Federalist 62 & 63: Senate Powers For Soundness, Order, Stability Of The Congress – Guest Essayist: Joseph M. Knippenberg

In Federalist #62 and #63, Publius (the pseudonym adopted by authors Alexander Hamilton, James Madison, and John Jay) makes the case for and deals with objections to the Senate as the second of Congress’ two legislative chambers.  Then, as now, our author (in this case, scholars presume, James Madison) has to address a presumption in favor of straightforward and simple democracy, which would mandate a popularly elected legislature, offering proportional representation, whose members serve terms short enough to remind them of their dependence upon the voters.  While those characteristics adequately describe the House of Representatives, Senators were then to be elected indirectly, by state legislatures, for relatively long (six year) terms.  What’s more, each state was entitled to two Senators, so that the largest states had no more influence in that chamber than the smallest states.

Why should our democratic republic have within it a legislative body whose constitution seems to depart so far from democratic principles?  In making his case, Madison first concedes that the character of the Senate is the result,

“not of theory, but ‘of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.’”

A simply consolidated national government that reflected the popular weight of the larger states would not have gotten the consent of the smaller states.  Without the Senate, which treats all states—large and small—equally, there would be no new Constitution, and hence no government with powers adequate to meet the exigencies of the time.

The United States is not only a democratic republic, but also a federal republic, whose national government should have power adequate to deal with the limited set of responsibilities that we the people, in forming our more perfect union, have given it.  The states as states still have a very important role to play in the lives of American citizens.  Their equal representation in the Senate reflects the federal character of the government, acknowledges the importance of the states, and gives them a mechanism (about which more in a moment) by means of which to defend themselves from the encroachment of the national government.

In defending the apparently pragmatic compromise that created the Senate, Madison indicates that its character actually adds certain great strengths to our constitutional system of government.

  • A second legislative chamber “doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy.” The more hoops that have to be jumped through, the more groups that have to be coordinated, the harder it is for men (and women) bent on tyranny to accomplish their aims.
  • A smaller Senate, whose members serve longer terms than their counterparts in the larger House, is supposed to be less susceptible to “the impulse of sudden and violent passions” and less likely “to be seduced by factious leaders into intemperate and pernicious resolutions.”
  • The longer Senate terms also make it much more likely that Senators will gain a “due acquaintance with the objects and principles of legislation.”
  • The longer terms also mean that Senate membership will be stable than that of the House, which militates against a “mutable policy,” which is bad for the country abroad and for people at home. A healthy politics emphasizes and promotes stability, not constant change, enabling people to plan in a predictable environment.  The Senate contributes to the former and tends to resist the latter.
  • Similarly, good legislation typically involves planning for the long term. Legislators who serve long terms do not need to rely on short term successes to win reelection.  The Senate, more than the House, encourages a longer time horizon in its members.
  • Because they do not have to respond to immediate political passions, Senators make it more likely that “the cool and deliberate sense of the community” will “ultimately prevail,” as opposed to the heated passions of the moment.

I emphasize that these are Madison’s judgments and predictions regarding the role of the Senate.  They tell us a lot about what he and his colleagues want from republican government, even if the expectations are not necessarily realized in this day and age.  Thus it is important to note that Madison was very concerned to guard against eruptions of popular passion, above all, as he argues at great length in Federalist #10, tyranny of the majority.  He was also very concerned about legislative factionalism, about a small cabal of politicians who could manipulate the process and have their way against the even the reasonable and just wishes of the people.  Good government, for Madison, is indeed “representative” government, but it is also stable and intelligent government.  A government that merely reflects the heated passions of the moment, mirroring as closely as possible the current state of public opinion, is not thereby good government.  Sometimes “we the people” have to be brought up short, to be slowed down so as to calm down, and to be forced to consider some perspective other than the one closest to our passions or our interests.

As we consider the Senate in 2018, a number of things have changed, some quite dramatically.  In the first place, since the ratification of the Seventeenth Amendment in 1913, the people of each state, not the state legislatures, have elected Senators.  They are thus less explicitly and self-consciously “representatives” of states as states, and much more representatives of larger electoral units serving longer terms of office.  With equal state representation, the Senate still exemplifies the federal character of our constitutional government, but the Senators’ most immediate constituency is not the state legislatures, which are presumably more concerned about protecting state authority (and hence the federal character of our government), than are the people who, as Madison perhaps hoped (see, for example, Federalist #46), would give their attention and principal allegiance to whichever level of government—state or federal—provided “manifest and irresistible proofs of a better administration.”  Senators will care about protecting state authority from federal encroachment largely because, and to the extent that, their constituents care about that.

A second significant change has less immediately to do with the Constitution and more with the character of Congressional elections.  For a number of reasons connected with the relative homogeneity of Congressional districts, the assiduity with which members of Congress serve the needs and interests of their constituents, and the expense of running for office, the overwhelming majority of seats in the House of Representatives are “safe”; most members of Congress who seek reelection win reelection.  Because states are typically more diverse than Congressional districts, because Senate seats are larger political prizes that attract more able and better funded candidates, and because a six year term provides time enough for a changing mood in the public to shift the ground under an incumbent, Senators are actually less politically secure than their counterparts in the House.  As a result, much of what Madison says about political stability and the benefit of having a long time horizon applies at least as much to the House (if not more so) than it does to the Senate.

Still, political diversity at the state level and the consequent competitiveness of Senate elections makes the upper house different from its counterpart on the other side of Capitol Hill.  We are in the middle of a national conversation about partisan gerrymandering that has even made its way to the Supreme Court.  Among the arguments made about districts expertly crafted to favor the political fortunes of one or another political party—make no mistake, both sides do it—is that essentially uncompetitive races in relatively homogeneous districts encourage politicians to move toward the ideological extremes of their parties.  With nothing to be gained electorally from building bipartisan or ideologically diverse coalitions, they are less inclined to compromise.  In Madisonian terms, partisan gerrymanders in House districts facilitate factionalism while Senate elections help combat the “mischiefs of faction.”  While it might be desirable from the point of view of The Federalist to have a relatively wide array of interests in every electoral district, having that feature in most states and hence in most Senate races is surely better than nothing.

I will close by noting the implications of a couple of additional observations Madison makes in the course of defending the Senate from its overzealously democratic critics.  As I said above, he believed that the Senate would militate against the likelihood and deleterious effects of a “mutable policy.”  Here’s what he says in Federalist #62:

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.

Self-government, Madison reminds us, requires that we the people understand more than a little about what government is doing and how it is regulating our lives.  Changeability is indeed a problem, but so is the sheer breadth and detail of contemporary legislation.  Anyone who has tried to make sense of our healthcare legislation or our tax code should feel the force of this argument.  Perhaps the complexity of contemporary life requires this, but we also have to recognize then how this situation challenges our capacity to govern ourselves.  We sometimes complain that, as the old joke goes, “as pro and con are oppositions, Congress is the opposite of progress.”  But it is not clear, to Madison at least, that too much legislation about too many things serves the cause of republican self-government.

In a similar vein, he also observes that legislative hyperactivity gives an “unreasonable advantage” to “the sagacious, the enterprising, and the moneyed few over the industrious and uniformed [ininformed?] mass of the people.  Every new regulation concerning commerce or revenue…presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens.”  Any critic of the political influence of lobbyists could profitably cite this passage written by one of our great founders.  But Madison might suggest that a good point of departure in thinking about how to limit the influence of the sagacious, enterprising, and moneyed few is to consider how many and complicated laws regulating, say, campaign finance actually play to the strength that we are trying to counteract.

We sometimes lose patience with a government, and especially a legislature, that does not move as quickly as we would like.  But for the “cool, deliberate [my emphasis] sense of the people” to prevail, institutions like the Senate, providing one more (and indeed different) hurdle for legislation to jump, ought to be embraced and cherished.  Reconsidering Madison’s arguments in Federalist #62 and #63 might prompt the kind of sober second thoughts about our impatience that we need.

Joseph M. Knippenberg is professor of politics at Oglethorpe University, in Atlanta, GA.

Happy Birthday, James Madison! March 16, 1751 – Federalist Papers 51 & 53 – How The American People Hold Congress Accountable – Guest Essayist: Joerg Knipprath

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Federalist 51 is part of a series of essays in which James Madison addressed the principle of separation of powers and its relation to the preservation of liberty and prevention of tyranny. Federalist 53 discusses the significance of the length of service of the House of Representatives to competent republican government.

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March 15: Federalist 10: Political Stability And Good Governance – Guest Essayist: Richard Wagner

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Federalist No. 10: Controlling the Violence of Faction

The central idea behind the American constitutional republic is expressed in her first constitutional document, the Declaration of Independence: governments derive their just powers from the consent of the governed. This idea is simple to state and hard to implement.

We must recognize that ideas can’t implement themselves. They can be implemented only within some political structure. All political structures entail a tendency for governments to act on behalf of factions within the population, and then to assure us that they are promoting the common interest all the same.

In Federalist No. 10. Madison tells us that “by faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Madison was referring to the ability of some people to use the powers of government to their advantage by imposing disadvantages on other people. Faction is a quality of human nature that resides in our abilities to see our favored projects as especially beneficial for society. Someone might think a marshland would make a wonderful wildlife refuge. That person could always buy the land to create the refuge, perhaps forming a corporation to do so. Doing this, however, would be costly to those who desire the refuge. A cheaper alternative might be to petition a legislature to fund the refuge. In this way, taxpayers who do not value the refuge would be forced to support the refuge. This situation illustrates faction at work: a small but influential group of people can secure support for their favored projects by forcing other people to pay for them.

To some extent, virtue within the citizenry can limit the reach of faction as people refrain from using their powers to exploit other citizens. Yet interest could always override virtue, due to the ability of people to convince themselves that their pet projects are invariably publicly beneficial. For this reason, Madison looked to the constitutional structure of government as an instrument for limiting the reach of faction.

In this respect, the American Constitution featured a strong preference for local government, where people knew one another, over national government where most people were strangers. The American Constitution sought to limit faction by explicitly enumerating the powers of the federal government, with everything not enumerated being limited to states and to individual citizens. For the past century or so, however, this Constitutional limitation has pretty much given way to plenary authority by the federal government.

Between the Revolution initiated in 1776 and the Constitution established in 1789, America was governed under Articles of Confederation. The Articles recognized 13 independent states along with establishing a Continental Congress. That Congress, however, had no ability to tax and regulate individual citizens. All it could do was request support from state legislatures. In February 1787, the Continental Congress established a Convention to meet in Philadelphia to recommend repairs to the Articles. What emerged from that Convention, however, was not repair but a new Constitution that established a national form of government.

What ensued was a two-year period of intense controversy over ratification of the new Constitution. The 85 essays that comprise what we now know as The Federalist were a series of newspaper articles written to support the Constitution against opposition from those who wanted to continue with the Articles. Despite the ensuing controversy, we should note that both proponents and opponents of the new Constitution agreed that the prime purpose of government was to secure individual liberty. They also recognized that intrusive government was the prime danger to liberty, even though it was also recognized that some government was necessary to preserve and protect the American system of liberty.

Madison sought to explain how the proposed Constitution entailed a structure of fragmented and limited powers that would limit the damage created by faction. In being founded on a Constitution of liberty, the American republic expressly rejected the system of feudal duties and obligations that characterized the European societies of the time. Starting around the time of Theodore Roosevelt, however, the Progressivist movement within America has been striving to reinstate some of the status-based relationships of feudal times. This fits the Progressivist vision of government as the principle source of goodness in society. A battle for the soul of America has been underway for about a century, with the principle fault line being whether government is a virtuous artifice that is central to human flourishing, and with faction enabling governments to do their inherently good work, or whether government is a necessary evil that is always in danger of trampling on individual liberty.

Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.

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March 14: James Madison: Guiding The Bill Of Rights Through The U.S. House Of Representatives – Guest Essayist: Tony Williams

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James Madison and the Bill of Rights

On June 8, 1789, a few months after the convening of the First Congress, Representative James Madison arose on the floor and made a speech introducing amendments that would come to be known as the Bill of Rights.  Madison delivered a masterpiece of rhetorical statesmanship that attempted to persuade the Congress to pass a Bill of Rights to protect liberty and produce unity in the new government.

Madison had surprisingly opposed a Bill of Rights when it was introduced at the Constitutional Convention by George Mason and advocated by the Anti-Federalists throughout the ratification debate in the states.  During a long exchange with Thomas Jefferson, then in Paris, Madison privately articulated his reasons for opposing a Bill of Rights.

Most of the Madison’s reasoning was based upon the fact that he believed, along with James Wilson and Alexander Hamilton, that the Founders had created a natural rights republic with enumerated powers in a written constitution.  The rights of mankind were built into the fabric of human nature by God, and government had no powers to alienate an individual’s rights.  He also had witnessed that they were often just “parchment barriers” that overbearing majorities violated in the states.

Although he enumerated several reasons for his opposition, Madison then gave his friend hope when he stated that most important reason in favor of a Bill of Rights was that, “The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the National sentiment, counteract the impulses of interest and passion.”  Madison thought the liberties would become engrained in the American character.

When he arose to give the speech on June 8, Madison faced hostility from several Federalists who thought the House of Representatives had more pressing business. Most representatives and senators thought that the Congress had more important work to do setting up the new government or passing tax bills for revenue. Many thought it was a “tub to the whale,” or a distraction, like the empty tub that sailors would use to draw away a whale’s attention. They were forgetting their promise during the ratification debate to add amendments safeguarding liberties while setting up the new government. Madison wanted to ensure that obligation was fulfilled because he knew that failing to do so sure would strengthen the Anti-Federalist push for a second Convention to alter the Constitution and that it would stir up continuing opposition to the new republic.

Madison began his speech by stating that a Bill of Rights would prove to the Anti-Federalists that the Federalists were “as sincerely devoted to liberty and a republican government.”  In an act of reconciliation and magnanimity, he also reached out to the Anti-Federalists because, “We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution.”

Madison magnanimously completed his lengthy speech by asserting, “If we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men.”

Even though Madison had been one of the strongest opponents of the Bill of Rights, he became the “Father of the Bill of Rights” as he skillfully guided the amendments through the Congress during the summer of 1789.  He reconciled all the various proposals for amendments from the state ratifying conventions and discarded any that would alter the structure of the Constitution or new government. Keeping the amendments protecting essential liberties, Madison developed a list of nineteen amendments and a preamble. He wanted them to be woven into the text of the Constitution, and sought a key amendment to protect religious freedom, a free press, and a trial by jury against violation by state governments. The attempts to have the amendments inserted into the text and applied to the states lost, but he forged ahead anyway. On August 24, the House sent seventeen amendments to the Senate after voting by more than the required two-thirds margin. By September 14, two-thirds of the Senate approved twelve amendments, removing the limitations on state governments. President Washington sent them to the states endorsing the amendments even if he did not have a formal role in their adoption.

