How The Supreme Court Constitutes America – Guest Essayist: William Morrisey

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In defending the establishment of the United States Supreme Court, Alexander Hamilton maintained that the absence of an independent judicial power had handicapped the government established by the Articles of Confederation. The way the Articles government had been structured made the rule of law–even the modest legislation enacted by Congress–more or less impossible.

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Hosanna-Tabor Evangelical Lutheran Church And School v. Equal Employment Opportunity Commission (2012) (Part 2) – Guest Essayist: John O. Tyler

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Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012): Protecting Religious Liberty in American Schools

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012), the federal government tried to force a church, against its will, to hire a minister to teach in the church’s school. The US Supreme Court held that the federal government could not force the church to do so. Churches are free to shape their faith and mission under the Free Exercise clause by selecting their own ministers and religious teachers. The Establishment Clause prohibits any government involvement in their selection.

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Hosanna-Tabor Evangelical Lutheran Church And School v. Equal Employment Opportunity Commission (2012) – Guest Essayist: Gennie Westbrook

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The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The Supreme Court has interpreted this prohibition to mean that state action that imposes restriction on the free exercise of religion is permitted only when there is a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate…” and even then, only “to prevent grave and immediate danger…”

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Justice Anthony Kennedy (Born 1936) – Guest Essayist: Tony Williams

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Republican President Dwight Eisenhower reputedly said that appointing Chief Justice Earl Warren and Justice William Brennan were among his biggest mistakes as president as they helped usher in a wave of liberal jurisprudence at odds with Eisenhower’s conservative philosophy.  Republican President George H.W. Bush might have said the same about Justice David Souter for the same reasons.  Finally, Republican President Ronald Reagan would have agreed that Justice Anthony Kennedy surprisingly became a swing vote who could lean left.

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Citizens United v. Federal Election Commission (2010) – Guest Essayist: Joerg Knipprath

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In 2011, the Supreme Court decided Brown v. Entertainment Merchants Association (EMA). A California law prohibited the sale of violent video games to minors and required labelling of content and designation of suitable users. Parents would still have the choice to buy video games deemed violent and give them to their children. The law was challenged as violating the free speech rights of minors. Without getting into the raw details, as described in the state’s brief and acknowledged by some of the justices, these games invited the players to torture, murder, and humiliate characters. The attorneys for the purveyors of this entertainment assured the justices that such displays of violence were a traditional teaching tool for America’s youth, and that, unless children have unrestricted opportunity to purchase these materials, freedom of speech would be devastated.

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Crawford v. Marion County Election Board (2008) – Guest Essayist: State Representative David Eastman

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Does the Constitution Give Americans the Right to Vote Without Photo Identification?

In 2005, the State of Indiana passed a state law requiring that most Indiana voters who voted on Election Day would have to show government-issued photo ID before voting. The law provided an exception for those who lived in senior centers, and provided an alternate method of voting if you lost, forgot, or could not afford to get a photo ID. Note: The law also provided free state photo ID’s to those who did not already possess an Indiana driver’s license.

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Bush v. Gore (2000) And Bush v. Palm Beach County Canvassing Board (2000) – Guest Essayist: James D. Best

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The 2000 presidential election came down to who won Florida. Twenty-seven days after the election, the presidency remained undecided. Surrogates for George W. Bush and Al Gore clashed in a close-quarters fight that seemed to have no end.  Both parties persisted and refused to yield. The media filled nearly every broadcast moment and column inch of newsprint with the maneuvers and shenanigans of both parties. The pursuit of minutia, gossip, and a major scoop drove wall-to-wall reporting of the countless twists, turns, and skirmishes.

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McDonald v. Chicago (2010) – Guest Essayist: David Raney

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The U.S. Supreme Court’s 2010 McDonald v. Chicago case considered whether the Second Amendment’s protection of the individual right to possess and use privately-owned firearms as affirmed in the Court’s 2008 District of Columbia v. Heller decision also applies to state and local governments.

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District of Columbia v. Heller (2008) (Part 2) – Guest Essayist: David Raney

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The U.S. Supreme Court’s 2008 District of Columbia v. Heller case considered whether the Second Amendment to the U.S. Constitution protects an individual right to possess and use privately-owned firearms.

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District of Columbia v. Heller (2008) – Guest Essayist: James D. Best

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District of Columbia v. Heller provided clarity to a long and quarrelsome debate about the application of the Second Amendment. The crux of the case was whether the right to “keep and bear arms” was an individual right or a collective right associated with regulated militias. The Supreme Court (5-4) ruled the Second Amendment an individual right.

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Happy Independence Day! Read The Declaration of Independence with your family and friends!

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Click Here to Hear Constituting America Founder & Co-Chair Actress Janine Turner read the Declaration of Independence!

The Declaration of Independence: A Transcription

From the National Archives website: http://www.archives.gov/exhibits/charters/declaration_transcript.html


IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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Gonzales v. Carhart (2007) – Guest Essayist: Steven H. Aden

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Vote: (5 to 4) Majority: Roberts, Scalia, Kennedy, Thomas, and Alito. Dissenters: Stevens, Souter, Ginsburg, Breyer.

Gonzales v. Carhart is one of those rare cases that highlights the difference an election can make to Supreme Court decision-making. While the Justices of the Supreme Court are (arguably) largely immune from political pressure because they serve for life, they are nominated by Presidents and confirmed by Senates that answer to the People. For this reason, the makeup of the Court is unavoidably a product of the political process, and this process can yield strikingly different results depending on the makeup of the bench.

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Cherokee Nation v. Georgia (1831) And Worcester v. Georgia (1832) – Guest Essayist: John Vinzant

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In 1827, the state of Georgia passed several acts that affected the Cherokee Nation within Georgia’s borders.  Georgia extended criminal jurisdiction over crimes committed by Cherokees within the Cherokee Nation.  Traditionally and legally, the Cherokee had their own criminal jurisdiction.  The Georgia legislature also declared the Cherokees had no legal title to the land that the state would respect.  Consequently, surveyors were dispatched with military support to begin surveying Cherokee land for development and settlement.  The governor was authorized to take possession of Cherokee gold mines.  All contracts made between Georgia and the Indians were voided.  Georgia legislators believed the Cherokee, in light of events would leave voluntarily.

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Justice Antonin Scalia (1936-2016) – Guest Essayist: Joerg Knipprath

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During the Senate hearings on his nomination to the Supreme Court, Judge Neil Gorsuch commented, “Justice [Antonin] Scalia’s legacy will live on a lot longer than mine.” Whether or not this is a prophetic remark is too early to tell. However, Judge Gorsuch’s statement recognizes the enormous impact that Scalia has had–and will have–on American constitutional law.

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Lawrence v. Texas (2003), United States v. Windsor (2013) And Obergefell v. Hodges (2015) – Guest Essayist: Daniel A. Cotter

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Lawrence v. Texas (2003), United States v. Windsor (2013) and Obergefell v. Hodges (2015): The June 26th SCOTUS Trifecta by Justice Anthony Kennedy

On June 26, 2015, the Supreme Court of the United States held a special Friday session the week before end of term to announce its decision in Obergefell v. Hodges, in which the Court held that the “Fourteenth Amendment requires a State to license a marriage between two people of the same sex.”  The Obergefell opinion marks the third of three June 26th Supreme Court decisions since 2003 recognizing human rights and protections for gay people. All three were authored by Justice Anthony Kennedy, making him a hero in the LGBT community.

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Roe v. Wade (1973) And Planned Parenthood Of Southeastern PA v. Casey (1992) – Guest Essayist: Tony Williams

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Before the 1960s, all states had stringent laws banning abortions.  The women’s movement of the 1960s demanded access to abortion as one of the rights of women. Abortion rights activists began working at liberalizing state laws on abortion since it was a state issue in the federal system.  The advocacy successfully chipped away at several laws, though by the time of Roe v. Wade in 1973, roughly forty states still had strong laws against abortion.

