected damages.” S. Rep. No. 102-197, at 44 (citing
report by Jury Verdict Research, Inc.).
“ ‘[A]n individual who commits rape has only about 4 chances in 100 of being arrested, prosecuted,
and found guilty of any offense.’ ” S. Rep. No. 101-545, at 33, n. 30 (quoting H. Feild & L. Bienen,
Jurors and Rape: A Study in Psychology and Law 95 (1980)).
“Almost one-quarter of convicted rapists never go
to prison and another quarter received sentences in local jails where the average sentence is 11 months.”
S. Rep. No. 103-138, at 38 (citing Majority Staff Report of Senate Committee on the Judiciary, The
Response to Rape: Detours on the Road to Equal Justice, 103d Cong., 1st Sess., 2 (Comm. Print 1993)).
“[A]lmost 50 percent of rape victims lose their jobs or are forced to quit because of the crime’s
severity.” S. Rep. No. 102-197, at 53 (citing Ellis, Atkeson, & Calhoun, An Assessment of Long-Term
Reaction to Rape, 90 J. Abnormal Psych., No. 3, p. 264 (1981).
Based on the data thus partially summarized, Congress found that
“crimes of violence motivated by gender have a substantial adverse effect on interstate commerce, by
deterring potential victims from traveling interstate, from engaging in employment in interstate business,
and from transacting with business, and in places involved, in interstate commerce …[,] by diminishing
national productivity, increasing medical and other costs, and decreasing the supply of and the demand
for interstate products … .” H. R. Conf. Rep. No. 103-711, p. 385 (1994).
Congress thereby explicitly stated the predicate for the exercise of its Commerce Clause power. Is its
conclusion irrational in view of the data amassed? True, the methodology of particular studies may be
challenged, and some of the figures arrived at may be disputed. But the sufficiency of the evidence
before Congress to provide a rational basis for the finding cannot seriously be questioned. Cf. Turner
Broadcasting System, Inc. v. FCC, 520 U.S. 180, 199 (1997) (“The Constitution gives to Congress the

role of weighing conflicting evidence in the legislative process”).

Indeed, the legislative record here is far more voluminous than the record compiled by Congress and
found sufficient in two prior cases upholding Title II of the Civil Rights Act of 1964 against Commerce
Clause challenges. In Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), and Katzenbach
v. McClung, 379 U.S. 294 (1964), the Court referred to evidence showing the consequences of racial
discrimination by motels and restaurants on interstate commerce. Congress had relied on compelling
anecdotal reports that individual instances of segregation cost thousands to millions of dollars. See Civil
Rights–Public Accommodations, Hearings on S. 1732 before the Senate Committee on Commerce, 88th
Cong., 1st Sess., App. V, pp. 1383-1387 (1963). Congress also had evidence that the average black
family spent substantially less than the average white family in the same income range on public
accommodations, and that discrimination accounted for much of the difference. H. R. Rep. No. 88-914,
pt. 2, pp. 9-10, and Table II (1963) (Additional Views on H. R. 7152 of Hon. William M. McCulloch,
Hon. John V. Lindsay, Hon. William T. Cahill, Hon. Garner E. Shriver, Hon. Clark MacGregor, Hon.
Charles McC. Mathias, Hon. James E. Bromwell).
While Congress did not, to my knowledge, calculate aggregate dollar values for the nationwide effects
of racial discrimination in 1964, in 1994 it did rely on evidence of the harms caused by domestic
violence and sexual assault, citing annual costs of $3 billion in 1990, see S. Rep. 101-545, and $5 to $10
billion in 1993, see S. Rep. No. 103-138, at 41.9 Equally important, though, gender-based violence in the
1990’s was shown to operate in a manner similar to racial discrimination in the 1960’s in reducing the
mobility of employees and their production and consumption of goods shipped in interstate commerce.
Like racial discrimination, “[g]ender-based violence bars its most likely targets–women–from full
partic[ipation] in the national economy.” Id., at 54.
If the analogy to the Civil Rights Act of 1964 is notplain enough, one can always look back a bit
further. In Wickard, we upheld the application of the Agricultural Adjustment Act to the planting and
consumption of homegrown wheat. The effect on interstate commerce in that case followed from the
possibility that wheat grown at home for personal consumption could either be drawn into the market by
rising prices, or relieve its grower of any need to purchase wheat in the market. See 317 U.S., at 127-129.
The Commerce Clause predicate was simply the effect of the production of wheat for home consumption
on supply and demand in interstate commerce. Supply and demand for goods in interstate commerce will
also be affected by the deaths of 2,000 to 4,000 women annually at the hands of domestic abusers, see
S. Rep. No. 101-545, at 36, and by the reduction in the work force by the 100,000 or more rape victims
who lose their jobs each year or are forced to quit, see id., at 56, H. R. Rep. No. 103-395, at 25-26.
Violence against women may be found to affect interstate commerce and affect it substantially.10
II
The Act would have passed muster at any time between Wickard in 1942 and Lopez in 1995, a period
in which the law enjoyed a stable understanding that congressional power under the Commerce Clause,
complemented by the authority of the Necessary and Proper Clause, Art. I. §8 cl. 18, extended to all
activity that, when aggregated, has a substantial effect on interstate commerce. As already noted, this
understanding was secure even against the turmoil at the passage of the Civil Rights Act of 1964, in the
aftermath of which the Court not only reaffirmed the cumulative effects and rational basis features of the
substantial effects test, see Heart of Atlanta, supra, at 258; McClung, supra, at 301-305, but declined to
limit the commerce power through a formal distinction between legislation focused on “commerce” and

statutes addressing “moral and social wrong[s],” Heart of Atlanta, supra, at 257.
The fact that the Act does not pass muster before the Court today is therefore proof, to a degree that
Lopez was not, that the Court’s nominal adherence to the substantial effects test is merely that. Although
a new jurisprudence has not emerged with any distinctness, it is clear that some congressional
conclusions about obviously substantial, cumulative effects on commerce are being assigned lesser
values than the once-stable doctrine would assign them. These devaluations are accomplished not by any
express repudiation of the substantial effects test or its application through the aggregation of individual
conduct, but by supplanting rational basis scrutiny with a new criterion of review.
Thus the elusive heart of the majority’s analysis in these cases is its statement that Congress’s findings
of fact are “weakened” by the presence of a disfavored “method of reasoning.” Ante, at 14. This seems to
suggest that the “substantial effects” analysis is not a factual enquiry, for Congress in the first instance
with subsequent judicial review looking only to the rationality of the congressional conclusion, but one
of a rather different sort, dependent upon a uniquely judicial competence.
This new characterization of substantial effects has no support in our cases (the self-fulfilling
prophecies of Lopez aside), least of all those the majority cites. Perhaps this explains why the majority is
not content to rest on its cited precedent but claims a textual justification for moving toward its new
system of congressional deference subject to selective discounts. Thus it purports to rely on the sensible
and traditional understanding that the listing in the Constitution of some powers implies the exclusion of
others unmentioned. See Gibbons v. Ogden, 9 Wheat. 1, 195 (1824); ante, at 10; The Federalist No. 45,
p. 313 (J. Cooke ed. 1961) (J. Madison).11 The majority stresses that Art. I, §8, enumerates the powers of
Congress, including the commerce power, an enumeration implying the exclusion of powers not
enumerated. It follows, for the majority, not only that there must be some limits to “commerce,” but that
some particular subjects arguably within the commerce power can be identified in advance as excluded,
on the basis of characteristics other than their commercial effects. Such exclusions come into sight when
the activity regulated is not itself commercial or when the States have traditionally addressed it in the
exercise of the general police power, conferred under the state constitutions but never extended to
Congress under the Constitution of the Nation, see Lopez, 514 U.S., at 566. Ante, at 16.
The premise that the enumeration of powers implies that other powers are withheld is sound; the
conclusion that some particular categories of subject matter are therefore presumptively beyond the reach
of the commerce power is, however, a non sequitur. From the fact that Art. I, §8, cl. 3 grants an authority
limited to regulating commerce, it follows only that Congress may claim no authority under that section
to address any subject that does not affect commerce. It does not at all follow that an activity affecting
commerce nonetheless falls outside the commerce power, depending on the specific character of the
activity, or the authority of a State to regulate it along with Congress.12 My disagreement with the
majority is not, however, confined to logic, for history has shown that categorical exclusions have proven
as unworkable in practice as they are unsupportable in theory.
A
Obviously, it would not be inconsistent with the text of the Commerce Clause itself to declare
“noncommercial” primary activity beyond or presumptively beyond the scope of the commerce power.
That variant of categorical approach is not, however, the sole textually permissible way of defining the
scope of the Commerce Clause, and any such neat limitation would at least be suspect in the light of the
final sentence of Article I, §8, authorizing Congress to make “all Laws … necessary and proper” to give

effect to its enumerated powers such as commerce. See United States v. Darby, 312 U.S. 100, 118 (1941)
(“The power of Congress … extends to those activities intrastate which so affect interstate commerce or
the exercise of the power of Congress over it as to make regulation of them appropriate means to the
attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate
commerce”). Accordingly, for significant periods of our history, the Court has defined the commerce
power as plenary, unsusceptible to categorical exclusions, and this was the view expressed throughout
the latter part of the 20th century in the substantial effects test. These two conceptions of the commerce
power, plenary and categorically limited, are in fact old rivals, and today’s revival of their competition
summons up familiar history, a brief reprise of which may be helpful in posing what I take to be the key
question going to the legitimacy of the majority’s decision to breathe new life into the approach of
categorical limitation.
Chief Justice Marshall’s seminal opinion in Gibbons v. Ogden, supra, at 193-194, construed the
commerce power from the start with “a breadth never yet exceeded,” Wickard v. Filburn, 317 U.S., at
120. In particular, it is worth noting, the Court in Wickard did not regard its holding as exceeding the
scope of Chief Justice Marshall’s view of interstate commerce; Wickard applied an aggregate effects test
to ostensibly domestic, noncommercial farming consistently with Chief Justice Marshall’s indication that
the commerce power may be understood by its exclusion of subjects, among others, “which do not affect
other States,” Gibbons, 9 Wheat., at 195. This plenary view of the power has either prevailed or been
acknowledged by this Court at every stage of our jurisprudence. See, e.g., id., at 197; Nashville,
C. & St. L. R. Co. v. Alabama, 128 U.S. 96, 99-100 (1888); Lottery Case, 188 U.S. 321, 353 (1903);
Minnesota Rate Cases, 230 U.S. 352, 398 (1913); United States v. California, 297 U.S. 175, 185 (1936);
United States v. Darby, 312 U.S. 100, 115 (1941); Heart of Atlanta Motel, Inc. v. United States, 379
U.S., at 255; Hodel v. Indiana, 452 U.S., at 324. And it was this understanding, free of categorical
qualifications, that prevailed in the period after 1937 through Lopez, as summed up by Justice Harlan:
“ ‘Of course, the mere fact that Congress has said when particular activity shall be deemed to affect
commerce does not preclude further examination by this Court. But where we find that the legislators …
have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce,
our investigation is at an end.’ ” Maryland v. Wirtz, 392 U.S. 183, 190 (1968) (quoting Katzenbach v.
McClung, 379 U.S., at 303-304).
Justice Harlan spoke with the benefit of hindsight, for he had seen the result of rejecting the plenary
view, and today’s attempt to distinguish between primary activities affecting commerce in terms of the
relatively commercial or noncommercial character of the primary conduct proscribed comes with the
pedigree of near-tragedy that I outlined in United States v. Lopez, supra, at 603 (dissenting opinion). In
the half century following the modern activation of the commerce power with passage of the Interstate
Commerce Act in 1887, this Court from time to time created categorical enclaves beyond congressional
reach by declaring such activities as “mining,” “production,” “manufacturing,” and union membership to
be outside the definition of “commerce” and by limiting application of the effects test to “direct” rather
than “indirect” commercial consequences. See, e.g., United States v. E. C. Knight Co., 156 U.S. 1 (1895)
(narrowly construing the Sherman Antitrust Act in light of the distinction between “commerce” and
“manufacture”); In re Heff, 197 U.S. 488, 505-506 (1905) (stating that Congress could not regulate the
intrastate sale of liquor); The Employers’ Liability Cases, 207 U.S. 463, 495-496 (1908) (invalidating law
governing tort liability for common carriers operating in interstate commerce because the effects on
commerce were indirect); Adair v. United States, 208 U.S. 161 (1908) (holding that labor union
membership fell outside “commerce”); Hammer v. Dagenhart, 247 U.S. 251 (1918) (invalidating law

prohibiting interstate shipment of goods manufactured with child labor as a regulation of “manufacture”);
A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 545-548 (1935) (invalidating regulation
of activities that only “indirectly” affected commerce); Railroad Retirement Bd. v. Alton R. Co., 295 U.S.
330, 368-369 (1935) (invalidating pension law for railroad workers on the grounds that conditions of
employment were only indirectly linked to commerce); Carter v. Carter Coal Co., 298 U.S. 238,
303-304 (1936) (holding that regulation of unfair labor practices in mining regulated “production,” not
“commerce”).
Since adherence to these formalistically contrived confines of commerce power in large measure
provoked the judicial crisis of 1937, one might reasonably have doubted that Members of this Court
would ever again toy with a return to the days before NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1937), which brought the earlier and nearly disastrous experiment to an end. And yet today’s
decision can only be seen as a step toward recapturing the prior mistakes. Its revival of a distinction
between commercial and noncommercial conduct is at odds with Wickard, which repudiated that
analysis, and the enquiry into commercial purpose, first intimated by the Lopez concurrence, see Lopez,
supra, at 580 (opinion of Kennedy, J.), is cousin to the intent-based analysis employed in Hammer,
supra, at 271-272 but rejected for Commerce Clause purposes in Heart of Atlanta, supra, at 257 and
Darby, supra, at 115.
Why is the majority tempted to reject the lesson so painfully learned in 1937? An answer emerges
from contrasting Wickard with one of the predecessor cases it superseded. It was obvious in Wickard that
growing wheat for consumption right on the farm was not “commerce” in the common vocabulary,13 but
that did not matter constitutionally so long as the aggregated activity of domestic wheat growing affected
commerce substantially. Just a few years before Wickard, however, it had certainly been no less obvious
that “mining” practices could substantially affect commerce, even though Carter Coal Co., supra, had
held mining regulation beyond the national commerce power. When we try to fathom the difference
between the two cases, it is clear that they did not go in different directions because the Carter Coal
Court could not understand a causal connection that the Wickard Court could grasp; the difference,
rather, turned on the fact that the Court in Carter Coal had a reason for trying to maintain its categorical,
formalistic distinction, while that reason had been abandoned by the time Wickard was decided. The
reason was laissez-faire economics, the point of which was to keep government interference to a
minimum. See Lopez, supra, at 605-606 (Souter, J., dissenting). The Court in Carter Coal was still trying
to create a laissez-faire world out of the 20th-century economy, and formalistic commercial distinctions
were thought to be useful instruments in achieving that object. The Court in Wickard knew it could not
do any such thing and in the aftermath of the New Deal had long since stopped attempting the
impossible. Without the animating economic theory, there was no point in contriving formalisms in a war
with Chief Justice Marshall’s conception of the commerce power.
If we now ask why the formalistic economic/noneconomic distinction might matter today, after its
rejection in Wickard, the answer is not that the majority fails to see causal connections in an integrated
economic world. The answer is that in the minds of the majority there is a new animating theory that
makes categorical formalism seem useful again. Just as the old formalism had value in the service of an
economic conception, the new one is useful in serving a conception of federalism. It is the instrument by
which assertions of national power are to be limited in favor of preserving a supposedly discernible,
proper sphere of state autonomy to legislate or refrain from legislating as the individual States see fit.
The legitimacy of the Court’s current emphasis on the noncommercial nature of regulated activity, then,