Over the next two years, eleven states ratified the Bill of Rights to meet the three-fourths constitutional threshold including North Carolina and Rhode Island. Virginia became the last state to ratify on December 15, 1791. While we rightfully celebrate the Bill of Rights as essential to our liberties, we should not forget that the Constitution created a limited government that is the best guarantee of individual liberties.

Tony Williams is Senior Teaching Fellow at the Bill of Rights Institute; a Constituting America Fellow; author of Washington and Hamilton: The Alliance that Forged America, and Hamilton: An American Biography.

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March 13: Bill Of Rights: Placing Limits On Congressional Governing – Part Three – Guest Essayist: Patrick Garry

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The Bill of Rights comprises the first ten amendment to the U.S. Constitution.  These amendments — containing provisions addressing such matters as freedom of speech and religion, and freedoms from search and seizure and compelled self-incrimination – are often seen as concerned with individual liberties and hence reflecting a different focus than that of the U.S. Constitution, which primarily addresses government structure and powers.  Under this view, the Constitution and the Bill of Rights are seen as separate documents with separate aims.  However, both the Constitution and the Bill of Rights focus on limiting the power of the federal government, although in somewhat different ways.

The debate over ratification of the U.S. Constitution occurred primarily between two groups, known as the Federalists and the Antifederalists.  The former supported passage of the Constitution, with its creation of a strong federal government, while the latter opposed the Constitution, on the grounds that it gave too much power to a potentially abusive central government.  To secure passage of the Constitution, and to address the concerns of the Antifederalists, the Federalists promised that a Bill of Rights would be adopted once the Constitution was ratified.  Thus, the Bill of Rights came into existence through a compromise reached between the Federalists and Antifederalists over the issue of constitutional limits on federal power.

The limitations on government power imposed by the Bill of Rights differ from the limits imposed by the original Constitution.  Provisions on freedom of speech and religion, for instance, as contained in the First Amendment, place substantive restraints on the federal government.  These provisions restrict the federal government from acting in certain substantive areas – e.g., individual speech and religious exercise.  On the other hand, the limitations contained in the original Constitution tended not to deal with substantive areas or issues, but instead created structural limitations that restricted the exercise of government power in general.

Structural limits on government power consisted of the checks and balances imposed by the Constitution’s separation of powers, in which each branch of government could check the power exercised by the other branches, preventing those branches from overstepping their bounds.  Federalism also amounted to a structural limitation, since it allowed the various levels of government – e.g., state, local and federal – to serve as checks and balances on the other levels.

The Bill of Rights provided substantive limits that existed in addition to the structural limits provided in the original Constitution.  For instance, even if the federal government possessed the power to act in a certain way, it could not, pursuant to the First Amendment, use that power to infringe on the freedom of speech or religious exercise.  Consequently, as demanded by the Antifederalists, the Bill of Rights provided yet another level of control and restraint on the use of federal government power under the U.S. Constitution.

Although the Antifederalist concern about limiting the power of the federal government provided the initial impetus for the Bill of Rights, the Bill does more than simply provide a restraint on government action.  It seeks to preserve liberty by protecting particular areas traditionally considered essential to individual freedom and dignity.

In preserving these areas of individual freedom and autonomy, the Bill of Rights also helps to strengthen the democratic fabric of the American political system.  It does so by maintaining the foundations of a democratic society, which in turn sustains a democratic political order.  Individuals can hardly participate in the political process if they do not possess the freedom to speak out on public matters and to hear the viewpoints of others who possess a similar freedom.  Likewise, a political system can hardly be healthy and vibrant if the society underlying it does not reflect the full concerns and values of the individuals living in it.  A society in which individuals are unable to exercise their religious beliefs, for instance, cannot be a free and vibrant society that will produce a healthy democratic governance.

By restricting government’s power to encroach on various areas of liberty, the Bill of Rights attempts to preserve the freedom of individuals to shape and influence the democratic society to which they belong, which in turn shapes and influences the political culture of society, which in turn shapes and influences the actions of the government and the content of the law.  Thus, through the operation of the Bill of Rights, citizens possess greater opportunity to exercise the sovereign and democratic powers envisioned by the U.S. Constitution.

Patrick M. Garry is Professor of Law at the University of South Dakota.

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March 12: Bill Of Rights: Placing Limits On Congressional Governing – Part Two – Guest Essayist: Gary Porter

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A Bill Of Rights Is What The People Are Entitled To … — The People Limit Their Government

“In questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” Thomas Jefferson, 1798.

Sunday, 8 April 1787

Young “Jemmy” Madison, frustrated by what he had observed over the last six years, sat down at his writing desk in his New York City boarding room. After an unseasonably severe winter, the Spring of 1787 was finally becoming pleasant. But Madison had little time to reflect upon the fair weather.

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March 9: Bill Of Rights: Placing Limits On Congressional Governing – Guest Essayist: Andrew Langer

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“Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” – Thomas Jefferson, in a letter to James Madison, December 20, 1787

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March 8: Articles Of Confederation – What The Founders Thought Of The Articles Of Confederation And Why They Did Not Last – Guest Essayist: Patrick Garry

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The Articles of Confederation provided America’s first form of government structure, in effect during the years immediately following independence from Britain and ending with the adoption of the U.S. Constitution in 1789.  The Articles created a very weak national governing structure, which resembled more of a loose confederation of the different states than a single, unified sovereign entity.

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March 7: Articles of Confederation – Congress Wielded All Three Powers: Legislative, Judicial, Executive, Later Separated – Guest Essayist: Daniel A. Cotter

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On November 15, 1777, the Continental Congress approved what was this newly declared independent nation’s first constitution, the Articles of Confederation.  The Articles included a single governing body, the Continental Congress.   Requiring unanimous ratification by all thirteen of the British colonies, it took until March 1, 1781, when Maryland ratified the Articles, for them to become effective.  The Articles governed until 1789, when the United States Constitution replaced the Articles.

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March 6: The Articles Of Confederation: The First Written Constitution Of The United States – Guest Essayist: George Landrith

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After the decisive Battle of Yorktown in October of 1781 where General George Washington’s army defeated and captured the British army commanded by General Charles Cornwallis, the British sued for peace. America had finally won the independence that Jefferson had written about in his famous Declaration formalized by the Continental Congress on July 4, 1776. It took more than five years of war to win that freedom. Now came the difficult task of establishing a nation dedicated to the principles of freedom and self-government.

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March 5: The Declaration Of Independence And The United States Congress – Guest Essayist: Gary Porter

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Most Americans realize that the Declaration of Independence established our separation from Great Britain and that sometime later the U.S. Constitution established the U.S. Congress, the Legislative Branch of government, along with its sister branches: the Executive and the Judiciary.  But most Americans would be surprised to learn that the Congress, through the Constitution, has a connection to the Declaration of Independence as well.  Many view the two documents as separate and distinct; they were, after all, drafted eleven years apart by two different groups of men for different purposes.[1] But the U.S. Supreme Court has affirmed their connection; in Gulf, C. & S. F. R. CO. v. Ellis , 165 U.S. 150 (1897), the Court declared that while the Constitution was indeed the “body and letter” of our government, the Declaration was the “thought and spirit.”

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March 2: What A Republican Form Of Government Means & Why This Structure Mattered To America’s Constitution Framers – Guest Essayist: Joerg Knipprath

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Under Article IV, Section 4, of the Constitution, the United States shall guarantee to each state a republican form of government. That raises the question of what was understood not only by a “republican form” of government, but by the substance of republicanism.

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March 1: Why The Legislative Branch Is Listed First In Article I Of The United States Constitution – Guest Essayist: James D. Best

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The Constitution is comprised of seven articles. Article I defines the powers of the Legislature, Article II defines the power of the executive, and Article III defines the powers of the judiciary. The remaining short articles handle everything that didn’t fit within branch powers.

In the closing days of the Federal Convention, now called the Constitutional Convention, the Committee of Detail delivered twenty-three disjointed sections to the Committee of Style. Gouverneur Morris volunteered to edit the language of the resolutions. He also consolidated the sections, organized the presentation, and prepared a preamble. He wrote with such consummate skill that his words have reverberated through time and distance. Morris took the clumsy and perfunctory preamble from the Committee of Detail and crafted a beloved fifty-two words opening that may be the most important sentence in political history.

Morris cannot take credit for “We the people,” but he can take credit for “We the People of the United States.” The Committee of Detail preamble used “We the people of the States of …” and then listed all thirteen states.

During the convention, Morris argued for a strong executive. Only Alexander Hamilton may have been a stronger nationalist. As the “Penman of the Constitution,” he could have started with executive powers to emphasize the powers of the president. He did not. Why? Four considerations may have led him and the Committee of Style to list legislative powers first.

  1. The Congress under the Articles of Confederation sanctioned the Federal Convention.
  2. The Federal Convention needed Congress to forward the Constitution on to the state ratification conventions.
  3. People would be more comfortable with a strong executive after they saw legislative checks on executive powers.
  4. Congress would be the first branch of the new government. It would validate the election of the president, who would then nominate justices to the Supreme Court.

Congress sanctioned the Federal Convention to recommend amendments to the Articles of Confederation. Instead, the convention invented an entirely new system of government. The convention’s sole claim to legitimacy came from Congress, and they had to get by this same body to ratify the Constitution. Despite popular misperception, the Constitutional Convention did not “ordain and establish” the Constitution. It took independent conventions in each state to accomplish that herculean task. These first two considerations required the Framers to show deference to the old Congress.

Vast presidential powers terrified early Americans. They had first-hand experience with an autocratic executive, and knew from bloody experience that it was difficult to break free from oppressive. The Articles of Confederation were sickly, but a strong president would be hard medicine to swallow. In the design, the Framers insisted on balanced power between the branches, with each branch possessing potent checks on the other branches. Safety through what we call checks and balances. Delegates to the state ratification conventions had not participated in the four months of debate and compromise. This would be all new to them … and the rest of the nation. Legislative checks on the executive might overcome some of the apprehension surrounding a powerful executive.

The Committee of Style completed another vital task. They wrote an audacious letter to Congress that told them how to implement the new government. Not a trivial matter, and in many respects, much like the chicken and egg question. Under these instructions, the sequence of the branches taking oaths of office is the same as listed in the Constitution. The letter states, “the United States in Congress assembled should fix a Day … the Time and Place for commencing Proceedings under this Constitution.” Thus, Congress first. “Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President” And President next, who would then nominate justices for the Supreme Court.

If the three branches are co-equal, then theoretically, it shouldn’t make any difference which branch is described first. Perhaps not for governance, but it made a difference in improving the atmosphere for ratification. The Framers understood that they did not possess the authority to make the Constitution the “supreme Law of the Land.” The Framers believed that power resided solely with the people, and now the people would judge their work. Would they approve? Determined and noisy opposition stood ready on the sidelines, eager to knock down anything that smelled of monarchy. The Framers were politicians. Gifted politicians. They knew the weaknesses of the Articles, the symmetry of the Constitution, and the mood of their countrymen. They took many measures to promote ratification. The sequence of the document may have been one more.

Why is the legislative branch listed first in the United States Constitution? To remove obstacles to ratification, to make acceptance easier, and to facilitate implementation.

Theodore White in his book, In Search of History wrote, “Threading an idea into the slipstream of politics, then into government, then into history… is a craft which I have since come to consider the most important in the world.” This was  the Framers gift … and it is a rare gift indeed.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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February 28: Legislative: Most Important Branch, Of The People, Whose Primary Role Is Lawmaking – Guest Essayist: James Legee

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The contemporary refrain on Congress is that it is the branch of the Federal Government most reviled, and least functional.  Pundits and professional scholars alike speak of gridlock and partisanship; political scientists Norman Ornstein and Thomas E. Mann have decried the branch of the people in a series of books with titles like “The Broken Branch” and “It’s Worse than it Looks.”

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February 27: Since The First U.S. Congress In 1789: Why, When & How The People’s Branch Convenes – Guest Essayist: Tony Williams

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The People’s Branch

In the spring of 1789, several dozen representatives and senators from eleven states (North Carolina and Rhode Island had not yet ratified the Constitution) traveled to New York for the first session of the First Congress. Most fundamentally, they were assembling because the United States had a constitutional republican form of government based upon the consent of the governed.

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February 26: Senate History: Purpose Of The U.S. Senate, The “Cooling Factor” And “Sober Second Thought” – Guest Essayist: James Legee

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The Senate was intended to be the upper house of America’s Congress, a long-serving chamber of sober debate.  Here, the passions of human nature, which history watched manifest into noble appeals to virtue and liberty as often as into the deplorable institution of slavery or the savagery of the French Revolution, were to be calmed and sober reason allowed to prevail.

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February 23: House History: Purpose Of The United States House of Representatives As The Immediate Will Of The People – Guest Essayist: Scot Faulkner

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The reason the U.S. House of Representatives is so different from the U.S. Senate is deeply rooted in the history of representative democracy.

Since the first time hunter gatherers sat around a campfire, leaders depended upon the advice of trusted counselors. These advisors evolved into a lord’s or noble’s Privy Council, and eventually into the “upper chambers” of many democracies, such as Britain’s House of Lords. These members were chosen “from above” – directly by the noble, not “from below” – by the people.  In America, the U.S. Senate was based on being chosen “from above” by State Legislatures until April 8, 1913, when the 17th Amendment to the U.S. Constitution mandated that Senators be directly elected.

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February 22: Beginnings Of The United States Congress Part 2 – Guest Essayist: Marc Clauson

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Legislative assemblies came to be debated first in the seventeenth century, especially in England.  They were also discussed in theory by Thomas Hobbes, John Locke, James Harrington, and Montesquieu, among others.[1]  I will define representation, equating the term with political representation, as “making citizens’ voices, opinions, and perspectives “present” in public deliberation and policy making process” when “political actors speak, advocate, symbolize, and act on behalf of others in the political arena.”[2]  When we think of our own American system, we ought to consider the issues the Founders addressed regarding representation, and “built into” the Constitution:

  1. Why have a legislative body at all, as opposed to a monarch or elected executive?
  2. Who would be represented by Congress, individuals or states, or both?
  3. How many “houses” or chambers of a Congress should be created, and why?
  4. Who would be able to articulate a political “voice” through Congress?
  5. What powers would this legislative body have, given the inevitable inequality of authority?
  6. How would the legislative bodies relate to the other branches, Executive and Judicial, the question of separation of powers and checks and balances?
  7. What should be the “voting rules” (simple majority, super-majority) of Congress for various types of proposed actions?

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February 21: Beginnings Of The United States Congress – Guest Essayist: Tony Williams

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The Constitutional First Congress

As Representative James Madison reflected on the task of the First Congress, he stated, “We are in a wilderness without a single footstep to guide us.” Perhaps Madison was wrong for the representatives and senators had a few guides at their disposal. They had their experience in the state legislatures and the national Congress under the Articles of Confederation. In addition, they had their wisdom and prudence to pursue the public good in deliberative government. Most fundamentally, they had the new Constitution as the fundamental guide for all their actions.

