MILITARY OCCUPATION Military occupation occurs when a belligerent state invades the territory of another state with the intention of holding the territory at least temporarily. While hostilities continue, the occupying state is prohibited by INTERNATIONAL LAW from annexing the territory or creating another state out of it, but the occupying state may establish some form of military adminis- tration over the territory and the population. Under the MARTIAL LAW imposed by this regime, residents are required to obey the occupy ing authorities and may be punished for not doing so. Civilians may also be compelled to perform a variety of nonmilitary tasks for the occupying authorities, such as the repair of roads and buildings, provided such work does not con- tribute directly to the enemy war effort. Although the power of the occupying army is broad, the military authorities are obligated under international law to maintain public order, respect private property, and honor individual liberties. Civilians may not be deported to the occupant’s territory to perform forced labor nor impressed into military service on behalf of the occupying army. Although measures may be imposed to protect and maintain the occupying forces, existing laws and administrative rules are not to be changed. Regulations of the Hague Conventions of 1907 and, more importantly, the 1949 GENEVA CONVENTION for the Protection of Civilian Persons in Time of War have attempted to codify and expand the protection afforded the local population during periods of military occupation. CROSS REFERENCE War. MILITIA A group of private citizens who train for military duty in order to be ready to defend their state or country in times of emergency. A militia is distinct from regular military forces, which are units of professional soldiers maintained both in war and peace by the federal government. The U.S. Supreme Court has recognized that the term militia has two meanings in the United States, the “organized militia” and the “unorga- nized militia.” District of Columbia v. Heller,—U.S. —, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The organized militia consists of the NATIONAL GUARD. The National Guard is made up of volunteer s and acts under the dual authority of both the federal and state governments. According to the Consti- tution, Congress can call the National Guard into federal service for three purposes: to enforce federal laws, to suppress insurrections, and to defend against invasions. State govern ors can call upon the National Guard for emergen cies that are prescribed by state law. Unorganized militias consist of all able- bodied men residing within the jurisdiction of a particular state. From that pool of persons, the Supreme Court has granted Congress plenary power to organize the units in order to create an effective fighting force. District of Columbia v. Heller,—U.S.—, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In the first militia act, Congress specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respec- tively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271. In the early 2000s, the un- organized militia of the United States consists of all able-bodied males at least 17 years of age and, with certain exceptions, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States. 10 U.S.C. § 311. The American militia system has its roots in ancient English tradition, dating back to the Anglo-Saxon militia that existed centuries before the Norman Conquest in 1066. This militia, known as the fyrd, consisted of every able-bodied male of military age. It was traditionally used for defense only, and the sovereign could call upon the fyrd to fight if the men would be able to return to their homes by nightfall. Fyrd members were required to supply their own weapons, which they could use only in the service of the king. After 1066 the victorious Normans retained this militia system, and successive English monarchs continued to rely on citizen soldiers for national defense. During the reign of the Tudors (1485–1603), professional forces began to be used in England. Their main task was to train the local militias, which were much less expensive to use than their professional coun- terparts. The major element of training was the muster—a mandatory gathering of all able- bodied free males age 16 to 60, for the purpose of appraising the participants, their weapons, and their horses. Mustering was an ancient ritual, but during her reign Queen Elizabeth I systematized the practice. She req uired musters GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 68 MILITARY OCCUPATION four times per year and authorized payment for those who attended. Even with this enhanced level of organization, musters were as much social occasions as they were military drills. Participants looked forward to musters as an opportunity to eat and drink heavily before engaging in fights and mock battles. When the English began to establish colonies in North America in the seventeenth century, the colonial governments continued to require all able-bodied free men to possess arms and to participate in the colonial militias. Each colony formed its own militia unit, appointing officers, providing training, and building its own for- tifications. The function of each colonial militia was principally to defend the settlers’ homes and villages against Indian raids. Colonial militias were much less effective when used for offensive purposes on extended campaigns far from the militia members’ homes. GEORGE WASHINGTON discovered this when, as a colonel in the Virginia militia, he had great