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This year’s Constituting America’s 90 Day Study has focused on state and local government and, for each state, has discussed the constitution that each state has adopted.  In every instance, the state constitution specifies the branches of government, including a judicial branch.  How state supreme courts work in relation to the United States Supreme Court is mostly a matter of jurisdiction, with the United States Supreme Court and  “such inferior Courts as the Congress may from time to time ordain and establish” created by the United States Constitution.

The Founding Fathers of our nation did not spend as much time debating and did not spend as much time drafting and discussing Article III, which created the federal courts and gave Congress extensive power to determine the structure of the judiciary.

Alexander Hamilton, expressing his views in the Federalist Papers, had a clear view of what powers the judiciary had and how they fit in the three branches of the new national structure.

In Federalist No. 78, Hamilton noted that the judiciary would be the weakest of the three branches because it had “no influence over either the sword or the purse, …It may truly be said to have neither FORCE nor WILL, but merely judgment.” With only the power of the word, and no enforcement powers, the Founders considered the judicial branch as dependent to some extent on the political branches to uphold its judgments.

The Federalist 78 also supported the notion that the nation’s judiciary would serve as lower than, and not superior to, the legislative branch in order only to function as interpreter and not maker of law; Alexander Hamilton in Federalist 78, “The interpretation of the laws is the proper and peculiar province of the courts.”  However, this is not to say that when the John Marshall Supreme Court announced its decision in Marbury v. Madison in 1803, that their finding that “It is emphatically the province and duty of the judicial department to say what the law is” should have been a surprise to the nation.  Hamilton in Federalist 78 stated clearly how the Constitution and other lower laws were to be assessed:

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

State Courts

The state and local courts generally address and rule on cases and controversies that involve law and the constitution of that state.  However, in some instances, those state court rulings can be appealed and challenged in the federal courts.  If the issue is whether a state law violates the Constitution, then federal courts may hear the dispute.  In addition, in some instances, if the jurisdictional thresholds are met, then there might be dual jurisdiction.

An Early Clash

When John Marshall became Chief Justice of the Supreme Court in 1801, his former schoolmate, Spencer Roane, had already served as a member of the Virginia Supreme Court of Appeals for six years.  Marshall was a nationalist, his views developed at least in part from his service in the Revolutionary War and the deprivations he witnessed. Roane, who was aligned with Thomas Jefferson, was a strong states’ rights advocate.  The two clashed a number of times over the years, with Roane ruling in a case that Marshall had been an advocate, Pleasants v. Pleasants. However, Roane would engage in some nullification after Marshall became chief justice.  Roane refused to follow the decision handed down by the Marshall Court in 1815, Martin v Hunter’s Lessee.  Later, after the Court issued McCulloch v. Maryland, which addressed the United States Congressional powers vis-à-vis the state legislative powers in a controversy over the legality of the national bank, Roane wrote several editorials under pseudonyms attacking the Marshall Court’s decision. Roane also wrote a number of articles that where precursors to the Nullification Crisis.

Andrew Jackson

President Andrew Jackson did not care for the Marshall Court 1832 decision, Worcester v. Georgia, which addressed Native Americans rights and tribal sovereignty.  Jackson reportedly stated, “John Marshall has made his decision; now let him enforce it!”  While there is no direct evidence he uttered those exact words, he did write in a letter to John Coffee that “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”

Conclusion

The federal and state courts are separate entities with different jurisdictional limits and powers.  While state issues might be litigated in federal courts if jurisdictional requirements are satisfied, United States Constitutional issues are ultimately the federal courts to decide.  The Founders at the national and state levels expected the third branch, while co-equal to the other branches, to be the least powerful branch and interpreters only of laws.

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Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

Guest Essayist: Daniel A. Cotter

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To date, fifty states have been admitted to the United States, with the last one, Hawaii, having been admitted on August 21, 1959.  However, in addition to the states, the United States has a number of major territories, including American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.

The Establishment of a United States Territory and Its Governance

As many of the essays after the first states’ ratification of the Constitution have described, the way to statehood has typically been through first being a territory or part of a territory, and then seeking statehood.  A territory is established by the passage of an organic act to organize it. Many have been enacted by Congress over the nation’s history, with the first being the Northwest Ordinance, passed in 1787 by the Continental Congress.

Current Major Territories and History

Currently, the United States has five major U.S. territories: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Each such territory is partially self-governing that exists under the authority of the U.S. government.

Pursuant to the Organic Act of 1900, or Foraker Act, Puerto Rico became a territory of the United States. Puerto Rico became a possession pursuant to the Spanish-American War.  It has been a territory since that act passed.  It has often been mentioned as a new state, but no serious effort has been made by Congress.

Pursuant to the Organic Act of the Virgin Islands of the United States of 1936, the United Stated added the U.S. Virgin Islands to its territories.  In 1950, Guam became a territory pursuant to the Guam Organic Act of 1950.  In 1954, the Revised Organic Act of the Virgin Islands replaced the original 1936 act.

The Northern Mariana Islands have been administered by the United States since Japan surrendered in World War II, pursuant to Security Council Resolution 21.  The people of the Islands have by referendum voted to join with Guam, but in 1969, Guam rejected the proposal. American Samoa has no organic act, and as such is considered unorganized.  Despite that, American Samoa has remained connected to the United States. In addition to the five major territories, the United States has a number of other territories that are uninhabited.