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February 20: INTRODUCTION Part 2: The United States Congress Today – Guest Essayist: William Morrisey

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The careful design of the United States federal government, as seen in our Constitution, has been admired and imitated throughout the world. Yet few Americans today think of their government as very much limited to matters of commerce, military defense, and constitutional law. Nor do we think of Congressmen as citizen-legislators, serving a few years in the nation’s capital and then returning home to the applause of grateful, armed, and vigilant fellow-citizens.

What has happened, since 1787?

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Essay Schedule – Fire on the Floor: The Rules, Conflict, and Debate that Fuel the United States Congress

Day 1 – Introduction: The United States Congress And Its Place In Constitutional Government – Guest Essayist: Professor William Morrisey

Day 2 – Introduction Part 2: The United States Congress Today – Guest Essayist: Professor William Morrisey

Day 3 – Beginnings of The United States Congress as the Legislative Branch – How and Where Congress Began Meeting, Purpose and Founders’ Vision for a Bicameral Congress – Guest Essayist: Tony Williams

Day 4 – Beginnings of The United States Congress as the Legislative Branch Part II – How and Where Congress Began Meeting, Purpose and Founders’ Vision for a Bicameral Congress – Guest Essayist: Marc Clauson

Day 5 – House History – Purpose of the United States House of Representatives as the immediate will of the people and how it differs from the Senate – Guest Essayist: Scot Faulkner

Day 6 – Senate History – Purpose of the United States Senate, known as the upper house, the “cooling factor” or “sober, second thought” as it relates to the United States House of Representatives – Guest Essayists: James Legee

Day 7
The First Congress meets March 4, 1789, in New York City with a new Constitution in effect during the first Congress of the United States: From 1789 to today; How, when and why Congress convenes
– Guest Essayist: Tony Williams

Day 8 – Legislative Branch – Of the three branches of American government: Legislative, Executive, and Judicial as established in the United States Constitution, the most important, Legislative, the branch of the people whose primary role is lawmaking – Guest Essayist: James Legee

Day 9 – Legislative Branch – Why the Legislative Branch is listed first in Article I of the United States Constitution – Guest Essayist: James Best

Day 10 – Form of Government – What it means to have a republican form of government and why this structure mattered to America’s Founders and Framers of the Constitution in Article IV, Section 4 –Guest Essayist: Professor Joerg Knipprath

Day 11 – The Declaration of Independence and the United States Congress – Guest Essayist: Gary Porter

 Day 12 – Articles of Confederation – The first written constitution of the United States, lead to the Constitutional Convention of 1787, how the early Congress wanted to represent the people and avoid becoming a tyranny – Guest Essayist: George Landrith .

Day 13 Articles of Confederation – Congress wielded all three powers: Legislative, Judicial, and Executive, that were later separated. – Guest Essayist: Dan Cotter

Day 14 – Articles of Confederation – What the Framers thought of the Articles of Confederation and why they did not last – Guest Essayist: Patrick Garry

Day 15 – Bill of Rights – In a letter from Thomas Jefferson to James Madison he writes, “A bill of rights is what the people are entitled to against every government on earth” on designing an effective government that remains in the hands of the American people by placing limits on Congressional governing – Guest Essayist Part One: Andrew Langer

Day 16 – Bill of Rights – Placing Limits on Congressional Governing – Guest Essayist Part Two: Gary Porter

Day 17 – Bill of Rights – Placing Limits on Congressional Governing – Guest Essayist Part Three: Patrick Garry

Day 18 – Bill of Rights – Congressman James Madison addresses the House in 1789 on Amendments to the United States Constitution, and guides the Bill of Rights through the United States House of Representatives – Guest Essayist: Tony Williams

Day 19 – Federalist No. 10 – Political stability v. instability and the necessities for good government in the relationship between American citizens and those among them who serve as members of Congress – Guest Essayist: Richard Wagner

Day 20 – Federalist No. 51 and 53 – The necessities for good government in regards to checks and balances between the branches of government: How the American people hold Congress accountable – Guest Essayist: Joerg Knipprath

Federalist No. 62 and 63 – Powers vested in the Senate, order and soundness of Congress: The Senate as a stable body, for a sense of national character responsible to the people – Guest Essayist: Joseph Knippenberg, Forrest Nabors

Culture of Debates on the House and Senate Floors – How congressional debate has changed throughout the over 200 years of Floor proceedings; importance of decorum and civil debate especially in the Senate – Guest Essayist: Scot Faulkner .

Statesmanship and the Great Debates – Daniel Webster, Henry Clay, and John C. Calhoun with distinguished oratory about the Constitution and American Union in the early 1800s.

The Great Debates – The Decision of 1789: Separation of powers, and the dispute between Congress and the President on removal of presidential appointees – Guest Essayist: David Alvis .

The Great Debates – Alexander Hamilton, Thomas Jefferson and the role of Congress in the creation and constitutionality of the National Bank – Guest Essayist: Tony Williams .

The Great Debates – Missouri Compromise of 1820 – Guest Essayist: Daniel A. Cotter .

The Great Debates – 1830 Senate speech by Senator Robert Haynes and Daniel Webster’s reply to Robert Haynes’ speech – Guest Essayist: Joerg Knipprath .

Freedom of Speech within Congressional Debates – John Quincy Adams and his epic struggle against the Gag Rule in the 1840s – Guest Essayist: Tony Williams .

The Great Debates – Stephen A. Douglas (1813-1861) who served as a congressman and senator from Illinois, was instrumental in the Compromise of 1850 and Kansas-Nebraska Act of 1854; known as “the Little Giant” – Guest Essayist: Daniel A. Cotter .

The Great Debates – League of Nations Senate debate of 1919; Wilson, Lodge, and the fight over the Versailles Treaty and congressional prerogative over declaration of war. Woodrow Wilson (1856-1924) from New Jersey served as 28th President of the United States. Henry Cabot Lodge (1850-1924) served as a congressman and senator from Massachusetts – Guest Essayist: Tony Williams .

The Great Debates – Women’s Suffrage in regards to voting and serving in Congress

The Great Debates – Entry into WWII and the America First debate – Guest Essayist: James Legee .

The Great Debates – Civil Rights Act of 1964 – Guest Essayist: Daniel A. Cotter .

John Quincy Adams (1767-1848) – Served as the sixth President of the United States 1825-1829, a Massachusetts congressman and senator – Guest Essayist: Brian Pawlowski .

Henry Clay (1777-1852) – Served as Speaker of the House under President John Quincy Adams and senator, from Kentucky, and leader of the Whig party – Guest Essayist: Joe Postell and Samuel Postell

John C. Calhoun (1782-1850) – Served as the nation’s seventh Vice President of the United States to Presidents John Quincy Adams and Andrew Jackson, a South Carolina congressman and senator

Daniel Webster (1782-1852) – Served as a New Hampshire congressman and senator, and in the Cabinet as secretary of state under Presidents Willian Henry Harrison and John Tyler; known as “The Great Orator”

Thomas Hart Benton (1782-1858) – Served as a congressman and senator; elected in 1820, one of the first two Missouri senators, recognized as a Senate leader for the Presidents Andrew Jackson and Martin Van Buren administrations

William Boyd Allison (1829-1908) Served as a congressman and senator from Iowa

James G. Blaine (1830-1893) – Served as Secretary of State, appointed by Presidents James Garfield and Benjamin Harrison, a representative and senator from Maine – Guest Essayist: Daniel A. Cotter .

Thomas Brackett Reed (1839-1902) – Served as Speaker of the House, a congressman and state senator from Maine; known for “Reed’s Rules” and being a very influential House Speaker – Guest Essayist: Joe Postell and Samuel Postell Guest Essayist:.

Nelson W. Aldrich (1841-1915) – Served as a congressman and senator from Rhode Island, a Republican Party leader – Guest Essayist: TBA

Samuel Rayburn (1882-1961) – Served as a congressman from Texas, Speaker of the House of Representatives – Guest Essayist: TBA

Howard Worth Smith (1883-1976) – Served as a congressman from Virginia, Rules Committee chairman- Guest Essayist: TBA

Robert Taft (1889-1953) – Served as a state representative and Unite States senator from Ohio; son of President William Howard Taft – Guest Essayist: TBA

Mike Mansfield (1903-2001) – Served as a congressman, and Senate Majority Leader from Montana – Guest Essayist: James Legee .

Lyndon Baines Johnson (LBJ) (1908-1973) – Served as 36th President of the United States; Vice President to John F. Kennedy; congressman from Texas, Senate Minority and Majority Leader; known for his progressive “Great Society” programs – Guest Essayist: TBA

Thomas Philip, Jr. (Tip) O’Neill (1912-1994) – Served as a congressman from Massachusetts as Democratic Whip, Majority Leader, and Speaker of the House – Guest Essayist: TBA

Henry J. Hyde (1924-2007) – Served as a congressman from Illinois, Majority Leader and Chair of the Judiciary Committee – Guest Essayist: TBA

Daniel Patrick Moynihan (1927-2003) – Served as a senator from New York; Democratic Party Leader in Congress – Guest Essayist: TBA

Newt Gingrich (1943) – Served as a congressman from Georgia, Speaker of the House, and Republican Whip; led the 1994 Contract with America – Guest Essayist: Scot Faulkner .

Book: Great Senators of the United States by Oliver Dyer, a summary

Book: The Challenge of Congressional Representation by Richard F. Fenno, a summary – Frank Reilly .

Magna Carta, Parliament and the origins of Representative Congress – Guest Essayist: Scot Faulkner . Marc Clauson .

Virginia House of Burgesses and colonial legislatures as the basis for consent and American self-government – Guest Essayist: Joerg Knipprath .

Representative Government – How Congress is designed by America’s Founders so a king could not rule, but instead the American people rule within a civil society – Guest Essayist: James D. Best .

Compensation – Influence payment has on statesmanship of Congress members

Rule of Law – Meaning of the Rule of Law and its importance to the functions of Congress in representing the American people – Guest Essayist: Richard Wagner . Gary Porter . Adam MacLeod . Marc Clauson .

The Great Compromise of 1787 – Maintained fairness of the bicameral, proportional representation, provided each small state the same voting power as each large state, under the Constitution – Guest Essayist: Robert McDonald .

Election of Congress – Significance of House and Senate Members elected directly by the people: Congressional districts, population, how the number of constituents affects representation – Guest Essayist: Joerg Knipprath .

Election of Congress – Why the election method matters for the stability and continuity of representative government – Guest Essayist: Gary Porter

Midterms – What a midterm election involves and why they are important for successful functioning of Congress – Guest Essayist: Scot Faulkner .

Campaign Finance – Laws related to campaign finance, a history and impact on running for Congress – Guest Essayist: Richard Wagner . Frank Reilly .

Counting the Personal Cost – Impact that running for elected office, and serving in Congress, has on the members and their families – Guest Essayist: James D. Best

Rules of the United States House of Representatives: Purpose and how the House rules are decided – Guest Essayist: TBA

Rules of the United States Senate: Purpose and how the Senate rules are decided – Guest Essayist: TBA

Roles of Speaker of the House, President of the Senate, House and Senate Majority and Minority Leaders, and Whip, for an effective Congress – Guest Essayist: TBA

Congressional Aides: How staff who assist members of Congress help them understand bills – Guest Essayist: Scot Faulkner .

Federalism especially in regards to the Senate; and federalism, Congress, and legislative power – Guest Essayist: Andrew Langer . Patrick Garry

Oversight – Congress acts as a watchdog over bureaucracy – Guest Essayist: Richard Wagner .

Separation of Powers, Checks & Balances and Impeachment: Presidents Andrew Johnson, Richard Nixon, and Bill Clinton – Guest Essayist: Andrew Langer .

Treaty – How treaties have evolved and how Congress must decide on treaties

Congressional Powers During War – The United States Congress versus the Confederate Congress during the Civil War – Guest Essayist: James D. Best .

Congress, Declarations of War and authorization of force and War Powers Act e.g., Korea, Vietnam, Iraq – Guest Essayist: TBA

Budget – How Congress uses its power over the budget to make policy, and the constitutional problems that arise in the budget process – Guest Essayist: TBA

Introducing Legislation – Where do ideas for bills come from? – Guest Essayist: TBA

How a Bill Becomes Law – Guest Essayist: TBA

Germane – What should and should not be placed in a bill to keep legislation easy to understand and appropriate – Guest Essayist: James D. Best

Length of Legislation – Why bills have grown significantly in length over the history of the United States Congress – Guest Essayist: Marc Clauson

Committee Process – Purpose and process of legislative committees in the House of Representatives and Senate – Guest Essayist: Joe Postell and Samuel Postell .

Constitutional Muster – Hearings and the Committee Process – How representative government happens during committee hearings – Guest Essayist: Scot Faulkner .

From Committee to the Floor for a Vote – What happens in committee, and the role of the American people in the committee process – Guest Essayist: TBA

Gridlock – Why Congress is so contentious, and how the clash over views in heated debates by opposing sides can pave the way for passage of good laws – Guest Essayist: Richard Wagner .

Sign or Not Sign Into Law? Getting a bill from introduction in Congress to the President’s desk: How easy should it be? – Guest Essayist: Gary Porter .

Partisanship and Violence in Congress –1790s and 1850s caning of Charles Sumner (1811-1874) who served as a senator and abolitionist from Massachusetts – Guest Essayist: George Landrith .

Revolt of 1910 against House Speaker Joseph Cannon (1836-1926) whose powers as House Speaker were removed in 1910. Cannon, a congressman from Illinois, also served as Conference Chair – Guest Essayist: Joe Postell and Samuel Postell .

Filibuster – History of the filibuster, today used only by the Senate, its purpose and effects on the legislative process – Guest Essayist: Frank Reilly .

Will They Agree? When legislation must go to a conference committee after the House and Senate – Guest Essayist: TBA

Transformation of the Parties – How the Democratic and Republican parties have changed throughout the history of the United States, and the effects on Congress – Guest Essayist: Marc Clauson

An imperial Congress after Watergate? – Guest Essayist: TBA

Congress and the rise of the progressive administrative state – Guest Essayists: Joe Postell, Samuel Postell Patrick Garry, Marc Clauson .

Lobbying – The influence of lobbyists on the old system, when political bosses were in charge; and now, when candidates need campaign dollars – Guest Essayist: TBA

Press – How media coverage affects the legislative process – Guest Essayist: TBA

Technology – Impact made on and by Congress from ink and quill to use of electronic voting, the Internet, and televised Floor proceedings – Guest Essayist: Scot Faulkner .

Concluding Essay – Guest Essayist: TBA


February 19: INTRODUCTION: The United States Congress And Its Place In Constitutional Government – Guest Essayist: William Morrisey

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Against the arbitrary rule of George III, the American Founders opposed the rule of law. On the most fundamental level, in their Declaration of Independence, they appealed to the laws of Nature and of Nature’s God against tyrannical violations of the unalienable rights established by those laws. Eleven years later, in designing the human, conventional, constitutional law that reframed the federal government, the Founders established a republican regime intended to prevent the return of arbitrary rule to their country.