difficulty recruiting enough men to fight the French and Indian War (1754–63). Few men were willing to report for duty. Of those who did, few were well armed, and many quickly deserted the troops and returned home . Some militia officers instituted drafts to recruit more men, but even then, many of the draftees simply paid less-qualified men to report in their places. The British were finally able to win the war when Prime Minister William Pitt made changes in recruiting policies and the military BUREAUCRACY, which made serving in the militia more palatable for the American colonists. After Great Britain defeated France in the French and Indian War, it was left with a greatly enlarged North American empire to manage and finance. Large numbers of British troops were stationed in America. The colonists were expected to quarter them and to pay various taxes and fees, including the well-known STAMP TAX , to finance the troops. These additional taxes were one of the principal grievances that motivated the American colonists to prepare for revolution and to form the select militia units known as the “Minutemen.” This name reflected the fact that the men were trained to respond instantly when called. The Minutemen first saw action when the Massachusetts unit was called to defend the colonists’ military stores at Lexington and Concord on April 19, 1775. During the Revolutionary War American military forces consisted of a combination of state militias; specially trained militia units (such as the Minutemen); and the Continental Army, a small professional force created by Congress. The militia was much more effective than it had been during the French and Indian War because its members were fighting for a cause in which they believed. In addition, the militia system had been reorganized and strengthened: There were more training days, the punishment was more severe for missing musters , and fewer men were exempted from military duty. Even so, militia forces were much less reliable than the profes- sional army, and commanders found it difficult to plan their moves, never knowing exactly how many men would show up and how long they might stay. Ultimately, the militias played a critical role in helping the colonists to defeat the British, supplying enough men to keep the Continental Army going and providing—on very short notice—large numbers of armed men for brief periods of emergency service. When state delegates met in 1787 to create the Constitution for the new United States of America the principal division was between those delegates who favored a strong central govern- ment and those who preferred to leave more power to the states. The former wanted a strong standing military, and the latter argued for greater reliance on the state militias. The issue of a standing military was particularly controversial because many Americans were suspicious of the very concept of a standing army, associating it with the tyranny they had experienced under Great Britain. Nevertheless, because most of the delegates were more concerned about invasion than domestic tyranny, Congress was given the power to create a standing army if it so chose. Advocates of state power did achieve a partial victory, however, in that authority over the state militias was divided between the federal govern- ment and the state governments. Congress was given the authority to organize, arm, and discipline the militia, but states were given the power to appoint officers and provide training. Congress, not the president, was given the power to summon state militias into federal service for just three specific tasks: “to execute the laws of the Union, suppress insurrections, and repel inva- sions” (Art.I,Sec.8,Cls.15,16). Uniform Militia Act During his first term as president, George Washington worked with Secretary of War Henry Knox to reorganize and strengthen the militia. They sent their plan to Congress where GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILITIA 69 there was heated debate. Finally, on May 9, 1792, Congress passed what became known as the Uniform Militia Act (1 Stat. 264). This law remained the basic militia law until the twenti- eth century. It stated that all free, able-bodied white men, age 18 to 45, were required to serve in their state militias and they were obligated to supply themselves with the appropriate firearms and equipment. The law provided certain specifications for how militia units were to be organized, but Congress left many details to the states and declined to include sanctions for states or individuals who failed to comply with the law. As a result, the act had little legal weight and served mostly as a recommendation to the states. All 15 states passed laws in response to the Uniform Militia Act. These laws had some provisions in common, such as the right of the people to keep and bear arms and the exemp- tion of conscientious objectors from military duty. The laws varied in other areas, such as in the frequency of training and the methods for selecting officers. In general, the Uniform Militia Act and the laws passed in response to it created many strong and effective state militias. In addit ion to being an indispensable part of ceremonies and parades , state militia units manned coastal forts, guarded criminals, enforced quarantines, and assisted the police. However, the many state laws prevented the INTEGRATION of the various state militias into a reliable force for federal purposes. The federal government often lacked even basic informa- tion about the strength and organization of the state militias, making it difficult to make full use of