does not turn on any logic serving the text of the Commerce Clause or on the realism of the majority’s
view of the national economy. The essential issue is rather the strength of the majority’s claim to have a
constitutional warrant for its current conception of a federal relationship enforceable by this Court
through limits on otherwise plenary commerce power. This conception is the subject of the majority’s
second categorical discount applied today to the facts bearing on the substantial effects test.
B
The Court finds it relevant that the statute addresses conduct traditionally subject to state prohibition
under domestic criminal law, a fact said to have some heightened significance when the violent conduct
in question is not itself aimed directly at interstate commerce or its instrumentalities. Ante, at 9. Again,
history seems to be recycling, for the theory of traditional state concern as grounding a limiting principle
has been rejected previously, and more than once. It was disapproved in Darby, 312 U.S., at 123-124,
and held insufficient standing alone to limit the commerce power in Hodel, 452 U.S., at 276-277. In the
particular context of the Fair Labor Standards Act it was rejected in Maryland v. Wirtz, 392 U.S. 183
(1968), with the recognition that “[t]here is no general doctrine implied in the Federal Constitution that
the two governments, national and state, are each to exercise its powers so as not to interfere with the
free and full exercise of the powers of the other.” Id., at 195 (internal quotation marks omitted). The
Court held it to be “clear that the Federal Government, when acting within delegated power, may
override countervailing state interests, whether these be described as ‘governmental’ or ‘proprietary’ in
character.” Ibid. While Wirtz was later overruled by National League of Cities v. Usery, 426 U.S. 833
(1976), that case was itself repudiated in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S.
528 (1985), which held that the concept of “traditional governmental function” (as an element of the
immunity doctrine under Hodel) was incoherent, there being no explanation that would make sense of the
multifarious decisions placing some functions on one side of the line, some on the other. 469 U.S., at
546-547. The effort to carve out inviolable state spheres within the spectrum of activities substantially
affecting commerce was, of course, just as irreconcilable with Gibbons’s explanation of the national
commerce power as being as “absolut[e] as it would be in a single government,” 9 Wheat., at 197.14
The objection to reviving traditional state spheres of action as a consideration in commerce analysis,
however, not only rests on the portent of incoherence, but is compounded by a further defect just as
fundamental. The defect, in essence, is the majority’s rejection of the Founders’ considered judgment
that politics, not judicial review, should mediate between state and national interests as the strength and
legislative jurisdiction of the National Government inevitably increased through the expected growth of
the national economy.15 Whereas today’s majority takes a leaf from the book of the old judicial
economists in saying that the Court should somehow draw the line to keep the federal relationship in a
proper balance, Madison, Wilson, and Marshall understood the Constitution very differently.
Although Madison had emphasized the conception of a National Government of discrete powers (a
conception that a number of the ratifying conventions thought was too indeterminate to protect civil
liberties),16 Madison himself must have sensed the potential scope of some of the powers granted (such
as the authority to regulate commerce), for he took care in The Federalist No. 46 to hedge his argument
for limited power by explaining the importance of national politics in protecting the States’ interests. The
National Government “will partake sufficiently of the spirit [of the States], to be disinclined to invade the
rights of the individual States, or the prerogatives of their governments.” The Federalist No. 46, at 319.
James Wilson likewise noted that “it was a favorite object in the Convention” to secure the sovereignty
of the States, and that it had been achieved through the structure of the Federal Government. 2 Elliot’s

Debates 438-439.17 The Framers of the Bill of Rights, in turn, may well have sensed that Madison and
Wilson were right about politics as the determinant of the federal balance within the broad limits of a
power like commerce, for they formulated the Tenth Amendment without any provision comparable to
the specific guarantees proposed for individual liberties.18 In any case, this Court recognized the political
component of federalism in the seminal Gibbons opinion. After declaring the plenary character of
congressional power within the sphere of activity affecting commerce, the Chief Justice spoke for the
Court in explaining that there was only one restraint on its valid exercise:
“The wisdom and the discretion of Congress, their identity with the people, and the influence which their
constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring
war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints
on which the people must often rely solely, in all representative governments.” Gibbons, supra, at 197.
Politics as the moderator of the congressional employment of the commerce power was the theme
many years later in Wickard, for after the Court acknowledged the breadth of the Gibbons formulation it
invoked Chief Justice Marshall yet again in adding that “[h]e made emphatic the embracing and
penetrating nature of this power by warning that effective restraints on its exercise must proceed from
political rather than judicial processes.” Wickard, 317 U.S., at 120 (citation omitted). Hence, “conflicts of
economic interest … are wisely left under our system to resolution by Congress under its more flexible
and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And
with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do.” Id., at 129
(footnote omitted).
As with “conflicts of economic interest,” so with supposed conflicts of sovereign political interests
implicated by the Commerce Clause: the Constitution remits them to politics. The point can be put no
more clearly than the Court put it the last time it repudiated the notion that some state activities
categorically defied the commerce power as understood in accordance with generally accepted concepts.
After confirming Madison’s and Wilson’s views with a recitation of the sources of state influence in the
structure of the National Constitution, Garcia, 469 U.S., at 550-552, the Court disposed of the possibility
of identifying “principled constitutional limitations on the scope of Congress’ Commerce Clause powers
over the States merely by relying on a priori definitions of state sovereignty,” id., at 548. It concluded
that
“the Framers chose to rely on a federal system in which special restraints on federal power over the
States inhered principally in the workings of the National Government itself, rather than in discrete
limitations on the objects of federal authority. State sovereign interests, then, are more properly protected
by procedural safeguards inherent in the structure of the federal system than by judicially created
limitations on federal power.” Id., at 552.
The Garcia Court’s rejection of “judicially created limitations” in favor of the intended reliance on
national politics was all the more powerful owing to the Court’s explicit recognition that in the centuries
since the framing the relative powers of the two sovereign systems have markedly changed. Nationwide
economic integration is the norm, the national political power has been augmented by its vast revenues,
and the power of the States has been drawn down by the Seventeenth Amendment, eliminating selection
of senators by state legislature in favor of direct election.
The Garcia majority recognized that economic growth and the burgeoning of federal revenue have not

amended the Constitution, which contains no circuit breaker to preclude the political consequences of
these developments. Nor is there any justification for attempts to nullify the natural political impact of
the particular amendment that was adopted. The significance for state political power of ending state
legislative selection of senators was no secret in 1913, and the amendment was approved despite public
comment on that very issue. Representative Franklin Bartlett, after quoting Madison’s Federalist No. 62,
as well as remarks by George Mason and John Dickinson during the Constitutional Convention,
concluded, “It follows, therefore, that the framers of the Constitution, were they present in this House
to-day, would inevitably regard this resolution as a most direct blow at the doctrine of State’s rights and
at the integrity of the State sovereignties; for if you once deprive a State as a collective organism of all
share in the General Government, you annihilate its federative importance.” 26 Cong. Rec. 7774 (1894).
Massachusetts Senator George Hoar likewise defended indirect election of the Senate as “a great security
for the rights of the States.” S. Doc. No. 232, 59th Cong., 1st Sess., 21 (1906). And Elihu Root warned
that if the selection of senators should be taken from state legislatures, “the tide that now sets toward the
Federal Government will swell in volume and power.” 46 Cong. Rec. 2243 (1911). “The time will
come,” he continued, “when the Government of the United States will be driven to the exercise of more
arbitrary and unconsidered power, will be driven to greater concentration, will be driven to extend its
functions into the internal affairs of the States.” Ibid. These warnings did not kill the proposal; the
Amendment was ratified, and today it is only the ratification, not the predictions, which this Court can
legitimately heed.19
Amendments that alter the balance of power between the National and State Governments, like the
Fourteenth, or that change the way the States are represented within the Federal Government, like the
Seventeenth, are not rips in the fabric of the Framers’ Constitution, inviting judicial repairs. The
Seventeenth Amendment may indeed have lessened the enthusiasm of the Senate to represent the States
as discrete sovereignties, but the Amendment did not convert the judiciary into an alternate shield against
the commerce power.
C
The Court’s choice to invoke considerations of traditional state regulation in these cases is especially
odd in light of a distinction recognized in the now-repudiated opinion for the Court in Usery. In
explaining that there was no inconsistency between declaring the States immune to the commerce power
exercised in the Fair Labor Standards Act, but subject to it under the Economic Stabilization Act of 1970,
as decided in Fry v. United States, 421 U.S. 542 (1975), the Court spoke of the latter statute as dealing
with a serious threat affecting all the political components of the federal system, “which only collective
action by the National Government might forestall.” Usery, 426 U.S., at 853. Today’s majority, however,
finds no significance whatever in the state support for the Act based upon the States’ acknowledged
failure to deal adequately with gender-based violence in state courts, and the belief of their own law
enforcement agencies that national action is essential.20
The National Association of Attorneys General supported the Act unanimously, see Violence Against
Women: Victims of the System, Hearing on S. 15 before the Senate Committee on the Judiciary, 102d
Cong., 1st Sess., 37-38 (1991), and Attorneys General from 38 States urged Congress to enact the Civil
Rights Remedy, representing that “the current system for dealing with violence against women is
inadequate,” see Crimes of Violence Motivated by Gender, Hearing before the Subcommittee on Civil
and Constitutional Rights of the House Committee on the Judiciary, 103d Cong., 1st Sess., 34-36 (1993).
It was against this record of failure at the state level that the Act was passed to provide the choice of a

federal forum in place of the state-court systems found inadequate to stop gender-biased violence. See
Women and Violence, Hearing before the Senate Committee on the Judiciary, 101st Cong., 2d Sess., 2
(1990) (statement of Sen. Biden) (noting importance of federal forum).21 The Act accordingly offers a
federal civil rights remedy aimed exactly at violence against women, as an alternative to the generic state
tort causes of action found to be poor tools of action by the state task forces. See S. Rep. No. 101-545, at
45 (noting difficulty of fitting gender-motivated crimes into common-law categories). As the 1993
Senate Report put it, “The Violence Against Women Act is intended to respond both to the underlying
attitude that this violence is somehow less serious than other crime and to the resulting failure of our
criminal justice system to address such violence. Its goals are both symbolic and practical … .” S. Rep.
No. 103-138, at 38.
The collective opinion of state officials that the Act was needed continues virtually unchanged, and
when the Civil Rights Remedy was challenged in court, the States came to its defense. Thirty-six of them
and the Commonwealth of Puerto Rico have filed an amicus brief in support of petitioners in these cases,
and only one State has taken respondents’ side. It is, then, not the least irony of these cases that the States
will be forced to enjoy the new federalism whether they want it or not. For with the Court’s decision
today, Antonio Morrison, like Carter Coal’s James Carter before him, has “won the states’ rights plea
against the states themselves.” R. Jackson, The Struggle for Judicial Supremacy 160 (1941).
III
All of this convinces me that today’s ebb of the commerce power rests on error, and at the same time
leads me to doubt that the majority’s view will prove to be enduring law. There is yet one more reason
for doubt. Although we sense the presence of Carter Coal, Schechter, and Usery once again, the majority
embraces them only at arm’s-length. Where such decisions once stood for rules, today’s opinion points to
considerations by which substantial effects are discounted. Cases standing for the sufficiency of
substantial effects are not overruled; cases overruled since 1937 are not quite revived. The Court’s
thinking betokens less clearly a return to the conceptual straitjackets of Schechter and Carter Coal and
Usery than to something like the unsteady state of obscenity law between Redrup v. New York, 386 U.S.
767 (1967) (per curiam), and Miller v. California, 413 U.S. 15 (1973), a period in which the failure to
provide a workable definition left this Court to review each case ad hoc. See id., at 22, n. 3; Interstate
Circuit, Inc. v. Dallas, 390 U.S. 676, 706-708 (1968) (Harlan, J., dissenting). As our predecessors
learned then, the practice of such ad hoc review cannot preserve the distinction between the judicial and
the legislative, and this Court, in any event, lacks the institutional capacity to maintain such a regime for
very long. This one will end when the majority realizes that the conception of the commerce power for
which it entertains hopes would inevitably fail the test expressed in Justice Holmes’s statement that
“[t]he first call of a theory of law is that it should fit the facts.” O. Holmes, The Common Law 167
(Howe ed. 1963). The facts that cannot be ignored today are the facts of integrated national commerce
and a political relationship between States and Nation much affected by their respective treasuries and
constitutional modifications adopted by the people. The federalism of some earlier time is no more
adequate to account for those facts today than the theory of laissez-faire was able to govern the national
economy 70 years ago.