Of the three branches of government, they put the legislature first; understanding that the perfect, divine Lawgiver established the rule of His laws in nature, the Founders knew that procedures established for imperfect, human lawmakers needed to keep such persons directed toward the defense of the natural laws. Congress also ‘came first’ for a historical reason: In our first constitution, the Articles of Confederation, the legislature was the only branch of government. Not only was Congress itself unicameral, but the executive and judicial powers were folded into it. Read more

James Madison, the Bill of Rights & Political Compromise

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James Madison, 1751-1836, “the father of the Bill of Rights”

As we celebrate the 226th anniversary of the adoption of the Bill of Rights, American politics and civic life seems more and more divided. The founding generation often saw a political environment that was just as divided as ours, if not even more so. Virginia statesman James Madison gives us an example of principled compromise to achieve the principles of limited government and inalienable rights as he became the “father of the Bill of Rights.”

The origins of Madison’s work creating the Bill of Rights was rooted in his experience in the 1780s. In Virginia, he witnessed the established Anglican Church violating the freedom of conscience of religious dissenters. As a result, he became the primary advocate for Thomas Jefferson’s Virginia Statute for Religious Freedom. In early 1787, Madison was preparing for the Constitutional Convention and wrote an essay entitled “Vices of the Political System” detailing the flaws of the Articles of Confederation. One of the main problems in his view was that tyrannical majorities in the states passed unjust laws violating the rights of minorities.

At the Constitutional Convention, Madison supported the constitutional principles that would limit government and protect individual liberties. However, he lost one central feature of his plan of government—a national veto over state laws to prevent majority tyranny in the states. Still, he became one of the greatest supporters of the Constitution.

During the ratification debate, the Federalists who supported the Constitution had to promise that they would pass a bill of rights if the Antifederalist opponents agreed to a bill of rights. Madison opposed a bill of rights because he thought that they were often just “parchment barriers” that overbearing majorities violated in the states. At this point, he thought “the amendments are a blemish.”

Madison conducted an extensive correspondence with his friend Thomas Jefferson, who was in Paris at the time. Jefferson lamented the absence of a bill of rights in the Constitution and asserted, “A bill of rights is what the people are entitled to against every government on earth.” Madison began to change his mind.

Madison ran against Virginian James Monroe for a seat in the House of Representatives and made a campaign promise to support a bill of rights, particularly liberty of conscience. He also composed President George Washington’s Inaugural Address, which indicated support for a bill of rights in the First Congress.

Representative Madison became the champion for a bill of rights in the First Congress, but met a hostile reception for the idea. Most representatives and senators thought that the Congress had more important work to do setting up the new government. Madison was undeterred and dedicated to the cause of protecting the people’s liberties.

On June 8, 1789, Madison rose on the floor of the House to deliver a speech in favor of a bill of rights. His arguments were founded on a harmonious political order and the ideals of justice. A bill of rights would convince the Antifederalists of the “principles of amity and moderation” from the Federalists, especially when they fulfilled a sacred promise made during the ratification debate. Rhode Island and North Carolina, which had withheld their ratification of the Constitution, would also join the Union. Mostly, the Bill of Rights would “expressly declare the great rights of mankind secured under this constitution.”

Madison then skillfully guided the amendments through the Congress. He reconciled all the various proposals for amendments from the state ratifying conventions and kept the amendments protecting essential liberties. He wanted them to be woven into the text of the Constitution, and sought a key amendment to protect religious freedom, a free press, and a trial by jury against violation by state governments. He lost both these provisions but still guided the Bill of Rights through Congress. Congress approved twelve amendments, and President Washington sent them to the states.

On December 15, 1791, Virginia became the last state to ratify the first ten amendments known as the Bill of Rights. The Bill of Rights fulfilled Madison’s goals of reconciling the opponents of the Constitution and protecting individual liberties. He did not get everything he wanted but compromised often along the way to secure limited government and the essential rights of the people.

Tony Williams is a Constituting America Fellow and the author of Washington & Hamilton: The Alliance that Forged America and the forthcoming Hamilton: An American Biography.


Why is Actress Janine Turner Speaking at the Barack Obama Male Leadership Academy?

As an educator at The Barack Obama Male Leadership Academy in Dallas, I have the unique opportunity to touch the lives of over 160 young men in my 7th grade Texas History and 8th grade US History classes.

Not long ago, we had actress Janine Turner founder and co-chair of of Constituting America come to my class to speak to our young men about the relevancy of the US Constitution today. Uniquely Janine explained how the Constitution “empowers them” and she enlightened them about what she calls the “tools in their tool box” in the First Amendment, how to use them and how the tool of petitioning – followed by press, speech and assembly – can affect long lasting legislative and amendment change. She also stressed how they are not to young to start this process. Ms. Turner has visited our school for the past 4 school years to help our students learn about their rights, and her non-partisan approach to the Constitution is refreshing compared to the usual treatment it receives in the mainstream media.

Each morning we have a character-building assembly called “Lyceum..” After the tragic events that happened in Las Vegas, our principal decided to teach some of our students about thinking flexibly by looking at gun control. First, our principal approached it from a pro-gun control point of view, using a viral Jimmy Kimmel video to begin a discussion. During our classroom discussion, one of our young men brought up some information Ms. Turner provided to them: “Ms. Turner told us that we have the Right to Petition and we need to start a petition to make the background check process much more thorough.” Another young man said, “I believe any legislation regarding gun control would be useless. Only those who obey the laws already will obey the changes.” The next day in Lyceum we discussed gun control again, but this time from the opposite point of view. I am constantly amazed at the level of thinking of our young men – and deep too.

One day, I decided to illustrate for my students that the fact that 11 teenagers die every day from texting and driving accidents. I called some of my young men out into the hallway and asked them to stay there. When I went back in the classroom some other young men asked: “Where did they go?” I explained that they represented the 11 that had died that day from texting and driving accidents. The realization hit that these numbers were real. Even 1 death was too many, much less 11 each day.

After showing my young men the statistics, I told them that I was going to petition my Congressional Representatives to write a law banning cell phones for teenagers. They were quick to respond saying “You can’t take away something my parents purchased.” They also explained, “My parents will get me one anyway.” One student said, “There aren’t enough Policemen to regulate it.” Another said, “If my Parents want me to have one then it is my right to have one and they can’t stop me.”
Then one of my students spoke up saying “That was exactly my point about gun control.” You see, he was the one that said earlier, “I believe any legislation regarding Gun Control would be useless. Only those who obey the laws already will obey the changes.”

There really are some smart young men in our school. I am grateful to Ms. Turner for taking time from her schedule to come to our school and remind our young men, in a non-partisan and unbiased way, that the US Constitution applies as much to us today as it did our founding fathers in 1787 and how they can have an influential impact on the future of our Republic.

Tom McLaughlin is Retired from the US Navy and is currently a 7th grade Texas History and 8th grade US History Teacher at the Barack Obama Male Leadership Academy in Dallas, Texas

(1) https://www.edgarsnyder.com/car-accident/cause-of-accident/cell-phone/cell-phone-statistics.html
(2) www.constitutingamerica.org
(3) https://www.youtube.com/watch?v=ruYeBXudsds
(4) http://www.textinganddrivingsafety.com/texting-and-driving-stats

“Long & Little Known” White Paper

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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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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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              


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

Actress Janine Turner propels student’s career



Contact: Shonda Werry

Constituting America

Tel: 202-246-0307

Email: constitutingamerica@yahoo.com




Constituting America, founded by actress Janine Turner (Northern Exposure, Friday Night Lights, Cliffhanger) and Cathy Gillespie, to air student’s winning PSA on the Constitution nationwide on February 13th.

February 8, 2017

(Colleyville, TX) Constituting America has announced that 236 television stations and the Direct TV and Dish Networks will air the award-winning Public Service Announcement (PSA), Something Beautiful, written and directed by high school senior Laura Leigh Hicks on Monday, February 13th on the program NewsWatch. The animated PSA will be viewed by an anticipated 3.4 million Americans in every major media market across the country – from California to New York; from Texas to North Dakota and everywhere in between!

The PSA, which challenges viewers to read the U.S. Constitution, won Constituting America’s national “We the Future” Contest. Click here to watch the 1 minute PSA now!

In an effort to use the arts and media to promote the non-partisan relevancy of the Constitution and propel the students’ careers, Constituting America submits students’ winning PSA’s to television stations for airing and the PSA has already aired on 54 television stations nationwide. Laura Leigh Hicks hails from Steens, Mississippi and previously served as the president of her school’s chapter of the Eta Sigma Alpha Honor Society.  

Founded by Actress Janine Turner (Northern Exposure, Friday Night Lights, Cliffhanger) and co-chaired by Janine and Cathy Gillespie, Constituting America is a non-profit, non-partisan organization whose mission is to utilize the culture and multi-media outreach such as music, film, television, internet, and social media to reach, educate and inform America’s adults and students about the non-partisan relevancy of the U.S. Constitution and the foundation it sets forth regarding our freedoms and rights. Their multi-tiered approach features the “We The Future Contest,” Winner Mentor Trips and Winner Promotion, “The George Washington Speaking Initiative for Schools and Civic organizations,” “90 Day Online Founding Document Studies with Constitutional Scholars, Constituting America Lecture Events and Patriot Clubs. National Youth Director Juliette Turner reaches youth across America with her bestselling book, Our Constitution Rocks!, and motivational speeches, videos and media interviews.

Janine Turner, Cathy Gillespie, and Laura Leigh Hicks are available for interviews.
For more information visit http://constitutingamerica.org


Constituting America’s Seventh 90 Day Study: The United States Supreme Court: Landmark Decisions And The Justices Who Made Them


The United States Supreme Court: Landmark Decisions And The Justices Who Made Them



Marbury v. Madison (1803) – Justice of the Peace William Marbury versus Jefferson’s Secretary of State James Madison who was not allowed to deliver commissions for judicial appointments: Boundary between constitutionally separate executive and judicial branch powers.

Chief Justice John MARSHALL (1755-1835) Served 34 years on the Supreme Court.

Cohens v. Virginia (1821) – Brothers Philip and Mendes Cohen were convicted of selling National Lottery tickets in Virginia.  The two argued that this violated “free flow of commerce” as stated in the Constitution.

Swift v. Tyson (1842) – George Swift received a bill of exchange which was fraudulently obtained by John Tyson.  After the courts in New York decided in favor of Tyson due to New York State law, Swift appealed to the Supreme Court: Federal courts and state common law.

Justice Joseph STORY (1779-1845) – Served 33 years on the Supreme Court.

Propeller Genesee Chief v. Fitzhugh (1851) – Following a collision on Lake Ontario, there were questions of which courts had jurisdiction.

Ex parte McCardle (1869) – William H. McCardle, a newspaper editor who wrote critical articles about the Military Reconstruction Act, was arrested.  He claimed that both the Act and his prosecution were unconstitutional: Congress and Supreme Court appellate review of habeas corpus.



McCulloch v. Maryland (1819) – After Congress chartered the Second National Bank of the United States, the state of Maryland passed a law imposing taxes on that bank. James McCulloch, a teller for the bank, refused to pay the tax: Commerce Clause; constitutionality in creation of the Second Bank of the United States; federal law and state law.

Field v. Clark (1892) – Regarding duties collected on goods imported by Marshall Field & Company, John M. Clark, tax collector, argued that the Tariff Act of October 1, 1890 was actually a law even though it was passed by Congress: Presidential powers, and challenges to laws.



U.S. v. Curtiss-Wright Exports (1936) – When Curtiss-Wright Export Corporation violated an embargo, to prohibit trade, enacted by President Franklin D. Roosevelt, it argued that the President should not have been given this power: Congress and lawmaking authority to the President.

Youngstown Sheet and Tube Company v. Sawyer (1952) – Youngstown Sheet and Tube Company versus Commerce Secretary Charles Sawyer: Congress, the Constitution, and presidential power to issue an order.



Fletcher v. Peck (1810) – After it was determined that the Georgia legislature took bribes for the passage of the Yazoo Land Act, the new legislature repealed the act and voided all sales coming from it. Robert Fletcher sued John Peck for selling him land with no clear title: Contract Clause of the Constitution.

Green v. Biddle (1823) –When Kentucky became an independent state, it signed a compact with Virginia to protect property rights. Kentucky then passed a law that impaired this compact, causing a dispute over ownership of the property: John Green versus Richard Biddle and the Contracts Clause of the Constitution on public and private agreements.

Willson v. Black Bird Creek Marsh Company (1829) – When Thomas Willson broke through a dam built by the Black Bird Creek Marsh Company, the company sues as it was authorized to build the dam by Delaware law.  Willson argued that the dam was in violation of the Commerce Clause of the Constitution, and that he had a constitutional right to navigate coastal streams.

Barron v. Baltimore (1833) – When the city of Baltimore diverted the flow of streams to aid in street construction, it damaged Barron’s wharf.  John Barron sued the mayor of Baltimore, claiming that the Bill of Rights, specifically the Fifth Amendment, applied to states as well regarding just compensation for private property takings for public use.

Craig v. Missouri (1830) – In 1821, the state of Missouri printed money to loan to farmers.  When Hiram Craig defaulted on his loan, he was sued by the state to force payment.  It was argued that states issuing bills of credit unconstitutional in the first place.

Briscoe v. Bank of Kentucky (1837) – After Kentucky authorized a state owned bank to issue bills of credit, the bank loaned bills to Briscoe. When he failed to pay, the bank sues him. Briscoe claimed that the bank, and therefore Kentucky, had violated Article 1 Section 10 of the Constitution.

Charles River Bridge v. Warren Bridge (1837) – In 1785, the Charles River Bridge Company was granted a charter to construct a bridge between Boston and Cambridge. Years later, the state of Massachusetts allowed the Warren Bridge Company close to the Charles River Bridge.  The Charles River Bridge Company claimed that it had exclusive rights to build a bridge and that the contract with Massachusetts had been violated.

Cooley v. Pennsylvania Board of Wardens (1852) – In 1803, Pennsylvania enacted a law that regulated pilots of ships. Aaron Cooley violated this law by entering the state’s harbor without the guidance of a local pilot. Cooley claimed this was unconstitutional.

Prigg v. Pennsylvania (1842) – After Edward Prigg was convicted in Pennsylvania of capturing and returning a slave from Maryland, he appealed, arguing that the Pennsylvania law making his actions illegal was in conflict with the U.S. Constitution. Ableman v. Booth (1859): Sherman Booth was arrested by U.S. Marshal Stephen Ableman for rescuing an escaped slave in Wisconsin. When Booth was freed because the Wisconsin state government refused to recognize the authority of the federal courts, the case was appealed to the Supreme Court.