Limitations of Territories

Territories are not states and do not have full recognition that states enjoy.  Notwithstanding not being states, each territory can send a delegate to the House of Representatives. With the exception of American Samoa, whose residents are U.S. nationals, those in the other four territories are U.S. citizens. Citizens of the territories can vote in primary elections for president, but they cannot vote in the general elections for president.

In 2016, the Supreme Court of the United States held, in Puerto Rico v. Sanchez Valle, 579 U.S. ___ (2016), that territories do not have sovereignty.  In the aftermath of Hurricane Maria, the Puerto Rico governor and others argued that the territories were powerless and had little understanding or support.  As noted, they send delegates to the House, but have no vote, and cannot vote in the general election for president, despite being citizens in four of the five territories.  While they have some self-governance, they do not have sovereignty, and the reality is that there are significant limitations when a land is a territory rather than a state.

Conclusion

In our nation’s history, many of the states that today constitute the fifty were originally territories or parts of larger territories.  Thirty-one territories or parts have eventually become states.  For example, from the Missouri Territory, we have Missouri, and then from the unorganized territory once Missouri became a state, we later had Iowa, Nebraska, South Dakota and North Dakota, most of Kansas, Wyoming, and Montana, and parts of Colorado and Minnesota become states.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Admitted to Union July 10, 1890, Wyoming became the forty-fourth state to ratify the U.S. Constitution. Known as “The Equality State,” it currently uses the Wyoming State Constitution adopted in 1889.  While amended many times, it is the only state constitution Wyoming has had in its history, last amended in 2008.

Becoming a State

In 1869, the Wyoming Territory organized after Congress passed an act creating the territory in July 1868, with the territory seeking statehood from the beginning. Despite statehood being more than thirty years in the territory’s future, Wyoming’s first territorial governor, John A. Campbell, signed the “Female Suffrage” in 1869 and Wyoming became the first territory, then when admitted as a state, to grant voting rights to women.

In addition to that act, Wyoming has been a leader in equal rights from its organization as a territory.  Women served on juries beginning in 1870, the first female court bailiff was in Wyoming in 1870, and the first female governor in the nation, Nellie Tayloe Ross, was sworn into office in January 1925.

In 1888, the Territorial Assembly petitioned Congress for statehood, but that effort was not successful.  Despite not being approved for statehood in 1888, Wyoming Territory Governor Francis E. Warren and other territorial leadership decided to hold an election for delegates to a constitutional convention.  On September 30, 1889, the Constitutional Convention was held and a state constitution was drafted that was submitted to voters. A short time later, on November 5,1889, the constitution was approved by an overwhelming majority of Wyoming voters, 6,272 to 1,923.

With a new constitution, the Wyoming Territory pushed for statehood again, and after President Benjamin Harrison signed Wyoming’s statehood bill, Wyoming became the 44th state on July 10,1890.

The Wyoming Constitution

The state has been known as “The Equality State” from its early days, with the Suffrage Act passed and also the state constitution, which provides at Article 1, Declaration of Rights, Sections 2 and 3 the strong belief in equality, stating:

Sec. 2. Equality of all. In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.

Sec. 3. Equal political rights. Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.

Forty-six delegates assembled in Cheyenne, Wyoming, in September 1889, and on September 30, 1889, the delegates signed the constitution.  Although amended on numerous occasions (the changes can be seen in the document at https://soswy.state.wy.us/Forms/Publications/09WYConstitution.pdf), the bulk of the Wyoming Constitution has remained unchanged since its origins almost 130 years ago.

The Wyoming Constitution has other rights that are consistent with the United States Constitution Bill of Rights, and its right to bear arms provision makes it clear it is a right to defend oneself and the state, providing:

Sec. 24. Right to bear arms. The right of citizens to bear arms in defense of themselves and of the state shall not be denied.

In addition to the extensive Declaration of Rights, the Wyoming Constitution is very detailed in terms of limitations on the state’s public indebtedness.

Conclusion

Wyoming became the 44th state to join the United States, but in equal rights, stands out as the first, earning its nickname as “The Equality State.”  Wyoming is also known as the “Cowboy State” in homage to its use of the bucking bronco as its symbol.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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Admitted to the Union December 3, 1818, Illinois is the twenty-first state to ratify the U.S. Constitution. Known as “The Prairie State” as well as the “Land of Lincoln,” the Illinois State Constitution adopted in 1970 is the version currently used.  The first state constitution, however, was adopted on August 26, 1818.

Becoming a State

In April 1818, Congress passed a bill, contemplating admitting Illinois as a state if it could show that it had a population of at least 40,000 in the territory.  As my friend, Ann Lousin, notes in an excellent Chicago Daily Law Bulletin column published in August 2018, that was a tall order for the territory to complete, because the territory was well short of the required number set by Congress.  Nonetheless, the territorial governor and associates submitted to Congress that the population of white residents exceeded 40,000, and that part of the process was done.

The Illinois Constitution

Congress required that each new state have a constitution.  Delegates were selected and they met in Kaskaskia, Illinois, thirty-three men gathered at a tavern to draft a constitution.  Borrowing heavily from the Kentucky constitution, where many delegates had come to Illinois from, as well as the constitutions of Ohio and Indiana (two states that were part of the Northwest Territory), a very small group drafted the constitution.  Except for one issue, there are not records of much debate over this constitution to be submitted to Congress.