them for military purposes. Despite the many weaknesses of the militia system, it continued to receive widespread support in the nineteenth century from politi- cians and the public, who were eager to avoid the expense of a standing army and who viewed the idea of the citizen-soldier as crucial for the maintenance of U.S. freedo m and indepen- dence. In reality, the militia system was often ineffective and unreliable. During the WAR OF 1812, for example, militia units were chronically undermanned and poorly prepared. Despite calls for reforms, the militia system declined steadily during the nineteenth century. Less training was required, fewer men attended, and fewer still had firearms, instead showing up for training with cornstalks and broomsticks. By the 1830s and 1840s, several states had weakened or abolished their systems of compulsory service, relying instead on volun- teers. As a result, the militia units became more ceremonial and elitist in nature; members donned expensive uniforms and equipment to march in parades and other festivals. These volunteer units were useful to state and local authorities because they often assisted the local police in maintaining law and order, which were frequently disrupted by riots and protests, particularly in larger cities. After the Civil War, in which militia units played a crucial role by supplementing the regular armies of both the Union and the CONFEDERACY, the militia system again went into a decline. A shortage of funds required cutbacks in militia programs, and military service became more unattractive as the rapid growth of industrialism led to frequent labor strikes, which the Army was required to police. Ac cording to Russell F. Weigley, a prominent military historian, “The main effect of industrialism seems to have been to reduce inclination and time for amateur soldier- ing, and thus to weaken the militia institutions inherited from the rural past.” Formation of the National Guard One rejuvenating factor for the militia during this time was the formation of the National Guard Association (NGA) in 1879. This organi- zation was formed to represent the militia’s interests before federal and state governments and the public. The name “National Guard” was chosen because most states at the time were already using that term to designate their organized volunteer companies. The leaders of the NGA insisted that their units were an integral part of the U.S. militar y establishment but also maintained the importance of the guard’s connection to individual states. In 1887 the NGA achieved its first victory by persuading Congress to raise the federal annual APPROPRIA- TION to arm the guard to $400,000. At the beginning of the twentieth century, Congress and President WILLIAM MCKINLEY began work to reform the nation’s military structure and operations. Secretary of War Elihu Root saw that the United States needed a workable reserve system, rather than the militia, which still operated under the Uniform Militia Act of 1792. Root worked with leaders from the NGA to create a REORGANIZATION PLAN and the result was the passage of the Dick Act (32 Stat. 775) in 1903. The act was named for Major General Charles Dick who had played a large role in creating and supporting the bill. This act GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 70 MILITIA formally repealed the Uniform Militia Act of 1792 and extended federal involvement with the National Guard in peacetime. More federal funds were made available to state National Guard units, and in return the state units were required to drill their troops 24 times a year, train reservists in summer encampments, and submit to annual inspections by federal officers. In the years leading up to WORLD WAR I, professional officers in the regular army and leaders of the National Guard consistently opposed each other on the issue of establishing a national reserve free from all ties to the states. The NGA contended that National Guard units were the proper national reserve, but military professionals argued that national security could not depend on reserves that had two comman- ders-in-chief and two chains of command— federal and state. In congressional hearings held in 1916, then ex-Secretary of War Root argued against the guard as a reliable reserve: “The idea that forty-eight different governors can be the basis for developing an efficient, mobile national army is quite absurd.” Proponents of a national reserve won the debate. On June 3, 1916, President WOODROW WILSON signed the National Defense Act (39 Stat. 166) that for the first time created reserve components of the regular services under exclu- sive federal control. The act also conferred federal status on the National Guard, with the federal government providing more funding and exert- ing more control over it. National Guard units still reported to the state governors and served on a statewide basis, but guardsmen could now be drafted directly into federal service for the duration of an emergency. Guard members had to take loyalty oaths to the United States as well as to their home states, and the War Department could cut federal aid to the guard unit of any state that failed to comply with the mandates of the act. This basic system established in 1916 has continued to be maintained with few changes over the course of the twentieth century. The state National Guard units report to both the state and federal governments, but when they are called into federal service, state governors lose their authority over them. This state and federal authority conflicted several times in the 1950s and 1960s when