states soon realized that government by the will of the majority not only achieved democracy, it sometimes achieved majoritarian tyranny. The system of checks and balances created by the original Constitution was insufficient to avoid the pitfalls of absolute power endemic to the English form of government that the American colonists had overthrown. A bill of rights was needed to serve as a bulwark between individual liberty and arbitrary government power. As with each of the 26 amendments to the Constitution, the Bill of Rights was proposed by a two-thirds majority in both houses of Congress and ratified by three-fourths of the states as required by Article V. The Bill of Rights, which comprises the first ten amendments to the Constitution, contains both procedural and substantive protections. In some instances, these protections guarantee the right to do, say, or believe something without government in- terference. In other instances, these protections guarantee the right to refrain from doing, saying, or believing something without government coercion. The first three amendments provide sub- stantive protections. The FIRST AMENDMENT guarantees FREEDOM OF SPEECH, press, RELIGION, assembly, and petition. The free speech clause protects “thoughts that we hate” (United States v. Schwimmer, 27 9 U.S. 64 4, 49 S. Ct. 448, 73 L. Ed. 889 [1929][Holmes J., dissenting]). Such thoughts can be expressed verbally, as in a racially derogatory remark, or in writing, as in a Marxist-Leninist pamphlet denouncing the U.S. government, and still receive First Amendment protection. The First Amendment also protects certain symbolic expression, such as burning the U.S. flag in protest over government policy (Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]). The Supreme Court has ruled that no political speech may be curtailed by the government unless it presents a CLEAR AND PRESENT DANGER of imminent lawless action (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]). The free press clause prohibits the govern- ment from censoring news stories in the print and electronic media merely because the content is critical of the government. However, the Founding Fathers did not ag ree on the definition of CENSORSHIP. A majority of the Founding Fathers adhered to the English COMMON LAW view articulated in the eighteenth century by SIR WILLIAM BLACK- STONE , who equated a free press with the doctrine of no PRIOR RESTRAINT. This doctrine provides that a publication cannot be sup- pressed by the government before it is released to the public. Nor can publication of something be conditioned upon judicial approval before its release. While the English common law prohibited prior restraint, it permitt ed prosecution for libelous and seditious material after publication. Thus, the law protected vituperative political publications only insofar as the author was prepared to serve time in jail or pay a fine for offending the sensibilities of the wrong person. A minority of the Founding Fathers adhered to the v iew articulated by JAMES MADISON,whosaid: The security of the FREEDOM OF THE PRESS requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws. Madison was concerned that authors would be deterred from writing articles assailing governmental activity if the government was permitted to prosecute them following release of their works to the public. In Near v. Minnesota, 283 U.S. 697, 51 S. Ct 625, 75 L. Ed. 2d 1357 (1931), the Supreme Court incorporated the doctrine of no prior restraint in First Amendment JURISPRUDENCE, when it ruled that under the free press clause there is a constitutional PRESUMPTION against prior restraint that may not be overcome unless the government can demonstrate that censor- ship is necessary to prevent a clear and present danger of a national security breach. In New York Times v. United States, 403 U.S. 713 92 S. Ct 2140, 29 L. Ed. 2d 822 (1971), the Court applied this pre sumption against the United States JUSTICE DEPARTMENT, which had sought an INJUNCTION to prevent the publication of classi- fied material revealing the secrecy and decep- tion behind U.S. involvement in the Vietnam War. If this classified material, also known as the Pentagon Papers, had threatened U.S. troops by disclosing their location or move- ment, the Court said, publication would not have been permitted. The Supreme Court’s interpretation of the free press clause has also gone a long way GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 138 CONSTITUTIONAL LAW toward adopting Madison’s sentiments against subsequent punishments for publishers of materials criticizing public officials. In a series of cases, the Supreme Court has held that the First Amendment protects media outlets from being held liable in civil court for money damages merely because a published story contains an inaccuracy or falsehood about a public official. The Supreme Court has ruled that the media are immune from libel actions brought by public officials unless the PLAINTIFF can demonstrate that a particular story was printed or aired with knowledge that it was false or in reckless disregard of its veracity, a principle that has become known as the “actual-malice” standard (New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 [1964]). Finally, the media cannot be punished with civil or criminal sanctions for publishing pornographic material unless that material rises to the level of OBSCENITY (Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]). The First Amendment contains two religion clauses. One guarantees the free exercise of religion. In most instances, the free exercise clause prohibits the government from compel- ling a person to act contrary to his or her religious beliefs. For example, in Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), the