The one issue that the delegates debated heavily was the question of slavery.  Factions for pro-slavery and abolitionists sought compromise and while most of Illinois was “free soil” the Illinois Salines were permitted to have slavery.  In addition, a compromise was agreed upon, with any slave who was currently in the state remaining a slave, though their children would become free upon reaching adulthood. With this agreed upon as well as the seat of the new state’s government, the constitution was adopted on August 26, 1818. That date is proudly displayed on the Illinois state flag in the center.  The adopted constitution was submitted to Congress and, on December 3, 1818, President James Monroe signed the enabling act that admitted Illinois as the 21st state to the United States.

The initial constitution of Illinois has been amended on three occasions since 1818- in 1848, 1870 and 1970.  The last constitution granted home rule powers for certain municipalities, including the City of Chicago.

The preamble to the Illinois Constitution has a flavor that is definitely familiar, stating:

We, the People of the State of Illinois—grateful to Almighty God for the civil, political and religious liberty which He has permitted us to enjoy and seeking His blessing upon our endeavors—in order to provide for the health, safety and welfare of the people; maintain a representative and orderly government; eliminate poverty and inequality; assure legal, social and economic justice; provide opportunity for the fullest development of the individual; insure domestic tranquility; provide for the common defense; and secure the blessings of freedom and liberty to ourselves and our posterity—do ordain and establish this Constitution for the State of Illinois.

In 1968, the question of whether to hold a constitutional convention was on the ballot, and it passed.  As noted, a big feature of the new constitution that came out of that convention was home rule, which transferred power from the smaller rural communities to the more urban centers.  Ratified on December 15, 1970, Illinois adopted a new, modern constitution, one of the few post-World War II constitutions among the states.  The fourteen articles of the current constitution create the traditional three branches of government.  The 1970 Constitution also includes an extensive Bill of Rights and Article X guarantees a free public education for all Illinois residents.

Conclusion

Illinois became the 21st state to join the United States.  During the Civil War, it contributed the fourth greatest number of men who served in the Union Army.  President Abraham Lincoln, who was born and raised in Kentucky, was president during the Civil War and “The Prairie State” has become known as the “Land of Lincoln” to honor the 16th President of the United States.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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New York – July 26, 1788

Eleventh of the thirteen original states to ratify the U.S. Constitution, New York was admitted to the Union July 26, 1788, one month and a day after Virginia became the 10th state and is known as “The Empire State” (apparently based on its wealth and resources).  The current New York State Constitution was adopted in 1894, but its first was adopted on April 20, 1777.

Constitutional Convention

New York sent only three delegates to the Constitutional Convention in Philadelphia- Alexander Hamilton, John Lansing, Jr., and Robert Yates.  Only Hamilton signed the Constitution in September 1787.  Like Virginia, New York was a large, well populated, wealth state, and was important to the future of the nation.  At the time, New York was the fifth largest state by population but already an immensely important commercial participant.  After extended debate, New York ratified by a slim three vote margin, 30-27, becoming the 11th state admitted to the Union.  Upon ratification, New York sent a long, detailed ratification message, with a declaration of rights and suggested changes and modifications to the Constitution, but with approval based on an understanding “that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration.”   At the New York Convention, the Anti-Federalists were led by Governor George Clinton, and the Federalists by Hamilton.  Anti-Federalists wanted a Bill of Rights and wanted states to prevail over federal encroachments feared by the new Constitution.  When the New York Convention convened, Anti-Federalists had an overwhelming majority.

The New York Convention convened in mid-June 1788, and began debating, with a close eye on developments in Virginia.  If Virginia had rejected the U.S. Constitution, New York might have done the same.  Hamilton asked Madison to send message to New York informing the Empire State of the vote in Virginia. That dispatch arrived in Poughkeepsie, New York on July 2, 1788  That letter turned the two-thirds Anti-Federalist convention into a narrow margin of ratification, with the request and recommendation that a number of amendments be made to the Constitution.  New York made such amendment recommendations similar to those of Virginia.  In an unusual move, the New York Convention sent a circular letter to the states that called for a  second general convention to consider such amendments.

John Jay, who wrote a handful of The Federalist Papers, but would have written more except for his illness, was influential at the New York Convention. While he did not attend the Constitutional Convention, Jay would become an important national leader of the infant nation, appointed by President George Washington in 1789 as the first Chief Justice of the Supreme Court of the United States.  He would not remain in that position long, returning to New York to become Governor.  Jay also helped to negotiate peace with England and, in 1794, was appointed special envoy to seek peace with Great Britain.  Jay’s Treaty, as it became known, brought temporary peace.

The New York Constitution

Immediately following the Declaration of Independence, a Convention assembled in White Plains, New York on July 10, 1776.  Due to the Revolutionary War and George Washington and the Continental Army’s crushing defeats in New York and New Jersey, the convention adjourned and reconvened over the next nine months, culminating in its adoption on April 20, 1777. The primary drafters of this original New York Constitution were John Jay, Robert Livingston , and Gouverneur Morris.   The new constitution had a bicameral legislature and a strong executive branch.

In New York, slavery was permitted and legal until 1827.  The New York Constitution has had several constitutional conventions, with the current New York Constitution having been ratified at the New York state election in 1894 in three parts.  While nine Constitutional Conventions have been held in New York State, the state has had only four de novo constitutions- 1777, 1821, 1846, and 1894.