guard units from southern states were called into federal service to enforce federal desegregation mandates over the objections of the state governors. Private Militias Private militias are not officially recognized by federal or state governments. They are composed of private citizens who train for armed combat. The formation of private militias became more common in the United States during the 1990s as some political groups armed themselves to demonstrate their opposition to certain policies and practices of the federal government. For example, the Montana Freemen were a private militia group involved in a lengthy standoff with agents of the FEDERAL BUREAU OF INVESTIGATION (FBI) in 1996. The standoff ended peacefully with no bloodshed or loss of life, though several militia members were subsequently convicted and sen- tenced to prison for various crimes including CONSPIRACY,bankFRAUD,andwirefraud. The Oklahoma City Bombing in 1995, which killed 169 people, also had a significant impact on the popularity and perception of private militias in the United States. The attack was carried out by anti-government militia sympathizers Timothy McVeigh and Terry Nichols (McVeigh was later convicted and executed, while Nichols was sentenced to life in prison without the possibility of PAROLE). At the time of the bombing, a federal government report revealed the existence of 858 domestic militias in the United States. Shortly after the bombing, the FBI hired an additional 500 agents to investigate these groups, while legislatures in more than 25 states enacted laws prohibiting unauthorized private militias and other groups engaged in paramilitary training. By 2004 the total number of such groups had declined to approximately 152. Law enforcement officials continue to track militia, citing their extremist beliefs and their propensity for con- spiring to commit acts of violence. FURTHER READINGS Fields, William S., and David T. Hardy. 1992. “The Militia and the Constitution: A Legal History.” Military Law Review 136 (spring). Freilich, Joshua D. 2003. American Militias: State-Level Variations in Militia Activities. New York: LFB Scholarly Pub. LLC. Hardaway, Robert, Elizabeth Gormley, and Bryan Taylor. 2002. “The Inconvenient Militia Clause of the Second Amendment: Why the Supreme Court Declines to Resolve the Debate over the Right to Bear Arms.” St. John’s Journal of Legal Commentary 16 (winter): 41–146. Huhn, Wilson. 1999. “Political Alienation in America and the Legal Premises of the Patriot Movement.” Gonzaga Law Review 34 (spring): 417–43. Mahon, John K. 1983. History of the Militia and the National Guard. New York: Macmillan. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILITIA 71 Maslowski, Peter, and Allan R. Millett. 1994. For the Common Defense: A Military History of the United States. New York: Free Press. Mulloy, D. J. 2004. American Extremism: History, Politics and the Militia Movement. London, New York: Routledge. Uviller, H. Richard, and William G. Merkel. 2002. The Militia and the Right to Arms, or How the Second Amendment Fell Silent. Durham, NC: Duke Univ. Press. Weigley, Russell F. 2000. A Great Civil War: A Military and Political History. Bloomington, IN: Indiana Univ. Press. ——— . 1975. New Dimensions in Military History. Novato, CA: Presidio. ——— . 1967. History of the United States Army. New York: Macmillan. Wolfson, Andrew. 2001. “Militias Dwindle since Oklahoma City Bombing.” USA Today. Available online at www.usatoday.com/news/nation/2001-04-23-mcveigh militias1.htm (accessed October 4, 2003). CROSS REFERENCES Alcohol; Armed Services; Federal Bureau of Investigation; Gun Control; Military Law; Oklahoma City Bombing; Second Amendment; Second Amendment “Private Militias” (In Focus); Tobacco, Firearms, and Explosives, Bureau of MILL One-tenth of one cent: $0.001. A mill rate is used by many localities to compute property taxes. For example, some states levy a one-time nonrecurring tax of two mills per dollar (0.2%) on the fair market value of all notes, bonds, and other obligations for payment of money that are secured by mortgage, deed of trust, or other lien on real property in lieu of all other taxes on such property. v MILL, JOHN STUART John Stuart Mill was the leading English political philosopher of the middle and late nineteenth century. Mill’s writings on individu- al freedom, most notably the essay “On Liberty” (1859), have had a profound influence on U.S. CONSTITUTIONAL LAW.His“libertarian theory” continues to attract those opposed to govern- ment interference in the lives of individuals. Mill was born on May 20, 1806, in London. His father, James Mill, was a leading proponent of UTILITARIANISM, a political theory that claimed that the greatest happiness of the greatest number should be the sole purpose of al l public action. James Mill provided his son with an unorthodox but extensive education. John Mill began studying Greek at the age of three, and by the age of 17 he had completed advanced courses in science, philosophy, psychology, and law. In 1822 Mill began working as a clerk for his father at India House, the large East Indian trading company. He rose to the position of chief of the examiner’s office and stayed with the company until his retireme nt in 1858. Mill’s real passion, however, was political and social philosophy. In 1826 he had a serious mental crisis that caused him to reevaluate the tenets of utilitarianism and to reconsider his own purpose and aim in life. At the same time, he became acquainted with Harriet Taylor, a gifted thinker who would become Mill’s collab- orator and later his