Supreme Court held that a state cannot compel Amish parents to send their children to school past the eighth grade when doing so would violate their religious beliefs. However, in Reynolds v. United States, 8 U.S. 145, 25 L. Ed. 244 (1879), the Supreme Court refused to exempt Mormons from a federal law against bigamy, reasoning that POLYGAMY was more a religious practice than a religious belief. The other religion clause in the First Amendment prohibits the government from establishing a religion. The Framers drafted the establishment clause to prevent the federal government from passing legislation that would create an official national church in the United States as Great Britain had done with the Anglican Church in England. Since the early 1970s, the Supreme Court has applied the establishment clause more broadly to strike down certain forms of government assistance to religion, such as financial aid. Such assistance will be invalidated unless the government demonstrates that it has a secular purpose with a primary effect that neither advances nor inhibits religion nor fosters excessive entangle- ment between government and religion (Lemo n v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 [1971]). The Second and Third Amendments also provide substantive protections. The SECOND AMENDMENT acknowledges that a “well regulated Militia” is “necessary to the security of a free State” and guarantees “the right of the people to keep and to bear Arms.” For decades legal scholars had debated whether the Second Amendment contemplated an individual right to bear arms, such that gun laws regulatin g possession and ownership of firearms shou ld be subject to court scrutiny under the so-called militia clause, or whether the Second Amend- ment instead contemplated only a collective right meant to protect those persons serving in a state militia. In 2008 the U.S. Supreme Court weighed in on the issue, concluding that the history underlying the adoption of Second Amendment demonstrated that it was designed to protect an individual right to bear arms. The case began when Dick Heller, a special police officer authorized to carry a handgun while on duty at the FEDERAL JUDICIAL CENTER in the District of Columbia, filed a lawsuit seeking to enjoin the city from enforcing a gun law that (1) made it a crime to carry an unregistered firearm and then (2) prohibited the registration of handguns within the district. While the ci ty’s chief of police was authorized to issue licenses to possess or own guns for one-year periods, the law also required residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. In effect, no one in the city could possess a functional firearm in his or her own residence. And the law applied not just to potentially dangerous persons like felons, min- ors, or the mentally infirm, but across-the-board to all citizens (D.C. Official Code, 2001 Ed. § 7- 2502 et seq.). District of Columbia mayor Adrian M. Fenty raised two arguments in support of the city’s ban. First, he argued that the Second Amendment ensures only that members of state militias are properly armed, not that private citizens can have guns for SELF-DEFENSE and other personal uses. Second, even if the Second Amendment protects private ownership of fire- arms for non-militia purposes, Fenty claimed, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTITUTIONAL LAW 139 the D.C. legislature can constitutionally ban all handguns if it determines that rifles and shot- guns in the home are a reasonable alternative means of self defense. The Supreme Court rejected both arguments. In a 5–4 decision, with Justice ANTONIN SCALIA writing for the majority, the Court said that the “Second Amendment protects an individual right to possess a firearm uncon- nected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.” The Court declined to precisely define the legal standard future courts should apply in determining whether someone’s Second Amendment right had been infringed, but the Court did rule that the District of Columbia’s law violated the newly enlarged right to bear arms. District of Columbia v. Heller, —U.S.—, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). In his dissenting opinion, Justice STEPHEN BREYER argued that the Court’s decision “threa- tens to throw into doubt the constitutionality of gun laws throughout the United States.” However, Scalia’ s majority opinion was careful to note that the Court’s RULING does not endanger long-standing laws that restrict the carrying of concealed weapons, that regulate gun sales, that prohibit unusually dangerous firearms, that ban the possession of guns by felons and the mentally disabled, and that ban possession of guns in certain locations, such as schools and government buildings. The THIRD AMENDMENT, which is an out- growth of the American Revolution, prohibits the government from compelling homeowners to house soldiers without their consent. Al- though the Supreme Court has never decided a case that directly involved the forced quartering of soldiers, the Court of Appeals for the Second Circuit ruled that the Third Amen dment’s protections apply to the National Guard (Engblom v. Carey, 724 F.2d 28 [2d Cir. 1982]). The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments contain a mixture of procedural and substantive rights. Most of the procedural rights pertain to CRIMINAL LAW.Assuch,these rights offer protection against unconstitutional actions taken by government bodies and officials, such as law enforcement agencies and agents. These rights do not offer protection against action taken by private citizens unaffiliated with the government. For example, the FOURTH AMENDMENT prohibits the government from performing unreasonable searches and seizures and from issuing warrants on less than PROBABLE CAUSE . The procedural requirements of the Fourth Amendment protect homes, papers, and other personal belongings in which an individual can demonstrate a “reasonable expectation of privacy” (Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 [1967]). The FIFTH AMENDMENT offers procedural safeguards to criminal defendants and suspects. It provides that no person shall be held to answer for a capital or infamous offense unless first indicted by a GRAND JURY. The Fifth Amendment further safeguards defendants from being “twice put in jeopardy of life or limb” for the “same offence.” It also prohibits the government from compelling someone to incriminate himself or herself. The right to be apprised of many of these procedural protec- tions during custodial police interrogations, through what are known as Miran da warnings, is derived from the Fifth Amendment (Miranda v. Arizona, 384U.S.436,86S.Ct.1602,16L.Ed. 2d 694 [1966]). The SIXTH AMENDMENT provides a panoply of procedural protections for criminal defendants. Under the Sixth Amendment, defendants are entitled to notice of any criminal accusations against them. The Sixth Amendment guarantees the right to a jury trial for all crimes more serious than a PETTY OFFENSE. The Sixth Amend- ment guarantees the right to be represented by an attorney during a criminal proceeding and entitles indigent defendants to a state-appointed lawyer when they are charged with a misde- meanor or more serious offense (Gideon v. Wainwright, 372 U.S. 355, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). A defendant’s right to a speedy and public trial in which she or he can cross- examine adverse witnesses and subpoena favor- able witnesses is also protected by the Sixth Amendment. The protections offered by the EIGHTH AMENDMENT are more substantive. This amend- ment forbids the government from inflicting a punishment that is “cruel and unusual.” The Eighth Amendment also prohibits the govern- ment from setting bail in an excessive amount and from imposing a fine that is disproportion- ate to the seriousness of the crime. Under the CRUEL AND UNUSUAL PUNISHMENT clause, the Supreme Court has ruled that it is not necessarily unconstitutional for the government GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 140 CONSTITUTIONAL LAW to execute a mentally retarded person (Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 [1989]) or a juvenile above the age of 15 (Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 [1989]). Some of the protections offered by the Bill of Rights apply to civil proceedings. For example, the SEVENTH AMENDMENT guarantees the right to a jury trial in civil “Suits at common law.” In CONDEMNATION proceedings, the Fifth Amend- ment recognizes the power of EMINENT DOMAIN, by which the government may appropriate a piece of property owned by a private citizen and convert it to a public use. Concomitantly, the Fifth Amendment guarantees the right to “just compensation” for private landowners when the government exercises its power of eminent domain. Due Process Clauses Of all the liberties protected by the Bill of Rights, none has been a greater source of constitutional litigation than due process. The Fifth Amendment provides that no person shall be deprived of “life, liberty, or property, without due process of law.” The Supreme Court has interpreted this provision to regulate actions taken by only the federal government, not the state governments (Barron v. Baltimore, 32 U.S. [7 Pet.] 243, 8 L. Ed. 672 [1833]). Broadly speaking, the due process clause of the Fifth Amendment guarantees litigants the right to be informed of any legal action being taken against them and the opportu nity to be heard during a fair proceeding in which they may assert relevant claims and defenses. Specif- ically, many procedural protections have been recognized by the Supreme Court as essential to the concept of due process. For example, in criminal cases, the due process clause requires that the prosecution prove its case BEYOND A REASONABLE DOUBT before a conviction may be obtained. In civil cases, the due process clause prohibits a court in one state from asserting jurisdiction over a resident in another state unless that resident has sufficient contacts with the jurisdiction in which that court sits. The FOURTEENTH AMENDMENT also contains a due process clause. Whereas the due process clause of the Fifth Amendment regulates only the federal government, the due process clause of the Fourteenth Amendment regulates actions taken by state governments. During the twentieth century, the Supreme Court interpr eted the due process clause of the Fourteenth Amendment to make most of the liberties enumerated in the Bill of Rights applicable to the states. Through a series of decisions, the Supreme Court has ruled that certain liberties guaranteed in the Bill of Rights are too fundamental to be denied protection by the state governments. The right to bear arms, the right to be indicted by a grand jury, the right to a jury trial in civil cases, the right against excessive bail and fines, and the right against involuntary quartering of soldiers have not been made applicable to the states. Because these constitutional guarantees remain inapplicable to state governments, the Supreme Court is said to have selectively incorporated the Bill of Rights into the due process clause of the Fourteenth Amendment. The Supreme Court has interpreted the due process clauses to have a substantive content in addition to their procedural content. Procedur- ally, due process prescribes the manner in which the government may deprive persons of their life, liberty, or property. In short, the procedural guarantees of due process entitle litigants to fair process. Substantively, the due process clauses of the Fifth and