Notes
1. Finding the law a valid exercise of Commerce Clause power, I have no occasion to reach the question
whether it might also be sustained as an exercise of Congress’s power to enforce the Fourteenth
Amendment.
2. It is true that these data relate to the effects of violence against women generally, while the civil rights
remedy limits its scope to “crimes of violence motivated by gender”–presumably a somewhat narrower
subset of acts. See 42 U.S.C. § 13981(b). But the meaning of “motivated by gender” has not been
elucidated by lower courts, much less by this one, so the degree to which the findings rely on acts not
redressable by the civil rights remedy is unclear. As will appear, however, much of the data seems to
indicate behavior with just such motivation. In any event, adopting a cramped reading of the statutory
text, and thereby increasing the constitutional difficulties, would directly contradict one of the most basic
canons of statutory interpretation. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937).
Having identified the problem of violence against women, Congress may address what it sees as the most
threatening manifestation; “reform may take one step at a time.” Williamson v. Lee Optical of Okla., Inc.,
348 U.S. 483, 489 (1955).
3. See, e.g., Domestic Violence: Terrorism in the Home, Hearing before the Subcommittee on Children,
Family, Drugs and Alcoholism of the Senate Committee on Labor and Human Resources, 101st Cong.,
2d Sess. (1990) (S. Hearing 101-897); Women and Violence, Hearing before the Senate Committee on
the Judiciary, 101st Cong., 2d Sess. (1990); Violence Against Women: Victims of the System, Hearing
on S. 15 before the Senate Committee on the Judiciary, 102d Cong., 1st Sess. (1991) (S. Hearing
102-369); Violence Against Women, Hearing before the Subcommittee on Crime and Criminal Justice of
the House Committee on the Judiciary, 102d Cong., 2d Sess. (1992); Hearing on Domestic Violence,
Hearing before the Senate Committee on the Judiciary, 103d Cong., 1st Sess. (1993) (S. Hearing
103-596); Violent Crimes Against Women, Hearing before the Senate Committee on the Judiciary, 103d
Cong., 1st Sess. (1993) (S. Hearing 103-726); Violence Against Women: Fighting the Fear, Hearing
before the Senate Committee on the Judiciary, 103d Cong., 1st Sess. (1993) (S. Hearing 103-878);
Crimes of Violence Motivated by Gender, Hearing before the Subcommittee on Civil and Constitutional
Rights of the House Committee on the Judiciary, 103d Cong., 1st Sess. (1993); Domestic Violence: Not
Just a Family Matter, Hearing before the Subcommittee on Crime and Criminal Justice of the House
Committee on the Judiciary, 103d Cong., 2d Sess. (1994).
4. See, e.g., S. Hearing 103-596, at 1-4 (testimony of Northeastern Univ. Law School Professor Clare
Dalton); S. Hearing 102-369, at 103-105 (testimony of Univ. of Chicago Professor Cass Sunstein);
S. Hearing 103-878, at 7-11 (testimony of American Medical Assn. president-elect Robert McAfee).
5. See, e.g., id., at 13-17 (testimony of Lisa); id. at 40-42 (testimony of Jennifer Tescher).
6. See, e.g., S. Hearing 102-369, at 24-36, 71-87 (testimony of attorneys general of Iowa and Illinois);
id., at 235-245 (testimony of National Federation of Business and Professional Women); S. Hearing
No. 103-596, at 15-17 (statement of James Hardeman, Manager, Counseling Dept., Polaroid Corp.).
7. See Judicial Council of California Advisory Committee on Gender Bias in the Courts, Achieving
Equal Justice for Women and Men in the California Courts (July 1996) (edited version of 1990 report);
Colorado Supreme Court Task Force on Gender Bias in the Courts, Gender and Justice in the Colorado

Courts (1990); Connecticut Task Force on Gender, Justice and the Courts, Report to the Chief Justice
(Sept. 1991); Report of the Florida Supreme Court Gender Bias Study Commission (Mar. 1990);
Supreme Court of Georgia, Commission on Gender Bias in the Judicial System, Gender and Justice in
the Courts (1991), reprinted in 8 Ga. St. U. L. Rev. 539 (1992); Report of the Illinois Task Force on
Gender Bias in the Courts (1990); Equality in the Courts Task Force, State of Iowa, Final Report (Feb.
1993); Kentucky Task Force on Gender Fairness in the Courts, Equal Justice for Women and Men (Jan.
1992); Louisiana Task Force on Women in the Courts, Final Report (1992); Maryland Special Joint
Comm., Gender Bias in the Courts (May 1989); Massachusetts Supreme Judicial Court, Gender Bias
Study of the Court System in Massachusetts (1989); Michigan Supreme Court Task Force on Gender
Issues in the Courts, Final Report (Dec. 1989); Minnesota Supreme Court Task Force for Gender
Fairness in the Courts, Final Report (1989), reprinted in 15 Wm. Mitchell L. Rev. 825 (1989); Nevada
Supreme Court Gender Bias Task Force, Justice For Women (1988); New Jersey Supreme Court Task
Force on Women in the Courts, Report of the First Year (June 1984); Report of the New York Task
Force on Women in the Courts (Mar. 1986); Final Report of the Rhode Island Supreme Court Committee
on Women in the Courts (June 1987); Utah Task Force on Gender and Justice, Report to the Utah
Judicial Council (Mar. 1990); Vermont Supreme Court and Vermont Bar Assn., Gender and Justice:
Report of the Vermont Task Force on Gender Bias in the Legal System (Jan. 1991); Washington State
Task Force on Gender and Justice in the Courts, Final Report (1989); Wisconsin Equal Justice Task
Force, Final Report (Jan. 1991).
8. See S. Rep. No. 101-545 (1990); Majority Staff of Senate Committee on the Judiciary, Violence
Against Women: The Increase of Rape in America, 102d Cong., 1st Sess. (Comm. Print 1991); S. Rep.
No. 102-197 (1991); Majority Staff of Senate Committee on the Judiciary, Violence Against Women: A
Week in the Life of America, 102d Cong., 2d Sess. (Comm. Print 1992); S. Rep. No. 103-138 (1993);
Majority Staff of Senate Committee on the Judiciary, The Response to Rape: Detours on the Road to
Equal Justice, 103d Cong., 1st Sess. (Comm. Print 1993); H. R. Rep. No. 103-395 (1993); H. R. Conf.
Rep. No. 103-711 (1994).
9. In other cases, we have accepted dramatically smaller figures. See, e.g., Hodel v. Indiana, 452 U.S.
314, 325, n. 11 (1981) (stating that corn production with a value of $5.16 million “surely is not an
insignificant amount of commerce”).
10. It should go without saying that my view of the limit of the congressional commerce power carries
no implication about the wisdom of exercising it to the limit. I and other Members of this Court
appearing before Congress have repeatedly argued against the federalization of traditional state crimes
and the extension of federal remedies to problems for which the States have historically taken
responsibility and may deal with today if they have the will to do so. See Hearings before a
Subcommittee of the House Committee on Appropriations, 104th Cong., 1st Sess., pt. 7, pp. 13-14
(1995) (testimony of Justice Kennedy); Hearings on H. R. 4603 before a Subcommittee of the Senate
Committee on Appropriations, 103d Cong., 2d Sess., 100-107 (1994) (testimony of Justices Kennedy and
Souter). The Judicial Conference of the United States originally opposed the Act, though after the
original bill was amended to include the gender-based animus requirement, the objection was withdrawn
for reasons that are not apparent. See Crimes of Violence Motivated by Gender, Hearing before the
Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 103d Cong.,
1st Sess., 70-71 (1993).
11. The claim that powers not granted were withheld was the chief Federalist argument against the

necessity of a bill of rights. Bills of rights, Hamilton claimed, “have no application to constitutions
professedly founded upon the power of the people, and executed by their immediate representatives and
servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no
need of particular reservations.” The Federalist No. 84, at 578. James Wilson went further in the
Pennsylvania ratifying convention, asserting that an enumeration of rights was positively dangerous
because it suggested, conversely, that every right not reserved was surrendered. See 2 J. Elliot, Debates
in the Several State Conventions on the Adoption of the Federal Constitution 436-437 (2d ed. 1863)
(hereinafter Elliot’s Debates). The Federalists did not, of course, prevail on this point; most States voted
for the Constitution only after proposing amendments and the First Congress speedily adopted a Bill of
Rights. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 569 (1985) (Powell, J.,
dissenting). While that document protected a range of specific individual rights against federal
infringement, it did not, with the possible exception of the Second Amendment, offer any similarly
specific protections to areas of state sovereignty.
12. To the contrary, we have always recognized that while the federal commerce power may overlap the
reserved state police power, in such cases federal authority is supreme. See, e.g., Lake Shore & Michigan
Southern R. Co. v. Ohio, 173 U.S. 285, 297-298 (1899) (“When Congress acts with reference to a matter
confided to it by the Constitution, then its statutes displace all conflicting local regulations touching that
matter, although such regulations may have been established in pursuance of a power not surrendered by
the States to the General Government”); United States v. California, 297 U.S. 175, 185 (1936) (“[W]e
look to the activities in which the states have traditionally engaged as marking the boundary of the
restriction upon the federal taxing power. But there is no such limitation upon the plenary power to
regulate commerce”).
13. Contrary to the Court’s suggestion, ante, at 11, n. 4, Wickard applied the substantial effects test to
domestic agricultural production for domestic consumption, an activity that cannot fairly be described as
commercial, despite its commercial consequences in affecting or being affected by the demand for
agricultural products in the commercial market. The Wickard Court admitted that Filburn’s activity “may
not be regarded as commerce” but insisted that “it may still, whatever its nature, be reached by Congress
if it exerts a substantial economic effect on interstate commerce … .” 317 U.S., at 125. The
characterization of home wheat production as “commerce” or not is, however, ultimately beside the
point. For if substantial effects on commerce are proper subjects of concern under the Commerce Clause,
what difference should it make whether the causes of those effects are themselves commercial? Cf., e.g.,
National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 258 (1994) (“An enterprise surely can
have a detrimental influence on interstate or foreign commerce without having its own profit-seeking
motives”). The Court’s answer is that it makes a difference to federalism, and the legitimacy of the
Court’s new judicially derived federalism is the crux of our disagreement. See infra, at 18-19.
14. The Constitution of 1787 did, in fact, forbid some exercises of the commerce power. Article I, §9,
cl. 6, barred Congress from giving preference to the ports of one State over those of another. More
strikingly, the Framers protected the slave trade from federal interference, see Art. I, §9, cl. 1, and
confirmed the power of a State to guarantee the chattel status of slaves who fled to another State, see
Art. IV, §2, cl. 3. These reservations demonstrate the plenary nature of the federal power; the exceptions
prove the rule. Apart from them, proposals to carve islands of state authority out of the stream of
commerce power were entirely unsuccessful. Roger Sherman’s proposed definition of federal legislative
power as excluding “matters of internal police” met Gouverneur Morris’s response that “[t]he internal
police … ought to be infringed in many cases” and was voted down eight to two. 2 Records of the

Federal Convention of 1787, pp. 25-26 (M. Farrand ed. 1911) (hereinafter Farrand). The Convention
similarly rejected Sherman’s attempt to include in Article V a proviso that “no state shall … be affected
in its internal police.” 5 Elliot’s Debates 551-552. Finally, Rufus King suggested an explicit bill of rights
for the States, a device that might indeed have set aside the areas the Court now declares off-limits.
1 Farrand 493 (“As the fundamental rights of individuals are secured by express provisions in the State
Constitutions; why may not a like security be provided for the Rights of States in the National
Constitution”). That proposal, too, came to naught. In short, to suppose that enumerated powers must
have limits is sensible; to maintain that there exist judicially identifiable areas of state regulation immune
to the plenary congressional commerce power even though falling within the limits defined by the
substantial effects test is to deny our constitutional history.
15. That the national economy and the national legislative power expand in tandem is not a recent
discovery. This Court accepted the prospect well over 100 years ago, noting that the commerce powers
“are not confined to the instrumentalities of commerce, or the postal service known or in use when the
Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to
the new developments of time and circumstances.” Pensacola Telegraph Co. v. Western Union
Telegraph Co., 96 U.S. 1, 9 (1878). See also, e.g., Farmers Loan & Trust Co. v. Minnesota, 280 U.S.
204, 211-212 (1930) (“Primitive conditions have passed; business is now transacted on a national scale”).
16. As mentioned n. 11, supra, many state conventions voted in favor of the Constitution only after
proposing amendments. See 1 Elliot’s Debates 322-323 (Massachusetts), 325 (South Carolina), 325-327
(New Hampshire), 327 (Virginia), 327-331 (New York), 331-332 (North Carolina), 334-337 (Rhode
Island).
17. Statements to similar effect pervade the ratification debates. See, e.g., 2 id., at 166-170
(Massachusetts, remarks of Samuel Stillman); id., at 251-253 (New York, remarks of Alexander
Hamilton); 4 id., at 95-98 (North Carolina, remarks of James Iredell).
18. The majority’s special solicitude for “areas of traditional state regulation,” ante, at 15, is thus
founded not on the text of the Constitution but on what has been termed the “spirit of the Tenth
Amendment,” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S., at 585 (O’Connor, J.,
dissenting) (emphasis in original). Susceptibility to what Justice Holmes more bluntly called “some
invisible radiation from the general terms of the Tenth Amendment,” Missouri v. Holland, 252 U.S. 416,
434 (1920), has increased in recent years, in disregard of his admonition that “[w]e must consider what
this country has become in deciding what that Amendment has reserved.” Ibid.
19. The majority tries to deflect the objection that it blocks an intended political process by explaining
that the Framers intended politics to set the federal balance only within the sphere of permissible
commerce legislation, whereas we are looking to politics to define that sphere (in derogation even of
Marbury v. Madison, 1 Cranch 137 (1803)), ante, at 16-17. But we all accept the view that politics is the
arbiter of state interests only within the realm of legitimate congressional action under the commerce
power. Neither Madison nor Wilson nor Marshall, nor the Jones & Laughlin, Darby, Wickard, or Garcia
Courts, suggested that politics defines the commerce power. Nor do we, even though we recognize that
the conditions of the contemporary world result in a vastly greater sphere of influence for politics than
the Framers would have envisioned. Politics has legitimate authority, for all of us on both sides of the
disagreement, only within the legitimate compass of the commerce power. The majority claims merely to
be engaging in the judicial task of patrolling the outer boundaries of that congressional authority. See

ante, at 16, n. 7. That assertion cannot be reconciled with our statements of the substantial effects test,
which have not drawn the categorical distinctions the majority favors. See, e.g., Wickard, 317 U.S., at
125; Darby, 312 U.S., at 118-119. The majority’s attempt to circumscribe the commerce power by
defining it in terms of categorical exceptions can only be seen as a revival of similar efforts that led to
near tragedy for the Court and incoherence for the law. If history’s lessons are accepted as guides for
Commerce Clause interpretation today, as we do accept them, then the subject matter of the Act falls
within the commerce power and the choice to legislate nationally on that subject, or to except it from
national legislation because the States have traditionally dealt with it, should be a political choice and
only a political choice.
20. See n. 7, supra. The point here is not that I take the position that the States are incapable of dealing
adequately with domestic violence if their political leaders have the will to do so; it is simply that the
Congress had evidence from which it could find a national statute necessary, so that its passage
obviously survives Commerce Clause scrutiny.
21. The majority’s concerns about accountability strike me as entirely misplaced. Individuals, such as
the defendants in this action, haled into federal court and sued under the United States Code, are quite
aware of which of our dual sovereignties is attempting to regulate their behavior. Had Congress chosen,
in the exercise of its powers under §5 of the Fourteenth Amendment, to proceed instead by regulating the
States, rather than private individuals, this accountability would be far less plain.