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Griswold v. Connecticut (1965) – Guest Essayist: Joerg Knipprath

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In June, 1961, the Supreme Court declined to rule on the constitutionality of an 1879 Connecticut law that prohibited the use of contraceptive devices for the purpose of preventing pregnancy, as well as the counseling of such use. The law applied to married and unmarried couples. However, the law had apparently only been enforced once, in 1940, in a test case, where the charges were dismissed after the state supreme court upheld the law. In the more recent challenge, Poe v. Ullman, two couples and their doctor from the Yale University Medical School sought a declaratory judgment that the statute was unconstitutional. The Supreme Court noted that there had been no threat of prosecution by the state, the statute had not been enforced in the past, and contraceptives were freely sold in Connecticut drugstores, so that the case lacked the genuine dispute required by the Constitution for federal court action. Several justices dissented, one of whom, Justice John Marshall Harlan II, would pave the way for the next challenger.

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Justice William J. Brennan, Jr. (1906-1997) – Guest Essayist: Daniel A. Cotter

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Justice William J. Brennan, Jr. (1906-1997): An Associate Justice Who Led the Court and Which is Often Referred to as The Brennan Court

On July 20, 1990, Associate Justice William J. Brennan, Jr. resigned from the Supreme Court of the United States, after serving nearly 34 years (including three months with a recess appointment and two months while his nomination was confirmed).  Only five justices served longer on the Supreme Court and only one justice wrote more opinions.  Brennan was an election year appointment by President Dwight Eisenhower.

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New York Times v. Sullivan (1964) – Guest Essayist: Gennie Westbrook

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A group of well-known civil rights leaders ran a full-page advertisement, “Heed Their Rising Voices,” in the New York Times on March 29, 1960. The ad described an “unprecedented wave of terror” in police attacks and other government sponsored oppression against peaceful demonstrators in Montgomery and other southern cities. The ad closed with a plea for readers to provide both moral support and financial donations to sustain the civil rights movement because America’s “good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs.”

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Justice Hugo Black (1886-1971) – Guest Essayist: Daniel A. Cotter

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Hugo Black (1886-1971): The Justice with the Plain Meaning Approach

Hugo Black served more than thirty-four years on the Supreme Court, the fifth longest tenure in the Court’s history.  During his time on the Court, Black developed a reputation as a justice who strongly believed the United States Constitution was to be given its plain and original meaning.

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Dennis v. United States (1951) – Guest Essayist: State Representative David Eastman

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Is Advocating the Violent Overthrow of the United States a First Amendment Right?

On June 22nd 1940, France surrendered to Germany, and the U.S. House of Representatives passed the Smith Act the very same day. It was believed that the rapid fall of France was due in no small part to subversion by communists allied with Germany. There was concern that U.S. entry into the war might lead to similar subversive plots taking place here in the United States. Most prominently, the Smith Act made it illegal to advocate the violent overthrow of the U.S. government or to form an organization for that purpose. Read more

Chief Justice William Howard Taft (1857-1930) – Guest Essayist: Daniel A. Cotter

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Chief Justice William Howard Taft (1857-1930): The Only Former President to Serve on the Supreme Court of the United States

When Chief Justice Edward White died in May 1910, President Warren G. Harding immediately turned to former President William Howard Taft, who had appointed White to the Supreme Court, to succeed White.  Taft served on the Supreme Court for just less than ten years until his resignation on February 3, 1930. Charles Evans Hughes, another justice whom Taft had appointed to the Supreme Court, replaced Taft as Chief Justice, serving in that role from 1930 to 1941. This column explores William Howard Taft’s career and his Supreme Court tenure and legacy.

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Gitlow v. New York (1925) And Bradenburg v. Ohio (1969) (Part 2) – Guest Essayist: Gennie Westbrook

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Benjamin Gitlow and Clarence Brandenburg would seem to have had little in common, but each was responsible for bringing a case that resulted in an important revolution in interpreting the meaning of free speech.

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Gitlow v. New York (1925) And Bradenburg v. Ohio (1969) – Guest Essayist: Jeffrey Sikkenga

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The late 19th and early 20th Centuries saw the passage of a number of state and federal laws allowing prosecutions for political speech that advocated or implied violence against government. In 1917 and 1918, for example, Congress passed the Espionage Act, the first major federal law against seditious speech since the Sedition Act of 1798.

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Engel v. Vitale (1962) And Everson v. Ewing (1962) (Part 2) – Guest Essayist: Tony Williams

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“Almighty God, we beg Thy blessings upon us, our parents, our teachers, and our country:” Engel v. Vitale (1962)

In the Everson v. Board of Education of Ewing Township (1947), the Supreme Court decided that it was constitutional for the state of New Jersey to reimburse parents for the cost of bus transportation, even to a parochial school. In rendering the decision, the Court attempted to use evidence from the nation’s founding to prove that there was a “wall of separation between church and state.”

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Engel v. Vitale (1962) And Everson v. Ewing (1962) – Guest Essayist: Joseph Knippenberg

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In Engel v. Vitale (370 U.S. 421 [1962]), the Supreme Court took up the question of school prayer and rejected as unconstitutional the New York state practice of beginning each school day with the recitation of the Regent’s Prayer.  It was the first of a series of decisions regarding public prayer that included rejecting recitation of the Lord’s Prayer and the reading of bible verses in schools (Abingdon v. Schempp [1963]), rejecting invocations and benedictions at public school graduation ceremonies (Lee v. Weisman [1992]), rejecting student-led prayer at high school football games (Santa Fe Independent School District v. Doe [2000]), implicitly and conditionally upholding a moment of silence at the beginning of the school day (Wallace v. Jaffree [1985]), and upholding prayer at legislative and other public meetings (Marsh v. Chambers [1983] and Town of Greece v. Galloway [2014]).  While the Court’s doctrine has developed over time—above all, in explicitly distinguishing prayer in schools from prayer in other public settings—many of the issues and many of the problems in its jurisprudence were already evident in this first case.

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Justice Oliver Wendell Holmes, Jr. (1841-1935) – Guest Essayist: Daniel A. Cotter

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Justice Oliver Wendell Holmes, Jr. (1841-1935): The Oldest Justice at Retirement from the Supreme Court              

I, Justice Oliver Wendell Holmes, Jr., after serving as a Massachusetts Supreme Court judge for twenty years, was nominated to a vacancy on the Supreme Court of the United States and served for almost thirty years on the highest court in the nation, retiring at age 90.  Justice Holmes took his seat on the United States Supreme Court in 1902, at the age of 61, becoming the 58th Justice of the Supreme Court, and one of the most quoted justices in the Supreme Court’s history as well as one of the best known of the justices.    
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Abrams v. United States (1919) – Guest Essayist: Joerg Knipprath

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“Congress shall make no law…abridging the freedom of speech, or of the press ….” Though there is some debate over its original meaning, the First Amendment is commonly thought to have prohibited administrative prior restraint on public speaking or writing. Still, a speaker or publisher was responsible for the consequences of his words. If the words were, broadly speaking, directed to incite people against the established authority of the government, it was common to punish such spoken words as sedition and printed words as seditious libel.

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Richmond v. J.A. Croson Co. (1989) – Guest Essayist: Tony Williams

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“A Puzzle Inside an Enigma: Untangling Affirmative Action”

In Regents of the University of California v. Bakke (1978), the Supreme Court invalidated fixed quota systems for affirmative action as a remedy for historic racism, but decided that using race as a factor in college admissions was constitutional. It was a confusing decision with a 4-4-1 vote with the justices all concurring in part and dissenting in part (and resulting in a 5-4 decision). Bakke did very little to settle the constitutionality of affirmative action or even to clarify the issue—indeed, it only confused the issue further.