Fourteenth Amendments protect persons from legislation infringing on certain individual rights. Such individual rights may be expressly enumerated in a constitutional provi- sion, as are the liberties that are enumerated in the Bill of Rights and have been incorporated into the due process clause of the Fourteenth Amendment. Since Dred Scott v. Sandford, 60 U. S. (19 How.) 393, 15 L. Ed. 691 [1856]), where the Supreme Court recognized a slave owner’s property interest in his slaves, the due process clauses have been interpreted to protect other liberties that are not expressly enumerated in any provision of the federal Constitution. These unenumerated rights have been derived from Supreme Court precedent, com- mon law, history, and moral philosophy. Such rights, the Court said, “represent the very essence of ordered liberty” and embody “prin- ciples of justice so rooted in the traditions and conscience of our people as to be ranked fundamental” (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]). Since the mid-1960s the Supreme Court has relied on the concept of SUBSTANTIVE DUE PROCESS to establish a general right to PRIVACY that protects GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTITUTIONAL LAW 141 a woman’s decision to terminate her pregnancy under certain circumstances (Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]). Equal Protection Clause The EQUAL PROTECTION clause of the Fourteenth Amendment has been another bountiful source of litigation. Ratified during the aftermath of the Civil War along with the THIRTEENTH AMENDMENT, which outlawed SLAVERY, and the FIFTEENTH AMENDMENT , which protected the right to vote from discriminatory infringement, the Four- teenth Amendment was designed to promote racial equality. Until the middle of the twentieth century, the Supreme Court interpreted the equal protection clause to permit state-implemented racial SEGREGATION. Then, in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court declared that the institution of segregation is inherently unequal. Almost immediately after issuing the Brown decision, the Court began striking down state-implemented racial segregation at a host of public accommodations, including golf courses, beaches, and public schools. Pursuant to the Fourteenth Amendment, Congress has passed a number of civil rights statutes that protect African Americans and other racial groups from discrimination in the private sector. Title VII of the Civil Rights Act of 1964 (Pub. L. No. 88-352 [42 U.S.C.A. § 2000e et seq. ]), for example, prohibits racial discrimination in private employment. Persons of any race, creed, or ethnic origin may bring a claim against a state government for discriminating against them in violation of the Fourteenth Amendment. The Supreme Court has also relied on the equal protection clause to invalidate state laws that discriminate on the basis of gender, state residency, and national citizenship, among other legislative classifica- tions. In 1996 the U.S. Supreme Court struck down a Colorado CONSTITUTIONAL AMENDMENT that discriminated against homosexuals, because it served no rational purpose (Romer v. Evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 [1996]). The Civil Rights Act of 1871 (17 Stat. 13 [42 U.S.C.A. § 1983]) authorizes individuals to enforce the provisions of the Fourteenth Amendment against state governments. Members of other minority groups, such as persons who are elderly or disabled, are protected from discrimination in both the public and private sectors by federal laws that Congress has passed pursuant to its constitu- tionally delegated powers. The Americans with Disabilities Act (Pub. L. No. 101-336 [codified at 42 U.S.C.A. §§ 12111 et seq.]) and the AGE DISCRIMINATION in Employment Act (Pub. L. No. 90-202 [codified at 29 U.S.C.A. § 621 et seq.]) are two such laws. Supremacy Clause The SUPREMACY CLAUSE in Article VI makes the Constitution, federal laws, and treaties “the supreme Law of the Land.” Under this clause, state courts may not interpret the Bill of Rights, or any other constitutional provision, differ- ently than does the Supreme Court. States may not provide less protection for individu al liberties than is provided under the federal Constitution. However, state courts do retain the power to afford the ir residents greater protection for certain liberties established by their own state constitution than is afforded by the federal Constitution (Prune Yard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 [1980]). Other Constitutional Provisions The Nineteenth, Twenty-fourth, and Twenty- sixth Amendments provide that the right to vote shall not be denied to a U.S. citizen on account of gender, age (so long as the citizen is at least 18 years old), or the failure to pay a POLL TAX. The TWENTY-FIRST AMENDMENT repeals the EIGH- TEENTH AMENDMENT , which banned the manu- facture, sale, and transportation of intoxicating liquors, otherwise known as Prohibition. The SIXTEENTH AMENDMENT establishes the congressio- nal power to lay and collect income taxes. The Tenth and Eleventh Amendments attempt to preserve the federalist system created by the Constitution, whereby the state and federal governments share sovereignty and jurisdiction. Recognizing the threat presented by an omnipotent federal government, the TENTH AMENDMENT reserves to the states all powers not delegated to the federal government. The text of the ELEVENTH AMENDMENT restricts federal courts from hearing lawsuits against state governments brought by the residents of another state or the citizens of a foreign country. The Supreme Court has also inter- preted the Eleventh Amendment to restrict federal courts from hearing lawsuits instituted GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 142 CONSTITUTIONAL LAW by residents of the state being sued and lawsuits initiated by the governments of foreign countries. FURTHER READINGS Epstein, Lee and Thomas G. Walker. 