Breyer, J., dissenting

Nos. 99-5 and 99-29

[May 15, 2000]

Justice Breyer, with whom Justice Stevens joins, and with whom Justice Souter and Justice Ginsburg
join as to Part I-A, dissenting.
No one denies the importance of the Constitution’s federalist principles. Its state/federal division of
authority protects liberty–both by restricting the burdens that government can impose from a distance and
by facilitating citizen participation in government that is closer to home. The question is how the
judiciary can best implement that original federalist understanding where the Commerce Clause is at
issue.
I
The majority holds that the federal commerce power does not extend to such “noneconomic” activities
as “noneconomic, violent criminal conduct” that significantly affects interstate commerce only if we
“aggregate” the interstate “effect[s]” of individual instances. Ante, at 17-18. Justice Souter explains why
history, precedent, and legal logic militate against the majority’s approach. I agree and join his opinion. I
add that the majority’s holding illustrates the difficulty of finding a workable judicial Commerce Clause
touchstone — a set of comprehensible interpretive rules that courts might use to impose some
meaningful limit, but not too great a limit, upon the scope of the legislative authority that the Commerce
Clause delegates to Congress.
A
Consider the problems. The “economic/noneconomic” distinction is not easy to apply. Does the local
street corner mugger engage in “economic” activity or “noneconomic” activity when he mugs for
money? See Perez v. United States, 402 U.S. 146 (1971) (aggregating local “loan sharking” instances);
United States v. Lopez, 514 U.S. 549, 559 (1995) (loan sharking is economic because it consists of
“intrastate extortionate credit transactions”); ante, at 9. Would evidence that desire for economic
http://www.constitution.org/ussc/99-0005d.htm (1 of 6) [1/9/2001 8:43:38 PM]

domination underlies many brutal crimes against women save the present statute? See United States
General Accounting Office, Health, Education, and Human Services Division, Domestic Violence:
Prevalence and Implications for Employment Among Welfare Recipients 7-8 (Nov. 1998); Brief for
Equal Rights Advocates, et al. as Amicus Curiae 10-12.
The line becomes yet harder to draw given the need for exceptions. The Court itself would permit
Congress to aggregate, hence regulate, “noneconomic” activity taking place at economic establishments.
See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (upholding civil rights laws
forbidding discrimination at local motels); Katzenbach v. McClung, 379 U.S. 294 (1964) (same for
restaurants); Lopez, supra, at 559 (recognizing congressional power to aggregate, hence forbid,
noneconomically motivated discrimination at public accommodations); ante, at 9-10 (same). And it
would permit Congress to regulate where that regulation is “an essential part of a larger regulation of
economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were
regulated.” Lopez, supra, at 561; cf. Controlled Substances Act, 21 U.S.C. § 801 et seq. (regulating drugs
produced for home consumption). Given the former exception, can Congress simply rewrite the present
law and limit its application to restaurants, hotels, perhaps universities, and other places of public
accommodation? Given the latter exception, can Congress save the present law by including it, or much
of it, in a broader “Safe Transport” or “Workplace Safety” act?
More important, why should we give critical constitutional importance to the economic, or noneconomic,
nature of an interstate-commerce-affecting cause? If chemical emanations through indirect
environmental change cause identical, severe commercial harm outside a State, why should it matter
whether local factories or home fireplaces release them? The Constitution itself refers only to Congress’
power to “regulate Commerce . . . among the several States,” and to make laws “necessary and proper” to
implement that power. Art. I, §8, cls. 3, 18. The language says nothing about either the local nature, or
the economic nature, of an interstate-commerce-affecting cause.
This Court has long held that only the interstate commercial effects, not the local nature of the cause,
are constitutionally relevant. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 38-39 (1937)
(focusing upon interstate effects); Wickard v. Filburn, 317 U.S. 111, 125 (1942) (aggregating interstate
effects of wheat grown for home consumption); Heart of Atlanta Motel, supra, at 258 (“ ‘[I]f it is
interstate commerce that feels the pinch, it does not matter how local the operation which applies the
squeeze’ ” (quoting United States v. Women’s Sportswear Mfrs. Assn., 336 U.S. 460, 464 (1949))).
Nothing in the Constitution’s language, or that of earlier cases prior to Lopez, explains why the Court
should ignore one highly relevant characteristic of an interstate-commerce-affecting cause (how “local” it
is), while placing critical constitutional weight upon a different, less obviously relevant, feature (how
“economic” it is).
Most important, the Court’s complex rules seem unlikely to help secure the very object that they seek,
namely, the protection of “areas of traditional state regulation” from federal intrusion. Ante, at 15. The
Court’s rules, even if broadly interpreted, are underinclusive. The local pickpocket is no less a traditional
subject of state regulation than is the local gender-motivated assault. Regardless, the Court reaffirms, as
it should, Congress’ well-established and frequently exercised power to enact laws that satisfy a
commerce-related jurisdictional prerequisite — for example, that some item relevant to the federally
regulated activity has at some time crossed a state line. Ante, at 8-9, 11, 13, and n. 5; Lopez, supra, at
558; Heart of Atlanta Motel, supra, at 256 (“ ‘[T]he authority of Congress to keep the channels of
interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer

open to question’ ” (quoting Caminetti v. United States, 242 U.S. 470, 491 (1917))); see also United
States v. Bass, 404 U.S. 336, 347-350 (1971) (saving ambiguous felon-in-possession statute by requiring
gun to have crossed state line); Scarborough v. United States, 431 U.S. 563, 575 (1977) (interpreting
same statute to require only that gun passed “in interstate commerce” “at some time,” without
questioning constitutionality); cf., e.g., 18 U.S.C. § 2261(a)(1) (making it a federal crime for a person to
cross state lines to commit a crime of violence against a spouse or intimate partner); §1951(a) (federal
crime to commit robbery, extortion, physical violence or threat thereof, where “article or commodity in
commerce” is affected, obstructed or delayed); §2315 (making unlawful the knowing receipt or
possession of certain stolen items that have “crossed a State … boundary”); §922(g)(1) (prohibiting
felons from shipping, transporting, receiving, or possessing firearms “in interstate … commerce”).
And in a world where most everyday products or their component parts cross interstate boundaries,
Congress will frequently find it possible to redraft a statute using language that ties the regulation to the
interstate movement of some relevant object, thereby regulating local criminal activity or, for that matter,
family affairs. See, e.g., Child Support Recovery Act of 1992, 18 U.S.C. § 228. Although this possibility
does not give the Federal Government the power to regulate everything, it means that any substantive
limitation will apply randomly in terms of the interests the majority seeks to protect. How much would
be gained, for example, were Congress to reenact the present law in the form of “An Act Forbidding
Violence Against Women Perpetrated at Public Accommodations or by Those Who Have Moved in, or
through the Use of Items that Have Moved in, Interstate Commerce”? Complex Commerce Clause rules
creating fine distinctions that achieve only random results do little to further the important federalist
interests that called them into being. That is why modern (pre-Lopez) case law rejected them. See
Wickard, supra, at 120; United States v. Darby, 312 U.S. 100, 116-117 (1941); Jones & Laughlin Steel
Corp., supra, at 37.
The majority, aware of these difficulties, is nonetheless concerned with what it sees as an important
contrary consideration. To determine the lawfulness of statutes simply by asking whether Congress could
reasonably have found that aggregated local instances significantly affect interstate commerce will allow
Congress to regulate almost anything. Virtually all local activity, when instances are aggregated, can
have “substantial effects on employment, production, transit, or consumption.” Hence Congress could
“regulate any crime,” and perhaps “marriage, divorce, and childrearing” as well, obliterating the
“Constitution’s distinction between national and local authority.” Ante, at 15; Lopez, 514 U.S., at 558; cf.
A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 548 (1935) (need for distinction between
“direct” and “indirect” effects lest there “be virtually no limit to the federal power”); Hammer v.
Dagenhart, 247 U.S. 251, 276 (1918) (similar observation).
This consideration, however, while serious, does not reflect a jurisprudential defect, so much as it reflects
a practical reality. We live in a Nation knit together by two centuries of scientific, technological,
commercial, and environmental change. Those changes, taken together, mean that virtually every kind of
activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State–at least
when considered in the aggregate. Heart of Atlanta Motel, 379 U.S., at 251. And that fact makes it close
to impossible for courts to develop meaningful subject-matter categories that would exclude some kinds
of local activities from ordinary Commerce Clause “aggregation” rules without, at the same time,
depriving Congress of the power to regulate activities that have a genuine and important effect upon
Since judges cannot change the world, the “defect” means that, within the bounds of the rational,

Congress, not the courts, must remain primarily responsible for striking the appropriate state/federal
balance. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 552 (1985); ante, at 19-24
(Souter, J., dissenting); Kimel v. Florida Bd. of Regents, 528 U.S. , (2000) (slip op., at 2) (Stevens, J.,
dissenting) (Framers designed important structural safeguards to ensure that, when Congress legislates,
“the normal operation of the legislative process itself would adequately defend state interests from undue
infringement”); see also Kramer, Putting the Politics Back into the Political Safeguards of Federalism,
100 Colum. L. Rev. 215 (2000) (focusing on role of political process and political parties in protecting
state interests). Congress is institutionally motivated to do so. Its Members represent state and local
district interests. They consider the views of state and local officials when they legislate, and they have
even developed formal procedures to ensure that such consideration takes place. See, e.g., Unfunded
Mandates Reform Act of 1995, Pub. L. 104-4, 109 Stat. 48 (codified in scattered sections of 2 U.S.C.).
Moreover, Congress often can better reflect state concerns for autonomy in the details of sophisticated
statutory schemes than can the judiciary, which cannot easily gather the relevant facts and which must
apply more general legal rules and categories. See, e.g., 42 U.S.C. § 7543(b) (Clean Air Act); 33 U.S.C.
§ 1251 et seq. (Clean Water Act); see also New York v. United States, 505 U.S. 144, 167-168 (1992)
(collecting other examples of “cooperative federalism”). Not surprisingly, the bulk of American law is
still state law, and overwhelmingly so.
B
I would also note that Congress, when it enacted the statute, followed procedures that help to protect
the federalism values at stake. It provided adequate notice to the States of its intent to legislate in an
“are[a] of traditional state regulation.” Ante, at 15. And in response, attorneys general in the
overwhelming majority of States (38) supported congressional legislation, telling Congress that “[o]ur
experience as Attorneys General strengthens our belief that the problem of violence against women is a
national one, requiring federal attention, federal leadership, and federal funds.” Id., at 34-36; see also
Violence Against Women: Victims of the System, Hearing on S. 15 before the Senate Committee on the
Judiciary, 102d Cong., 1st Sess., 37-38 (1991) (unanimous resolution of the National Association of
Attorneys General); but cf. Crimes of Violence Motivated by Gender, Hearing before the Subcommittee
on Civil and Constitutional Rights of the House Committee on the Judiciary, 103d Cong., 1st Sess.,
77-84 (1993) (Conference of Chief Justices opposing legislation).
Moreover, as Justice Souter has pointed out, Congress compiled a “mountain of data” explicitly
documenting the interstate commercial effects of gender-motivated crimes of violence. Ante, at 2-8,
27-28 (dissenting opinion). After considering alternatives, it focused the federal law upon documented
deficiencies in state legal systems. And it tailored the law to prevent its use in certain areas of traditional
state concern, such as divorce, alimony, or child custody. 42 U.S.C. § 13981(e)(4). Consequently, the law
before us seems to represent an instance, not of state/federal conflict, but of state/federal efforts to
cooperate in order to help solve a mutually acknowledged national problem. Cf. §§300w-10, 3796gg,
3796hh, 10409, 13931 (providing federal moneys to encourage state and local initiatives to combat
gender-motivated violence).
I call attention to the legislative process leading up to enactment of this statute because, as the
majority recognizes, ante, at 14, it far surpasses that which led to the enactment of the statute we
considered in Lopez. And even were I to accept Lopez as an accurate statement of the law, which I do
not, that distinction provides a possible basis for upholding the law here. This Court on occasion has
pointed to the importance of procedural limitations in keeping the power of Congress in check. See