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Griggs v. Duke Power (1971), California v. Bakke (1978), USWA v. Weber (1979), Fullilove v. Klutznick (1980) – Guest Essayist: Gennie Westbrook

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The 1950s and 1960s saw significant gains for civil rights of African Americans. In the 1950s, the U.S. Supreme Court ordered public schools desegregated and the non-violent civil rights movement led by Dr. Martin Luther King, Jr. kept the continuing disadvantages faced by African Americans in the public eye. In the 1960s, federal laws protecting civil rights, voting rights, and housing rights began to chip away at the injustices resulting from racial prejudice and discrimination. In the 1970s the movement continued, focusing on additional perplexing questions related to the constitutional principle of equality in employment and college admissions.

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Chief Justice Earl Warren (1891-1974) – Guest Essayist: Daniel Cotter

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Earl Warren: The Governor from California Becomes The 14th Chief Justice

Nine chief justices and nearly 120 years separate John Marshall from Earl Warren.  While each chief has influenced the Supreme Court and helped to shape its history, Warren and Marshall are often mentioned together as the greatest of the 17 chiefs.  This column explores Earl Warren’s career and his Supreme Court tenure and legacy.
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Bolling v. Sharpe (1954) And Brown v. Topeka Board Of Education (1954) And Cooper v. Aaron (1958) – Guest Essayist: Tony Williams

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Brown v. Board of Education of Topeka (1954)

In December 1952, African-American lawyer Thurgood Marshall appeared before the Supreme Court representing a seven-year-old black girl from Topeka, Kansas named Linda Brown who had to ride the bus to her segregated black school instead of walking to the neighborhood school.  Marshall and other NAACP Legal Defense Fund lawyers were there for three days of oral arguments in five consolidated cases dealing with segregated schools.  Three hundred spectators packed the hearing room while four hundred anxiously waited in the corridors.

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United States v. Carolene Products Co. (1938) (Part 2) – Guest Essayist: Robert Lowry Clinton

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United States v. Carolene Products Co. 304 U. S. 144 (1938)

This case belongs to a string of cases dating from the late nineteenth century involving substitute or imitation dairy products. Carolene Products arose from a controversy over “Milnut,” a beverage made from mixing skimmed milk with another product that is not milk fat (usually vegetable oil, in this case, coconut oil). In 1923, Congress passed the Filled Milk Act, which prohibited the transportation of filled milk in interstate commerce. Despite the fact that congressional investigators concluded that filled milk was not harmful in itself but was problematic only when falsely labelled and marketed as real milk, the statute nonetheless declared that filled milk was “an adulterated article of food, injurious to the public health,” and a “fraud upon the public.”

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United States v. Carolene Products Co. (1938) – Guest Essayist: William Morrisey

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United States v. Carolene Products Co. 304 U. S. 144 (1938)

If you concede the constitutionality of the administrative state, where does that leave citizens’ liberties? That is, if you claim(some might say pretend) that the United States Constitution authorizes unelected, tenured officials the power to frame, enforce, and adjudicate laws you grant a privilege that looks very much like the abrogation of the Constitution’s separation of powers, brushing aside Thomas Jefferson’s maxim that the accumulation of these powers in one set of hands is the definition of tyranny. Under these circumstances, how will citizens’ liberties be protected? Who will do it? This is the question addressed in the Carolene Products case–specifically, in the fourth footnote to the majority opinion, written by Justice Harlan Stone. It has been described as the most famous footnote in the history of the Court.

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Jones v. Alfred H. Mayer Co. (1968) – Guest Essayist: Gennie Westbrook

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In the Civil Rights Cases of 1883, the Supreme Court had ruled 8-1 that the Civil Rights Act of 1875, outlawing racial discrimination in most public places, was unconstitutional. The owners of businesses such as railroads, theatres, and hotels could impose segregation in their facilities, or they could refuse to serve African Americans altogether. The Court adopted a narrow reading of the Civil War amendments, ruling relative to the Thirteenth Amendment that such segregation was not a “badge or incident of slavery,” and that the protections of the Fourteenth Amendment applied against state action, not against private behavior. African Americans endured legal, economic, and social discrimination, as well as brutal and systemic racial violence with little hope of relief for the next seven decades.

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A Memorial Day Message by Constituting America Founder & Co-Chair Janine Turner

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Constituting America first published this message from Founder & Co-Chair Janine Turner over Memorial Day Weekend, 2010, the inaugural year of our organization.  We are pleased to share it with you again, as we celebrate our 7th birthday!  

On this Memorial Day weekend, I think it is appropriate to truly contemplate and think about the soldiers and families who have sacrificed their lives and loved ones, and given their time and dedication to our country.

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The Insular Cases (1901) – Guest Essayist: Joerg Knipprath

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A large mural in the Capitol Building in Washington is titled “Westward the Course of Empire Takes Its Way.” It was painted by Emanuel Leutze in 1861 as a representation of Manifest Destiny, the optimistic world view of 19th century Americans that the country inevitably would be settled from the Atlantic Ocean to the Pacific. Manifest destiny was not a strategy or even a policy, but a slogan that represented an aspiration. It was the emergence of an American Empire. It might be a republic in form, but it would be an empire in expanse, wealth, and glory. The term was frequently used even by good American republicans, such as Thomas Jefferson, James Madison and John Marshall, when discussing their political philosophy.

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Justice John Marshall Harlan (1833-1911) – Guest Essayist: Daniel A. Cotter

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John Marshall Harlan: The Great Dissenter

John Marshall Harlan served more than thirty-three years on the Supreme Court, the sixth longest term in the Court’s history.  During his long tenure, Harlan became known as “The Great Dissenter,” signing more than 300 dissenting opinions from 1877-1911.  Harlan’s grandson, John Marshall Harlan II, would later also serve on the Supreme Court.

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Plessy v. Ferguson (1896) – Guest Essayist: Daniel A. Cotter

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In 1890, Louisiana passed the Separate Car Act which required railroads to provide separate accommodations, including separate cars, for blacks and whites.  A group of Creoles and blacks in New Orleans formed a committee, the Citizens’ Committee to Test the Constitutionality of the Separate Car Law, to challenge this law.  Homer Plessy, whose light-colored skin made him appear to be white but was classified as “colored” under Louisiana law because he was one-eighth black, agreed to bring a test case on behalf of the Committee. He bought a first class ticket and boarded a train in New Orleans in a “whites only” car.  Plessy was arrested by a detective who had been hired by the Committee to ensure that Plessy would be charged with violating the Separate Car Act.  The Louisiana court found Plessy guilty of violating that Act and Plessy sought Supreme Court review of that ruling.  The Supreme Court heard the case, with the main issues being whether the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution and whether the Separate Car Act labeled blacks with a badge of inferiority.

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Civil Rights Cases (1883) – Guest Essayist: Gennie Westbrook

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The Thirteenth Amendment to the U.S. Constitution, ratified in 1865, outlawed slavery throughout the United States. The Fourteenth Amendment, ratified in 1868, defined citizenship and prohibited the states from violating equal protection and due process of law for all persons. During Reconstruction following the Civil War, states of the former Confederate States of America were required to ratify these amendments before readmission to the Union, and as long as Union troops occupied the defeated South, the rights of African Americans were somewhat protected. Once Reconstruction formally drew to a close in 1876, however, freedmen and their descendants lost these constitutional legal protections and were unable to put into effect their rights to life, liberty, and property.

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Justice Stephen J. Field (1816-1899) – Guest Essayist: Joerg Knipprath

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It is an understatement to describe Stephen Johnson Field as a giant among Supreme Court justices. He served more than 34 years on the Court, longer than any but Justice William Douglas. He authored 544 opinions, exceeded only by Justice Samuel Miller. He and his fellow justices during the 1880s, including Miller, Joseph Bradley, and John Marshall Harlan composed what, collectively, was likely the most intellectual bench in Supreme Court history.