Texas v. White (1869) – George W. White, the State of Texas, and the constitutionality of secession from the Union.



Gelpcke v. Dubuque (1863) – After a city government in Iowa refused to honor railroad tax bonds, Herman Gelpcke and other bondholders sued, in federal court, the City of Dubuque in an attempt to recover interest on the bonds.

Euclid v. Ambler Realty (1926) – In order to prevent the Village of Euclid, Ohio, from growing too large, the village developed zoning laws. Ambler Realty’s property was divided into three classes, therefore hindering it from developing the land for industry. Ambler Realty sues, arguing that the zoning laws deprived it of its property without due process.

Justice George SUTHERLAND (1862-1942) – Served 15 years on the Supreme Court.

San Antonio v. Rodriguez (1973) – Demetrio Rodriguez and other members of the Edgewood Concerned Parent Association in Texas, involving the San Antonio Independent School District, brought forward a suit claiming that the state’s method of school financing violated the assertion of equal protection under the law.



Baker v. Carr (1962) – The Tennessee State Constitution required that legislative districts be redrawn every ten years. Former Mayor Charles Baker argued that this had not been done since 1901, resulting in unfair representation. Tennessee Secretary of State Joe Carr was sued since he was ultimately responsible for conduct of elections and publication of district maps. The state courts sided with the state of Tennessee, and it was brought to the U.S. Supreme Court.



Chicago, Burlington, and Quincy Railroad v. Chicago (1897) – When the Chicago, Burlington, and Quincy Railroad Company was only awarded one dollar for the Chicago city council appropriating the right of way for its property, the railroad company appealed.  The City of Chicago argued that due process of law only required allowing the railroad company’s case to be heard.



New Jersey v. Wilson (1812) – In 1758, the New Jersey legislature made an agreement with the Delaware Indians, giving them a portion of land which could never be sold or taxed. In 1801, the Indians were given permission to sell the land, and in 1804 the legislature repealed the land’s tax exemption. It was argued that the land purchaser has “all the rights of the Indians.”

Dartmouth College v. Woodward (1819) – Dartmouth College was chartered in 1769 by King George III. In 1816, after the revolution, New Hampshire’s legislature attempted to alter the charter and make the privately funded school, public. The existing trustees filed suit against William Woodward, the new appointed secretary under the new charter, claiming that the legislature violated the Constitution.

U.S. v. E.C. Knight (1895) – In 1892, the American Sugar Refining Company acquired E.C. Knight Co. and other sugar companies, resulting in a 98% monopoly of the sugar refining industry. President Grover Cleveland advised the national government, also known as the “Sugar Trust Case,” to sue the E.C. Knight Company under the Sherman Anti-Trust Act to prevent this. The company argued that the government could not regulate the manufacturing of goods through the antitrust or “competition law,” but could only regulate distribution of goods.

Allgeyer v. Louisiana (1897) – In an attempt to protect its citizens from deceitful companies, the state of Louisiana passed a law prohibiting out-of-state insurance companies from conducting business in the state without being authorized by the state. When the E. Allgeyer & Company of Louisiana violated this statute and purchased insurance from New York, Allgeyer claimed that this law violated the Fourteenth Amendment.

Champion v. Ames (1903) – Charles Champion was indicted for shipping Paraguayan lottery tickets from Texas to California under the Federal Lottery act, which prohibited the sales of lottery tickets across state lines.  Champion claimed that the power to regulate commerce does not include the power to prohibit commerce.

Nebbia v. New York (1934) – After Leo Nebbia was fined for violating the price regulations for milk set by the New York state legislature, he challenged the conviction by arguing that the regulations violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.

Home Building and Loan v. Blaisdell (1934) – During the Great Depression, Minnesota extended the time available for people to redeem their mortgages from foreclosure.  Lenders argued that this violated Article 1, Section 10 of the Constitution which prohibits a state from “impairing the Obligation of Contracts.”

Gold Clause Cases (1935) – The Supreme Court decided upon whether Congress’ joint resolution to cancel all gold clauses in public and private contracts was constitutional.

Schecter v. U.S. (1935) – The Supreme Court decided upon whether the National Industrial Recovery Act, a main part of President Roosevelt’s New Deal, was constitutional.

Justice Louis D. BRANDEIS (1856-1941) – Served 22 years on the Supreme Court.

Carter v. Carter Coal (1936) – Carter, a shareholder of the Carter Coal Company, argued that the Bituminous Coal Conservation Act, which regulated the coal mining industry, was unconstitutional, as coal mining is not interstate commerce.

National Labor Relations Board v. Jones and Laughlin Steel (1937) – After the National Labor Relations Board ruled against Jones and Laughlin Steel for discrimination, the company refused to comply with the ruling, stating that the act was unconstitutional.

National League of Cities v. Usery (1976) – The National League of Cities sued claiming that the Fair Labor Standards act, specifically the requirement of states to pay employees a new minimum wage and overtime, was unconstitutional.

Wickard v. Filburn (1942) – Filburn, a farmer in Ohio, was fined for violating a federal rule limiting wheat production.  Filburn sued, arguing that his local business could not be regulated under the constitution.

Garcia v. San Antonio Metropolitan Transit Authority (1985) – When Congress failed to exempt state-owned mass transit systems from its minimum wage and overtime statutes, it was argued that this violated state’s sovereignty granted to it under the Tenth Amendment of the Constitution.



In re Debs (1895) – In 1984, the president of the American Railway Union was involved in the Pullman Strike.  When the government ordered the strikers to return back to work because the strike turned violent, Debs challenged the federal government’s ability to intervene.

Justice David J. BREWER (1837-1910) – Served 20 years on the Supreme Court.

Holden v. Hardy (1898) – The state of Utah passed a law limiting the number of hours one could work in a smelter or mine.  It was argued whether or not this law was constructional.

Lochner v. New York (1905) – New York law prohibited a bakery employee from working more than ten hours a day and sixty hours a week. It was argued that this law was in violation of “freedom of contract” under the due process clause.

Adair v. U.S. (1908) – William Adair was indicted after he fired a railroad employee for belonging to a labor union, which was a direct violation of the Erdman Act of 1898.  Adair argued that the ban on forbidding workers from joining labor unions was unconstitutional.

Coppage v. Kansas (1915) – Coppage, an employer, forbade his employees from joining labor unions.  Such anti-union contracts were prohibited by Kansas state law.  Coppage argued that this law violated his due process rights.

Justice Mahlon Pitney (1858-1924) Served 10 years on the Supreme Court.



Sturges v. Crowninshield (1819) and Ogden v. Saunders (1827) – It was argued whether or not state bankruptcy laws violated the Constitution, as the Constitution grants that power to Congress.

Legal Tender Cases – These cases decided upon whether legal tender in the form of paper money violated the Constitution.

Pollock v. Farmers Loan and Trust (1895) – Pollock owned stock in the Farmers Loan and Trust Company.  When the company announced that it would comply and pay the taxes under the Wilson-Gorman Tariff Act, he sued, claiming that the law was unconstitutional..



Ex parte Vallandigham (1864), and Ex parte Milligan (1866) – These cases decided upon when a person should be tried in a military tribunal and when a person should be tried in civilian courts under the Constitution.

Chicago, Milwaukee, and St. Paul Railroad v. Minnesota (1890) – When the Minnesota Supreme Court refused to overturn a regulatory agency’s set railroad rates, it was appealed to the Supreme Court.  The companies argued that the rates were set without due process of law.

Meyer v. Nebraska (1923), and Pierce v. Society of Sisters (1925) – These cases argued civil liberties in education, claiming that these regulations violated the Due Process Clause of the Fourteenth Amendment.

Palko v. Connecticut (1937) – Following being sentenced to both first-degree and second-degree murder, Palko appealed, claiming that the Fifth Amendment protecting against double jeopardy applied to state governments, as well.



Furman v. Georgia (1972) – This case argued whether or not the death penalty is considered cruel and unusual punishment.



Dred Scott v. Sanford (1857) – When Scott, a slave, sued for his freedom, it was argued that he had no right to sue in federal courts, as slaves were not considered citizens.

Ex parte Merryman (1861) – Lieutenant John Merryman was arrested, charged with, among other things, various acts of treason. He requested a writ of habeas corpus, and a hearing. In U.S. legal history, this is an American Civil War case contesting the president’s power to suspend the writ of habeas corpus during a national emergency and for public safety.

Chief Justice Roger TANEY (1777-1864) Served 28 years on the Supreme Court.

The Slaughterhouse Cases (1873) – When a city in Louisiana attempted to regulate and take over the slaughterhouse industry, butchers sued on the grounds of due process, privileges or immunities, and equal protection clauses of the Fourteenth Amendment.

Justice Stephen J. FIELD (1816-1899) Served 34 years on the Supreme Court.

Civil Rights Cases (1883) – It was argued that the Civil Rights Act of 1875 violated the Constitution because Congress did not have the authority to regulate private matters.

Plessy v. Ferguson (1896) – Argued that segregation laws were unconstitutional, even if segregated facilities were “separate but equal.”

Justice John Marshall HARLAN (1833-1911) – Served 34 years on the Supreme Court.

The Insular Cases (1901) – Argued how to govern U.S. territories, as nothing was specifically said about it in the Constitution.

Jones v. Alfred H. Mayer Co. (1968) – Determined whether or not Congress could regulate the sale of private property in an effort to prevent discrimination.

United States v. Carolene Products Co. (1938) – When Carolene Products Company violated a federal law prohibiting filled milk to be shipped in interstate commerce, the company argued that this law violated the Commerce Clause and on due process grounds.

Bolling v. Sharpe (1954) and Brown v. Topeka Board of Education (1954) and Cooper v.

Aaron (1958) – Argued that school segregation was unconstitutional and that states are bound by the Supreme Court’s decisions.

Chief Justice Earl WARREN (1891-1974) – Served 15 years on the Supreme Court.

Griggs v. Duke Power (1971) and California v. Bakke (1978) and USWA v. Weber (1979) and Fullilove v. Klutznick (1980) – These cases argued the constitutionality of efforts to battle discrimination. 

Richmond v. J. Croson Company (1989) – Argued whether or not a city giving preference to minority businesses for municipal contracts was constitutional.



Establishment Clause:

Abrams v. United States (1919) – Argued whether inciting resistance to a war violated the First Amendment of the Constitution.

Justice Oliver Wendell HOLMES, Jr. (1841-1935) – Served 29 years on the Supreme Court.

Engel v. Vitale (1962) and Everson v. Ewing (1962) – Decided on whether or not promoting a particular religion in schools in unconstitutional.

Freedom of Speech:

Gitlow v. New York (1925) and Bradenburg v. Ohio (1969) – Argued whether or not being convicted for speech that promotes anarchy, violence, or terrorism violates an individual’s right to free speech.

Chief Justice William Howard TAFT (1857-1930) – Served 8 years on the Supreme Court.

Dennis v. United States (1951) – Dennis, General Secretary of the Communist Party USA, was convicted for speech plotting to overthrow the government.  It was argued that this conviction is a violation of the First Amendment.

Justice Hugo BLACK (1886-1971) – Served 34 years on the Supreme Court.

Freedom of the Press:

New York Times v. Sullivan (1964) – Argued whether or not Alabama’s law on libel, by not requiring a person to prove harm violates an individual’s right to free speech.

Justice William J. BRENNAN, Jr. (1906-1997) – Served 33 years on the Supreme Court.



Griswold v. Connecticut (1965) – It was argued that a Connecticut law banning forms of contraceptives violated an individual’s right to privacy.

Roe v. Wade (1973) and Planned Parenthood of Southeastern PA v. Casey (1992) – Determined whether aspects of abortion laws violated an individual’s right to privacy.

Lawrence v. Texas (2003), United States v. Windsor (2013) and Obergefell v. Hodges (2015) – These cases argued civil rights for homosexuals and whether or not laws infringing on these rights violated the Constitution.

Justice Antonin SCALIA (1936-2016) – Served 30 years on the Supreme Court.



Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) – These cases dealt with government authority for relations with the Native American nations.



Gonzales v. Carhart (2007) – The court upheld the federal Partial-Birth Abortion Ban Act, approving for the first time a prohibition of a specific abortion procedure.

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

District of Columbia v. Heller (2008) – The court ruled for the first time that the Second Amendment provides an individual right of gun ownership, unrelated to militia service.

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

McDonald v. Chicago (2010) – Application to the states of the right to keep and bear arms.

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

Bush v. Gore (2000) and Bush v. Palm Beach County Canvassing Board (2000) – The Supreme Court ruled that the state of Florida’s court-ordered manual recount of vote ballots in the 2000 presidential election, between Vice President Al Gore and Texas Governor George W. Bush, was unconstitutional.

Vote: (5 to 4) Majority: Kennedy, O’Connor, Rehnquist, Scalia, Thomas. Dissenters: Stevens, Souter, Ginsburg, Breyer.

Crawford v. Marion County Election Board (2008) – The court ruled Indiana’s requirement that voters show a photo id does not violate the Constitution.

Vote: (6 to 3) Majority: Roberts, Stevens, Scalia, Kennedy, Thomas, and Alito. Dissenters: Souter, Ginsburg, Breyer.

Citizens United v. Federal Election Commission – The court agreed corporations and unions could make unlimited independent expenditures in campaigns, saying restrictions violated free speech.

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

Justice Anthony KENNEDY (born 1936) – Began serving on the Supreme Court February 1988.

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission – United States Supreme Court unanimously ruled that federal discrimination laws do not apply to religious organizations’ selection of religious leaders.

Vote: (8-0) Majority: Roberts, Scalia, Kennedy, Thomas, Alito, Ginsburg, Breyer, and Sotomayor.



The United States Supreme Court: Landmark Decisions And The Justices Who Made Them


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1880, James Garfield Defeats Winfield Scott Hancock: The Tariff Controversy, Post-Civil War – Guest Essayist: Kirk Higgins

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When one reflects on the history of the United States, the politics of the Gilded Age are often overlooked. Many find little value in understanding the intricacies of the political wheeling and dealing, often engineered by political machinery in both major parties. Nevertheless, these elections are as a part of the collective American consciousness as any before or since. They are central to understanding the American political character as it dealt with the aftereffects of the great national tragedy that was the American Civil War.

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Impact Statement

We are the only organization that utilizes the movies, music and television with the kids’ own works, to inspire Americans of all ages to learn about the U.S. Constitution by distributing their works through the national media.