Garcia, supra, at 554 (“Any substantive restraint on the exercise of Commerce Clause powers must find
its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for
possible failings in the national political process rather than to dictate a ‘sacred province of state
autonomy’ ” (quoting EEOC v. Wyoming, 460 U.S. 226, 236 (1983))); see also Gregory v. Ashcroft, 501
U.S. 452, 460-461 (1991) (insisting upon a “plain statement” of congressional intent when Congress
legislates “in areas traditionally regulated by the States”); cf. Hampton v. Mow Sun Wong, 426 U.S. 88,
103-105, 114-117 (1976); Fullilove v. Klutznick, 448 U.S. 448, 548-554 (1980) (Stevens, J., dissenting).
Commentators also have suggested that the thoroughness of legislative procedures — e.g., whether
Congress took a “hard look”–might sometimes make a determinative difference in a Commerce Clause
case, say when Congress legislates in an area of traditional state regulation. See, e.g., Jackson,
Federalism and the Uses and Limits of Law: Printz and Principle?, 111 Harv. L. Rev. 2180, 2231-2245
(1998); Gardbaum, Rethinking Constitutional Federalism, 74 Texas L. Rev. 795, 812-828, 830-832
(1996); Lessig, Translating Federalism: United States v. Lopez, 1995 S. Ct. Rev. 125, 194-214 (1995);
see also Treaty Establishing the European Community Art. 5; Bermann, Taking Subsidiarity Seriously:
Federalism in the European Community and the United States, 94 Colum. L. Rev. 331, 378-403 (1994)
(arguing for similar limitation in respect to somewhat analogous principle of subsidiarity for European
Community); Gardbaum, supra, at 833-837 (applying subsidiarity principles to American federalism). Of
course, any judicial insistence that Congress follow particular procedures might itself intrude upon
congressional prerogatives and embody difficult definitional problems. But the intrusion, problems, and
consequences all would seem less serious than those embodied in the majority’s approach. See supra, at
2-7.
I continue to agree with Justice Souter that the Court’s traditional “rational basis” approach is sufficient.
Ante, at 1-2 (dissenting opinion); see also Lopez, 514 U.S., at 603-615 (Souter, J., dissenting); id., at
615-631 (Breyer, J., dissenting). But I recognize that the law in this area is unstable and that time and
experience may demonstrate both the unworkability of the majority’s rules and the superiority of
Congress’ own procedural approach–in which case the law may evolve towards a rule that, in certain
difficult Commerce Clause cases, takes account of the thoroughness with which Congress has considered
the federalism issue.
For these reasons, as well as those set forth by Justice Souter, this statute falls well within Congress’s
Commerce Clause authority, and I dissent from the Court’s contrary conclusion.
II
Given my conclusion on the Commerce Clause question, I need not consider Congress’ authority
under §5 of the Fourteenth Amendment. Nonetheless, I doubt the Court’s reasoning rejecting that source
of authority. The Court points out that in United States v. Harris, 106 U.S. 629 (1883), and the Civil
Rights Cases, 109 U.S. 3 (1883), the Court held that §5 does not authorize Congress to use the
Fourteenth Amendment as a source of power to remedy the conduct of private persons. Ante, at 21-23.
That is certainly so. The Federal Government’s argument, however, is that Congress used §5 to remedy
the actions of state actors, namely, those States which, through discriminatory design or the
discriminatory conduct of their officials, failed to provide adequate (or any) state remedies for women
injured by gender-motivated violence–a failure that the States, and Congress, documented in depth. See
ante, at 3-4, n. 7, 27-28 (Souter, J., dissenting) (collecting sources).
Neither Harris nor the Civil Rights Cases considered this kind of claim. The Court in Harris

specifically said that it treated the federal laws in question as “directed exclusively against the action of
private persons, without reference to the laws of the State, or their administration by her officers.” 106
U.S., at 640 (emphasis added); see also Civil Rights Cases, 109 U.S., at 14 (observing that the statute did
“not profess to be corrective of any constitutional wrong committed by the States” and that it established
“rules for the conduct of individuals in society towards each other, … without referring in any manner to
any supposed action of the State or its authorities”).
The Court responds directly to the relevant “state actor” claim by finding that the present law lacks
“ ‘congruence and proportionality’ ” to the state discrimination that it purports to remedy. Ante, at 26; see
City of Boerne v. Flores, 521 U.S. 507, 526 (1997). That is because the law, unlike federal laws
prohibiting literacy tests for voting, imposing voting rights requirements, or punishing state officials who
intentionally discriminated in jury selection, Katzenbach v. Morgan, 384 U.S. 641 (1966); South
Carolina v. Katzenbach, 383 U.S. 301 (1966); Ex parte Virginia, 100 U.S. 339 (1880), is not “directed
… at any State or state actor.” Ante, at 26.
But why can Congress not provide a remedy against private actors? Those private actors, of course,
did not themselves violate the Constitution. But this Court has held that Congress at least sometimes can
enact remedial “[l]egislation . . . [that] prohibits conduct which is not itself unconstitutional.” Flores, 521
U.S., at 518; see also Katzenbach v. Morgan, supra, at 651; South Carolina v. Katzenbach, supra, at 308.
The statutory remedy does not in any sense purport to “determine what constitutes a constitutional
violation.” Flores, supra, at 519. It intrudes little upon either States or private parties. It may lead state
actors to improve their own remedial systems, primarily through example. It restricts private actors only
by imposing liability for private conduct that is, in the main, already forbidden by state law. Why is the
remedy “disproportionate”? And given the relation between remedy and violation–the creation of a
federal remedy to substitute for constitutionally inadequate state remedies–where is the lack of
“congruence”?
The majority adds that Congress found that the problem of inadequacy of state remedies “does not exist
in all States, or even most States.” Ante, at 27. But Congress had before it the task force reports of at least
21 States documenting constitutional violations. And it made its own findings about pervasive
gender-based stereotypes hampering many state legal systems, sometimes unconstitutionally so. See,
e.g., S. Rep. No. 103-138, pp. 38, 41-42, 44-47 (1993); S. Rep. No. 102-197, pp. 39, 44-49 (1991); H. R.
Conf. Rep. No. 103-711, p. 385 (1994). The record nowhere reveals a congressional finding that the
problem “does not exist” elsewhere. Why can Congress not take the evidence before it as evidence of a
national problem? This Court has not previously held that Congress must document the existence of a
problem in every State prior to proposing a national solution. And the deference this Court gives to
Congress’ chosen remedy under §5, Flores, supra, at 536, suggests that any such requirement would be
inappropriate.
Despite my doubts about the majority’s §5 reasoning, I need not, and do not, answer the §5 question,
which I would leave for more thorough analysis if necessary on another occasion. Rather, in my view,
the Commerce Clause provides an adequate basis for the statute before us. And I would uphold its
constitutionality as the “necessary and proper” exercise of legislative power granted to Congress by that
Clause.

Jones v. United States: Syllabus
Jones v. United States (99-5739)

Ginsburg, Opinion | Stevens, concurring | Thomas, concurring | Commentary, Roland
Syllabus

Jones v. United States
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT
No. 99-5739. Argued March 21, 2000 — Decided May 22, 2000
Petitioner Jones tossed a Molotov cocktail into a home owned and occupied by his cousin as a dwelling
place for everyday family living. The ensuing fire severely damaged the home. Jones was convicted in
the District Court of violating, inter alia, 18 U.S.C. § 844(i), which makes it a federal crime to
“maliciously damag[e] or destro[y], … by means of fire or an explosive, any building … used in
interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” The Seventh
Circuit affirmed, rejecting Jones’s contention that §844(i), when applied to the arson of a private
residence, exceeds the authority vested in Congress under the Commerce Clause.
Held: Because an owner-occupied residence not used for any commercial purpose does not qualify as
property “used in” commerce or commerce-affecting activity, arson of such a dwelling is not subject to
federal prosecution under §844(i). Pp. 3-10.
(a) In support of its argument that §844(i) reaches the arson of an owner-occupied private residence,
the Government relies principally on the breadth of the statutory term “affecting … commerce,” words
that, when unqualified, signal Congress’ intent to invoke its full Commerce Clause authority. But §844(i)
contains the qualifying words “used in” a commerce-affecting activity. The key word is “used.” Congress
did not define the crime as the explosion of a building whose damage or destruction might affect
interstate commerce, but required that the damaged or destroyed property itself have been used in
commerce or in an activity affecting commerce. The proper inquiry, therefore, is into the function of the
building itself, and then into whether that function affects interstate commerce. The Court rejects the
Government’s argument that the Indiana residence involved in this case was constantly “used” in at least
three “activit[ies] affecting commerce”: (1) it was “used” as collateral to obtain and secure a mortgage
from an Oklahoma lender, who, in turn, “used” it as security for the loan; (2) it was “used” to obtain
from a Wisconsin insurer a casualty insurance policy, which safeguarded the interests of the homeowner
and the mortgagee; and (3) it was “used” to receive natural gas from sources outside Indiana. Section
844(i)’s use-in-commerce requirement is most sensibly read to mean active employment for commercial
purposes, and not merely a passive, passing, or past connection to commerce. See, e.g., Bailey v. United
States, 516 U.S. 137, 143, 145. It surely is not the common perception that a private, owner-occupied

Jones v. United States: Syllabus
residence is “used” in the “activity” of receiving natural gas, a mortgage, or an insurance policy. Cf. id.,
at 145. The Government does not allege that the residence here served as a home office or the locus of
any commercial undertaking. The home’s only “active employment,” so far as the record reveals, was for
the everyday living of Jones’s cousin and his family. Russell v. United States, 471 U.S. 858, 862 -- in
which the Court held that particular property was being used in an “activity affecting commerce” under
§844(i) because its owner was renting it to tenants at the time he attempted to destroy it by fire -- does
not warrant a less “use”-centered reading of §844(i) in this case. The Court there observed that “[b]y its
terms,” §844(i) applies only to “property that is ‘used’ in an ‘activity’ that affects commerce,” and ruled
that “the rental of real estate” fits that description, ibid. Here, the homeowner did not use his residence in
any trade or business. Were the Court to adopt the Government’s expansive interpretation, hardly a
building in the land would fall outside §844(i)’s domain, and the statute’s limiting language, “used in,”
would have no office. Judges should hesitate to treat statutory terms in any setting as surplusage,
particularly when the words describe an element of a crime. E.g., Ratzlaf v. United States, 510 U.S. 135,
140-141. Pp. 3-8.
(b) The foregoing reading is in harmony with the guiding principle that where a statute is susceptible
of two constructions, by one of which grave and doubtful constitutional questions arise and by the other
of which such questions are avoided, the Court’s duty is to adopt the latter. See, e.g., Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575. In
holding that a statute making it a federal crime to possess a firearm within 1,000 feet of a school
exceeded Congress’ power to regulate commerce, this Court, in United States v. Lopez, 514 U.S. 549,
stressed that the area was one of traditional state concern, see, e.g., id., at 561, n. 3, and that the
legislation aimed at activity in which neither the actors nor their conduct had a commercial character,
e.g., id., at 560-562. Given the concerns brought to the fore in Lopez, it is appropriate to avoid the
constitutional question that would arise were the Court to read §844(i) to render the traditionally local
criminal conduct in which Jones engaged a matter for federal enforcement. United States v. Bass, 404
U.S. 336, 350. The Court’s comprehension of §844(i) is additionally reinforced by other interpretive
guides. Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity, Rewis
v. United States, 401 U.S. 808, 812, and when choice must be made between two readings of what
conduct Congress has made a crime, it is appropriate, before choosing the harsher alternative, to require
that Congress should have spoken in language that is clear and definite, United States v. Universal C. I.
T. Credit Corp., 344 U.S. 218, 221-222. Moreover, unless Congress conveys its purpose clearly, it will
not be deemed to have significantly changed the federal-state balance in the prosecution of crimes. Bass,
404 U.S., at 349. To read §844(i) as encompassing the arson of an owner-occupied private home would
effect such a change, for arson is a paradigmatic common-law state crime. Pp. 8-9.
Ginsburg, J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, in
which Thomas, J., joined. Thomas, J., filed a concurring opinion, in which Scalia, J., joined.
Text Version

http://supct.law.cornell.edu/supct/html/99-5739.ZS.html
JONES v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
No. 99-5739. Argued March 21, 2000 -- Decided May 22, 2000
Petitioner Jones tossed a Molotov cocktail into a home owned and

occupied by his cousin as a dwelling place for everyday family living.
The ensuing fire severely damaged the home. Jones was convicted in the
District Court of violating, inter alia, 18 U.S.C. § 844(i), which makes
it a federal crime to "maliciously damag[e] or destro[y], ... by means
of fire or an explosive, any building ... used in interstate or foreign
commerce or in any activity affecting interstate or foreign commerce."
The Seventh Circuit affirmed, rejecting Jones’s contention that §844(i),
when applied to the arson of a private residence, exceeds the authority
vested in Congress under the Commerce Clause.
Held: Because an owner-occupied residence not used for any commercial

purpose does not qualify as property "used in" commerce or
commerce-affecting activity, arson of such a dwelling is not subject to
federal prosecution under §844(i). Pp. 3-10.
(a) In support of its argument that §844(i) reaches the arson of an

owner-occupied private residence, the Government relies principally on
the breadth of the statutory term "affecting ... commerce," words that,
when unqualified, signal Congress’ intent to invoke its full Commerce
Clause authority. But §844(i) contains the qualifying words "used in" a
commerce-affecting activity. The key word is "used." Congress did not
define the crime as the explosion of a building whose damage or
destruction might affect interstate commerce, but required that the
damaged or destroyed property itself have been used in commerce or in an
activity affecting commerce. The proper inquiry, therefore, is into the
function of the building itself, and then into whether that function
affects interstate commerce. The Court rejects the Government’s argument
that the Indiana residence involved in this case was constantly "used"
in at least three "activit[ies] affecting commerce": (1) it was "used"
as collateral to obtain and secure a mortgage from an Oklahoma lender,
who, in turn, "used" it as security for the loan; (2) it was "used" to
obtain from a Wisconsin insurer a casualty insurance policy, which
safeguarded the interests of the homeowner and the mortgagee; and (3) it
was "used" to receive natural gas from sources outside Indiana. Section
844(i)’s use-in-commerce requirement is most sensibly read to mean
active employment for commercial purposes, and not merely a passive,
passing, or past connection to commerce. See, e.g., Bailey v. United
States, 516 U.S. 137, 143, 145. It surely is not the common perception
that a private, owner-occupied residence is "used" in the "activity" of
receiving natural gas, a mortgage, or an insurance policy. Cf. id., at
145. The Government does not allege that the residence here served as a
home office or the locus of any commercial undertaking. The home’s only
"active employment," so far as the record reveals, was for the everyday
living of Jones’s cousin and his family. Russell v. United States, 471
U.S. 858, 862 -- in which the Court held that particular property was
being used in an "activity affecting commerce" under §844(i) because its
owner was renting it to tenants at the time he attempted to destroy it

by fire -- does not warrant a less "use"-centered reading of §844(i) in

this case. The Court there observed that "[b]y its terms," §844(i)
applies only to "property that is ‘used’ in an ‘activity’ that affects
commerce," and ruled that "the rental of real estate" fits that
description, ibid. Here, the homeowner did not use his residence in any
trade or business. Were the Court to adopt the Government’s expansive
interpretation, hardly a building in the land would fall outside
§844(i)’s domain, and the statute’s limiting language, "used in," would
have no office. Judges should hesitate to treat statutory terms in any
setting as surplusage, particularly when the words describe an element
of a crime. E.g., Ratzlaf v. United States, 510 U.S. 135, 140-141. Pp.
3-8.
(b) The foregoing reading is in harmony with the guiding principle

that where a statute is susceptible of two constructions, by one of
which grave and doubtful constitutional questions arise and by the other
of which such questions are avoided, the Court’s duty is to adopt the
latter. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U.S. 568, 575. In holding that a
statute making it a federal crime to possess a firearm within 1,000 feet
of a school exceeded Congress’ power to regulate commerce, this Court,
in United States v. Lopez, 514 U.S. 549, stressed that the area was one
of traditional state concern, see, e.g., id., at 561, n. 3, and that the
legislation aimed at activity in which neither the actors nor their
conduct had a commercial character, e.g., id., at 560-562. Given the
concerns brought to the fore in Lopez, it is appropriate to avoid the
constitutional question that would arise were the Court to read §844(i)
to render the traditionally local criminal conduct in which Jones
engaged a matter for federal enforcement. United States v. Bass, 404
U.S. 336, 350. The Court’s comprehension of §844(i) is additionally
reinforced by other interpretive guides. Ambiguity concerning the ambit
of criminal statutes should be resolved in favor of lenity, Rewis v.
United States, 401 U.S. 808, 812, and when choice must be made between
two readings of what conduct Congress has made a crime, it is
appropriate, before choosing the harsher alternative, to require that
Congress should have spoken in language that is clear and definite,
United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222.
Moreover, unless Congress conveys its purpose clearly, it will not be
deemed to have significantly changed the federal-state balance in the
prosecution of crimes. Bass, 404 U.S., at 349. To read §844(i) as
encompassing the arson of an owner-occupied private home would effect
such a change, for arson is a paradigmatic common-law state crime. Pp.
8-9.
Ginsburg, J., delivered the opinion for a unanimous Court. Stevens,

J., filed a concurring opinion, in which Thomas, J., joined. Thomas, J.,
filed a concurring opinion, in which Scalia, J., joined.