wife. Largely ignored by historians, Taylor is now credited as a major contributor to Mill ’s published works. Mill’s essay “On Liberty” remains his major contribution to political thought. He proposed that self-protection is the only reason an individual or the government can interfere with a person’s liberty of action. Outside of prevent- ing harm to others, the state has no legitimate reason to compel a person to act in the way the government wishes. This principle has proved complex in application, because it is difficult to determine which aspects of behavior concern only individuals and which concern other members of society. In chapter two of “On Liberty,” Mill considered the benefits that come from FREEDOM John Stuart Mill 1806–1873 ❖ ❖ ◆ 1806 Born, London, England ◆ 1822 Began work as clerk at India House trading company 1861–65 U.S. Civil War 1843 A System of Logic published ▼▼ ▼▼ 18001800 18501850 18751875 18251825 1865–68 Served in Parliament 1856 Became chief of office at India House 1873 Died, Avignon, France ◆◆ ◆ ◆ 1863 Utilitarianism published 1812–14 War of 1812 ◆ 1848 Principles of Political Economy published ◆◆ 1831 Began twenty-year professional collaboration with Harriet Taylor 1859 "On Liberty" published 1858 Retired from India House 1869 The Subjection of Women published THE WORTH OF A STATE , IN THE LONG RUN , IS THE WORTH OF THE INDIVIDUALS COMPOSING IT . —JOHN STUART MILL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 MILL OF SPEECH. He concluded that, except for speech that is immediately physically harmful to others (like the classic example of the false cry of “fire” in a crowded theater, cited by OLIVER WENDELL HOLMES JR .), no expression of opinion, written or oral, oug ht to be prohibited. Truth can only emerge from the clash of contrary opinions; therefore, robust debate must be permitted. This “ adversarial” theory of the necessary nature of the search for truth and this insistence on the free marketplace of ideas have become central elements of U.S. free speech theory. Mill also applied his principle of liberty to action as well as speech. Mill believed that “experiments of living” maximize the develop- ment of human individuality. Restraints on action should be discouraged, even if the actions are inherently harmful to the individuals who engage in the m. Mill claimed that society should not be allowed to prohibit fornication, the consumption of alcohol, or even POLYGAMY. Mill asserted the i mportance of personal development and the negative impact of conditioning and conformity which he believed tended to stunt or stifle individual development. The liberty he proclaimed was one in which all individuals are equally free to develop innate talents and abilities. He assumed that indivi- duals will naturally tend to be drawn toward what they are good at doing and this natural ability, freely allowed to develop, enhances and contributes to all society. Mill’s other works include A System of Logic (1843), Principles of Political Economy (1848), The Subjection of Women (1869), and Autobiog- raphy (1873). Mill served in Parliament from 1865 to 1868. He was considered a radical because he supported the public ownership of natural resources, compulsory education, BIRTH CON- TROL , and social and legal equality for women. His advocacy of women’s suffrage contributed to the creation of the suffrage movement. Mill died on May 7, 1873, in Avignon, France. FURTHER READINGS Capaldi, Nicholas. 2004. John Stuart Mill: A Biography. New York: Cambridge Univ. Press. Mill, John Stuart. 2008. The Autobiography of John Stuart Mill. Rockville, MD: Arc Manor. Ofseyer, Jeremy J. 1999. “Taking Liberties with John Stuart Mill.” Annual Survey of American Law 1999 (fall). Packe, Michael St. John. 1954. The Life of John Stuart Mill. New York: Macmillan. Passavant, Paul A. 1996. “A Moral Geography of Liberty: John Stuart Mill and American Free Speech Discourse.” Social & Legal Studies 5 (September). Rose, Phyllis. 1984. Parallel Lives: Five Victorian Marriages. New York: Vintage. Ten, Chin Liew, ed. 1999. Mill’s Moral, Political, and Legal Philosophy. Aldershot, Hampshire, England: Ashgate. CROSS REFERENCES Bentham, Jeremy; Libertarianism; Utilitarianism. v MILLER, LOREN Loren Miller was a municipal court judge and housing discrimination specialist whose in- volvement in the early stages of the CIVIL RIGHTS MOVEMENT earned him a reputation as a tena- cious fighter for equal housing opportunities for minorities. Miller was born Jan uary 20, 1903, in Pender, Nebraska, the son of a post–Civil War Loren Miller 1903–1967 ❖ ❖ ◆ 1903 Born, Pender, Neb. 1928 Earned LL.B. from Washburn University, Kansas; admitted to Kansas bar 1954 Became owner and publisher of the California Eagle 1914–18 World War I 1967 Died, Los Angeles, Calif. 