Conclusion

Like the 10th state, Virginia, while New York’s ratification was not required under the new Constitution for there to be a United States, had the vote gone the other way, the United States may have been for naught before they began.  The Empire State showed its wealth of wisdom in ratifying the United States and becoming the 11th state in a fledgling nation.  Had New York insisted on its voluminous amendments to the draft U.S. Constitution or that a Bill of Rights be passed with any ratification, and four votes had gone the other way, we might well have never moved to fifty states. Thankfully, we will never know.  But New York was extremely influential in the Bill of Rights being considered, including the powerful 10th Amendment, which provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  With the 9th Amendment, the intent was to limit the powers of the federal government.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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On June 25, 1788, “Old Dominion” as Virginia is known, became the tenth of the thirteen original states to ratify the U.S. Constitution, admitting it to the Union June 25, 1788. The Virginia State Constitution in current use was adopted in 1971, with the original Virginia Constitution adopted in 1776.  Despite the U.S. Constitution requiring that only 9 of the 13 colonies ratify it for it to become effective, given the importance of Virginia to the new nation, had it voted down the U.S. Constitution, the future of the United States might well be in doubt.

The nickname, “Old Dominion,” likely derives from Virginia being the first of the overseas dominions of the kings and queens of England.  Virginia also is known as the Mother of Presidents and the Mother of States.  Eight Virginia natives have held the presidency, including four of the first five- George Washington, Thomas Jefferson, James Madison, and James Monroe.

On the third day of the fall session of the Virginia legislature in 1787, the Virginia House approved a convention to consider ratification of the proposed United States Constitution.  The Virginia legislature strongly debated whether to adopt or reject the document as it was submitted, or to condition any approval upon certain amendments and revisions.  John Marshall proposed a resolution that won the day, “that a Convention should be called and that the new Constitution should be laid before them for their free and ample discussion.”  The Senate followed slowly, and on January 8, 1788, a law passed calling for a state convention.

The Virginia Convention of 1788 commenced on June 2, 1788.  The delegates arriving in Richmond believed that the fate of the Constitution hung in the balance with how Virginia decided.  Even so, upon arrival at the Convention, many members had not seen the Constitution until they arrived at the Virginia Convention.  While the Virginia convention ensued, New Hampshire became the ninth state to ratify the Constitution and it became effective.  At the time of the Virginia Convention, a healthy majority of Virginians were opposed to the concept of a strong national government contemplated by the Constitution and the Virginia Convention began with that view prevalent amongst the delegates.  The Nation was watching closely how the important Commonwealth of Virginia decided, for “she also was the most important State in the Confederation in population and, at that time, in resources.”

Delegates included a veritable “who’s who” of delegates, including John Marshall, along with Governor Edmund Randolph, James Madison, George Mason, James Monroe, and Patrick Henry. On June 24, 1788, Delegate George Wythe moved the Virginia Convention to ratify the Constitution.  Henry arose for a final great speech of his life, arguing against ratification without amendments. The proposal to add amendments, many of which became the Bill of Rights, failed to be a condition of ratification, but would prove to be valuable guidance when Congress met in 1789. After further debate, on June 26, 1788, the Virginia Convention voted to ratify the Constitution by the slim margin of 89-79.  This slim margin would not have been possible had eight members of the Convention not voted against their constituents’ directives, and two ignored the instructions given them.  Virginia effectively would be the only convention where both sides of the debate were fully vetted and discussed.  The Virginia delegation argued both broad principles and minor details of the document approved in Philadelphia.

With that, the new nation could breathe easy, as its largest colony and most influential was on board.  As noted, it would see four of the first five presidents hail from Virginia.

The Virginia Constitution

Before the Declaration of Independence was made, Virginia adopted its state Constitution on June 29, 1776, and its document would be of major impact when the new nation turned to creating a Constitution of its own.  Mason, who had a large role in the drafting of the Constitution in Philadelphia, and who was one of three delegates still in Philadelphia in September who did not sign the Constitution, was one of the main drafters of  the 1776 Virginia Constitution.  The other was Madison, who is considered by many to be the Father of the Constitution for his work in connection with the Annapolis Convention, the Bill of Rights and the Constitutional Convention.  Madison would take his learnings from Virginia a decade later when he helped design the United States Constitution.

The 1776 Virginia Constitution included a bicameral legislature, the governor was the executive and there was a judicial branch.  In addition, the Virginia Constitution had an accompanying Virginia Declaration of Rights, which Mason mostly wrote, that guaranteed certain human rights and freedoms that would be the model for the Bill of Rights introduced at the first Congress of the new nation under the ratified United States Constitution.

Conclusion

While the ratification of Virginia was not required under the new Constitution for there to be a United States, had the vote gone the other way, the United States may have been for naught before they began.  Old Dominion showed its leadership and ratified the U.S. Constitution and the rest is history.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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3 – New Jersey – December 18, 1787

Third of the thirteen original states to ratify the U.S. Constitution and join the United States,

“The Garden State” of New Jersey entered the United States December 18, 1787. The New Jersey State Constitution in use today was adopted in 1947 (effective January 1, 1948) and has been amended several times since in minor ways, but its first constitution, written during the crisis of the Revolutionary War, was adopted on July 2, 1776.

Constitutional Convention

New Jersey sent five delegates to the Constitutional Convention in Philadelphia- David Brearley, Jonathan Dayton, William Livingston, William Patterson, and William Houston.  Only the first four signed the Constitution in September 1787, as Houston missed most of the Convention due to illness.   Livingston was the first Governor of New Jersey, holding the position from 1776 until his death in 1790.  His duties in that capacity limited his participation in the Convention, but he was Chair of the Committee of Slave Trade, which developed the compromise on the slavery issue.  Livingston also was an active supporter of New Jersey’s quick ratification of the Constitution.  Brearley’s main contribution appears to be helpful in developing the Electoral  College as part of the Committee of Leftovers, Dayton’s appears to have been minimal, although he participated occasionally in debates, and Patterson introduced the New Jersey Plan, which protected the smaller states against the larger ones. The New Jersey Plan proposal contemplated a unicameral legislature, as the Articles of Confederation contained, with equal voting for each state.  It also would have had the national legislature select the executive.  Although the New Jersey Plan did not prevail, its concept of protecting smaller states was reflected in the Senate provisions.  Patterson would become an Associate Justice of the Supreme Court of the United States in 1793, a position he held until his death in 1806.