Jones v. United States: Opinion

Syllabus | Stevens, concurring | Thomas, concurring | Commentary, Roland

No. 99-5739
DEWEY J. JONES, PETITIONER v. UNITED STATES

SEVENTH CIRCUIT
[May 22, 2000]

Justice Ginsburg delivered the opinion of the Court.
It is a federal crime under 18 U.S.C. § 844(i) (1994 ed., Supp. IV) to damage or destroy, “by means of
fire or an explosive, any … property used in interstate or foreign commerce or in any activity affecting
interstate or foreign commerce.” This case presents the question whether arson of an owner-occupied
private residence falls within §844(i)’s compass. Construing the statute’s text, we hold that an
owner-occupied residence not used for any commercial purpose does not qualify as property “used in”
commerce or commerce-affecting activity; arson of such a dwelling, therefore, is not subject to federal
prosecution under §844(i). Our construction of §844(i) is reinforced by the Court’s opinion in United
States v. Lopez, 514 U.S. 549 (1995), and the interpretive rule that constitutionally doubtful constructions
should be avoided where possible, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building &
Constr. Trades Council, 485 U.S. 568, 575 (1988).
I
On February 23, 1998, petitioner Dewey Jones tossed a Molotov cocktail through a window into a
home in Fort Wayne, Indiana, owned and occupied by his cousin. No one was injured in the ensuing fire,
but the blaze severely damaged the home. A federal grand jury returned a three-count indictment
charging Jones with arson, 18 U.S.C. § 844(i) (1994 ed., Supp. IV); using a destructive device during and
in relation to a crime of violence (the arson), 18 U.S.C. § 924(c); and making an illegal destructive
device, 26 U.S.C. § 5861(f). Jones was tried under that indictment in the Northern District of Indiana and
convicted by a jury on all three counts.1 The District Court sentenced him, pursuant to the Sentencing
Reform Act of 1984, to a total prison term of 35 years, to be followed by five years of supervised release.
The court also ordered Jones to pay $77,396.87 to the insurer of the damaged home as restitution for its

loss. Jones appealed, and the Court of Appeals for the Seventh Circuit affirmed the judgment of the
District Court. 178 F.3d 479 (1999).
Jones unsuccessfully urged, both before the District Court and on appeal to the Seventh Circuit, that
§844(i), when applied to the arson of a private residence, exceeds the authority vested in Congress under
the Commerce Clause of the Constitution, Art. I, §8, cl. 3. Courts of Appeals have divided both on the
question whether §844(i) applies to buildings not used for commercial purposes,2 and on the
constitutionality of such an application.3 We granted certiorari, 528 U.S. 1002 (1999), and framed as the
question presented:
“Whether, in light of United States v. Lopez, 514 U.S. 549 (1995), and the interpretive rule that
constitutionally doubtful constructions should be avoided, see Edward J. DeBartolo Corp. v. Florida
Gulf Coast Building & Constr. Trades Council, 485 U.S. 568,575 (1988), 18 U.S.C. § 844(i) applies to
the arsonof a private residence; and if so, whether its application to the private residence in the present
case is constitutional.”
Satisfied that §844(i) does not reach an owner-occupied residence that is not used for any commercial
purpose, we reverse the Court of Appeals’ judgment.
II
Congress enacted 18 U.S.C. § 844(i) as part of Title XI of the Organized Crime Control Act of 1970,
Pub. L. 91-452, §1102, 84 Stat. 952, “because of the need ‘to curb the use, transportation, and possession
of explosives.’ ” Russell v. United States, 471 U.S. 858, 860, n. 5 (1985) (citation omitted). The word
“fire,” which did not appear in §844(i) as originally composed, was introduced by statutory amendment
in 1982.4 As now worded, §844(i) (1994 ed., Supp. IV) reads in relevant part:
“Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an
explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce
or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years
and not more than 20 years, fined under this title, or both … .”
We previously construed §844(i) in Russell v. United States, 471 U.S. 858 (1985), and there held that
§844(i) applies to a building “used as rental property,” ibid. The petitioner-defendant in Russell had
unsuccessfully attempted to set fire to a two-unit apartment building he owned. He earned rental income
from the property and “treated it as business property for tax purposes.” Id., at 859. Our decision stated
as the dispositive fact: “Petitioner was renting his apartment building to tenants at the time he attempted
to destroy it by fire.” Id., at 862. It followed from that fact, the Russell opinion concluded, that “[t]he
property was … being used in an activity affecting commerce within the meaning of §844(i).” Ibid.5
We now confront a question that was not before the Court in Russell: Does §844(i) cover property
occupied and used by its owner not for any commercial venture, but as a private residence. Is such a
dwelling place, in the words of §844(i), “used in … any activity affecting … commerce”?
In support of its argument that §844(i) reaches the arson of an owner-occupied private residence, the
Government relies principally on the breadth of the statutory term “affecting … commerce,” see Brief for
United States 10, 16-17, words that, when unqualified, signal Congress’ intent to invoke its full authority
under the Commerce Clause. But §844(i) contains the qualifying words “used in” a commerce-affecting

activity. The key word is “used.” “Congress did not define the crime described in §844(i) as the
explosion of a building whose damage or destruction might affect interstate commerce … .” United
States v. Mennuti, 639 F.2d 107, 110 (CA2 1981) (Friendly, J.).6 Congress “require[d] that the damaged
or destroyed property must itself have been used in commerce or in an activity affecting commerce.”
Ibid. The proper inquiry, we agree, “is into the function of the building itself, and then a determination of
whether that function affects interstate commerce.” United States v. Ryan, 9 F.3d 660, 675 (CA8 1993)
(Arnold, C. J., concurring in part and dissenting in part).7
The Government urges that the Fort Wayne, Indiana residence into which Jones tossed a Molotov
cocktail was constantly “used” in at least three “activit[ies] affecting commerce.” First, the homeowner
“used” the dwelling as collateral to obtain and secure a mortgage from an Oklahoma lender; the lender,
in turn, “used” the property as security for the home loan. Second, the homeowner “used” the residence
to obtain a casualty insurance policy from a Wisconsin insurer. That policy, the Government points out,
safeguarded the interests of the homeowner and the mortgagee. Third, the homeowner “used” the
dwelling to receive natural gas from sources outside Indiana. See Brief for United States 19-23.
The Government correctly observes that §844(i) excludes no particular type of building (it covers “any
building”); the provision does, however, require that the building be “used” in an activity affecting
commerce. That qualification is most sensibly read to mean active employment for commercial purposes,
and not merely a passive, passing, or past connection to commerce. Although “variously defined,” the
word “use,” in legislation as in conversation, ordinarily signifies “active employment.” Bailey v. United
States, 516 U.S. 137, 143, 145 (1995); see also Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187
(1995) (“When terms used in a statute are undefined, we give them their ordinary meaning.”).
It surely is not the common perception that a private, owner-occupied residence is “used” in the
“activity” of receiving natural gas, a mortgage, or an insurance policy. Cf. Bailey, 516 U.S., at 145
(interpreting the word “use,” as it appears in 18 U.S.C. § 924(c)(1), to mean active employment of a
firearm and rejecting the Government’s argument that a gun is “used” whenever its presence “protect[s]
drugs” or “embolden[s]” a drug dealer). The Government does not allege that the Indiana residence
involved in this case served as a home office or the locus of any commercial undertaking. The home’s
only “active employment,” so far as the record reveals, was for the everyday living of Jones’s cousin and
his family.
Our decision in Russell does not warrant a less “use”-centered reading of §844(i). In that case, which
involved the arson of property rented out by its owner, see supra, at 4, the Court referred to the
recognized distinction between legislation limited to activities “in commerce” and legislation invoking
Congress’ full power over activity substantially “affecting … commerce.” 471 U.S., at 859-860 and n. 4.
The Russell opinion went on to observe, however, that “[b]y its terms,” §844(i) applies only to “property
that is ‘used’ in an ‘activity’ that affects commerce.” Id., at 862. “The rental of real estate,” the Court
then stated, “is unquestionably such an activity.” Ibid.8 Here, as earlier emphasized, the owner used the
property as his home, the center of his family life. He did not use the residence in any trade or business.
Were we to adopt the Government’s expansive interpretation of §844(i), hardly a building in the land
would fall outside the federal statute’s domain. Practically every building in our cities, towns, and rural
areas is constructed with supplies that have moved in interstate commerce, served by utilities that have
an interstate connection, financed or insured by enterprises that do business across state lines, or bears
some other trace of interstate commerce. See, e.g., FERC v. Mississippi, 456 U.S. 742, 757 (1982)

(observing that electric energy is consumed “in virtually every home” and that “[n]o State relies solely on
its own resources” to meet its inhabitants’ demand for the product). If such connections sufficed to
trigger §844(i), the statute’s limiting language, “used in” any commerce-affecting activity, would have
no office. See United States v. Monholland, 607 F.2d 1311, 1316 (CA10 1979) (finding in §844(i) no
indication that Congress intended to include “everybody and everything”). “Judges should hesitate … to
treat statutory terms in any setting [as surplusage], and resistance should be heightened when the words
describe an element of a criminal offense.” Ratzlaf v. United States, 510 U.S. 135, 140-141 (1994);
accord, Bailey, 516 U.S., at 145.
III
Our reading of §844(i) is in harmony with the guiding principle that “where a statute is susceptible of
two constructions, by one of which grave and doubtful constitutional questions arise and by the other of
which such questions are avoided, our duty is to adopt the latter.” United States ex rel. Attorney General
v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909), quoted in Jones v. United States, 526 U.S. 227,
239 (1999); see also DeBartolo, 485 U.S., at 575; Ashwander v. TVA, 297 U.S. 288, 348 (1936)
(Brandeis, J., concurring). In Lopez, this Court invalidated the Gun-Free School Zones Act, former 18
U.S.C. § 922(q) (1988 ed., Supp. V), which made it a federal crime to possess a firearm within 1,000 feet
of a school. The defendant in that case, a 12th-grade student, had been convicted for knowingly
possessing a concealed handgun and bullets at his San Antonio, Texas, high school, in violation of the
federal Act. Holding that the Act exceeded Congress’ power to regulate commerce, the Court stressed
that the area was one of traditional state concern, see 514 U.S., at 561, n. 3, 567; id., at 577 (Kennedy, J.,
concurring), and that the legislation aimed at activity in which “neither the actors nor their conduct has a
commercial character,” id., at 580 (Kennedy, J., concurring); id., at 560-562 (opinion of the Court).
Given the concerns brought to the fore in Lopez, it is appropriate to avoid the constitutional question
that would arise were we to read §844(i) to render the “traditionally local criminal conduct” in which
petitioner Jones engaged “a matter for federal enforcement.” United States v. Bass, 404 U.S. 336, 350
(1971). Our comprehension of §844(i) is additionally reinforced by other interpretive guides. We have
instructed that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of
lenity,” Rewis v. United States, 401 U.S. 808, 812 (1971), and that “when choice has to be made between
two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher
alternative, to require that Congress should have spoken in language that is clear and definite,” United
States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222 (1952). We have cautioned, as well, that
“unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the
federal-state balance” in the prosecution of crimes. Bass, 404 U.S., at 349. To read §844(i) as
encompassing the arson of an owner-occupied private home would effect such a change, for arson is a
paradigmatic common-law state crime. See generally Poulos, The Metamorphosis of the Law of Arson,
51 Mo. L. Rev. 295 (1986).
IV
We conclude that §844(i) is not soundly read to make virtually every arson in the country a federal
offense. We hold that the provision covers only property currently used in commerce or in an activity
affecting commerce. The home owned and occupied by petitioner Jones’s cousin was not so used -- it
was a dwelling place used for everyday family living. As we read §844(i), Congress left cases of this

genre to the law enforcement authorities of the States.