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The Slaughterhouse Cases (1873) – Guest Essayist: Joerg Knipprath

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Presiding over a trial in the federal Circuit Court in Corfield v. Coryell (1825) to recover a seized vessel, Supreme Court Justice Bushrod Washington took the occasion to ponder the expansive scope of the Privileges and Immunities Clause of Article IV of the Constitution. Because the clause is to facilitate interstate comity and harmony, it protects citizens traveling from one state to another against having the host state abridge their rights compared to those enjoyed by its own citizens, simply on account of the visitors’ out-of-state status. Not all rights are equally important, so Washington attempted a definition. The rights were those “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.”

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Chief Justice Roger B. Taney (1777-1864) (Part 2) – Guest Essayist: Tony Williams

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Roger B. Taney was born and raised on a southern Maryland tobacco plantation.  He attended Dickinson College and received a classical education before reading law under Jeremiah Chase, one of three judges on the state’s General Court.  He passed the bar exam and married the sister of his close friend, Francis Scott Key.  He entered politics and won a seat in the Maryland House as a Federalist.  He supported the War of 1812 and broke with the Federalists over their opposition to the war.  He adopted Jeffersonian views that would lay the foundation for the rise of the Democratic Party.

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Chief Justice Roger B. Taney (1777-1864) – Guest Essayist: Daniel A. Cotter

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Supreme Court Chief Justice John Marshall, the fourth Chief Justice, served thirty-four-and-a half years in that role. Roger B. Taney, who succeeded Marshall, served for twenty-eight-and-a- half years, including during almost the entirety of the Civil War. (Marshall and Taney are, respectively, the first- and second- longest serving Chief Justices.)  

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Ex Parte Merryman (1861) – Guest Essayist: Allen Guelzo

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On April 27, 1861, President Abraham Lincoln took one of the most dramatic steps ever taken by an American chief executive, and suspended the privilege of the writ of habeas corpus. He did so, under a provision in Article 1, section 9 of the Constitution: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. But the rationale for the suspension, as well as the significance of the suspension itself, caused the most profound constitutional conflict in American history.     

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Dred Scott v. Sanford (1857) (Part 2) – Guest Essayist: Tony Williams

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Arrogance & Injustice in the Dred Scott v. Sandford (1857) Case

In the 1850s, the United States was deeply divided over the issue of slavery and its expansion into the West. The northern and southern sections of the country had been arguing over the expansion of slavery into the western territories for decades. The Missouri Compromise of 1820 had divided the Louisiana Territory at 36’30° with new states north of the line free states and south of the lines slave states. The territory acquired in the Mexican War of 1846 triggered the sectional debate again. In 1850, Senator Henry Clay of Kentucky engineered the Compromise of 1850 to settle the dispute. But, in 1854, the Kansas-Nebraska Act permitted settlers to decide whether the states would be free or slave according to the principle of “popular sovereignty.” Pro and anti-slavery settlers rushed to Kansas and violence and murder erupted in “Bleeding Kansas.” Meanwhile, southern talk of secession was in the air, and observers warned of civil war.
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Dred Scott v. Sandford (1857) – Guest Essayist: Daniel A. Cotter

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Dred Scott was born into slavery in Virginia around 1799, but was moved to Missouri where he was sold to Dr. John Emerson, an army surgeon.  Given Dr. Emerson’s military career, he moved frequently and took Scott with him.  Eventually, Dr. Emerson moved with Scott to the State of Illinois and the Territory of Wisconsin, both free territories.  While in the Wisconsin Territory, Scott married Harriett Robinson, another slave who was also sold to Dr. Emerson.  In 1838, Dr. Emerson married Eliza Irene Sandford from St. Louis.  In 1843, Dr. Emerson died shortly after returning to his family from the Seminole War in Florida.  His slaves continued to work for Mrs. Emerson and were, as was common at the time, occasionally hired out to others.  In 1846, Dred and Harriet Scott each filed suit in St. Louis to obtain their freedom, on the basis that they had lived in a free state and territory, and the rule in Missouri and some other jurisdictions at the time was “once free, always free.”  When the suit reached the Supreme Court of the United States, the main issue presented was whether slaves had standing to sue in federal courts.

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Furman v. Georgia (1972) – Guest Essayist: State Representative David Eastman

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Is the Death Penalty Cruel and Unusual Punishment?

Furman v. Georgia was another 5-4 decision by the United States Supreme Court; meaning, that if any one of the nine justices on the Supreme Court had changed their mind, the result would have been very different. The case dealt with three men who had been convicted in either Georgia or Texas. Two of the men were convicted of rape. The third was convicted of murder. All three men were given the death sentence following separate jury trials. 

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Palko v. Connecticut (1937) – Guest Essayist: Robert Lowry Clinton

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Palko v. Connecticut resulted from the appeal of a capital murder conviction. Palko was charged with killing a police officer during the commission of an armed robbery. Although he was charged with first degree murder, he was convicted of second degree murder and sentenced to life in prison. The state of Connecticut appealed the sentence, alleging that the trial judge had failed to admit relevant testimony and given erroneous instructions to the jury. The state supreme court ordered a retrial, at the conclusion of which Palko was convicted of first degree murder and sentenced to death. Palko appealed the second conviction and sentence in the state courts but lost, after which he petitioned the United States Supreme Court, arguing that the second trial amounted to double jeopardy in violation of the Fifth Amendment of the United States Constitution, which provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” Palko argued further that protection against double jeopardy was an essential ingredient of the due process of law guaranteed by the Fourteenth Amendment, which provides that no state may deprive a person of life, liberty or property without due process of law. This amendment, designed primarily to safeguard the rights of newly-freed slaves, had been adopted in the aftermath of the Civil War in 1868.

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Meyer v. Nebraska (1923) And Pierce v. Society of Sisters (1925) – Guest Essayist: Joerg Knipprath

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In The Republic, Plato designed his ideal society as one in which the wives and children of the Guardians (the ruling elite) would be held in common. This would prevent the corrosive societal effects of nepotism that result when parents raise their children and, due to their natural affinity, seek to secure wealth and status for their offspring at the expense of the common welfare. The children would be reared by officials of the State: “The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter.” There was also the eugenicist angle: “[B]ut the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.” The “children of gold,” though, would undergo rigorous, State-controlled training to prepare them for their leadership role.

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Chicago, Milwaukee And St. Paul Railroad v. Minnesota (1890) – Guest Essayist: Richard E. Wagner

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Chicago, Milwaukee and St, Paul Railroad v. Minnesota, 134 U.S. 418 (1890) became a landmark case in establishing a new direction for government regulation of business, though that new direction gave way to the coming of the New Deal. Prior to the Chicago, Milwaukee decision, courts had pretty much deferred to legislatures in deciding whether legislation passed constitutional muster. For the most part, courts would not inject themselves into controversies regarding the legislative regulation of business. This changed with the Chicago, Milwaukee decision.

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Ex Parte Vallandigham (1864) And Ex Parte Milligan (1866) – Guest Essayist: Gennie Westbrook

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Article 1 Section 9, Clause 2 of the U.S. Constitution enshrines the “Great Writ,” a protection against arbitrary imprisonment that dates back at least to the Magna Carta of 1215: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” The writ provides that, when government holds a suspect in custody, he has the right to be taken before a judge who determines whether there is good cause for the arrest, and must be released if there is no legitimate reason for government to hold him.

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Pollock v. Farmer’s Loan And Trust Co. (1895) – Guest Essayist: Robert Lowry Clinton

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Pollock v. Farmer’s Loan & Trust Company, 158 U. S. 601 (1895), arose when a stockholder of the company sued to prevent the company from voluntarily paying a tax on its profits. The tax had been assessed pursuant to an act of Congress that levied a tax of two percent per year on incomes over $4,000.00. The act, known as the Wilson-Gorman Tariff Act of 1894, was very broad in scope, and was initially designed to lower tariff rates in response to the Panic of 1893. Evidently many additions and exceptions were added to the bill before its final passage, and President Grover Cleveland, initially supportive of the measure, ultimately allowed the law to be passed without his signature.