Our Impact

The core of our mission is to educate Americans about the Constitution and the rights and liberties it provides and protects for all of us. We accomplish that mission through several programs, including our keystone program — the national We The Future Contest for kids. We also have an exciting new program that features Constituting America Founder and Co-Chair Janine Turner and daughter, National Youth Director Juliette, speaking in person and via “Skype” to classrooms around the country. Our 90 in 90 Study Program: History Holds the Key to the Future is a scholastic study with essays on the founding documents of our country, written by constitutional scholars from the best universities and law schools in the country. Here are a few of the major programs with the highlights and impact we have accomplished over the past six years (2010-2015):

  • We The Future Contest: We have received entries from students in 47 states and have awarded more than $95,000 in scholarship funding for the national We The Future Contest winners.
  • Mentoring Trips: Our winners have traveled on all expense paid trips to Philadelphia for performances at the National Constitution Center, educational tours and learned from historical interpreters! Last year they traveled to Nashville (mentored by Vince Gill), Hollywood (mentored by Gary Sinise) and Washington, DC (mentored by Bret Baier and Brit Hume) for meetings, performances and all dined with a constitutional scholar! This summer brings trips to Nashville (Lari White & Chuck Cannon); and New York (Sean Hannity & Monica Crowley & film producer Micheal Flaherty).

National Exposure & Impact Of Our Contest Winners’ Winning Works

  • NEW for 2016: We have hired Grassroots Promotion to promote winning songs with guaranteed radio station airplay, in addition to Rocking For Freedom CD available on iTunes & e-music platforms. To date, Joy Frost’s song has aired on 44 radio stations over 1,250 times with more spins being added daily & achieved top 20 ranking in Play MPE’s download ranking! Check out our past best song winner, Emily Keener, on this season’s The Voice!
  • Distribution of the Students’ Films and Constituting America’s Documentaries to Film Festivals: We The Future Contest winning short films and Constituting America produced documentaries were accepted at 8 film festivals across the country, with one winning two awards, reaching an audience in excess of 45,000!
  • Students’ PSA’s to Television: 31 TV stations are currently playing our We The Future Contest winning PSAs, reaching over 2 million households.

Resources for Schools

  • School Speaking & Skype Program: Now utilizing Skype and Google Hangouts featuring Janine Turner, Juliette Turner and our winners to conduct virtual classroom presentations promoting constitutional education – over 166 speeches to over 10,000 adults & students; with one minute “teaching clips” from the speeches reaching 100’s of thousands!
  • Distribution of Constituting America Documentaries: Produced and distributed 20,000 Constitutional Documentaries to schools.
  • Distribution of Our Constitution Rocks Books to Schools: Over 11,000 Our Constitution Rocks books have been distributed to teachers, school administrators, after school programs, and legislators at state and federal level by an enthusiastic outside donor.
  • 90 in 90 Essay Project: Academic studies on the Federalist Papers, the Constitution, the Amendments, and the Classics that inspired the Constitution resulted in 632 essays contributed by 98 constitutional scholars. Last year’s study on executive overreach had over 36,000 social media shares! This year’s study entitled “The Intrigue of Presidential Elections And Their Constitutional Impact” launched February 15, 2016.

Spreading The Word

  • Patriot Clubs: 27 active Patriot Clubs in 13 states, working locally and regionally to promote our programs, education and awareness among adult communities and students.
  • Social Media: Constituting America and Janine Turner’s combined Facebook accounts have over 196,230 fans and combined Twitter accounts have over 23,900 followers.

James Madison Defeats DeWitt Clinton: The Wartime Election Of 1812 – Guest Essayist: Sam Agami

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The waging of war is the greatest challenge any person in national authority can face.  It is an all-consuming task.  It is an undertaking that can destroy both leader and nation.  Of all governments, Constitutional Republics face the greatest challenge.  Conscripting armies, rationing materials, the issuing and obeying of unquestionable orders; all of these go against the very nature of a Constitutional republic.  In a time where national sovereignty is at stake, it is tempting to overlook the importance of core principles such as the consent of the governed and rule of law.  How many republics across the globe have transitioned into military dictatorships that started as temporary states of emergency?   As Abraham Lincoln so famously reflected in Gettysburg in 1863, “…we are engaged in a great civil war, testing whether that nation or any nation so conceived (in liberty) and so dedicated can long endure…”    

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1800, Thomas Jefferson Defeats John Adams: The First Peaceful Transfer Of The Presidency From One Political Party To Another – Guest Essayist: Kevin Gutzman

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John Adams’ narrow victory over Thomas Jefferson in the election of 1796 foreshadowed the contentious political environment of Adams’ sole term. Soon enough, the Republican opposition went into full battle mode, and Adams’ refusal to respond by playing party chieftain goes a long way toward explaining his narrow loss in 1800. Read more

Constituting America’s Sixth 90 Day Study: The Intrigue of Presidential Elections and Their Constitutional Impact

Monday, February 15, 2016
Introduction by Constituting America Founder & Co-Chair, Janine Turner & her daughter, Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, February 16, 2016
Why Was The Electoral College Created? – Tara Ross, author of Enlightened Democracy, the Case for the Electoral College.

Wednesday, February 17, 2016
Does The Electoral College Still Work? – Tara Ross, author of Enlightened Democracy, the Case for the Electoral College. 

Thursday, February 18, 2016
(1789) George Washington: The First Election Under the New Constitution – James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales

Friday, February 19, 2016
(1792) George Washington Sets the Tone for America as Its First Elected President – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Monday, February 22, 2016
(1796) John Adams Defeats Thomas Jefferson – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Tuesday, February 23, 2016
(1800) Thomas Jefferson Defeats John Adams: The First Peaceful Transfer of Presidency From One Political Party to Another – Kevin Gutzman, Professor and Chairman, Department of History, Western Connecticut State University and Author, James Madison and the Making of America

Wednesday, February 24, 2016
(1800) The Election Of 1800: Constitutional Implications Of The Alien & Sedition Acts – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, February 25, 2016
(1800) Electoral College Tie Between Jefferson and Burr, Throwing an Election Into the House of Representatives for the First Time – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Friday, February 26, 2016
(1804) Thomas Jefferson Defeats Charles Pinckney: The Significance of the 12th Amendment – James Legee, Program Director, The Freedoms Foundation at Valley Forge; Adjunct Professor, Albright College, PA

Saturday, February 27, 2016
(1804) The Constitutional Significance of the Louisiana Purchase: An Election Issue – Robert McDonald, Professor of American History, United States Military Academy, West Point; Author, Confounding Father: Thomas Jefferson’s Image in His Own Time (forthcoming)

Monday, February 29, 2016
(1808) James Madison Defeats Charles Pinckney: The Embargo Act of 1807 – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Tuesday, March 1, 2016
(1812) James Madison Defeats De Witt Clinton: The Issues of a Wartime Election – Sam Agami, History Teacher, Princess Anne Middle School, VA

Wednesday, March 2, 2016
(1816) James Monroe Defeats Rufus King: The Hartford Convention – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Thursday, March 3, 2016
(1816) Constitutional Issues Surrounding the Second Bank of the U. S. – Kyle Scott, Professor of Political Science, University of Houston, TX; Author, The Federalist Papers: A Reader’s Guide

Friday, March 4, 2016
(1820) James Monroe Won Unopposed: The Missouri Compromise – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Monday, March 7, 2016
(1820) McCulloch v. Maryland: A Campaign Issue – Robert Lowry Clinton, Professor and Chair Emeritus, Department of Political Science, Southern Illinois University Carbondale; Author, Marbury v. Madison; Judicial Review

Tuesday, March 8, 2016
(1824) John Quincy Adams Defeats Henry Clay, Andrew Jackson, and William Crawford: Constitutional Implications of the Rise of Party Nominating Conventions and the Empowerment of Popular Votes in Elections – Joe Postell, Professor of Political Science, University of Colorado at Colorado Springs, CO

Wednesday, March 9, 2016
(1824) The Second Instance of an Election Decided in the House of Representatives – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, March 10, 2016
(1828) Andrew Jackson Defeats John Quincy Adams: The Two-Party System – Mark Cheathem, History Professor, Cumberland University, TN

Friday, March 11, 2016
(1828) Controversy Over Andrew Jackson’s War Record and the Question of Civilian Control Over the Military – William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; Author, Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism

 Monday, March 14, 2016
(1832) Andrew Jackson Defeats Henry Clay, William Wirt: The Re-Chartering of the Bank of the U.S. – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

 Tuesday, March 15, 2016
(1832) The Anti-Masonic Controversy – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Wednesday, March 16, 2016
(1836) Martin Van Buren Defeats William Henry Harrison, Daniel Webster, Hugh White: The Unusual Practice of Running Three Candidates by One Party (the Whigs) in Different Parts of the Country – Lisa Ice-Jones, Administrator, President William Henry Harrison’s Grouseland Mansion and Museum

Thursday, March 17, 2016
(1836) The Tariff Issue and the Constitution – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Friday, March 18, 2016
(1840) William Henry Harrison Defeats Martin Van Buren: The Appeal of Running Military Heroes for President and the Issue of Generalship as a Qualification for Executive Office – Lisa Ice-Jones, Administrator, President William Henry Harrison’s Grouseland Mansion and Museum

Saturday, March 19, 2016
John Tyler (1841-45) excerpt from “Presidential Leadership: Rating the Best and the Worst in the White House,” a Wall Street Journal Book; James Taranto and Leonard Leo, Editors; Free Press, 2004. – John S. Baker, Professor of Law Emeritus, Louisiana State University Law School

Monday, March 21, 2016                                                          
(1844) James K. Polk Defeats Henry Clay, James Birney: Texas Annexation as it Related to the Issue of Slavery – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Tuesday, March 22, 2016
(1844) The Issue of Oregon Territorial Boundary – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Wednesday, March 23, 2016
(1848) Zachary Taylor Defeats Martin Van Buren, Lewis Cass: Popular sovereignty in the territories, which was Cass’s issue and which would continue to affect U. S. Constitutional politics for the next decade – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Thursday, March 24, 2016
(1848) Abolitionism and the Constitution – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Friday, March 25, 2016
(1852) Franklin Pierce Defeats Winfield Scott, John Pitale: The Controversy Over the Fugitive Slave Act of 1850 – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Monday, March 28, 2016
(1856) James Buchanan Defeats Millard Fillmore, John C. Fremont: The Kansas-Nebraska Act – James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales

Tuesday, March 29, 2016
(1856) The Rise of the Republican Party – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Wednesday, March 30, 2016
(1860) Abraham Lincoln’s Cooper Union Address and Mathew Brady’s Lincoln Photo: The Making of the President – James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales

Thursday, March 31, 2016
(1860) Abraham Lincoln Defeats Stephen Douglas, John C. Breckinridge, John Bell: Constitutional Issues Surrounding Secessionism And “The Crisis of the House Divided” – James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, and the Steve Dancy Tales

Friday, April 1, 2016
(1860) Stephen Douglas’s Understanding of the Constitution – David Shestokas, Author, Constitutional Sound Bites; Host, Constitutionally Speaking

Saturday, April 2, 2016
(1860) John C. Breckinridge’s Understanding of the Constitution – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Monday, April 4, 2016
(1860) John Bell’s Understanding of the Constitution – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Tuesday, April 5, 2016
(1860) Abraham Lincoln’s Understanding of the Constitution, Part 1: Its Relation to the Declaration of Independence – J. Eric Wise, Partner, Gibson Dunn & Crutcher LLP in New York City

Wednesday, April 6, 2016
(1860) Abraham Lincoln’s Understanding of the Constitution, Part 2: The Importance of the Union – David Shestokas, Author, Constitutional Sound Bites; Host, Constitutionally Speaking

Thursday, April 7, 2016
(1864) Abraham Lincoln Defeats George McClellan: Constitutional Issues Raised by Lincoln’s Conduct of the War – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Friday, April 8, 2016
(1864) Holding a Presidential Election During a Civil War – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Monday, April 11, 2016
“Civil War Amendments” to the Constitution – James Legee, Program Director, The Freedoms Foundation at Valley Forge; Adjunct Professor, Albright College, PA

Tuesday, April 12, 2016
(1868) Ulysses S. Grant Defeats Horatio Seymour: Reconstruction and the Constitution – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Wednesday, April 13, 2016
(1868) Constitutional Issues Surrounding Black Suffrage – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Thursday, April 14, 2016
(1872) Ulysses S. Grant Defeats Horace Greeley: The Continuing Controversies Over Reconstruction – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Friday, April 15, 2016
(1872) Civil Service Reform – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Monday, April 18, 2016
(1876) Rutherford B. Hayes Defeats Samuel Tilden: The End of Reconstruction – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Tuesday, April 19, 2016
(1876) Rutherford B. Hayes v. Samuel Tilden: Controversy Over Election Returns in This Election – Forrest Nabors, University of Alaska at Anchorage Professor of Political Science

Wednesday, April 20, 2016
(1880) James Garfield Defeats Winfield Scott Hancock: The Tariff Controversy, Post-Civil War – Kirk Higgins, Senior Manager of Education Bill of Rights Institute

 Thursday, April 21, 2016
(1884) Grover Cleveland Defeats James G. Blaine: The Issues Surrounding the Furor Stirred by the “Rum, Romanism, and Rebellion” Slogan, Regarding Religious Freedom and Anti-Catholic Prejudice – Peter Roff, Advisory Board Member, Constituting America; Contributing Editor, U.S. New and World Report

Friday, April 22, 2016
(1888) Benjamin Harrison Defeats Grover Cleveland: The Constitutional Issues Raised by Cleveland’s Veto of Pension Legislation for Veterans – Brion McClanahan, Author, The Founding Fathers Guide to the Constitution

Monday, April 25, 2016
Grover Cleveland: Twenty-second and Twenty-fourth President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, April 26, 2016
William McKinley: Twenty-fifth President of the United States  – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Wednesday, April 27, 2016
(1896) William McKinley Defeats William Jennings Bryan: The Gold Standard vs. Bimetallism – Karl Rove, Former Deputy Chief of Staff to President George W. Bush and author of The Triumph of William McKinley, Why the Election of 1896 Still Matters

Thursday, April 28, 2016
(1904) Theodore Roosevelt Defeats Alton Parker: Anti-Trust Legislation – Steven Aden, Senior Counsel, Alliance Defending Freedom

Friday, April 29, 2016
(1904, 1908) Theodore Roosevelt’s “Square Deal” vs. William Jennings Bryan’s Populism – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Monday, May 2, 2016
(1908) William Howard Taft Defeats William Jennings Bryan – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Tuesday, May 3, 2016
Progressivism and Its Theory of Constitutionalism – Matthew Spalding, Ph.D. – Associate Vice President and Dean of Educational Programs, The Allan P. Kirby, Jr. Center for Constitutional Studies & Citizenship, Hillsdale College 

Wednesday, May 4, 2016
(1912) Woodrow Wilson Defeats William Howard Taft, Theodore Roosevelt, Eugene Debs: Woodrow Wilson’s “New Freedom” – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, May 5, 2016
(1912) Theodore Roosevelt’s “New Nationalism” – William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; Author, Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism

Friday, May 6, 2016
(1912) Eugene Debs’ Socialism and the U. S. Constitution – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Monday, May 9, 2016
(1916) Woodrow Wilson Defeats Charles Evans Hughes – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Tuesday, May 10, 2016
Warren G. Harding: Twenty-Ninth President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Wednesday, May 11, 2016
(1920) The Sedition Act and Eugene Debs: Raising of the issue of the “Red Scare” – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Thursday, May 12, 2016
(1924) Calvin Coolidge Defeats Robert M. LaFollette, Burton K. Wheeler (Progressive Party), and John W. Davis: The Direct Election of Presidents – Joe Postell, Professor of Political Science, University of Colorado at Colorado Springs, CO

Friday, May 13, 2016
Women’s Suffrage and the Impact on Presidential Elections – Rachel Sheffield, Policy Analyst, DeVos Center for Religion & Civil Society, The Heritage Foundation

Saturday, May 14, 2016
Herbert Hoover: Thirty-first President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Monday, May 16, 2016
(1928) The Effects of Urbanization on the U. S. and Its Implications for Constitutional Government – Scot Faulkner, Former Chief Administrative Officer of the U.S. House of Representatives and as a Member of the Reagan White House Staff

Tuesday, May 17, 2016
(1932) Franklin D. Roosevelt Defeats Herbert Hoover: How the Great Depression Threatened Constitutionalism – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Wednesday, May 18, 2016
(1932) The “New Deal” – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, May 19, 2016
(1936) Franklin D. Roosevelt Defeats Alfred Landon: Administrative Centralization and Its Implications for Constitutionalism – Joerg Knipprath, Constitutional Law Professor, Southwestern Law School, CA

Friday, May 20, 2016
(1936) Supreme Court Opposition to New Deal Laws – Horace Cooper, Legal Commentator; Adjunct Fellow, National Center for Public Policy Research

Monday, May 23, 2016
(1940) Franklin D. Roosevelt’s Unprecedented Run for a Third Term – Andrew Bibby, Interim Director, Center for Constitutional Studies, Utah Valley University

Tuesday, May 24, 2016
(1944) Franklin D. Roosevelt Defeats Thomas Dewey: Constitutional Implications of Roosevelt’s Liberal Internationalism, United Nations – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Wednesday, May 25, 2016
(1948) Harry Truman Defeats Thomas Dewey, Strom Thurmond (“Dixiecrat”), Henry Wallace (Progressive Party): “States’ Rights” and Civil Rights Issues Raised by Dixiecrats – William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; Author, Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism

Thursday, May 26, 2016
(1948) Harry Truman: The Atomic Bomb, Cold War, Marshall Plan & The Fair Deal and Civil Rights Reform – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Friday, May 27, 2016
(1952) Dwight D. Eisenhower Defeats Adlai Stevenson: Communism and Civil Liberties – Horace Cooper, Legal Commentator; Adjunct Fellow, National Center for Public Policy Research

Monday, May 30, 2016
A Memorial Day Message – Janine Turner, Constituting America Founder & Co-Chair

Tuesday, May 31, 2016
(1956) Dwight D. Eisenhower Defeats Aldai Stevenson – Jim Legee, Program Director, The Freedoms Foundation at Valley Forge; Adjunct Professor, Albright College, PA

Wednesday, June 1, 2016
(1960) The Election of the First Catholic President as a Vindication of the First Amendment’s Clauses on Religious Freedom and Religion Establishment – Tony Williams – Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Thursday, June 2, 2016
(1964) Lyndon B. Johnson Defeats Barry Goldwater: The “Great Society” and the Constitution – Brion McClanahan, Author, The Founding Fathers Guide to the Constitution

Friday, June 3, 2016
(1968) Richard Nixon Defeats Hubert Humphrey, George C. Wallace: The Rise of the “New Left” – Steve Knott, Co-author with Bill of Rights Institute’s Tony Williams, Washington and Hamilton: The Alliance That Forged America

Saturday, June 4, 2016
(1968) Supreme Court Decisions on Civil Rights—an Issue Raised by George C. Wallace – Daniel Cotter, Adjunct Professor, The John Marshall Law School; Immediate Past President, The Chicago Bar Association

Monday, June 6, 2016
(1972) Richard Nixon: Thirty-Seventh President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, June 7, 2016
A Different Take on Watergate – John Marini, Senior Fellow, Claremont Institute, California; Fourth book in progress, American Constitutionalism and the Administrative State

Wednesday, June 8, 2016
(1972) Richard Nixon Defeats George McGovern: Watergate – David Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

Thursday, June 9, 2016
Our Constitution Works: President Ford’s Date With Destiny – Gerald R. Ford Presidential Foundation, Grand Rapids, Michigan

Friday, June 10, 2016
(1976) Jimmy Carter: Thirty-Ninth President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Monday, June 13, 2016
(1980) Ronald Reagan Defeats Jimmy Carter, John Anderson: The Critique of the Administrative State – Andrew Langer, President, Institute for Liberty

Tuesday, June 14, 2016
(1984) Ronald Reagan Defeats Walter Mondale: Geraldine Ferraro Nomination as Vice President and the Constitutional Implications of the Feminist Movement – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Wednesday, June 15 – Thursday, June 16, 2016
(1988) George H.W. Bush Defeats Michael Dukakis – Tony Williams, Professional Development Instructor, Bill of Rights Institute; Author, Washington and Hamilton: The Alliance that Forged America

Friday, June 17, 2016
(1992) Bill Clinton Defeats George H.W. Bush – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Monday, June 20, 2016
(1992) Bill Clinton Defeats George H.W. Bush – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, June 21, 2016
(1992) Bill Clinton Defeats George H.W. Bush – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Wednesday, June 22, 2016
(1996) Bill Clinton, Presidential Elections, And Constitutional Rule Of Law – Brian Chilton, former University Of Virginia School Of Law Associate Editor & Executive Editor, Virginia Law Review; Author, Issachar’s Heirs

Thursday, June 23, 2016
(2000) George W. Bush Defeats Al Gore, Ralph Nader: A Case Study On Choosing Electors – The Honorable John N. Hostettler, former Congressman from Indiana; Director, The D. James Kennedy Center for Christian Statesmanship; Author of Ordained and Established: A Statesman-Citizen’s Guide to the United States Constitution

Friday, June 23, 2016
(2004) George W. Bush Defeats John Kerry: Terrorism and the Constitution – Andrew Langer – President, Institute for Liberty

Monday, June 27, 2016
(2008) Barack Obama: Forty-Fourth President of the United States – Juliette Turner, author of Our Presidents Rock (Harpers Collins/Zondervan)

Tuesday, June 28, 2016
(2012) Barack Obama Defeats Mitt Romney – Michael Barone, co-author of The Almanac of American Politics and Senior Political Analyst for the Washington Examiner; Resident Fellow, American Enterprise Institute

Wednesday, June 29, 2016
Conclusion: Constitutional Issues in the 2016 Election – William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; Author, Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism


SoundCloud Archive

The Federal Fruit and Vegetable Cartels – Guest Essayist: Daren Bakst

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If you grow fruits and vegetables, the federal government might limit how many fruits and vegetables you can sell. Some raisin growers learned this the hard way when they were fined by the United States Department of Agriculture (USDA) for not turning over part of their crop to the federal government.

This year, the United States Supreme Court in Horne v. USDA decided this “raisin case,” holding that under the Fifth Amendment, the federal government was taking the raisins and therefore must provide just compensation to the raisin growers.

While an important victory for property rights, raisin growers may still be subject to USDA meddling into their sales. On a USDA web page, they acknowledge that the raisin supply restrictions will be amended in light of the Horne case. The agency could be trying to figure out a new way to restrict the sale of raisins.

It is shocking that a farmer can’t make an honest living selling a legal product without the federal government coming in and telling them how much they can sell. This is reality though. It’s also not just a raisin problem, but much broader. These supply restrictions are the result of what are known as marketing orders.

The Agricultural Marketing Agreement Act of 1937 authorizes the use of fruit and vegetable marketing orders. These New Deal programs attempt to create stable markets for certain commodities. Marketing orders, among other things, authorize research and promotion of commodities, establish minimum quality standards, and sometimes limit supply through volume controls (i.e. supply restrictions).

They are initiated by industry and must be approved by two-thirds of growers. The government acts as the enforcer for industry, requiring everyone affected by a specific order to abide by its legally enforceable provisions. In this way, industry members use government compulsion rather than private cooperation to maintain “order” in the marketplace. It doesn’t matter if a covered grower doesn’t support the marketing order or didn’t vote for it, they have to abide by its terms.

The USDA gives its blessing to these fruit and vegetable cartels, which would likely violate federal antitrust law absent government intervention. The industry leaders running these cartels are seeking to benefit the industry, and more likely specific members of the industry. The interests of consumers are of little to no concern.

Currently, there are 28 fruit and vegetable marketing orders. Of these, 10 have authorized supply restrictions. Only two have supply restrictions that are active (i.e. in effect): spearmint oil and tart cherries. This low number of active supply restrictions is evidence that they are unnecessary; 26 of 28 marketing orders don’t have active supply restrictions.

While supply restrictions may be the most egregious aspect of marketing orders, these orders in general are the problem. Nobody should be forced to be part of any association of individuals, including these cartels. These orders are egregious, plain and simple. Even two Supreme Court justices not necessarily known as free market champions captured the absurdity of marketing orders.

The first time the Horne case came to the Court (it came twice), Justice Elena Kagan quipped, “And now, the Ninth Circuit can go and try to figure out whether this marketing order is a taking or it’s just the world’s most outdated law.”

And Justice Sonia Sotomayor, who held that the government had not actually taken the raisins, noted in her dissent: “The Order may well be an outdated, and by some lights downright silly, regulation. It is also no doubt intrusive.”

These orders are outdated, silly, and intrusive. Worse though, they are completely counter to the idea of a free society where Americans have the unalienable rights of life, liberty, and the pursuit of happiness. The USDA may implement these orders, but it is Congress that gave the agency the green light to wield this incredible power. Only Congress can fix this situation.

Daren Bakst is the Research Fellow in Agricultural Policy at The Heritage Foundation. Bakst frequently submits comments to regulatory agencies and has appeared in or been quoted by a wide range of media outlets such as The Wall Street Journal, USA Today, The Washington Times, CNN, Fox Business News, Al-Jazeera America, and U.S. News and World Report. A licensed attorney, he holds a law degree from University of Miami and a master of laws degree from American University.



Article II

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Article. II.

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. Read more

Long and Little Known: How Incoherent Statutes Harm Liberty & the Rule of Law


“It will be of little avail to the people that the laws are made by men

 of their own choice if the laws be so voluminous that they cannot be read, or so

 incoherent that they cannot be understood . . . .”

                                    —James Madison, Federalist 62


In support of the federal Constitution, James Madison explained that “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”1 Mr. Madison understood law “to be a rule of action,” and asked, “but how can that be a rule, which is little known, and less fixed?”2   Today, more than two centuries later, Mr. Madison’s warning has proven both prescient and forgotten.  With federal bills and statutes droning on for hundreds and thousands of inscrutable pages of legal jargon, federal legislation has grown so voluminous Read more

Patriot Clubs Gen


The Supreme Court: Paving The Way For Executive Branch Overreach – Guest Essayist: Elliot Engstrom

Last week, the United States Supreme Court once again opted not to rule a key provision of the Affordable Care Act unconstitutional. The case at issue, King v. Burwell, was technically not a challenge to the Affordable Care Act itself but rather the IRS’s implementation of the Act.


“In a democracy,” Chief Justice Roberts wrote for the majority, “the power to make the law rests with those chosen by the people. Our role is more confined—“to say the law is.”


Such a statement is quite ironic given that the decision takes a statutory phrase and then contorts it to say the exact opposite of its natural meaning. While the policy implications of the Supreme Court’s upholding of the ACA will likely grab most of the headlines in the coming weeks, the Court’s complete abdication to the Executive on matters of statutory interpretation could shake the very foundations of our democracy for decades to come.


Administrative agencies like the Internal Revenue Service are outgrowths of the Executive Branch, which is charged with enforcing our nation’s laws. Therefore, any power given to such an agency is by implication given to the Executive. Last week’s decision granted administrative agencies a powerful new tool for reaching far beyond their congressional mandate. In doing so, the Court has paved the way for the Executive Branch to overreach even further beyond its congressional mandate by appealing to the principles enunciated by the Roberts court.


The fundamental question at issue in King v. Burwell was whether the IRS had exceeded its congressional mandate. The Affordable Care Act (ACA) sets up a scheme through which individuals purchase health insurance through government-run “Exchanges.” The ACA, as written, authorizes the IRS to provide tax subsidies only to those who purchase their healthcare though an Exchange “established by the State.” However, the IRS opted to provide subsidies to Americans who purchased their health insurance through Exchanges established by both the state and the federal government.


Chief Justice Roberts admits outright that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Justice Scalia had a biting response to this statement:


The Court claims that “the context and structure of the Act compel [it] to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters. It is a tool for understanding the terms of the law, not an excuse for rewriting them.


The saddest part about Justice Scalia’s dissent is that, as of the Court’s opinion this morning, he is wrong. He is not wrong because he is articulating the principles of statutory construction incorrectly. He is now wrong because the Supreme Court is not simply an interpreter of law – it is also itself a creator of law.


Generally, regulations are evaluated under the Chevron test to determine whether they exceed the mandate of Congress. That test asks whether to grant deference to a government agency’s interpretation of a statute that it administers.


However, the Court opted not to use the Chevron framework. Its stated reason for doing so was because this is an “extraordinary” case that affects a question of deep “economic and political significant” – the question of whether subsidies are available on Federal Exchanges. Under this rationale, the Court stretched the amount of deference due to administrative agencies to the point where the Internal Revenue Service now has the “discretion” to take an action that is the exact opposite of what the statute explicitly states.


In order to determine whether such deference is warranted under Chevron, the Court is first supposed to ask whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter. However, if Congress has not directly addressed the question at issue, then the Court should simply determine “whether the agency’s answer is based on a permissible construction of the statute.”


It would seem that the Court, before ever taking up the case, decided that it would find a way to uphold the Affordable Care Act. However, in doing so it has handed administrative agencies, and therefore the Executive, a powerful new tool. For years to come, executive-level agencies will argue in federal courts throughout the nation that they have discretion to do as they please, all due to the fact that their actions affect questions of “economic and political significance.” This Court has left its subordinate tribunals with the task of determining when an issue of such “significance” that executive agencies should have unfettered discretion to ignore the limitations of Congress and instead unilaterally carry out the will of the Executive.


The Roberts court today secured its legacy as a Court that twisted the law in order to serve a predetermined purpose of upholding the political class’s cause of choice. If it was not bad enough that this legacy in the short term leaves the American people with a healthcare system that focuses on “coverage” and “insurance” rather than actual access to healthcare and cost controlling measures, in the long term the Court’s jurisprudence will surely be cited for years to come as the tool of choice for the Executive Branch to expand its power far beyond its congressional mandate.