1933 Admitted to California bar 1961–73 Vietnam War 1939–45 World War II 1956–60 Served on NAACP's National Legal Committee and its National Board of Directors 1950–53 Korean War ▼▼ ▼▼ 19001900 19501950 19751975 19251925 1948 Supreme Court struck down racially restrictive land covenants in Shelly v. Kraemer ◆ ◆ 1966 The Petitioners: The Story of the Supreme Court of the United States and the Negro published 1964–67 Served on Superior Court of California 1929–33 Worked for California News ◆ ◆ 1961–66 Served as vice president of the NAACP 1954 Supreme Court decided Brown v. Board of Education ◆ GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILLER, LOREN 73 migrant from the South. His family moved to Kansas when he was a boy, and he graduated from high school in Highland, Kansas. Later, he attended the University of Kansas; Howard University; and Washburn University, in Topeka, Kansas, where he earned his bachelor of laws degree in 1928. He was admitted to the Kansas bar the same year, and practiced law there for one year before moving to California to pursue his first interest, journalism. He worked for the California News, a Los Angeles newspaper, from 1929 to 1933. Miller returned to the field of law when he married and was admitted to the California bar in 1933. By the 1940s he was raising his voice in protest over policies and practices that discrim- inated against African Americans. In the wake of WORLD WAR II, many blacks had left their rural and southern homes to seek economic oppor- tunity in California, only to face discrimination and bias, part icularly in housing. By 1947 Miller had represented more than 100 plaintiffs seeking to invalidate housing covenants that prevented blacks from purchasing or renting housing in certain areas. As a board member of the AMERICAN CIVIL LIBERTIES UNION (ACLU), he became a well-known spokesman for the rights of minorities to enjoy equal access to housing and education. He was openly critical of the Federal Housing Authority (FHA), declaring that FHA policies fostered a Jim Crow policy that kept blacks confined to “tight ghettos” and provoked racial tens ion. Commenting on the effect of racially restrictive covenants, he noted that contrary to the claims of those who supported the covenants, residential SEGREGA- TION did not preserve public peace and GENERAL WELFARE but rather resulted in “nothing but bitterness and strife.” In 1954 Miller’s love of journalism promp- ted his return to the newspaper business. He became the owner and publisher of the Cali- fornia Eagle, a weekly newspaper with wide cir- culation in the African American community. He also contributed numerous articles to such journals as the Crisis, the Nation, and Law in Transition. Later, Miller was named cochair of the West Coast legal committee of the National Association for the Advancement of Colored People ( NAACP). In that capacity, he became the first U.S. lawyer to win an unqualified verdict outlawing residential restric- tive covenants in real estate sales that involved FHA or VETERANS ADMINISTRATION (VA) financ- ing. Perhaps the most celebrated case Miller was involved in was Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), in which the U.S. Supreme Court declared that racial covenants on property cannot be enforced by the courts. Miller was one of the first to recognize that bias in housing would be an explosive social issue in the United States. The greatest tension, he predicted, would exist where an all-white area adjoined an all-black area, because “there white Americans stand eternal guard to keep their Negro fellow Americans out.” He de- nounced as “money lenders” and “hucksters of prejudice” the owners of slum properties where many membe rs of minoriti es are forced to live under substandard conditions because of the “artificial housing shortages in the Negro community.” In 1964 Governor Edmund G. Brown of California appointed Miller to the Superior Court of California, where he served until his death. He was vice president of the NAACP (1961–66); a member of the NAACP’s National Legal Committee and of its National Board of Directors (1956–60); a member of the national committee of the ACLU; and vice president of the National Bar Association, an organization of African American attorneys. Miller was also a member of the California Advisory Commis- sion on Civil Rights, vice president of the National Committee against Discrimination in Housing, and a member of the NAACP LEGAL DEFENSE AND EDUCATIONAL FUND . In 1966 Miller wrote The Petitioners: The Story of the Su preme Court of the United States and the Negro, a book that recounts the vital role of the U.S. Supreme Court in shaping the lives of African Americans in the U.S. He and his wife, Juanita Ellsworth Miller, had two sons, Loren Jr., and Edward. Miller died in Los Angeles on July 14, 1967. v MILLER, SAMUEL FREEMAN Samuel Freeman Miller served as an associate justice of the U.S. Supreme Court from 1862 to 1890. During his long tenure on the Court, Miller played a major role in restricting the reach of the FOURTEENTH AMENDMENT into areas of the law reserved to the states. He is most famous for writing the majority opinion in the THE NEGRO HAS BEEN THE WARD OF THE SUPREME COURT OF THE UNITED STATES FOR MORE THAN A HUNDRED YEARS . —LOREN MILLER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 74 MILLER, SAMUEL FREEMAN SLAUGHTER-HOUSE CASES, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873). Miller was born on April 5, 1816, in Richmond, Kentucky, and grew up on a farm. He attended Transylvania University, where he earned a medical degree in 1838. Miller practiced medicine for ten years, and during that time he taught himself law. In 1847 he was admitted to the Kentucky bar, and soon afterward he abandoned his medical practice for a law practice in Knox County, Kentucky. Miller became more interested in politics after he became an attorney. A member of the WHIG PARTY, Miller was opposed to SLAVERY,a position that caused him difficulty in Kentucky as pro-slavery sentiment began to rise. In 1850 he moved to Iowa, which was more tolerant of his antislavery views. He established a law practice in Keokuk, Iowa, and became a promi- nent member of the REPUBLICAN PARTY and a supporter of Abraham Lincoln’s presidential campaign in 1860. Lincoln appointed Miller to the U.S. Supreme Court in 1862, during the most difficult period for the Union during the Civil