2007. Constitutional Law for a Changing America: Institutional Powers and Constraints. Washington, D.C.: CQ Press. Hall, Kermit L. 2002. Oxford Companion to American Law. New York: Oxford Univ. Press. Posner, Richard A. 1999. An Affair of the State. Cambridge, Mass: Harvard Univ. Press. CROSS REFERENCES Abortion; Administrative Law and Procedure; Age Discrim- ination; Commerce Clause; Congress of the United States; Constitution of the United States; Criminal Procedure; Custodial Interrogation; Disability Discrimination; Double Jeopardy; Federal Budget; Federalism; Freedom of the Press; Gay and Lesbian Rig hts; Incorporation Doctrine; Right to Counsel; Sex Discrimination; Speedy Trial. CONSTRUCTION The process by which the meaning of an ambiguous provision of a statute, written docu- ment, or oral agreement is determined. A judge usually makes a construction of an unclear term in a document at issue in a case that involves a dispute as to its legal significance. The judge examines the circumstances sur- rounding the provision, laws, other writings, verbal agreements dealing with the same subject matter, and the probable purpose of the unclear phrase in order to conclude the proper meaning of such words. Once the judge has done so, the court will enforce the words as construed. However, for language that is plain and clear, there cannot be a construction. When ambiguous language is given its exact and technical meaning, and no other equitable considerations or reasonable implications are made, there has been a strict or LITERAL CONSTRUCTION of the unclear term. A liberal or equitable construction permits a term to be reasonably and fairly evaluated so as to implement the object and purpose for which the document is designed. This does not mean that the words will be strained beyond their natural or customary meanings. A rule of constru ction is a principle that either governs the effect of the ascertained intention of a document or agreement contain- ing an ambiguous term or establishes what a court should do if the intention is neither express nor implied. A regular pattern of decisions concerning the application of a particular provision of a statute is a rule of construction that governs how the text is to be applied in similar cases. The constitutionality of an ambiguous statute is a QUESTION OF LAW and a matter of construction within the province of the court. The meaning of the language of the statute mu st be determined in light of its objectives, purposes, and practical effect as a whole. If a statute is so ambiguous that a judge cannot make a reasonable construction of its disputed provi- sions, and a reasonable person could not determine from reading it what the law orders or prohib its, it is voi d for vagueness because it violates the guarantee of DUE PROCESS OF LAW. Some states have codified terms that had in the past been subject to repeated judicial construction. The need for co urt proceedings to determine the real meaning of some terms has been eliminated by enactment of statutes that give specific meanings—such as specifying that “calendar day” means a twenty-four hour period starting on midnight of one date and ending midnight of the next day. CROSS REFERENCES Canons of Construction; Judicial Action. CONSTRUCTIVE That which exists, not in fact, but as a result of the operation of law. That which takes on a character as a consequence of the way it is treated by a rule or policy of law, as opposed to its actual character. For example, constructive knowledge is notice of a fact that a person is presumed by law to have, regardless of whether he or she actually does, since such knowledge is obtaina ble by the exercise of reasonable care. Possession of the key to a safe-deposit box is constructive possession of the contents of the box since the key gives its holder power and control over the contents. CONSTRUCTIVE DESERTION The end of marital cohabitation brought about when one spouse, by his or her conduct, forces the other to leave home. Constructive desertion takes place when a husband or wife intentionally forces the inno- cent spouse to leave the marital dwelling by acting in an offensive manner. The misconduct GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTRUCTIVE DESERTION 143 must be so extensive as to make marital relations insuffera ble. Authority is divided on what constitutes justification for leaving the marital abode. The narrow view is that only conduct that would be grounds for DIVORCE is adequate. In application of this view, cruelty, NONSUPPORT, ADULTERY,or other divorce grounds must be proved before the innocence of the fleeing spouse can be established. Stringent requirements limit the doctrine; in some states a mere unjustified refusal to have sexual relations with one’s spouse for a certain length of time constitutes constructive desertion. Similarly, if one spouse communicates venereal disease to the mate, this might constitute constructive desertion. The prolonged nagging or drunkenness of a spouse is not ordinarily viewed as misconduct that would justify marital dissolution based upon constructive desertion. CONSTRUCTIVE EVICTION The disturbance, by a landlord, of a tenant’s possession of premises that the landlord makes uninhabitable and unsuitable for the purposes for which they were leased, causing the tenant to surrender possession. Constructive eviction arises when a landlord does not actually evict but does something that renders the premises untenantable. This might occur, for example, where a tenant vacates an apartment because a landlord turns off the heat or water. The term is also used to mean the breach of a COVENANT of warranty