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The Legal Tender Cases (1870) – Guest Essayist: Kevin Walsh

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The legal tender controversy involved Supreme Court decisions that spanned a decade and a half beginning in 1870 with Hepburn v. Griswold 75 U.S. 603 (1870), in which the Legal Tender Act of 1862, 12 Stat. 345, making United States Treasury notes legal tender, was invalidated on constitutional grounds.  In Hepburn, Chief Justice Salmon P. Chase, who as secretary of the Treasury during the Civil War was a key player in the Legal Tender Act’s passage, held for the majority that congressional authorization of the notes (also referred to as “fiat currency” or “greenbacks”) to be used as legal tender violated the Fifth Amendment Due Process Clause protecting property.

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Sturges v. Crowninshield (1819) and Ogden v. Saunders (1827) – Guest Essayist: J. Eric Wise

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Bankruptcy Power – Sturges v. Crowninshield, 17 U.S. 122 (1819) and Ogden v. Saunders, 25 U.S. 213 (1827)

Shortly after the first person mixed her labor with a thing and called it “mine,” some person furnished property to another, together with an obligation to return it. With that, the problems of debtor and creditor were born.

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Justice Mahlon Pitney (1858-1924) – Guest Essayist: Richard Epstein

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Mahlon Pitney was appointed to the United States Supreme Court by President William H. Taft in 1912, and served there for ten and one-half years until his retirement in December, 1922.  He is generally regarded as a footnote in the annals of American Supreme Court justices.  But for the ten years that he was on the Court, he was in my view a powerful intellect who often bested both Justices Holmes and Brandeis on the many occasions when their views clashed. 

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Coppage v. Kansas (1915) – Guest Essayist: Gennie Westbrook

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During what Mark Twain called the Gilded Age at the end of the nineteenth century, American commerce grew exponentially and the American economy became the largest in the world. Wealthy industrialists organized their businesses to maximize efficiency and profits, contributing to an increase in buying power for all segments of American society and drawing millions of immigrants from around the world to the United States for opportunity. Workers, toiling long hours in dangerous conditions, sought to organize themselves, too, forming labor unions to bargain collectively for better wages and working conditions. The early attempts at labor solidarity found only very limited success as management blocked their efforts through strike-breaking and intimidation. Conflicting interests between labor and management led to confrontations and violence in several major industries in the intermittent recessions that occurred in the latter decades of the 1800s.

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Adair v. United States (1908) – Guest Essayist: State Representative David Eastman

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Can Congress Discriminate Against Non-Union Members?

In 1898, Congress passed the Erdman Act, making it a crime to fire an employee for belonging to a union. Because the Constitution does not expressly give the federal government the power to regulate employment, Congress limited the law to apply only to employees involved in interstate commerce, thereby taking advantage of a clause in Article I, Section 8 of the Constitution, which states:

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Lochner v. New York (1905) – Guest Essayist: Tony Williams

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Making up Rights?: Lochner v. New York (1905)

In April 1901, Utica, New York bakeshop owner, Joseph Lochner, was arrested for allowing one of his few employees, baker Aman Schmitter, to work more than sixty hours in a week. A grand jury indicted Lochner for violating a New York bakeshop law regulating work hours. In February 1902, he was tried, convicted, and fined fifty dollars for his misdemeanor crime.

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Holden v. Hardy (1898) – Guest Essayist: Gennie Westbrook

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During the late nineteenth and early twentieth centuries, the industrial revolution transformed the American landscape, culture, economy, and relationships between workers and management. The transformation brought significant gains in prosperity for both workers and management, but it also meant laborers worked long hours in dangerous conditions in factories and mines. Workdays of ten to twelve hours were common, with reduction of wages during economic slumps. There was no job security, and lack of safety features led to frequent grisly accidents caused by hazardous working conditions. Workers organized labor unions to bargain collectively for improvements in pay and other working conditions. Management almost always resisted the labor union demands, and each side worked to influence laws in its favor. The United Mine Workers Union was founded in 1890, followed by several other unions organized throughout the 1890s. Also throughout the 1890s, strikes, uprisings, and sometimes violent confrontations between labor and management broke out as workers attempted solidarity in pursuit of better wages, shorter hours, and safer working conditions. Management responded to these initiatives by firing labor union leaders, hiring strike-breakers, intimidating workers, and using political influence to block any lasting legal reforms.

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Justice David J. Brewer (1837-1910) – Guest Essayist: Daniel A. Cotter

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David J. Brewer: Foreign Born Justice Who Sat with His Uncle

David J. Brewer was born on June 20, 1837, in Smyrna, Asia Minor (today Turkey), the fourth of six Supreme Court Justices born outside the United States.  Brewer sat on the Court with his uncle, Stephen J. Field, to date the only relatives to serve contemporaneously, with Brewer serving twenty years on the Court before his death in 1910.

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In re Debs (1895) – Guest Essayist: Gary Porter

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Obstruction of Commerce & the Mail

“Neither snow nor rain nor heat nor gloom of night (nor Pullman Strike) stays these couriers from the swift completion of their appointed rounds.”   This (slightly altered) saying, an inscription found on the General Post Office in New York City, is widely regarded as the motto of the U.S. Postal Service.  It is not, at least not officially, but you get the drift: nothing will be allowed to prevent delivery of the U.S. mail.

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Garcia v. San Antonio Metropolitan Transit Authority (1985) – Guest Essayist: Joerg Knipprath

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In 1976, Americans celebrated a bicentennial, the anniversary of a revolution against an intrusive, heavy-handed, and unresponsive national government. Repeated petitions and remonstrances by the people’s elected local representatives had been dismissed and ignored by the political elite who controlled that far-away national government, and who considered the people ignorant bumpkins. Among the causes of revolution listed in the published indictment of that elite in 1776 had been the chief executive’s use of his quill to veto beneficial laws; his failure to enforce laws properly enacted; his actions and obstructions that clashed with pressing immigration issues; his expansion of uncontrolled bureaucracies, when he “erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance”; his policies that failed to secure the frontier and protect the inhabitants there against violence by marauders; and his encouragement of “domestic insurrections” that threatened social peace. Yet that chief executive had not acted alone. The legislature of that distant government had passed unconstitutional laws, such as those that overrode the people’s own local laws and altered fundamentally the constitutional relationship between the national government and theirs.

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Wickard v. Filburn (1942) – Guest Essayist: Daniel A. Cotter

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In 1938, Congress passed the Agricultural Adjustment Act of 1938 (the “1938 Act”), which it enacted to address and correct provisions of the Agricultural Adjustment Act of 1933 for farm subsidies that the Supreme Court had found unconstitutional.  The 1938 Act established marketing quotas and price controls.  Roscoe Filburn, a farmer in Ohio, admittedly sowed twelve acres of wheat more than he was permitted under the 1938 Act, but none of it was sold on the open market.  Filburn was fined $117.11 for violating the 1938 Act.  Filburn sued, challenging the penalty.  The main issue before the Supreme Court was whether wheat that Filburn used for personal consumption was subject to the quotas imposed by the 1938 Act and whether local commerce could be regulated by the Federal government under the Commerce Clause of the United States Constitution. 

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National League of Cities v. Usery (1976) – Guest Essayist: Nick Dranias

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National League of Cities v. Usery: “I’m Not Dead”

As the Left often does, once they are out of national power, they rediscover the power of state sovereignty. Ironically, they are using it to resist the new administration’s federal immigration policy in formalistically the same way as did the Right during the early days of the Obama administration—albeit in service of an opposite outcome.

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National Labor Relations Board v. Jones And Laughlin Steel Company (1937) – Guest Essayist: Joerg Knipprath

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After his landslide reelection victory in 1936, President Franklin Roosevelt delivered a message to Congress on February 5, 1937, that decried the alleged, but fictional, congestion of judicial dockets due in part, he explained, to the incapacity of aged or infirm judges. He proposed a law that would allow him to appoint up to six new Supreme Court justices in addition to the current number, one for each justice over age 70. He repeated the gist of what came to be known as his Court-packing plan in a “Fireside Chat” to the American people on March 9, 1937.