The New Jersey Ratifying Convention met in Trenton from December 11 through 20, 1787, and ratified the Constitution on December 18, 38-0, becoming the third state to do so.  Not much appeared to have been debated during the days the New Jersey Ratification Convention met, as the new federal Constitution addressed the major concerns and needs of the state.  In addition, it appears only Federalist delegates were selected to attend the New Jersey Convention.  New Jersey also had a very large debt and heavy levies would have been required, so that too provided motivation for New Jersey to ratify the U.S. Constitution.

New Jersey became the first state to ratify the Bill of Rights when they were submitted, approving eleven of the twelve proposed.  Like Delaware, New Jersey in 1787 was a smaller state and with the protections of smaller states incorporated into the final Constitution, with a  strong national government, New Jersey delegates were satisfied.

The New Jersey Constitution

Immediately before the approval of the Declaration of Independence, the New Jersey delegates met in haste to consider a state constitution to address the emergency and likely imminent invasion by British forces.  Written as a temporary document to address the urgency of the state, it remained in place until 1844.  The constitution allowed all inhabitants worth at least fifty pounds the right to vote, and contained a number of different provisions, including maintenance of the common law and a prohibition on deodand (forfeiture of objects that caused someone’s death).  It also included a free exercise of religion and an establishment clause.

On June 29, 1844, New Jersey adopted its second constitution, which limited suffrage to white males and separated the government into three branches.  The 1844 constitution was one of the first to include a debt ceiling concept in it.  The 1844 constitution was amended in 1875 to conform it to the Fourteenth and Fifteenth Amendments to the United States Constitution.

The current constitution became effective in 1947 and is similar to many state constitutions, although it also contains specific provisions addressing casinos and their regulation.  The current version also includes a provision that terms such as “person” refer to both sexes.

Conclusion

Like Delaware, had New Jersey for some reason not ratified the Constitution, there would still have been a United States.  Little did the four signers of the Constitution from New Jersey in 1787 foresee that their relatively small state would be the 11th most populous in present times.  New Jersey’s delegates were instrumental in protecting the smaller states and although the Virginia Plan ultimately was the winner in the final Constitution, the New Jersey Plan protections were incorporated.  The Garden State, along with Delaware and Georgia, were the only three of the thirteen colonies to vote unanimously at their state conventions for ratification of this new union, the United States of America.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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1 – Delaware – December 7, 1787

As the Constitutional Convention came to a close in Philadelphia, America’s founding representatives signed the United States Constitution on September 17, 1787. Then, the first of the thirteen original states to ratify and approve this document, this new U.S. Constitution, which replaced the Articles of Confederation, was Delaware, signing on December 7, 1787. This signing admitted  Delaware, known as “The First State,” to the United States on December 7, 1787, subject to at least nine other colonies joining in agreeing to the U.S. Constitution. The current Delaware State Constitution in use, which is the fourth constitution in Delaware,  was adopted in 1897, but its first was adopted on September 20, 1776.  The first constitution referred to the state as “The Delaware State.”

Constitutional Convention

Delaware  sent five delegates to the Constitutional Convention in Philadelphia- Richard Bassett, Gunning Bedford, Jr., Jacob Broom, John Dickinson, and George Read.  Surprisingly, all five signed the Constitution in September 1787.  (Evidence is that Dickinson was not feeling well, and left the convention a day early, asking Read to sign his name to the document.)  Of the twelve colonies who signed the Constitution, only Pennsylvania had more signers than Delaware (eight).

The delegates were sent to Philadelphia with instructions that they were okay to offer amendments to the Articles of Confederation, but only “to render the Federal Constitution adequate to the Exigencies of the Union.”  These five delegates, who had attended the Annapolis Convention, were given instructions they could not change the one state, one vote framework for the Articles.

Dickinson has been credited with proposing a solution to address a proposal that the two houses of the Congress be represented according to population, offering that the Senate provide for every state to be equal and the state legislatures to pick the Senators.

Delaware was a very small state in area and in population.  They had no major economic center or product, and yet despite small size, their coast line was large.  The Delaware Ratifying Convention met on December 3, 1787 and, shortly after meeting, became the first state to ratify the Constitution, by a unanimous vote, 30-0, on December 7, 1787.  The only other states to vote unanimously to ratify the Constitution were New Jersey and Georgia.  Delaware beat Pennsylvania by five days in ratification.

Reports of the Delaware Ratifying Convention have been lost.  But by accounts, other than a petition to reject delegates who had been selected by Sussex, not much debate ensued.  Citizens of Delaware desired a stronger national government than the Articles provided. As part of the approvals, Delaware also recommended cession of land for the new Federal Capital to be located within its boundaries.  That last offer of course did not happen.

Of the five delegates who attended the Constitutional Convention in Philadelphia, Dickinson was probably the most prominent.  Known as “Penman of the Revolution,” he wrote the Liberty Song in 1768.  In that same year and the next, he also wrote a series of papers known as Letters from a Farmer in Pennsylvania, attacking British taxing policies.