and QUIET ENJOYMENT of real property, which prevents a purchaser from obtaining possession of property due to the existence of a paramount claim of title. CROSS REFERENCE Landlord and Tenant. CONSTRUCTIVE TRUST A relationship by which a person who has obtained title to property has an equitable duty to transfer it to another, to whom it rightfully belongs, on the basis that the acquisition or retention of it is wrongful and would unjustly enrich the person if he or s he were allowed to retain it. A constructive trust does not arise because of the expressed intent of a settlor, one who establishes a trust. It is created by a court whenever title to property is held by a perso n who, in fairness, should not be permitted to retain it. It is frequently based on disloyalty or other breach of trust by an express trustee (the person appointed or required by law to execute a trust), and it is also created where no express trust is created but property is obtained or retained by other unconscionable conduct. The court employs the constructive trust as a remedial device to compel the DEFENDANT to convey title to the property to the PLAINTIFF.It treats the defendant as if he or she had been an express trustee from the date of the unlawful holding of the property in question. A con- structive trust is not a trust, in the true meaning of the word, in which the trustee is to have duties of administration enduring for a sub- stantial period of time, but rather it is a passive, temporary arrangement, in which the trustee’s sole duty is to transfer the title and possessio n to the beneficiary. The right to a constructive trust is generally an alternative remedy. The AGGRIEVED PARTY can choose between a trust and other relief at law, such as recovery of money wrongfully taken, but cannot obtain both types of relief. A constructive trust, as with an express trust, must cover specific property. It cannot be predicated on mere possession of prop erty, or on a breach of contract where no ownership of property is involved. The court decides what acts are required of the plaintiff as conditions precedent to the securing of a DECREE (a court order that determines the rights of all the parties to the suit). For example, if the defendant has acquired title to property of the plaintiff by me ans of FRAUD, the plaintiff will be required to return any consideration (inducement to enter into a contract) received from the defendant. In addition, if the defendant has, during his or her period of wrongful retention of the pro- perty, spent money for the preservation or protection of the property, such as by paying taxes or the principal or interest on a mortgage, reimbursement might be required of the plaintiff. If the defendant has made improve- ments or performed services in managing the property, some courts req uire the plaintiff to compensate the defendant to the extent of the benefits inuring to the plaintiff through the imposition of a constructive trust, particularly in cases in which the defendant was not an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 144 CONSTRUCTIVE EVICTION intentional wrongdoer, but rather acted under MISTAKE or ignorance. The decree establishing the constructive trust requires the defendant to deliver posses- sion and convey title to the property and to pay to the plaintiff profits received or rental value during the period of wrongful holding and otherwise to adjust the equities of the parties after taking an accounting. Mistake, Undue Influence, or Duress If by MISTAKE OF FACT the plaintiff conveys title to the wrong person, or the wrong property is conveyed to the intended person, or the plaintiff is otherwise induced to act by reason of mistake, the transfer can be set aside. An alternative is to obtain a decree which reforms the instrument of CONVEYANCE so that it expresses the intent of the parties. In these cases, the conveyance is not void (without legal effect). The plaintiff actually intends a transfer, but the circumstances which cause the plaintiff’s mind to operate are such that the court considers it unfair for the transferee to retain the property. The same doctrine applies where the plaintiff is induced to make the conveyance through the exe rtion of UNDUE INFLUENCE (con- duct by a person that dominates and destroys the free will of another). If the conduct of the defendant goes beyond persuading the plaintiff to convey—if it encompasses violence, threats of violence or restraint, or ot her injury—there is an even stronger case for charging the transferee as a constructive trustee on the ground of duress. Fraudulent Misrepresentation or Concealment The courts hold in numerous cases that a transferee who uses fraud to obtain the transfer of property is a constructive trustee. Such situations might involve an affirmative assertion of the truth of a material fact or concealment of the existence of a material fact when there was a duty to speak. The state of the defendant’s mind is a material fact and might be a basis for a constructive trust—such as when the defendant promises to use the property for certain purposes beneficial to the plaintiff but intends at the time of the transfer to retain it for himself or herself. The defrauded party can also proceed on the theory of setting aside the transfer, which is substantially equivalent to obtaining a constructive trust, or the defrauded party can sue for damages. Property Obtained by Homicide If a person obtains property through a will or INTESTACY by wrongfully and intentionally killing the owner, a constructive trust can be decreed as to the property obtained. The beneficiaries of the constructive trust imposed on the murderer are those persons who would have taken by intestacy or will or otherwise from the mur- dered person, as if the murderer had