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Carter v. Carter Coal (1936) – Guest Essayist: Gennie Westbrook

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George Lafayette Carter was a reclusive Virginia industrialist who became a millionaire through business developments based on mining in what became known as the Mountain Empire, encompassing parts of Tennessee, Virginia, Kentucky, and West Virginia. By the time of his death in 1936, he had built his fortune through extensive coal field purchases, founding numerous businesses including Carter Coal and Iron Company. George L. Carter and his wife, Mayetta Wilkinson Carter, had only one child, James Walter Carter. James managed his father’s businesses beginning in 1933.

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Justice Louis D. Brandeis (1856-1941) – Guest Essayist: Daniel A. Cotter

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Louis Brandeis: First Jewish Justice of the Supreme Court

Until 1916, the United States Supreme Court had never had a Jewish justice.  That changed on January 28, 1916, when Louis Brandeis, the “People’s Lawyer,” was nominated to the highest court in the land by President Woodrow Wilson. Brandeis served for almost twenty-three years and authored several significant opinions during his time on the Supreme Court.

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Schechter Poultry Corp v. U.S. (1935) – Guest Essayist: Tony Williams

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The “Sick Chicken” Case: Schechter Poultry Corp v. U.S. (1935)

In 1933, the American economy was mired in the great depths of the Great Depression characterized by unprecedented unemployment and deflation of prices for business and farmers. President Franklin D. Roosevelt and his advisors believed that the problems of the economy were rooted in excessive business competition resulting in low prices, faltering incomes, and underconsumption. In 1933, Congress passed the National Industrial Recovery Act (NIRA) to stimulate business recovery and economic growth as part of the New Deal. The legislation established National Recovery Administration (NRA) as an executive agency to work with business to craft a variety of industrial codes and regulations for entire industries to decrease competition by setting codes within industries. The goal was to set production quotas to increase prices and introduce labor regulations including a minimum wage to benefit workers. The Roosevelt administration sought to prevent “unfair competition,” ironically by allowing business to cooperate in a way that broke antitrust laws.

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Gold Clause Cases (1935) – Guest Essayist: Keith E. Whittington

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Soon after his first inauguration, President Franklin D. Roosevelt tried to close the gold window. At the time, the American currency was tied to the value of gold, and the financial crisis was putting serious pressure on government gold reserves. To deal with the problem, the government devalued the dollar. As an emergency measure, Congress passed a joint resolution declaring that the federal government would no longer recognize any debts that required “payments in gold or a particular kind of coin or currency, or in an amount of money of the United States measured thereby.” During World War I, however, the U.S. Treasury had issued Liberty Bonds that provided that the “principal and interest hereof are payable in United States gold coin of the present standard of value.” Some of those bonds were now due, and creditors filed suit against the federal government demanding payment in the promised gold coin.

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Home Building & Loan v. Blaisdell (1934) – Guest Essayist: James D. Best

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To stem home and farm foreclosures during the Great Depression, Minnesota passed a law which allowed a mortgagor to pay court-determined rent set below the contractual mortgage amount. The mortgage holder could not foreclose as long as the mortgagor paid the reduced rent.

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Nebbia v. New York (1934) – Guest Essayist: Gennie Westbrook

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In the late 1920s, farmers across the country generally did not participate in the prosperity of the decade. They were often unable to sell their crops to distributors for sufficient prices to cover their costs of production. Especially in New York, where the milk industry was the cornerstone of agricultural economy, tension between dairy farmers and distributors resulted in angry confrontations. The Great Depression further exacerbated economic chaos and hardship throughout the American economy, making it even more difficult for farmers to adjust to the economic collapse. One farmer wrote to a local newspaper in 1932, “Every can of milk we sell leaves us further in debt than we were before we produced it. This robbery must stop soon or reform will be too late to help us.” By March and April of 1933, farmers and dairymen in various areas joined together in “Milk Wars” and “Farm Strikes” to try to prevent farm products from getting to towns and cities, in hopes that the resulting scarcity would lead to higher prices. They set up blockades to stop any trucks carrying dairy and farm products, seized the cargo and destroyed it.

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Champion v. Ames (1903) – Guest Essayist: Joerg Knipprath

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The Industrial Revolution created theretofore unimaginable wealth, some of which trickled down as wages to workers in the mills and factories of the 19th century. Though substandard by today’s measure, those wages were sufficiently high and working conditions sufficiently appealing to attract people from farms to the growing cities. Waves of immigrants, mostly impoverished Europeans, flooded the labor pool, as well. That labor surplus depressed wages, which, in turn, kept low-skilled workers poor, at least in relation to the growing middle and upper classes. Churches and other private relief societies undertook the increasingly urgent efforts to ameliorate the poverty of the working class.

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Allgeyer v. Louisiana (1897) – Guest Essayist: Gennie Westbrook

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After the Civil War, United States commerce experienced rapid growth, both among the states and in international markets. Congress passed the Interstate Commerce Act in 1887 regulating interstate trade. Many state legislatures wrote constitutional provisions and statutes intended to protect their states’ businesses from what they perceived as unfair competition from other states.

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United States v. E.C. Knight (1895) – Guest Essayist: Tony Williams

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Federal Regulation and the Rise of Big Business: United States v. E.C. Knight (1895)

The late nineteenth century was a time of business consolidation as the American economy experienced a “great merger movement” with the rise of big business. Through means foul and fair, corporations formed trusts that dominated entire industries to combat competitive pressures that drove prices and at times to monopolize for control. The sugar industry was a part of this consolidation movement.

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Trustees of Dartmouth College v. Woodward (1819) – Guest Essayist: Daniel A. Cotter

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Dartmouth College was chartered in 1769 by King George III. In 1816, over thirty years after the conclusion of the American Revolution, New Hampshire’s legislature attempted to alter Dartmouth College’s charter  by giving  the Governor of New Hampshire authority to appoint trustees to the board and creating a state board with veto power over trustee decisions—in effect, converting the school from a private to a public institution.  The existing trustees filed suit against William Woodward, the newly appointed secretary under the new charter, claiming that the acts of the legislature violated the Constitution.  The main issues presented by the trustees’ suit were whether the Contract Clause of the United States Constitution applied to private corporations and whether the corporate charter of Dartmouth College could be changed by the New Hampshire legislature.

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New Jersey v. Wilson (1812) – Guest Essayist: Gary Porter

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New Jersey v. Wilson, 11 U.S. 7 Cranch 164 164 (1812)

Are the terms of a contract inviolate?  Can a contract run in perpetuity and affect something other than the parties involved?  Can contracts be impaired (modified or broken) without the consent of both parties?    These were the questions facing the Court in 1812 when they accepted an appeal of New Jersey v. Wilson.

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Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897) – Guest Essayist: Daniel A. Cotter

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In October 1880, the Chicago City Council decided to widen Rockwell Street, requiring the City to acquire certain private property owned by individuals and a right-of-way owned by the Chicago, Burlington & Quincy Railroad Company.  The City of Chicago brought a condemnation suit in state court, and the jury awarded compensation to the individuals but only awarded one dollar to the railroad for its right-of-way.  The railroad appealed, asserting that the condemnation was a taking in violation of the Due Process Clause of the Fourteenth Amendment.  The Illinois Supreme Court affirmed the judgment and the railroad thereafter appealed to the United States Supreme Court on a writ of error.  The issue before the Supreme Court was whether a provision in the Bill of Rights to the United States Constitution applies to a state through the Due Process Clause of the Fourteenth Amendment.

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Baker v. Carr (1962) – Guest Essayist: Joerg Knipprath

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In 1962, the Supreme Court embarked on what has been described by one scholar as “the most significant reformist activism in which the Warren Court engaged,” other than civil rights cases involving blacks. The constitutional arena was the apportionment of legislative districts, and the case was Baker v. Carr. Chief Justice Earl Warren called Baker “the most important case of [his] tenure on the Court.” Apportionment is the periodic drawing of lines by a state for its congressional districts and for its state legislative districts. Until Baker, federal courts had stayed out of what Justice Felix Frankfurter in a prior case had called a “political thicket,” because it was a “non-justiciable political question.” Such questions could not be resolved by courts for reasons that Justice William Brennan addressed in Baker.