In 1788, after Delaware ratified the Constitution, Dickinson wrote nine letters as Fabius, answering various Antifederalist arguments, in an effort to reinvigorate ratification progress in other states.

The Delaware Constitution

Immediately following the Declaration of Independence, the Delaware General Assembly met and approved the calling of a state constitutional convention.  The convention met in August 1776, naming Read President.  On September 20, 1776, the convention approved the new constitution and it became effective.  Delaware became the first state to have a convention write a constitution after the Declaration of Independence.  The constitution had a bicameral legislature, an executive with broad authority after consulting with the Privy Council, and a judicial branch that the Executive and General Assembly selected. The constitution prohibited the entry of anyone from Africa or other places for the purpose of holding the individuals in slavery.

The 1776 constitution was replaced by the Delaware Constitution of 1792, which remained in effect until 1831, when a convention approved a third state constitution. The current constitution, Delaware’s fourth, was adopted in 1897 and remains in effect.

Conclusion

Unlike some larger, more influential states, had Delaware for some reason not ratified the Constitution, there would still have been a United States.  However, its delegates contributed to the Constitutional Convention in Philadelphia, including the proposal that eventually addressed small versus large state representation, and through its leadership in being the first state to ratify the Constitution and by a unanimous vote.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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The press and media are full of reports of extreme partisanship and acrimony in Congress and with the White House in recent times.  But not that long ago, the parties at least appeared to work together to solve national problems regardless of party affiliations.  By no means did they agree on everything or make a president with different political party affiliation struggle to achieve his agenda easy when the Congressional power was in the other party’s hands.  But when Daniel Patrick Moynihan retired in 2001, we lost one of those able to navigate across party lines.

Early Life and Career

Moynihan was born on March 16, 1927 in Tulsa, Oklahoma to John Henry, who was a reporter for a local paper in Tulsa, and Margaret Ann (nee Phipps).  When he was six, the family moved to Hell’s Kitchen in New York City.  Moynihan worked an odd assortment of jobs as a child and graduated from Benjamin Franklin High School in East Harlem. After a short stint as a longshoreman, Moynihan attended the City College of New York, which provided free education for New York residents.  After one year at the city school, he joined the United States Navy in 1944 and then enrolled at Tufts University, where he received a degree in naval science in 1946.

After his military service, Moynihan obtained a second undergraduate degree from Tufts in 1948 and then received an M.A. from its Fletcher School of Law and Diplomacy.  Moynihan attended the London School of Economics from 1950 to 1953 as a Fulbright fellow.  Moynihan became politically active in the 1950s, serving in various capacities for New York Governor Averell Harriman.  In 1960, Moynihan was a Democratic National Convention delegate.

National Politics

Shortly after the 1960 DNC Convention, Moynihan began to serve in the national government, something that he would continue for the next fifty years.  He served the Kennedy administration as special then executive assistant to the Department of Labor from 1961 to 1963, and then was appointed the Assistant Secretary of Labor for Policy, Planning and Research from 1963 to 1965.  He worked primarily during that time on what became known as the “War on Poverty.”  In this role, Moynihan issued a report, The Negro Family:  The Case for National Action, known also as “The Moynihan Report,” that was attacked by the left and by the right.  Moynihan would later receive some criticism when in 1994, after the Republicans swept Congress, when he noted with respect to the welfare system, “The Republicans are saying we have a hell of a problem, and we do.”

Moynihan left the Johnson administration in 1965, returning to academics.  In January 1969, Moynihan became Assistant to the President for Domestic Policy and executive secretary of the Council on Urban Affairs under President Richard Nixon.  From late 1969 until the end of 1970, Moynihan served as Counselor to the President.  In 1973, Moynihan became Ambassador to India and, in June 1975, he became United States Ambassador to the United Nations.  The United Nations post was by President Gerald Ford, another Republican.

Senator Moynihan

In 1976, Moynihan was elected to the United States Senate, and would serve for the next twenty-four years.  As a Senator, Moynihan supported the ban on partial-birth abortions, and opposed President Bill Clinton’s universal health care coverage push.  He also opposed NAFTA and the flat tax.  He also voted against the Defense of Marriage Act and the Communications Decency Act.

Despite his working for previous Republican administrations, Moynihan was not a supporter of President Ronald Reagan’s hawkish Cold War policies.  However, during the time that Moynihan served in the Senate, the Democrats controlled the Senate for much of that period.  Despite that party difference, Moynihan was someone who could effectively work across the aisle and work with Republican presidents and congressional members to address various issues of national import.

In a 2010 Daily Beast column (available at https://www.thedailybeast.com/daniel-patrick-moynihan-letters-we-need-more-like-him), John Avlon wrote:

The Moynihan that emerges in these letters is engaging and unfailingly civil, armed with statistics and a sweeping view of history. He could be surprisingly thin-skinned—unlike many politicians, his was a sensitive soul. But it is clear that his counsel was sought by presidents because he brought more light than heat to the conversation. He thought with a sense of historic perspective and he always felt the possibility as well as the limits of government action. He believed that government could improve the lives of its citizens, but he recognized that government overreach could create unintended consequences and provoke political backlash.

Conclusion

Moynihan is one of a dying breed in Washington- someone who effectively could interact with members and presidents from the opposing political party and who as Avlon notes tried to bring the long perspective to various issues.  He was not always right and could take umbrage at those who did not agree with him, but he tried.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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As noted in the Daniel Patrick Moynihan column in this series, the press and media are full of reports of extreme partisanship and acrimony in Congress and with the White House in recent times.  But not that long ago, the parties at least appeared to work together to solve national problems regardless of party affiliations.  Like Moynihan, Thomas Phillip (Tip) O’Neill was one of those who was able to work with the other side at least when it came to foreign affairs.