prede- ceased the victim. Statutes in many states prevent the mur- derer from acquiring or retaining the property of the victim. They vary from state to state, but most require that the excluded person must be convicted of wrongfully and intentionally causing the deat h of the property owner. None applies to negligent killing. It is not necessary for the murderer to have committed the crime for the purpose of acquiring the property. The statutes apply if the murderer commits suicide immediately after killing the property holder. They do not apply, however, to an insane murderer or to one who kills in SELF-DEFENSE. Gift by Will or Intestacy Based upon Broken Promise If a property owner is induced to make an absolute gift to the defend ant by will due to reliance on an oral promise by the defendant to apply all or part of the property to the use of another designated person and, after the death of the TESTATOR, the defendant refuses to do as promised, he or she can be made a constructive trustee. The same result will hold when the property owner is induced to die INTESTATE on the faith of an oral agreement by his or her heir or next of kin. If the recipient by will or intestacy promises to hold for others to be later described by the property owner and no description is commu- nicated to the recipient until afte r the death of the property owner, the recipient will hold as a trustee of a RESULTING TRUST for the heirs, next of kin, or residuary legatees or devisees of the property owner. No trust will be established for the intended beneficiaries but such persons might take the property as the recipients of the resulting trust. If a will provides that a gift is to be made to a recipient as trustee, but no description of the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSTRUCTIVE TRUST 145 beneficiary appears in the will, and the recipient verbally agrees to hold it for beneficiaries who are orally or otherwise informally described to the recipient, the successors of the DECEDENT can enforce a resulting trust in their favor against the recipient. The courts rely on the argument that a property owner who wishes the property to pass to others than the heirs at his or her death must give it to those others by a formally executed will. Breach of Express Trust by Disloyalty If a trustee of an express trust acquires property by a breach of trust—for example, by a violation of an obligation to be loyal to the beneficiary—a constructive trust can be imposed on such property. The constructive trust can be applied not only to the property originally obtained by disloyalty, but also to its products and proceeds. It can be used against persons who succeed the disloyal trustee as the owner of the products of the disloyalty if they are not bona fide purchasers. It is immaterial that the trustee acted innocently because of ignorance or in the belief that the conduct was not disloyal. It is unneces- sary to prove that the acquisition of the property by disloyalty damaged the beneficiary, since it is sufficient to show the receipt by the trustee of property obtained by breach of his or her duty. In addition, the duty and the remedy exist with respect to persons who are in a CONFIDEN- TIAL RELATION . This term has no exact definition but entails dominance and superiority of one individual over another because of such ele- ments as a close familiar relationship, an enduring practice of entrusting business matters to the knowledge of a confidant, and differences in age, health, and education. Breach of Duty in Direct Dealing with Beneficiary The trustee has a duty to make a complete disclosure and to treat the beneficiary with the utmost fairness when there is a direct convey- ance, contract, or other transaction between them. This duty extends to everyone who acts as a fiduciary and to persons in a confidential relation, similar to the duty of loyalty in the administration of a trust. It is a dut y arising from the superiority and dominance of the fiduciary and the danger of overreaching or undue influence. The trustee or other representative can be declared a constructive trustee of any property obtained through a transaction where there was a breach of the duty to make full disclosure and to act fairly. Such clearly inequitable conduct justifies the imposition of a constructive trust. If, therefore, a trustee purchases the interest of one of the beneficiaries under the trust for an inadequate price, without revealing facts that the beneficiary did not know concerning the value of the interest being sold, and later the trustee realizes a profit on the transaction, a constructive trust can be imposed to remove this gain from the trustee. Statute of Frauds The STATUTE OF FRAUDS,anoldENGLISH LAW adopted in the United States that requires certain contracts to be in writing, does not apply to constructive trusts. The courts create constructive trusts, whether the evidence on which they are based is oral or written and whether the property involved is real or personal. However, public policy favors the security of titles to property. Therefore, reluctant to disturb record title or other apparent ownership, courts require the plaintiff to prove his or her case for a constructive trust by clear and convincing evidence. In nearly all suits to establish con- structive trusts, the defendant appears to be the complete owner of the property, by virtue of deeds, wills, records, or otherwise. As a result, the courts reject the plaintiff’s claim if the evidence is vague, conflicting, or dubious. Breach of Unenforceable Contract to Convey Ordinarily the breach of an ORAL CONTRACT to convey realty by deed or will is not a basis for charging the defendant as a constructive trustee, where the defendant employs the statute of frauds as a defense and refuses to