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San Antonio v. Rodriguez (1973) – Guest Essayist: Gennie Westbrook

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From our nation’s earliest days, the national government has been involved in education, due to its significance in preparation for constructive citizenship in a republican form of government. In 1787 the Northwest Ordinance set aside public lands specifically for the establishment of schools. Through additional grants of land and money, formation of administrative agencies, the G.I. Bill, and court-ordered desegregation, federal policy has influenced education throughout our history, though traditionally the details of implementation were worked out at state and local levels.

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Justice George Sutherland (1862-1942) – Guest Essayist: Daniel A. Cotter

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Justice George Sutherland: One of the Four Horsemen              

Introduction 

In the Supreme Court’s history, six justices were born outside of the United States.  The fifth of those born on foreign soil was George Sutherland (second born in England).  After a career in private practice and public office, Sutherland became an Associate Justice of the Supreme Court in 1923, and would figure prominently in the New Deal jurisprudence as one of the “Four Horsemen” of the Supreme Court.

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Village of Euclid v. Ambler Realty Co. (1926) – Guest Essayist: Richard E. Wagner

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In Euclid v. Ambler, the Supreme Court upheld the right of the Village of Euclid in Ohio, mostly farmland east of Cleveland, to impose zoning restrictions on property owners. Today, zoning is a near-universal practice. While zoning did not originate with the village of Euclid, the Euclid case was the first federal case, and it became a beacon of attraction for zoning upon reaching the Supreme Court. Since Euclid, municipalities in America have had nearly unlimited ability to restrict how landowners can use their property, provided only that they assert that they have a good public purpose in doing so.

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Gelpcke v. City of Dubuque (1863) – Guest Essayist: Gary Porter

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Gelpcke v. City of Dubuque, 68 U.S. 1 Wall. 175 (1863) – “Oscillations” in the Law

On its face, Gelpcke v. Dubuque appears to be about the validity of municipal bonds and not much else, but there were deeper legal issues at play. Namely, who has the ultimate authority to interpret a state constitution or statute, the highest state court or the federal courts (including the Supreme Court)? And when a state supreme court gives a new interpretation to a state statute, does that constitute an amendment of the statute, i.e. does it have the status of “law?” If so, and this has the effect of rendering a contract void, can this then bring the opinion of the state supreme court into conflict with the U.S. Constitution, i.e., the Impairment of Contracts clause?

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Texas v. White (1869) – Guest Essayist: Marshall DeRosa

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TEXAS v. WHITE ET AL., 74 U.S. 700 (1869) is one of the most important decisions made by the Supreme Court, because it addresses the nature of the Union. More specifically, is the Union bound together through the consent of the States or the coercive power of the United States government.

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Prigg v. Pennsylvania (1842) – Guest Essayist: Gennie Westbrook

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In 1776, the Declaration of Independence asserted that “all men are created equal.” And yet, slavery was legal in all thirteen colonies at the time. Beginning with Pennsylvania in 1780, northern states moved toward the revolutionary ideal by enacting gradual abolition statutes. All children born in Pennsylvania after that time were free persons, though any child born to slaves was required to work for his/her mother’s master until age 28.

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Cooley v. Board of Wardens (1851) – Guest Essayist: Joerg Knipprath

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Unlike many of his decisions, Chief Justice John Marshall’s opinion in the foundational case Gibbons v. Ogden (1824), which upheld the right of Gibbons to operate a ferry between Elizabethtown, New Jersey, and New York City in competition with his former partner, Ogden, was well-received by the public. It negated a New York State monopoly grant and struck a blow in favor of restive younger entrepreneurs who hoped to prosper by providing technological innovation and expanding infrastructure as the country’s population and commerce grew.

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Charles River Bridge v. Warren Bridge (1837) – Guest Essayist: Joerg Knipprath

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In 1785, Boston’s population was around 18,000; across the Charles River, Charlestown counted 1,200. Forty years later, Boston’s population had more than tripled, to 60,000; that of Charlestown to 8,000. The need to accommodate the increased travel and commerce between Boston and points inland resulted in protracted litigation before the Supreme Court in the 1830s in the Charles River Bridge v. Warren Bridge case.

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Briscoe v. Bank of Kentucky (1837) – Guest Essayist: Tony Williams

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In 1832, Nicholas Biddle, president of the Second Bank of the United States, applied for an early renewal of the bank’s charter.  He feared that bank opponent, President Andrew Jackson, would move to destroy the bank after he was re-elected.  So, Biddle tried to outmaneuver the president before the election.  His opponent, Henry Clay, and other National Republicans (future Whigs), supported Biddle’s move because they wanted to make it a campaign issue. Both houses of Congress voted to re-charter the bank in July.

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Craig v. Missouri (1830) – Guest Essayist: Daniel A. Cotter

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In 1821, the State of Missouri enacted legislation entitled, “An act for the establishment of loan offices,” which permitted the Missouri Treasurer to issue loan certificates – a form of paper currency issued by the state – up to a total of $200,000.  The Missouri Supreme Court found the loans to be valid, and the appellants submitted a writ of error to the United States Supreme Court.  Missouri Senator Thomas Hart Benton argued the Missouri law was a valid exercise of state sovereignty and also urged the Supreme Court to declare unconstitutional Section 25 of the Judiciary Act of 1789, the putative basis for the Supreme Court’s jurisdiction over the case. The Court decided both issues.

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Barron v. Baltimore (1833) – Guest Essayist: Tony Williams

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In the early 1830s, the city of Baltimore was developing as a bustling urban center and port.  The city diverted the streams around John Barron’s successful wharf and lowered the water level, which negatively impacted his business.  He sued the city to recover his financial losses. 

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Willson v. Black Bird Creek Marsh Company (1829) – Guest Essayist: Andrew Langer

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The Dissolution of the Dormant Commerce Clause:  Willson v. Black Bird Creek Marsh Co.

In The Colorado Kid, author Steven King says, “Sooner or later, everything old is new again.”  This is certainly true when it comes to issues of public policy and constitutional law.  In this essay, we discuss the concept of the “Dormant” Commerce Clause, specifically within the context of navigable waterways.  The issue of who has jurisdiction over “navigable” waters is one that remains a subject of enormous debate—especially as the environmental movement has pushed an ever-more-marginal definition of “navigability” in order to pull more waters under the jurisdiction of the federal government.

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Green v. Biddle (1823) – Guest Essayist: Andrew Langer

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Green v. Biddle: Clear Title and the Relationship of States to the Federal Government

The easy conveyance of clear title to real property is an essential element of both a stable and prosperous civil society. “Clearing” title by conveying “unappropriated” lands to a central government is one way that fledgling or developing nations spur exploration, settlement, and development of lands.  Such was the issue in the 1823 Supreme Court Case, Green v. Biddle, 21 US 1 (1823), wherein the conveyance of certain unappropriated lands from Virginia to the federal government resulted in confusion when much of that land was used to create the state of Kentucky.

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Fletcher v. Peck (1810) – Guest Essayist: Joerg Knipprath

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At the Peace of Paris that ended the Revolutionary War, the United States (defined, as in the Declaration of Independence, as the individual states) were recognized by the British as free and independent. While the British relinquished to those United States territory from the Atlantic to the Mississippi, the several states did not thereby relinquish their own, sometimes conflicting, claims to that land. The Articles of Confederation provided procedures for the settlement of boundary disputes between states under the aegis of Congress and also anticipated that there might be disputes between grantees of land from two different states. Yet, no state was to be deprived of land for the benefit of the United States, so the Confederation Congress could not force the states to cede their western land. Still, a number of states released their claims, so that Congress gained de facto control over those lands and organized the Old Northwest under the Northwest Ordinance of 1787.