Early Life and Career

Tip was born on December 9, 1912, to Thomas Phillip O’Neill, Sr. and Rose Ann (nee Tolan), in North Cambridge, Massachusetts.  His mom died when he was nine months old and his father was a bricklayer who became Superintendent of Sewers.  Tip’s nickname came from a Canadian baseball player whose last name was O’Neill and whose nickname was “Tip.”  Tip graduated from Boston College in 1936.  Tip ran for a seat on the Cambridge City council as a college senior, the only election he ever lost.  It was from that campaign that he learned the lesson that would become his most famous quote- “All politics is local.”

Fresh from Boston College, Tip ran for and won election to the Massachusetts House of Representatives.  Tip became the Minority Leader of the Massachusetts House from 1947 to 1949 and was Speaker of the Massachusetts House from 1949 to 1953, becoming the first Democratic Speaker in Massachusetts’ history.

National Politics

Tip ran for the United States House of Representatives vacated by John F. Kennedy in 1952 when Kennedy ran for the Senate.  He won and was re-elected 16 more times.  During his second term in the House, he was selected to the House Rules Committee.  Tip bucked President Lyndon B. Johnson’s support of the Vietnam War, coming out opposed to the United States intervention.

Tip was elected House Majority Whip in 1971 and, in 1973, was elected House Majority Leader.  In that role, he called for the impeachment of President Richard M. Nixon.  A scandal in the House caused the then-Speaker, Carl Albert, to retire, and Tip was elected Speaker in 1977.  He would hold that position for the next ten years, until he retired from Congress on January 3, 1987.

Tip was a proponent of universal health care and tackling jobs and poverty.  When Jimmy Carter became President in 1977, expectations were that there would be much accomplished.  However, while President Carter was focused on reducing government spending, Tip had other ideas as Speaker, including rewarding party members.  When Ronald Reagan became president, Tip and the new president collapsed, and the Senate had shifted to a Republican majority.  Tip called President Reagan “the most ignorant man who had ever occupied the White House” and was otherwise very critical of President Reagan.  Despite the public vitriol, the two were always on friendly terms.  In one interview, President Reagan mentioned that he had seen Tip make unflattering comments about Reagan.  Reagan called Tip to ask why the attacks, that he thought these two were friends.  Tip is reported to have replied, “Buddy, it is just politics. After 6 p.m. we are friends.”  After a visit between the two early in Reagan’s first term, the two were able to navigate social security reform and a tax reform plan and other legislation.

When it came to foreign affairs and our involvement in the Soviet-Afghan war, Tip gave his approval and through his House positions ensured that billions went to the Mujahideen.  When Reagan was shot, Secretary of State Alexander Haig asserted he was in charge, O’Neill was the next in line after Vice President George H.W. Bush.

Tip was also very involved in the peace efforts in Northern Ireland.  He and several other congressional leaders helped to achieve peace between Northern Ireland and England.  Tip died on January 5, 1994, of cardiac arrest.  His wife of many years, Mildred “Millie” Anne Miller, outlived him by almost a decade.  President Bill Clinton said of Tip at his death:

“Tip O’Neill was the nation’s most prominent, powerful and loyal champion of working people…”

Conclusion

While Tip and Reagan had different political views and approaches, they showed that great debates and the efforts of compromise sometimes can result in good end results for the nation.  Tip is the third longest serving Speaker in United States House history and was a strong “New Deal Democrat” who believed strongly that through public service he truly could positively affect the lives of working people.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Author Robert A. Caro has been at work for years writing his definitive biography of Lyndon Baines Johnson.  In Volume 3, “Master of the Senate,” Caro explores the twelve years that LBJ spent in the Senate and truly became the Master of that body, the youngest majority leader in history.  But as the title of this installment notes, he held several other powerful positions in his long political career that Caro continues to chronicle.

Early Life and Career

LBJ was born on August 27, 1908 in Texas, to Samuel Ealy Johnson Jr. and Rebekah Baines.  He graduated from Johnson City High School, then in 1924 enrolled at Southwest Texas State Teachers College but left shortly after to move to Southern California. After working for a few years, he returned to Southwest (later became Texas State University) and obtained his degree while working, including teaching at a segregated school teaching Mexican-American children.  He then began his career teaching public speaking.

Politics

LBJ began his long career in politics in 1931, after Richard Kleberg won election as a United States Representative from Texas, naming LBJ his legislative secretary. It was the perfect job for the politically aspiring LBJ because Kleberg handed most of the day-to-day duties to LBJ.  LBJ was a strong supporter of President Franklin Delano Roosevelt and FDR’s “New Deal.”

LBJ married “Lady Bird” in 1934.  In 1935, he was named the head of the Texas National Youth Administration but resigned to run for Congress.  From 1937 until 1949, LBJ served in the House of Representatives.  In 1949, he began his tenure as a United States Senator, where he would serve until 1961, when he became President John F. Kennedy’s Vice President.  LBJ served as the Majority Whip from 1951 until 1953, Minority Leader from 1953 to 1955, and then Senate Majority Leader from 1955 until he left the Senate.