Elliot Engstrom is an attorney with the Civitas Institute Center for Law and Freedom, www.nccivitas.org.


Click Here to Read More Essays From This Year’s 90 Day Study!

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


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 5th 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. Read more

How Can Words On Parchment Constrain Executive Overreach? Guest Essayist: James D. Best

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“Governments are instituted among Men, deriving their just powers from the consent of the governed”  The Declaration of Independence used these words to legitimize our founding as a nation. Fifteen simple words, but they embodied a world-shattering idea. Kings supposedly derived their authority from God, but the Declaration declared that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” These subversive words flipped the divine right of kings on its head. Instead of kings, God endowed all of mankind with natural rights. Read more

Congress Shall Make No Law – Encroaching On The First Amendment – Guest Essayist: Peter Roff

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On the subject of free speech the founders could not have been clearer. When they wrote that “Congress shall make no law” inhibiting its exercise or that of freedom of the press they were quite specific.

Read more

Set Up A Google Hangout/Skype Session Or “In Person” Speech With a Movie Star!

Are you looking for a fun way to get your students excited to learn about the U.S. Constitution?


SpeechScreenShot3Constituting America founder and co-chair, Actress Janine Turner (Northern Exposure, Cliffhanger, Friday Night Lights), joined by Constituting America National Youth Director Juliette Turner and/or one or more of our“We The Future” student contest winners, will speak to your child’s classroom in person, or via Skype or Google Hangout!


Janine and Juliette and/or our Contest Winners will provide a non-partisan, age appropriate conversation about the Constitution for any educational department: Drama classes, music classes, government and history classes, English classes and more are all welcome! Our winners will show you how they used their songs, short films, public service announcements, artwork, poems, and speeches, to both promote the U.S. Constitution, and to win scholarships, trips around the country, cash prizes and more!

Janine and Juliette will teach your students about the U.S. Constitution in a non-partisan way –  covering a fun “Constitution Quiz” that emphasizes the roles of various branches in our government and some of the most important points about the U.S. Constitution.

This is also a unique opportunity for your students to speak with Janine about pursuing a career in Radio, Television, or Film.



These non partisan, educational internet sessions are tailored to your teaching schedule and classroom needs – we can work with speaking slots as short as 15 minutes or as long as 35 or 40 minutes and can cover specific topics upon request. These sessions are free learning opportunities for your students. There is no cost to your school! Internet sessions are perfect for home school groups, scout troop meetings, Patriot Club meetings or anywhere else that young people are gathered who want to learn about the Constitution, and our exciting “We The Future” Contest!

What Teachers Say:

“Wow! To hear someone with this much passion for making sure our youth have a thorough understanding of the Constitution is amazing. Our students at “The” Barack Obama Male Leadership Academy enjoyed the challenges presented by Janine and appreciated the opportunity to learn from a truly zealous advocate of the document that founded these United States of America. Thanks for a GREAT presentation. The students enjoyed it and so did I. They are chomping at the bit for your return.”  – Tom McLaughlin, Teacher, “The” Barack Obama Male Leadership Academy, Dallas, Texas, May 2015

Our experience with Constituting America was unique and inspirational.  My students were able to make real-world connections with people who care deeply for our country’s founding documents.  They were blessed to receive relevant material that bring the subject to life in a way that traditional textbooks do not.  I often struggle as a teacher with a balance between that which we must learn and that which makes learning worthwhile.  Constituting America brought both of those together in a memorable way that my students and I will never forget.   Thank you from East Texas!  Jeff Sims, East Texas Charter School, September 2016


E-Mail: ConstitutingAmerica1787@yahoo.com

Phone: 1-888-937-0917

Schools & Organizations Constituting America Founder  Co-chair Janine Turner has spoken to (by Skype or In Person):

Adventures of Eastern Tennessee Homeschool – Knoxville, Tennessee

Alpha Chi Omega Alums – Colleyville, TX

American Heritage Girls – St. Louis, MO

Arise Ministries – Oklahoma, OK

Atlantic Middle School – Quincy, MA

Babes Chicken Dinner House Restaurants Employees (Frisco, Carrollton, Garland, Arlington)

Ballard High School – Seattle, Washington

Ballwin Homeschool Group – Ballwin, MO

Benchmark Elementary Teacher-in-Service Day, Phoenix, AZ

Booker T. Washington High School for the Performing and Visual Arts – Dallas, TX

Boy Scout Troop 57 – Garland, Texas

Boy Scout Troop 1910 – Keller, Texas

Boys and Girls Club – Arlington, Texas

Boswell High School – Fort Worth, Texas

Boyd High School–McKinney, Texas

Bussey Middle School – Garland, Texas

CAN! Academy – Dallas, Texas

Cheryl Felicia Rhoads Northern Virginia Acting School – Falls Church, Virginia

Congressman Johnson’s Congressional Youth Advisory Council – McKinney, Texas

Conover Road Elementary – Colts Neck, New Jersey

Constitutional Leadership Seminar – Yorktown, VA

Convention of the States – A project of Citizens for Self-Governance – Dallas, TX

Cooke County Republican Party – Convention of States – Gainesville, Texas

Covenant Christian Academy – Colleyville, Texas

Cumberland Road Elementary – Fishers, Indiana

Cuyuna Regional Medical Center – Brainerd, MN

Dallas Salesmanship Club – Dallas, TX

DAR Capitol Hill Chapter – Washington, DC

Desert Townhall – Palm Desert, California

Eagle Mountain Elementary – Fort Worth, Texas

Eddins Elementary – McKinney, Texas

Evangel Classical Academy – Alabaster, Alabama

Fort Worth Country Day – Fort Worth, Texas

Founders Classical Academy – Lewisville, Texas

Gainesville Rotary Club – Gainesville, Texas

Grace Covenant Academy – Frisco, Texas

Grapevine Faith Christian School (Juliette Turner) – Grapevine, Texas

Great Homeschool Convention – Ft. Worth, Texas

Green Oaks School – Arlington, Texas

Harwood Junior High – Bedford, Texas

Highland Park High School – Dallas, Texas

Imagine International Academy of North Texas –McKinney, Texas

Irving Sunrise Rotary Club – Irving, Texas

iHigh Graduation – Lewisville, TX

iSchool High – Lewisville, Texas

John Ben Shepperd Leadership Institute – Austin, Texas

Kingwood Middle School – Kingwood, Texas

Knights of Columbus – Irving, Texas

Knoxville Home School – Knoxville, TN

Leo Linbeck Google Hangout – Colleyville, TX

Lyles Middle School – Garland, Texas

Los Angeles Film School – Los Angeles, California

Meadow Oaks Academy – Mesquite, Texas

McSpedden Elementary – Frisco, Texas

Middle Tennessee State University – Nashville, TN

Mooneyham Elementary – Frisco, Texas

Mt. Vernon High School – Alexandria, Virginia

Mt. Vernon Estate (Juliette Turner) George Washington Symposium – Alexandria, Virginia

Naaman Forest High School – Garland, Texas

New Horizons of Southwest Florida After School Program  – Bonita Springs, Florida

New York Film Academy – Los Angeles, California

North Texas Homeschool Families – organized by Justice of the Peace Russ Casey

North Richland Hills Homeschool Group – North Richland Hills, Texas

Northstar Academy – Arlington, Texas

Restoring Liberty – Dallas, Texas

Riverside Military Academy – Gainesville, Georgia

Rucker Elementary – Prosper, Texas

Smith’s Station High School – Smith’s Station, Alabama

SMU – College Republicans – Dallas, Texas

Sons of the American Revolution – Garland, TX

Sunnyvale Middle School – Sunnyvale, Texas

St. Vincent’s School – Bedford, Texas

Stone Brook Learning Center and Meadow Oaks Academy – Mesquite, TX

Tarrant County College – Fort Worth, Texas

Teach Them Diligently Home School Conference – Dallas, Texas

Texas A&M  – College Republicans

Texas A&M – Women’s Leadership Conference

Texas Health Presbyterian Hospital – Flower Mound, Texas

The Barack Obama Male Leadership Academy – Dallas, Texas

The Constitution Leadership Initiative – Yorktown, Virginia

University Park Elementary School – Dallas, Texas

Wayside Middle School – Fort Worth, Texas

Westlake Academy – Westlake, Texas

Wilshire Elementary – Euless, Texas

Winchester-Frederick-Clarke Republican Women – Winchester, VA

W.T. White High School – Dallas, Texas

Wayne County Schools – Smithville, Ohio

Young Academy – Southlake, Texas

Yucca Middle School – Clovis, New Mexico


Janine Turner & Cathy Gillespie


Truth Act

Federalist Paper 62 “The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?” Alexander Hamilton/James Madison


Let your voice be heard that you support limiting the size and length of bills, and making bills coherent for the American people and members of Congress to read and understand.


The Truth Act*makes the bills simple not “voluminous” and easy to understand not “incoherent” for both legislators and the American people.† Thus, it will be beneficial to the people, and to the Republic, that “laws are made by men of their own choice.”

T-The bills (including amendments) put forth by legislators are to be limited to single subjects,†and THIRTY pages, with U.S.†legal code interpretations in the side margins. An accompanying version of the bill is to be written in 5th grade reading level for easy and nationwide comprehension.

R-The bills (and consequent amendments) are to be READ by the legislators – the new amendments are to be underlined with the old version included for clarity. They are to be available for the American people to read – at least thirty days before voting.

U-The bills (and consequent amendments) are to be UNDERSTOOD by the legislators.

T-Before voting on the bills, Congressmen and Senators are to TESTIFY under oath that they have read and understood the bills and consequent amendments to the bills.

H-The American people are to HEAR the proposed – and final – version of the bills. The bills are to be read on camera and put online so that the people may HEAR (as well as read) the bill at least 30 days before voting on the bill occurs.

The indeterminably disastrous†effects of such voluminous and incoherent bills such as the Affordable Care Act (Obamacare), Dodd Frank, the Patriot Act and the upcoming Immigration Bill are all examples of bills that were/are too voluminous and incoherent for both legislators and the American people, leading to America’s demise and Americans  loss of liberty.



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Cheryl Ries
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Forrest Sealey
Wayne Root
Scott Rembe
Mark Tarrien
Louis Pror
Jerry Waller
Norma Turner
Robin Ulery
Patsy Shaul
Rudy Ruiz
Benjamin Wilkinson
Benjamin Qualls
Robert Trumbature
Eliseo Quiroga
Sandra Smith
Michael Spencer
Daniel Romero
Chas. Weldon
Patrick Switzer
Ronald Reed
Valerie Risher
Rocky Phipps
Chuck Trott
Foster Roberts
Doug Wilkey
Pat Shannon
Carolyn Zewe
Terri Wyatt
Craig Puchta
Robin Whitworth
David Stroud
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Marcia Scattergood
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Joe Shermer
Nancy Trump
Morgan Stanton
Michael Redus
Pamela Richardson
John Pullins
Betsy Smith
Joe Santomo
Christine Rivera
Dot Ruest
Linda Walker
Genevieve Tripodi
Andrea Plattner
Mark Pritchett
Jordan Yentsch
Dennis Westervelt
Johnny Spivey
Margaret Sapir
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Patricia Warnock
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Robert Ryan
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Donald Wojtaszek
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Sheri Riddle
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David Stipes
Cynthia Poole
Mario Yarnell-gonzalez
Arlon Webb
Scott Showers
Janine Turner-show
Janine Turner-reelingspirit
Janine Turner-sbcglobal
Richard And Carol Robinson
Linda Santarone
Patrick Potter
Virginia Valentino
Anna Runions
Lisa Rogers
Jeff Pendleton
Julyette Willmann
Tom Simons
Robert Rickert Iii
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Terry Roberts
Tara Thompson
William E. Woodruff
Joe Reid
Marybeth Rambush
Li Tyler
Tracy Wackerman
Paul Stewart
Ronald Rutledge
Randy Plesea
L Ranney
Frank Purpera
Nicholas Psaltos
Jimmie Young
Lee Rini
Terri Reves
Constance Rossman
Brenda Smith
Fred Schaider
Joe Shawler
Elaine Wilhelm
Bryan Pettengill
Pauline Seeber
Curt Walker
Jeffrey Ward
Alan Phillips
Neil Rowland
Lloyd Stambaugh Jr
Marianne Turner
Mark Tebor
Alan Seevers
Gene Werner
Eugene Tighe
Ellis W Venia Jr
Freda York
Mitzi Smith
Bob Yeager
Steven Reeder
Joseph Russo
Mike Weigel
Danny Scallon
Randy Wright
Frank Puff
Roy Wilt
Walter Wilt
John L. Picou
Ralph Wind
Jeffery Tester
Tina Tillman
Marcelo Urias
William Riley
Robert Sommers
Leo Southworth
Allan Shaw
Hyman Tanner
Elizabeth Pike
Jeff Roach
Henry Phillips
Virginia Southern
Alan Wright

*The Truth Act is a work in progress. Send me your comments/suggestions!

Constituting America’s Awards


Announcing Lexi Lassiter, 2015 Winner: Turner Maurice Gauntt Jr. Exemplary Citizen Award 

8Alexis Lassiter is a remarkable young woman whose high school attributes, achievements and character mirror those of Turner Maurice Gauntt, Jr.’s. Lassiter, a freshman at the University of Texas at Austin, is pursuing a degree in Mechanical Engineering in addition to completing the Business Foundations Certification program. Graduating fifth in her class from Athens High School, she achieved Distinguished Honors, becoming an Athens Public Education Foundation four-year scholar.

Through high school, she participated in numerous school and community activities. As a debate team member from grades 9-12, she participated in Policy debate, Duo Interpretation, Prose, and Extemporaneous Speaking on district, regional and state levels. She earned Texas Forensic Association (TFA) State qualification and was the highest Junior National Forensic League (NFL) point earner.

As an active member of the Athens High School Drama Department, she participated each fall in production, her characters ranging from a zombie in Maul of the Dead, to Miss Hannigan in Annie, to the Cheshire Cat in Alice in Wonderland. Each spring, she competed in the One-Act Play on district, regional, and state levels. Her department earned second place at the state competition, and she received two All-Star Cast awards on district and regional levels.

All four years of high school Lassiter was a member of Key Club and Student Council, becoming Parliamentarian of Student Council her sophomore and junior years, and Vice President her senior year in addition to serving as Key Club President. She was inducted into the National Honors Society at the end of her sophomore year, and became Community Service Officer her senior year, planning community service activities and making outside opportunities available to other members.

In addition, Lassiter participated in countless community service projects: fundraising for typhoon relief; breast cancer awareness; soup kitchen; Humane Society; collecting toys for the Fire Department; sending care packages for overseas military members; and working the city-wide “Pancake Day” with Kiwanis, for example.

Outside of school, Lassiter participated in summer musicals at the Henderson County Performing Arts Center along with being a First Presbyterian Church of Athens youth group member. She served as Youth Representative on the Youth Advisory Council.

Lassiter was also an ambass