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Youngstown Sheet & Tube Co. v. Sawyer (1952) – Guest Essayist: Daniel A. Cotter  

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At times during our nation’s history, the executive branch of the United States government has tested the limits of its power by taking actions that are not explicitly granted to the president or executive branch.  For example, in Youngstown Sheet & Tube Co. v. Sawyer (the “Steel Seizure Case”) (1952), the Supreme Court addressed the issue of executive power during emergencies in the absence of express statutory or Constitutional authority.  The Supreme Court decision spans more than 140 pages, including Justice Hugo Black’s opinion for the majority, holding that President Harry S. Truman had exceeded the limits of the president’s power, as well as concurring opinions from each of the five members of the Court agreeing with Black’s conclusions, and a long dissent by the Chief Justice. The decision and bases for the Steel Seizure Case are hard to discern from the six opinions written to support the majority.  Justice Robert Jackson’s concurrence is often cited to assess the limits of executive power, as it sets forth a categorization that is the most comprehensible of the six opinions.

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United States v. Curtiss-Wright Export Corp. (1936) – Guest Essayist: Daniel A. Cotter

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The three branches of the United States government are often questioned with respect to whether their exercise of powers exceeded the limitations imposed upon them by the United States Constitution. In U.S. v. Curtiss-Wright Export Corp. (1936), the issue was the extent of the president’s and executive branch’s power to conduct the foreign affairs of the United States. The decision has been recognized as a very influential one, establishing the president’s supremacy when it comes to foreign affairs.

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Field v. Clark (1892) – Guest Essayist: Joe Postell

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Can Congress give away its legislative powers to other branches of government, including administrative agencies?  In the case of Field v. Clark, the Supreme Court decisively said “no,” laying down a precedent that stands against much of what our government does today.

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McCulloch v. Maryland (1819) – Guest Essayist: Tony Williams

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In May, 1818, James William McCulloch was a cashier at the Baltimore branch of the Second Bank of the United States.  McCulloch issued a series of bank notes on which the bank did not pay a Maryland state tax.  The state treasurer quickly sued to recover the money and won a judgment in Maryland’s highest court. The Supreme Court soon accepted the case, which would have a profound impact in defining the principle of federalism, the reading of the Necessary and Proper Clause in the Constitution, and the national vision of the Marshall Court.

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Ex Parte McCardle (1869) – Guest Essayist: Joerg Knipprath

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Ex parte McCardle was forged in the superheated atmosphere of Southern reconstruction after the Civil War. The struggle to shape that reconstruction pitted the “Radical” Republicans (representing the pre-war abolitionist wing) against moderates within the party. Democrats, reduced to a rump faction, could do little more than get out of the way and, if palatable, delicately offer support to the Republican moderates. The political and constitutional fault line cut between the restrained Lincoln-Johnson presidential reconstruction based on maintaining the existing federalism, but with abolition of slavery, and the program of congressional radicals to treat the South as a conquered province reduced to territorial status, prostrate before Northern arms and to be cleansed of the twin stains of slavery and secession by stripping the erstwhile states of their old constitutional privileges.

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Propeller Genesee Chief v. Fitzhugh (1851) – Guest Essayist: Joerg Knipprath

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On June 19, 1846, the Rochester, New York, Democrat newspaper reported that over 4,000 people assembled to witness the launch of a new steamship (then often called a “propeller” due to the novel screw propulsion mechanism), the Genesee Chief. She was described as “faultless in her model and appointments.” At 144 feet long, with 20 state rooms, and berths for 75 cabin and 100 steerage passengers, with room for more, she was to be the start of regular steamship service between Rochester and Chicago.

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Justice Joseph Story (1779-1845) – Guest Essayist: Daniel A. Cotter

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Justice Joseph Story: The Youngest Justice Appointed to the Court                

Most lawyers in private practice at the age of 32 are preparing for potential consideration for, and transition to, partnership.  At that same age, after a distinguished government and law firm career in Boston, Joseph Story took his seat on the United States Supreme Court in 1811, becoming the 18th Justice of the Supreme Court and the youngest justice appointed to the Supreme Court.  Story served on the Court for almost thirty-four years, writing a large number of opinions and dissents.  His tenure coincided with those of two of the longest serving Chief Justices in the Supreme Court’s history, John Marshall and Roger B. Taney.

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Swift v. Tyson (1842) – Guest Essayist: Daniel A. Cotter

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Section 34 of the Judiciary Act of 1789 provides that “the laws of the several states, except where the Constitution, treaties or statutes of the United States shall otherwise recognize or provide” were to be applied and followed “as rules of decision in trials at common law.” George Swift, a Maine resident, was assigned a bill of exchange from John Tyson in New York.  The bill was dishonored when it became due, and Swift brought a diversity action in the United States District Court for the Southern District of New York seeking payment.  New York common law held that bills of exchange could not be assigned, and the federal court found in Tyson’s favor on that basis.  Swift appealed to the United States Supreme Court, and the main issue before the court was whether the reference to “the laws of the several states” in Section 34 included common law decisions as well as enacted statutes.

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Cohens v. Virginia (1821) – Guest Essayist: Joerg Knipprath

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Over the years, the Supreme Court has addressed several constitutional topics in cases involving lotteries. Perhaps none is as significant as Chief Justice John Marshall’s opinion in Cohens v. Virginia. The case was the third major act in a decades-long contest over the nature of the Union and, more specifically, over the constitutional relationship between federal and state laws and between the federal and state judiciaries. On the last point the contest directly involved repeated clashes between the United States Supreme Court and the Virginia Court of Appeals (the state supreme court), and between two dominant jurists, Marshall and the chief judge of Virginia, Spencer Roane. Cohens v. Virginia is the climax in the story of those two rivals.

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Chief Justice John Marshall (1755-1835) – Guest Essayist: William Morrisey

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“The Great Chief Justice,” John Marshall (1755-1835)

The longest-serving Chief Justice in our history, author of every major Supreme Court ruling in the first third of the nineteenth century—including the one establishing the principle of judicial review—John Marshall earned undisputed honor as “the Great Chief Justice.” He deserves honor also as a great man.

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Marbury v. Madison (1803) – Guest Essayist: Daniel A. Cotter

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Marbury v. Madison (1803) – A Landmark Decision Establishing The Supreme Court’s Role

In an effort to fill the Chief Justice vacancy on the Supreme Court before leaving office, President John Adams offered the position to John Jay, who declined, citing the lack of dignity and respect of the Supreme Court.  Secretary of State John Marshall was with Adams when Adams received Jay’s rejection letter and, with time running out, Adams offered Marshall the Chief Justice position, which Marshall accepted. The Senate confirmed Marshall on January 27, 1801, and he became Chief Justice.  However, a Democratic-Republican Party-led Congress repealed the Judiciary Act of 1801 (aka the “Midnight Judges Act”) and subsequently replaced it with the Judiciary Act of 1802, causing the Supreme Court to be on hiatus from December 1801 until February 1803.

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The United States Supreme Court: Landmark Decisions and the Justices Who Made Them – Guest Essayist: William Morrisey

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Introduction: Why Study the Landmark Decisions?

What does it mean to “constitute” America?

How would anyone do that? And why?

And what is “America,” anyway?

“America can mean simply the “New World”—the two American continents, “new to the late-Renaissance Europeans who stumbled upon them en route to China, if not to the Asian settlers who’d lived here for centuries. In that sense, hundreds of millions of Americans now live in dozens of countries, under several distinctive forms of government.

Given the prominent display of the Stars-and-Stripes flag on the Constituting America website, no one reading these words will imagine “America” to mean that, here. We mean the United States of America, a particular country in America, which declared its independence, its self-government, from an empire ruled from Europe. To assert self-government requires one to establish the terms and conditions by which that government will proceed. By leaving home, a young man or woman declares independence from parents: Very well then, but how will you live, under your newfound self-rule? You say you want to live at liberty, pursuing happiness, but what’s your plan? Read more