War. Miller voted to sustain Lincoln’s suspen- sion of HABEAS CORPUS and to try civilians by military courts-martial. Following the war, Miller voted to uphold the constitutionality of LOYALTY OATHS that were required of former Confederates who wished to hold public office. Miller is best known for his majority opinion in the Slaughter-House Cases in 1873. At issue was the scope of the authority in the Fourteenth Amendment, which had been passed in 1868 to guarantee that states could not restrict the constitutional rights of citizens and businesses. The case involved a Louisiana state law that allowed one meat company the exclusive right to slaughter livestock in New Orleans. Other packing companies were required to pay a fee for using the slaughter- houses. Those companies filed suit, claiming that the law violated the PRIVILEGES AND IMMUNI- TIES CLAUSE of the Fourteenth Amendment, which stated that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Miller upheld the Louisiana MONOPOLY law, ruling that the Privileges and Immunities Clause had a limited effect because it only reached privileges and immunities guaranteed by U.S. citizenship, not state citizenship. The law in question concerned state rights; therefore, the Fourteenth Amendment had no effect. In Samuel F. Miller. LIBRARY OF CONGRESS Samuel Freeman Miller 1816–1890 ❖ 1816 Born, Richmond, Ky. ◆ 1838 Earned M.D. from Transylvania University, Ky. 1861–65 U.S. Civil War ▼▼ ▼▼ 18001800 18501850 18751875 19001900 18251825 1873 Wrote majority opinion in Slaughter-House Cases, which limited the scope and effect of the Fourteenth Amendment ◆ 1883 Voted with majority in Civil Rights Cases, which held that private discrimination was not unconstitutional 1812–14 War of 1812 1847 Admitted to Ky. bar 1862–90 Served on U.S. Supreme Court ◆ ❖ 1890 Died, Washington, D.C. ◆ ◆ 1876 Served on electoral commission that decided the disputed Hayes- Tilden election IT DOES NOT FOLLOW , THAT WHEN A WORD WAS USED IN A STATUTE SEVENTY YEARS SINCE , THAT IT MUST BE HELD TO INCLUDE EVERYTHING TO WHICH THE SAME WORD IS APPLIED AT THE PRESENT DAY . —SAMUEL MILLER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILLER, SAMUEL FREEMAN 75 Miller’s view, the Fourteenth Amendment was designed to grant former slaves legal equality, and not to grant expanded rights to the general population. In addition, Miller was concerned that a broad interpretation of the Fourteenth Amendment would give too much power to the federal government and that it could distort the concept of FEDERALISM, which grants the states a large measure of power and autonomy. Having set the standard for interpreting the Fourteenth Amendment, Miller and most members of the Court followed it dur ing the 1870s and 1880s. Miller and the Court struck down state-sponsored RACIAL DISCRIMINATION under the amendment but refused to do the same to private discrimination, most notably in the CIVIL RIGHTS CASES, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835 (1883). In these cases, the Court held that federal laws that banned private discrimi- nation in public transportation and public accommodation were unconstitutional because the Fourteenth Amendment only reaches state- enacted discrimination. In a nonjudicial role, Miller served on the electoral commission that counted the electoral votes in the deadlocked and dis- puted presidential election of 1876 between RUTHERFORD B. HAYES and SAMUEL J. TILDEN. During the 1880s some Republican leaders promoted Miller as a presidential candidate, but nothing came of it. Miller died on October 13, 1890, in Washington, D.C. RESOURCES Fairman, Charles. 2003. Mr. Justice Miller and the Supreme Court, 1862&1890. Clark, NJ: Lawbook Exchange. Hall, Kermit L. 2005. Oxford Companion to the Supreme Court of the United States. 2d ed. New York: Oxford Univ. Press. Ross, Michael A. 2003. Justice of Shattered Dreams: Samuel Freeman Miller and the Supreme Court during the Civil War Era. Baton Rouge: Louisiana State Univ. Press. CROSS REFERENCE States’ Rig hts. MILLER V. CALIFORNIA Arguably the most important in a series of late- twentieth-century Supreme Court cases laying down the definition of OBSCENITY and setting down the boundaries as to how and when communities could regulat e obscene materials. Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) remained the Supreme Court’s final word on most types of PORNOGRA- PHY into the twenty-first century. Whereas the test set down for defining obscenity in Miller v. California has been modified and expanded by subsequent court cases since the original decision was handed down in 1973, it has never been overturned and forms the starting point for nearly all U.S. court cases dealing with obscenity prosecutions. Pre-Miller Obscenity Cases Miller v. California and its companion case, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446, (1973), marked the culmination of a period when the Supreme Court laid down several tests for obscenity, the most famous and succinct of which was Justice Potter Stewart’s comment in his concurrence in Jacobellis v. State of Ohio 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964), “I know it when I see it.” For years, U.S. courts had generally followed the definition of obscenity contained in the 1868 British case, Regina v. 3 L.R Q.B. 360 (1868). That case said the definition of obscenity was “whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” Courts differed as to whether just one passage of the material was sufficient to prove this tendency or whether the work had to be examined as a whole. But in 1957 the Supreme Court