Our holding that §844(i) does not cover the arson of an owner-occupied dwelling means that Jones’s
§844(i) conviction must be vacated. Accordingly, the judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Notes
1. The question on which we granted review refers solely to Jones’s §844(i) conviction. See infra, at 3.
We therefore do not address his §924(c) and §5861(f) convictions.
2. Compare United States v. Gaydos, 108 F.3d 505 (CA3 1997) (vacant, uninhabitable house formerly
rented not covered by statute), United States v. Denalli, 73 F.3d 328 (CA11) (owner-occupied residence
not covered), modified on other grounds, 90 F.3d 444 (1996) (per curiam), United States v. Mennuti, 639
F.2d 107 (CA2 1981) (same), with United States v. Ryan, 41 F.3d 361 (CA8 1994) (en banc) (vacant
former commercial property covered), cert. denied, 514 U.S. 1082 (1995), United States v. Ramey, 24
F.3d 602 (CA4 1994) (owner-occupied residence covered), cert. denied, 514 U.S. 1103 (1995), and
United States v. Stillwell, 900 F.2d 1104 (CA7) (same), cert. denied, 498 U.S. 838 (1990).
3. Compare United States v. Pappadopoulos, 64 F.3d 522 (CA9 1995) (application to owner-occupied
residence unconstitutional), with 178 F.3d 479 (CA7 1999) (decision below), and Ramey, 24 F.3d, at 602
(application constitutional).
4. See Pub. L. 97-298, §2(c), 96 Stat. 1319 (amending §844(i) to insert the words “fire or” before the
words “an explosive”). The House Report accompanying the 1982 legislation explained that the original
measure, which was confined to damage caused by “an explosive,” had resulted in problems of practical
application. H. R. Rep. No. 678, 97th Cong., 2d Sess., 2 (1982). In particular, the Report noted a Circuit
conflict on the question whether the measure covered use of gasoline or other flammable liquids to ignite
a fire. Id., at 2, and nn. 5-6.
5. We noted in Russell that the original version of the bill that became §844(i) applied to destruction, by
means of explosives, of property used “for business purposes.” Russell, 471 U.S., at 860, n. 5. After some
House members indicated that they thought the provision should apply to the bombings of schools, police
stations, and places of worship, the words “for business purposes” were omitted. Id., at 860-861. The
House Report accompanying the final bill, we further noted in Russell, described §844(i) as “a very
broad provision covering substantially all business property.” Id., at 861, and n. 8 (citing H. R. Rep. No.
91-1549, pp. 69-70 (1970)).
6. The defendants in Mennuti destroyed two buildings. One was the residence of the owner and her
family, the other was a rental property. See 639 F.2d, at 108-109, n. 1. The Second Circuit affirmed the
District Court’s dismissal of the entire indictment. Our decision in Russell v. United States, 471 U.S. 858
(1985), supersedes Mennuti with respect to the building held for rental. Regarding the family residence,
we find Mennuti’s reasoning persuasive.

7. In Ryan, Chief Judge Arnold dissented from a panel decision holding that the arson of a permanently
closed fitness center fell within §844(i)’s prohibition. The panel majority considered adequate either of
two interstate commerce connections: the building was owned and leased by out-of-state parties, and
received natural gas from across state borders. The panel added, however, that it would not extend the
decision “to property which is purely private in nature, such as a privately owned home, used solely for
residential purposes.” 9 F.3d, at 666-667. Sitting en banc, the Eighth Circuit affirmed the panel’s
judgment. See United States v. Ryan, 41 F.3d 361 (1994), cert. denied, 514 U.S. 1082 (1995).
8. Notably, the Court in Russell did not rest its holding on the expansive interpretation advanced by the
Government both in Russell and in this case. Compare Brief for United States in Russell v. United States,
O.T. 1984, No. 435, p. 15 (“Petitioner used his building on South Union Street in an activity affecting
interstate commerce by heating it with gas that moved interstate.”), with Russell, 471 U.S., at 862
(focusing instead on fact that “[t]he rental of real estate is unquestionably … an activity” affecting
commerce).


No. 99-5739

COURT OF APPEALS FOR THE SEVENTH CIRCUIT
[May 22, 2000]
Justice Ginsburg delivered the opinion of the Court.
It is a federal crime under 18 U.S.C. § 844(i) (1994 ed., Supp. IV)

to damage or destroy, "by means of fire or an explosive, any ...
property used in interstate or foreign commerce or in any activity
affecting interstate or foreign commerce." This case presents the
question whether arson of an owner-occupied private residence falls
within §844(i)’s compass. Construing the statute’s text, we hold that an
owner-occupied residence not used for any commercial purpose does not
qualify as property "used in" commerce or commerce-affecting activity;
arson of such a dwelling, therefore, is not subject to federal
prosecution under §844(i). Our construction of §844(i) is reinforced by
the Court’s opinion in United States v. Lopez, 514 U.S. 549 (1995), and
the interpretive rule that constitutionally doubtful constructions
should be avoided where possible, see Edward J. DeBartolo Corp. v.
Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575
(1988).
On February 23, 1998, petitioner Dewey Jones tossed a Molotov

cocktail through a window into a home in Fort Wayne, Indiana, owned and
occupied by his cousin. No one was injured in the ensuing fire, but the
blaze severely damaged the home. A federal grand jury returned a
three-count indictment charging Jones with arson, 18 U.S.C. § 844(i)
(1994 ed., Supp. IV); using a destructive device during and in relation
to a crime of violence (the arson), 18 U.S.C. § 924(c); and making an
illegal destructive device, 26 U.S.C. § 5861(f). Jones was tried under
that indictment in the Northern District of Indiana and convicted by a
jury on all three counts.1 The District Court sentenced him, pursuant to
the Sentencing Reform Act of 1984, to a total prison term of 35 years,
to be followed by five years of supervised release. The court also
ordered Jones to pay $77,396.87 to the insurer of the damaged home as
restitution for its loss. Jones appealed, and the Court of Appeals for
the Seventh Circuit affirmed the judgment of the District Court. 178
F.3d 479 (1999).
Jones unsuccessfully urged, both before the District Court and on

appeal to the Seventh Circuit, that §844(i), when applied to the arson
of a private residence, exceeds the authority vested in Congress under

the Commerce Clause of the Constitution, Art. I, §8, cl. 3. Courts of

Appeals have divided both on the question whether §844(i) applies to
buildings not used for commercial purposes,2 and on the
constitutionality of such an application.3 We granted certiorari, 528
U.S. 1002 (1999), and framed as the question presented:
"Whether, in light of United States v. Lopez, 514 U.S. 549 (1995), and
the interpretive rule that constitutionally doubtful constructions
should be avoided, see Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U.S. 568,575 (1988), 18 U.S.C. §
844(i) applies to the arsonof a private residence; and if so, whether
its application to the private residence in the present case is
constitutional."
Satisfied that §844(i) does not reach an owner-occupied residence that

is not used for any commercial purpose, we reverse the Court of Appeals’
judgment.
II
Congress enacted 18 U.S.C. § 844(i) as part of Title XI of the

Organized Crime Control Act of 1970, Pub. L. 91-452, §1102, 84 Stat.
952, "because of the need ‘to curb the use, transportation, and
possession of explosives.’ " Russell v. United States, 471 U.S. 858,
860, n. 5 (1985) (citation omitted). The word "fire," which did not
appear in §844(i) as originally composed, was introduced by statutory
amendment in 1982.4 As now worded, §844(i) (1994 ed., Supp. IV) reads in
relevant part:
"Whoever maliciously damages or destroys, or attempts to damage or

destroy, by means of fire or an explosive, any building, vehicle, or
other real or personal property used in interstate or foreign commerce
or in any activity affecting interstate or foreign commerce shall be
imprisoned for not less than 5 years and not more than 20 years, fined
under this title, or both ... ."
We previously construed §844(i) in Russell v. United States, 471

U.S. 858 (1985), and there held that §844(i) applies to a building "used
as rental property," ibid. The petitioner-defendant in Russell had
unsuccessfully attempted to set fire to a two-unit apartment building he
owned. He earned rental income from the property and "treated it as
business property for tax purposes." Id., at 859. Our decision stated as
the dispositive fact: "Petitioner was renting his apartment building to
tenants at the time he attempted to destroy it by fire." Id., at 862. It
followed from that fact, the Russell opinion concluded, that "[t]he
property was ... being used in an activity affecting commerce within the
meaning of §844(i)." Ibid.5
We now confront a question that was not before the Court in Russell:
Does §844(i) cover property occupied and used by its owner not for any
commercial venture, but as a private residence. Is such a dwelling
place, in the words of §844(i), "used in ... any activity affecting ...
commerce"?
In support of its argument that §844(i) reaches the arson of an

owner-occupied private residence, the Government relies principally on
the breadth of the statutory term "affecting ... commerce," see Brief
for United States 10, 16-17, words that, when unqualified, signal
Congress’ intent to invoke its full authority under the Commerce Clause.
But §844(i) contains the qualifying words "used in" a commerce-affecting
activity. The key word is "used." "Congress did not define the crime

described in §844(i) as the explosion of a building whose damage or

destruction might affect interstate commerce ... ." United States v.
Mennuti, 639 F.2d 107, 110 (CA2 1981) (Friendly, J.).6 Congress
"require[d] that the damaged or destroyed property must itself have been
used in commerce or in an activity affecting commerce." Ibid. The proper
inquiry, we agree, "is into the function of the building itself, and
then a determination of whether that function affects interstate
commerce." United States v. Ryan, 9 F.3d 660, 675 (CA8 1993) (Arnold, C.
J., concurring in part and dissenting in part).7
The Government urges that the Fort Wayne, Indiana residence into
which Jones tossed a Molotov cocktail was constantly "used" in at least
three "activit[ies] affecting commerce." First, the homeowner "used" the
dwelling as collateral to obtain and secure a mortgage from an Oklahoma
lender; the lender, in turn, "used" the property as security for the
home loan. Second, the homeowner "used" the residence to obtain a
casualty insurance policy from a Wisconsin insurer. That policy, the
Government points out, safeguarded the interests of the homeowner and
the mortgagee. Third, the homeowner "used" the dwelling to receive
natural gas from sources outside Indiana. See Brief for United States
19-23.
The Government correctly observes that §844(i) excludes no

particular type of building (it covers "any building"); the provision
does, however, require that the building be "used" in an activity
affecting commerce. That qualification is most sensibly read to mean
active employment for commercial purposes, and not merely a passive,
passing, or past connection to commerce. Although "variously defined,"
the word "use," in legislation as in conversation, ordinarily signifies
"active employment." Bailey v. United States, 516 U.S. 137, 143, 145
(1995); see also Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995)
("When terms used in a statute are undefined, we give them their
ordinary meaning.").
It surely is not the common perception that a private,

owner-occupied residence is "used" in the "activity" of receiving
natural gas, a mortgage, or an insurance policy. Cf. Bailey, 516 U.S.,
at 145 (interpreting the word "use," as it appears in 18 U.S.C. §
924(c)(1), to mean active employment of a firearm and rejecting the
Government’s argument that a gun is "used" whenever its presence
"protect[s] drugs" or "embolden[s]" a drug dealer). The Government does
not allege that the Indiana residence involved in this case served as a
home office or the locus of any commercial undertaking. The home’s only
"active employment," so far as the record reveals, was for the everyday
living of Jones’s cousin and his family.
Our decision in Russell does not warrant a less "use"-centered

reading of §844(i). In that case, which involved the arson of property
rented out by its owner, see supra, at 4, the Court referred to the
recognized distinction between legislation limited to activities "in
commerce" and legislation invoking Congress’ full power over activity
substantially "affecting ... commerce." 471 U.S., at 859-860 and n. 4.
The Russell opinion went on to observe, however, that "[b]y its terms,"
§844(i) applies only to "property that is ‘used’ in an ‘activity’ that
affects commerce." Id., at 862. "The rental of real estate," the Court
then stated, "is unquestionably such an activity." Ibid.8 Here, as
earlier emphasized, the owner used the property as his home, the center
of his family life. He did not use the residence in any trade or
business.
Were we to adopt the Government’s expansive interpretation of

§844(i), hardly a building in the land would fall outside the federal
statute’s domain. Practically every building in our cities, towns, and
rural areas is constructed with supplies that have moved in interstate
commerce, served by utilities that have an interstate connection,
financed or insured by enterprises that do business across state lines,
or bears some other trace of interstate commerce. See, e.g., FERC v.
Mississippi, 456 U.S. 742, 757 (1982) (observing that electric energy is
consumed "in virtually every home" and that "[n]o State relies solely on
its own resources" to meet its inhabitants’ demand for the product). If
such connections sufficed to trigger §844(i), the statute’s limiting
language, "used in" any commerce-affecting activity, would have no
office. See United States v. Monholland, 607 F.2d 1311, 1316 (CA10 1979)
(finding in §844(i) no indication that Congress intended to include
"everybody and everything"). "Judges should hesitate ... to treat
statutory terms in any setting [as surplusage], and resistance should be
heightened when the words describe an element of a criminal offense."
Ratzlaf v. United States, 510 U.S. 135, 140-141 (1994); accord, Bailey,
516 U.S., at 145.
III
Our reading of §844(i) is in harmony with the guiding principle that

"where a statute is susceptible of two constructions, by one of which
grave and doubtful constitutional questions arise and by the other of
which such questions are avoided, our duty is to adopt the latter."
United States ex rel. Attorney General v. Delaware & Hudson Co., 213
U.S. 366, 408 (1909), quoted in Jones v. United States, 526 U.S. 227,
239 (1999); see also DeBartolo, 485 U.S., at 575; Ashwander v. TVA, 297
U.S. 288, 348 (1936) (Brandeis, J., concurring). In Lopez, this
Court invalidated the Gun-Free School Zones Act, former 18 U.S.C. §
922(q) (1988 ed., Supp. V), which made it a federal crime to possess a
firearm within 1,000 feet of a school. The defendant in that case, a
12th-grade student, had been convicted for knowingly possessing a
concealed handgun and bullets at his San Antonio, Texas, high school, in
violation of the federal Act. Holding that the Act exceeded Congress’
power to regulate commerce, the Court stressed that the area was one of
traditional state concern, see 514 U.S., at 561, n. 3, 567; id., at 577
(Kennedy, J., concurring), and that the legislation aimed at activity in
which "neither the actors nor their conduct has a commercial character,"
id., at 580 (Kennedy, J., concurring); id., at 560-562 (opinion of the
Court).
Given the concerns brought to the fore in Lopez, it is appropriate

to avoid the constitutional question that would arise were we to read
§844(i) to render the "traditionally local criminal conduct" in which
petitioner Jones engaged "a matter for federal enforcement." United
States v. Bass, 404 U.S. 336, 350 (1971). Our comprehension of §844(i)
is additionally reinforced by other interpretive guides. We have
instructed that "ambiguity concerning the ambit of criminal statutes
should be resolved in favor of lenity," Rewis v. United States, 401 U.S.
808, 812 (1971), and that "when choice has to be made between two
readings of what conduct Congress has made a crime, it is appropriate,
before we choose the harsher alternative, to require that Congress
should have spoken in language that is clear and definite," United
States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222 (1952).
We have cautioned, as well, that "unless Congress conveys its purpose
clearly, it will not be deemed to have significantly changed the
federal-state balance" in the prosecution of crimes. Bass, 404 U.S., at
349. To read §844(i) as encompassing the arson of an owner-occupied
private home would effect such a change, for arson is a paradigmatic
common-law state crime. See generally Poulos, The Metamorphosis of the