perform the contract. The statute provides that contracts to convey interests in land are not enforceable when they are not in writing and no memoran- dum was signed by the seller. To decree a constructive trust in such a case would usually constitute an evasion of the statute. The plaintiff can be protected adequately by an award of damages that, in effect, mandates a return of any consideration paid for the promise to convey. With respect to the breach of some contracts, however, the constructive trust is occasionally used to prevent UNJUST ENRICHMENT, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 146 CONSTRUCTIVE TRUST as in the case of a contract to leave property by will in return for personal services that have been rendered, the value of which is not computable in money. Breach of Oral Trust of Realty by Retention of Property When the plaintiff conveys land by ABSOLUTE DEED (a document that transfers real property without restriction) based on an oral promise by the defendant to hold it in trust for the plaintiff or for a third person, and the defendant retains the property for his or her own benefit, refusing to execute the trust because it violates the statute of frauds, the majority of courts refuse to make the defendant a constructive trustee for the plaintiff or for the intended beneficiary of the oral trust. The courts reason that to construct a trust in such a case would circumvent the purpose of the statute of frau ds. A minority of courts grant the decree for a constructive trust for the intended beneficiary of the oral trust because they view it as dishonest for the defendant to withhold the land from the intended beneficiary by emplo y- ing the statute. If the defendant obtains the land by misrepresentation of the state of his or her mind as to intended performance of the oral trust or other false statement and later refuses to perform the trust, the court will enforce a constructive trust against him or her. If the defen dant was in a confidential or fiduciary relation with the plaintiff at the time of the deed and the oral promise to hold in trust, the defendant is usually made a construc- tive trustee for the intended beneficiary of the oral trust because the wrong entailed a violation of the relationship by repudiation of the promise. Product of Theft The remedy of constructive trust applies to PERSONAL PROPERTY that is stolen or misappro- priated and used to purchase other property in the name of the perpetrator. A constructive trust in favor of the aggrieved party can be imposed on such property, so long as it remains in the hands of the wrongdoer or any person to whom the wrongdoer transfers it who is not a bona fide purchaser. In order to facilitate the unimpeded flow of commercial transactions, bona fide purchasers are not subject to the application of a constructive trust. FURTHER READINGS Condon, Gerald M., and Jeffrey L. Condon. 2001. Beyond the Grave: The Right Way and the Wrong Way of Leaving Money to Your Children and Others. New York: HarperCollins. Daly, Eugene J. 1994. Thy Will Be Done: A Guide to Wills, Taxation, and Estate Planning for Older Persons. Amherst, N.Y.: Prometheus. Kull, Andrew. 1998. “Restitution in Bankruptcy: Reclama- tion and Constructive Trust.” American Bankruptcy Law Journal 72 (summer). Rapp, Geoffrey. 2000. “Reconsidering Educational Liability: Property-Owners as Litigants, Constructive Trust as Remedy.” Yale Law & Policy Review 18 (fall). Sitarz, Daniel. 1999. Wills and Trusts: Laws of the United States. Carbondale, Ill.: Nova. Weinrib, Laura. 2002. “Reconstructing Family: Constructive Trust at Relational Dissolution.” Harvard Civil Rights- Civil Liberties Law Review 37 (winter). Available online at http://www.law.harvard.edu/students/orgs/crcl/vol37_1/ weinrib.pdf; website home page: http://www.law.harvard. edu (accessed July 15, 2009). CROSS REFERENCES Bona Fid e; Clear and Convincing Proof; Fiduciary; Misrepresentation; Personal Property; Unjust Enrichment. CONSULAR COURT A tribunal convened by public officials who reside in a foreign country to protect the interests of their country for the settlement of civil cases based upon situations that happened in the foreign nation and which is held pursuant to authority granted by treaty. A consular court exercises criminal jurisdic- tion in some instances, but its determinations are reviewable by the courts of the home government. The last of the U.S. consular courts in Morocco was abolished in 1956. CONSULAR LAW SOCIETY Founded in 1940, the Consular Law Society is an association of lawyers serving consulates and/or embassies and other attorneys specializ- ing in related international affairs. Its activities include the presentation of awards and the publication of occasional papers. Membership is by invitation. Committees of the society include Diplomatic and Consular Practice; Governments in Exile; HUMAN RIGHTS; IMMIGRATION and Na tionality; Immunities; International Companies; Interna- tional and Comparative Law; International Dou- ble TAXATION; INTERNATIONAL COPYRIGHT Relations; INTERNATIONAL LAW in U.S. Courts; Neutrality; GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSULAR LAW SOCIETY 147 . from hearing lawsuits instituted GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 142 CONSTITUTIONAL LAW by residents of the state being sued and lawsuits initiated by the governments of foreign. permitted. The Supreme Court’s interpretation of the free press clause has also gone a long way GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 138 CONSTITUTIONAL LAW toward adopting Madison’s sentiments. Comparative Law; International Dou- ble TAXATION; INTERNATIONAL COPYRIGHT Relations; INTERNATIONAL LAW in U.S. Courts; Neutrality; GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSULAR LAW SOCIETY