explicitly rejected Regina v. Hicklin in ROTH V. UNITED STATES 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498,(1957). In that case, a divided Supreme Court first ruled for the first time that obscenity was beyond constitutional protection. The Court went on to rule that the new standard for judging obscenity was whether to an average person, applying contemporary community standards, the dominant theme of material taken as a whole appealed to prurient interest. In imposing an average person standard, the Court departed from Hicklin’smorebroad definition to allow a finding of obscenity wherever there were “minds open to immoral influences.” Unfortunately, the Supreme Court’s obscen- ity test in Roth seemed to create more problems than it solved, for both lower courts and the high court itself, partially because it proved difficult to determine who the average person in a community was and whether local, state, or GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 76 MILLER V. CALIFORNIA national standards were to be applied in trying to divine this person. Also, measuring the dominance of obscenity within a piece of material was not an easy task for most courts. In ABook Named ‘John Cleland’s Memoirs of a Woman of Pleasure’ v. Attorney General of Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, (1966), the high court further added that the material in question had to be utterly without redeeming social value, a standard that many prosecutors complained was almost impossible to meet. With all the confusion, the stage was set for the court to make a definitive statement on obscenity. This is what the court tried to do in Miller v. California. But for years after the decision was handed down, commentators debated whether the court had succeeded. Miller v. California Under a California obscenity statute, Marvin Miller was convicted for mailing illustrated brochures advertising “adult ” books. The Cali- fornia appeals court used the tests previously enunciated by the court to uphold Miller’s conviction. The Supreme Court took up the case as an opportunity to reconsider its previous holdings. The resulting 5–4 decision imposed a new test for determining obscenity. In a decision written by Chief Justice WARREN BURGER,theCourt imposed a new three-part test for determining whether a work was obscene. Burger wrote: “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying con- temporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” In handing down this decision, Burger reaffirmed that obscenity and pornography are not protected by the FIRST AMENDMENT.He explicitly rejected the “utterly without redeem- ing social value” test in favor of the third prong of his formula, which was viewed as an easier standard for prosecutors to meet. He also stated that no one could be subjected to prosecution “for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hardcore’ sexual conduct specifically defined by the regulating state law, as written or construed.” Burger went further than past Supreme Court decisions in attempting to define w hat would constitute hardcore pornography. While emphasizing that “it is not our function to propose regulatory schemes for the States” he said that “It is possible to give a few plain examples of what a state statute could define for regulation: (a) patently offensive representa- tions or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive rep resentation or descrip- tions of masturbation, excretory functions, and lewd exhibition of the genitals.” The companion case of Paris Adult Theatre I v. Slaton, handed down on the same day, ruled that as long as state laws met the Miller test, they could regulate hardcore pornography even if the showing of such pornography was limited to consenting adults. Chief Justice Burger, who wrote the majority opinion in Paris Adult Theatre, stated that “States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so- called ‘adult’ theaters from which minors are excluded.” Such regulations can be likened to when “legislatures and administrators act to pro- tect the physical environment from POLLUTION and to preserve our resources of forests, streams, and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area,” according to Burger. The Miller and Paris Adult Theatre rulings did not meet with unanimous acclaim even when they were being handed down. In a dissent in Miller , Justice WILLIAM O. DOUGLAS wrote: “I do not think we, the judges, were ever given the constitutiona l power to make defini- tions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply.” Despite such criticisms, both rulings remained the law of the land in regards to obscenity prosecutions. Subsequent Supreme Court rulings imposed a “reasonable person” standard on the third prong “serious value” test and allowed states to impose a more stringent criterion for CHILD PORNOGRAPHY. Miller has been used GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILLER V. CALIFORNIA 77 . The Subjection of Women published THE WORTH OF A STATE , IN THE LONG RUN , IS THE WORTH OF THE INDIVIDUALS COMPOSING IT . —JOHN STUART MILL GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 72 MILL OF SPEECH of the Patriot Movement.” Gonzaga Law Review 34 (spring): 4 17 43. Mahon, John K. 1983. History of the Militia and the National Guard. New York: Macmillan. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD. in creating and supporting the bill. This act GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 70 MILITIA formally repealed the Uniform Militia Act of 179 2 and extended federal involvement with the National