Law of Arson, 51 Mo. L. Rev. 295 (1986).
IV
We conclude that §844(i) is not soundly read to make virtually every

arson in the country a federal offense. We hold that the provision
covers only property currently used in commerce or in an activity
affecting commerce. The home owned and occupied by petitioner Jones’s
cousin was not so used -- it was a dwelling place used for everyday
family living. As we read §844(i), Congress left cases of this genre to
the law enforcement authorities of the States.
Our holding that §844(i) does not cover the arson of an

owner-occupied dwelling means that Jones’s §844(i) conviction must be
vacated. Accordingly, the judgment of the Court of Appeals is reversed,
and the case is remanded for further proceedings consistent with this
opinion.
It is so ordered.
Notes
1. The question on which we granted review refers solely to Jones’s

§844(i) conviction. See infra, at 3. We therefore do not address his
§924(c) and §5861(f) convictions.
2. Compare United States v. Gaydos, 108 F.3d 505 (CA3 1997) (vacant,
uninhabitable house formerly rented not covered by statute), United
States v. Denalli, 73 F.3d 328 (CA11) (owner-occupied residence not
covered), modified on other grounds, 90 F.3d 444 (1996) (per curiam),
United States v. Mennuti, 639 F.2d 107 (CA2 1981) (same), with United
States v. Ryan, 41 F.3d 361 (CA8 1994) (en banc) (vacant former
commercial property covered), cert. denied, 514 U.S. 1082 (1995), United
States v. Ramey, 24 F.3d 602 (CA4 1994) (owner-occupied residence
covered), cert. denied, 514 U.S. 1103 (1995), and United States v.
Stillwell, 900 F.2d 1104 (CA7) (same), cert. denied, 498 U.S. 838
(1990).
3. Compare United States v. Pappadopoulos, 64 F.3d 522 (CA9 1995)

(application to owner-occupied residence unconstitutional), with 178
F.3d 479 (CA7 1999) (decision below), and Ramey, 24 F.3d, at 602
(application constitutional).
4. See Pub. L. 97-298, §2(c), 96 Stat. 1319 (amending §844(i) to insert

the words "fire or" before the words "an explosive"). The House Report
accompanying the 1982 legislation explained that the original measure,
which was confined to damage caused by "an explosive," had resulted in
problems of practical application. H. R. Rep. No. 678, 97th Cong., 2d
Sess., 2 (1982). In particular, the Report noted a Circuit conflict on
the question whether the measure covered use of gasoline or other
flammable liquids to ignite a fire. Id., at 2, and nn. 5-6.
5. We noted in Russell that the original version of the bill that

became §844(i) applied to destruction, by means of explosives, of
property used "for business purposes." Russell, 471 U.S., at 860, n. 5.
After some House members indicated that they thought the provision
should apply to the bombings of schools, police stations, and places of
worship, the words "for business purposes" were omitted. Id., at
860-861. The House Report accompanying the final bill, we further noted

in Russell, described §844(i) as "a very broad provision covering

substantially all business property." Id., at 861, and n. 8 (citing H.
R. Rep. No. 91-1549, pp. 69-70 (1970)).
6. The defendants in Mennuti destroyed two buildings. One was the

residence of the owner and her family, the other was a rental property.
See 639 F.2d, at 108-109, n. 1. The Second Circuit affirmed the District
Court’s dismissal of the entire indictment. Our decision in Russell v.
United States, 471 U.S. 858 (1985), supersedes Mennuti with respect to
the building held for rental. Regarding the family residence, we find
Mennuti’s reasoning persuasive.
7. In Ryan, Chief Judge Arnold dissented from a panel decision holding

that the arson of a permanently closed fitness center fell within
§844(i)’s prohibition. The panel majority considered adequate either of
two interstate commerce connections: the building was owned and leased
by out-of-state parties, and received natural gas from across state
borders. The panel added, however, that it would not extend the decision
"to property which is purely private in nature, such as a privately
owned home, used solely for residential purposes." 9 F.3d, at 666-667.
Sitting en banc, the Eighth Circuit affirmed the panel’s judgment. See
United States v. Ryan, 41 F.3d 361 (1994), cert. denied, 514 U.S. 1082
(1995).
8. Notably, the Court in Russell did not rest its holding on the
expansive interpretation advanced by the Government both in Russell and
in this case. Compare Brief for United States in Russell v. United
States, O.T. 1984, No. 435, p. 15 ("Petitioner used his building on
South Union Street in an activity affecting interstate commerce by
heating it with gas that moved interstate."), with Russell, 471 U.S., at
862 (focusing instead on fact that "[t]he rental of real estate is
unquestionably ... an activity" affecting commerce).

Jones v. United States: Stevens, concurring

Syllabus | Ginsburg, opinion | Thomas, concurring | Commentary, Roland
Stevens, J., concurring

No. 99—5739

SEVENTH CIRCUIT
[May 22, 2000]

Justice Stevens, with whom Justice Thomas joins, concurring.
Part II of the Court’s opinion convincingly explains why its construction of 18 U.S.C. § 844(i) better
fits the text and context of the provision than the Government’s expansive reading. It also seems
appropriate, however, to emphasize the kinship between our well-established presumption against federal
pre-emption of state law, see Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978), and our reluctance
to “believe Congress intended to authorize federal intervention in local law enforcement in a marginal
case such as this.” United States v. Altobella, 442 F.2d 310, 316 (CA7 1971). The fact that petitioner
received a sentence of 35 years in prison when the maximum penalty for the comparable state offense
was only 10 years, Ind. Code §§35-43-1-1, 35-50-2-5 (1993), illustrates how a criminal law like this may
effectively displace a policy choice made by the State. Even when Congress has undoubted power to
pre-empt local law, we have wisely decided that “unless Congress conveys its purpose clearly, it will not
be deemed to have significantly changed the federal-state balance.” United States v. Bass, 404 U.S. 336,
349 (1971). For this reason, I reiterate my firm belief that we should interpret narrowly federal criminal
laws that overlap with state authority unless congressional intention to assert its jurisdiction is plain.*
Notes
1. * See Landreth Timber Co. v. Landreth, 471 U.S. 681, 700, n. 2 (1985) (Stevens, J., dissenting);
Bennett v. New Jersey, 470 U.S. 632, 654-655, n. 16 (1985) (Stevens, J., dissenting); Garcia v. United
States, 469 U.S. 70, 89-90 (1984) (Stevens, J., dissenting); Bell v. United States, 462 U.S. 356, 363
(1983) (Stevens, J., dissenting); McElroy v. United States, 455 U.S. 642, 675 (1982) (Stevens, J.,
dissenting).
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Stevens, J., concurring
No. 99-5739

[May 22, 2000]
Justice Stevens, with whom Justice Thomas joins, concurring.
Part II of the Court’s opinion convincingly explains why its

construction of 18 U.S.C. § 844(i) better fits the text and context of
the provision than the Government’s expansive reading. It also seems
appropriate, however, to emphasize the kinship between our
well-established presumption against federal pre-emption of state law,
see Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978), and our
reluctance to "believe Congress intended to authorize federal
intervention in local law enforcement in a marginal case such as this."
United States v. Altobella, 442 F.2d 310, 316 (CA7 1971). The fact that
petitioner received a sentence of 35 years in prison when the maximum
penalty for the comparable state offense was only 10 years, Ind. Code
§§35-43-1-1, 35-50-2-5 (1993), illustrates how a criminal law like this
may effectively displace a policy choice made by the State. Even when
Congress has undoubted power to pre-empt local law, we have wisely
decided that "unless Congress conveys its purpose clearly, it will not
be deemed to have significantly changed the federal-state balance."
United States v. Bass, 404 U.S. 336, 349 (1971). For this reason, I
reiterate my firm belief that we should interpret narrowly federal
criminal laws that overlap with state authority unless congressional
intention to assert its jurisdiction is plain.*
Notes
1. * See Landreth Timber Co. v. Landreth, 471 U.S. 681, 700, n. 2 (1985)
(Stevens, J., dissenting); Bennett v. New Jersey, 470 U.S. 632, 654-655,
n. 16 (1985) (Stevens, J., dissenting); Garcia v. United States, 469
U.S. 70, 89-90 (1984) (Stevens, J., dissenting); Bell v. United States,
462 U.S. 356, 363 (1983) (Stevens, J., dissenting); McElroy v. United
States, 455 U.S. 642, 675 (1982) (Stevens, J., dissenting).
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Jones v. United States: Thomas, concurring

Syllabus | Ginsburg, opinion | Stevens, concurring | Commentary, Roland

No. 99-5739

SEVENTH CIRCUIT
[May 22, 2000]

Justice Thomas, with whom Justice Scalia joins, concurring.
In joining the Court’s opinion, I express no view on the question whether the federal arson statute, 18
U.S.C. § 844(i) (1994 ed., Supp. IV), as there construed, is constitutional in its application to all
buildings used for commercial activities.
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No. 99-5739

[May 22, 2000]
Justice Thomas, with whom Justice Scalia joins, concurring.
In joining the Court’s opinion, I express no view on the question

whether the federal arson statute, 18 U.S.C. § 844(i) (1994 ed., Supp.
IV), as there construed, is constitutional in its application to all
buildings used for commercial activities.
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Commentary
Jon Roland
This is the second of two key cases decided in 2000 that follow up on
and emphasize the significance of the 1995 decision in U.S. v. Lopez,
514 U.S. 549, the first being U.S. v. Morrison, Docket 99-5, which
signal the dismantling of the efforts by successive national
administrations since 1937 to seize police powers under the alleged
authority of the Commerce Clause. In Morrison, the court overturned a
statute allowing a citizen to seek civil damages for a crime for which
the state had criminal jurisdiction, under the alleged authority of both
the Commerce Clause and the 14th Amendment, but the court, by a bare 5-4
majority, took the position that rape of a civilian does not have a
significant effect on interstate commerce, and that the 14th Amendment
only authorizes federal action against actions by state agents. In this
case, Jones, a now unanimous court strikes down a federal statute
against arson (within state territory), for the limited case of a
private residence, which they hold does not have a significant effect on
interstate commerce, and thus does not meet the established standard for
considering a federal statute to be authorized under the Commerce
Clause, but Justices Thomas and Scalia send a signal in their brief
concurring opinion that they would not support the statute for a
commercial building, either.
Each of these cases came to the Supreme Court based on argument that
cited Lopez, thus showing the significance of that case. These cases now
provide precedents on which the entire gamut of federal criminal cases
based on an expansive interpretation of the Commerce Clause are now
subject to challenge, and is likely to lead to a flood of cases, some of
which will make it to the Supreme Court, especially if the next
president fills vacancies with justices whose philosophies are similar
to those of Justices Thomas and Scalia. That makes the outcome of the
next election more important than any election since 1932. Enough such
decisions and the federal courts may begin to unravel the entire New
Deal.
The next step is likely to be to grant certiorari on a criminal case

involving a commercial building. That would open the door for an appeal
of the conviction of Timothy McVeigh on grounds of a lack of federal
jurisdiction, since the Murrah Building in Oklahoma City did not stand
on territory ceded to the exclusive legislative jurisdiction of Congress
under Art. I Sec. 8 Cl. 17, and thus was only a commercial building.
That would leave the question of whether killing a federal agent has a
substantial effect on interstate commerce. Eventually, the Court might
get to the point where they maintain that the power delegated under the
Commerce Clause only applies to commerce itself, and not to anything
that has a substantial effect on it. That would lay the basis for
excluding farming, fishing, mining, manufacturing, retail trade,
possession, and use of anything. They might also eventually recognize
that the original understanding of "commerce" only included transfers of
ownership of commodities, and not services or information, and does not
authorize criminal penalties, only civil penalties. Eventually, it might
overturn the wrong precedents in McCullogh v. Maryland, 17 U.S. 316
(1819) and Gibbons v. Ogden, 22 U.S. 1 (1824).

The problem, however, is that even under a Republican administration,

based on previous performance, Congress is likely to enact more
unconstitutional federal criminal legislation faster than than the
federal courts can strike them down. The Supreme Court can't do it all
by itself. It needs the support of the people for a return to strict
compliance with the Constitution according to the interpretative
standards of Jefferson and Madison.

Jefferson
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❍ Commentary — Jon Roland

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Home| Constitution Society

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SUPREME COURT of the UNITED STATES.

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Text Version | Commentary | Contents

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SUPREME COURT of the UNITED STATES.

February Term, 1794.

The STATE of GEORGIA, versus BRAILSFORD, et al.

1. On the first point, they contended, that Georgia as a sovereign State,

2. On the second point, it was urged, that although the word,

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For the defendants, Bradford (the attorney-general) E. Tilghman and Lewis

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The question of forfeiture in the case of joint obligees, being at present

Some stress has been laid on a consideration of the different situations of

Go then, Gentlemen, from the bar without any impressions of favor or

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State of Georgia v. Brailsford, et al., 3 U.S. 1 (Dall.) (1794)

1. Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895).

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State of Georgia v. Brailsford, et al., 3 U.S. 1 (Dall.) (1794)

Commentary by Jon Roland

... on questions of fact, it is the province of the jury, on

1. Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895).

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U.S. Supreme Court

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law, was some fact to be done by a Citizen, or Subject.

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property to them. [3 U.S. 386, 395]

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Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably

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1. The case of the Earl of Strafford, in 1641.

Text Version | Commentary | Contents

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U.S. Supreme Court

CALDER v. BULL, 3 U.S. 386 (Dall.) (1798)

August Term, 1798

CHASE, Justice. The decision of one question determines (in my opinion),

The Legislature of Connecticut, on the 2nd Thursday of May 1795, passed a

It appears to me a self-evident proposition, that the several State