While in the House, he was appointed a Lieutenant Commander in the U.S. Naval Reserve and served active duty starting in December 1941, just after the attack on Pearl Harbor.  LBJ earned the Silver Star, the American Campaign Medal, Asiatic-Pacific Campaign Medal, and the World War II Victory Medal.  He was released from active duty on July 17, 1942.

The 1948 Senator race has in retrospect alleged to have been rigged by LBJ, and he received an assist in his efforts to be declared the winner by Abe Fortas, a friend who he would later reward with a Supreme Court seat.

As soon as LBJ arrived, he began his efforts to gain the respect and trust of senior Senators and gained favor early.  He was appointed to the powerful Senate Armed Services Committee and soon created the Preparedness Investigating Subcommittee.  When he became the Minority Leader in 1953, he was the youngest person to hold that position.  He eliminated seniority as the criteria for committee appointments, giving him added power.  LBJ as Majority Leader worked closely with President Dwight D. Eisenhower to pass his agenda.

According to Caro, LBJ was the most effective Senate Majority Leader that we have ever had in our history, understanding who each Senator was and what it would take for a vote on a piece of legislation.  He would use his mastery demonstrated in the Senate to great advantage when he became President.

Vice President and President

The Kennedys knew they needed the votes of Southern Democrats if JFK was to be successful and LBJ became his Vice President.  Due to a change in Texas law LBJ requested, he became not only Vice President but also was re-elected to the Senate.  He withdrew from the Senate as required on inauguration.

LBJ sought to maintain the powers he held as Majority Leader, but the Democratic Caucus rejected his efforts.  JFK kept him busy with various task forces and committees.  On November 22, 1963, on Air Force One, he was sworn in as President after JFK was assassinated.  President Johnson strongly pressed for passage of the Civil Rights Bill to honor JFK and his legacy.  LBJ created the Warren Commission to investigate JFK’s assassination.

LBJ knew how to get things through Congress and used various techniques and his ability to convince members of the Senate to vote to get the Civil Rights Act of 1964 and the Voting Rights Act of 1965 passed.  LBJ pushed for his “Great Society” legislation and began a “War on Poverty” as well.

The LBJ presidential years were productive on the legislative front, with the Immigration and Nationality Act of 1965, the Elementary and Secondary Education Act of 1965, Head Start legislation, and many other pieces of legislation.

LBJ’s presidency also saw steep escalations of our presence in Vietnam.  On March 31, 1968, he surprised the nation when he announced, “I shall not seek, and I will not accept, the nomination of my party for another term as your President.”  A variety of reasons are given for LBJ’s decision, including Vietnam, his failing health, and his nomination of Thurgood Marshall as the first African-American to sit on the Supreme Court of the United States.

Conclusion

LBJ died of a massive heart attack on January 22, 1973.  LBJ is remembered for his significant legislative achievements both as a member of Congress over a long period of time and in his Vice President and President roles.  That legacy is offset by his Vietnam War strategy and results.  Few if any senators in the last fifty years have demonstrated the mastery that LBJ possessed.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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The Great Debates – James Blaine (1830-1893)

James G. Blaine was a politician from Maine who first served in the Maine House of Representatives and then moved to the federal stage, where he became Speaker of the United States House of Representatives, a United States Senator, Secretary of State and Republican nominee for President.  Nicknamed “the Magnetic Man,” Blaine was one of the leaders of the Republican Party during the late 19th Century and one of the great debaters.

Early Life and Rise in Politics

Blaine was born in Western Pennsylvania.  His father was a Whig party supporter and his great grandfather was Ephraim Blaine, who served as a Commissary-General under General Washington.  Blaine’s mother was Irish Catholic and Blaine’s parents brought their daughters up Catholic and their sons, including Blaine, Presbyterian.

Blaine enrolled in Washington College (now Washington & Jefferson College) at the age of thirteen, graduating four years later near the top of his class.  Blaine considered attending law school but decided to get a job.  He was hired at Western Military Institute as a professor of math and ancient languages, and married a teacher, Harriet Stanwood, on June 30, 1850.  In 1852, Blaine took a job at the Pennsylvania Institution for the Instruction of the Blind (now Overbrook School for the Blind).  In 1853, Blaine left teaching to become editor and co-owner of the Kennebec Journal, a strong supporter of the Whigs.  Upon that party’s demise, Blaine turned his attention to the newly formed Republican Party.

In 1856, Blaine was elected to the first Republican National Committee.  In 1858, Blaine made his first run for an elected position, winning his race for the Maine House of Representatives and winning each of his reelection efforts in 1859, 1860 and 1861, winning a healthy majority of the vote.  In 1859, Blaine also became chairman of the Maine Republican state committee.  In 1861 and 1862, Blaine was elected Speaker of the Maine House of Representatives.

Congressional Work

In 1862, Blaine successfully ran for a seat in the United States House of Representatives, one of the few Republicans to win in the midterm elections.  In the 1860s, those elected in an even year began their actual congressional duties the following December.  In his first term, Blaine was relatively quiet.  Blaine advocated for the commutation provision contained in the military draft law, and he also made a proposal for a constitutional amendment that would have permitted the government to impost an export tax.

Blaine won reelection in 1864 and that Congress focused primarily on Reconstruction.  Blaine took the position that the Fourteenth Amendment required three-fourths of the states that had not seceded, losing the argument to the majority who agreed that it required three-fourths of all states.  Blaine did vote in favor of harsh measures on the South but voted against a bill barring Southerners from attending the United States Military Academy.  When the House voted on the impeachment of President Andrew Johnson, Blaine voted in favor of impeaching the president.

Blaine was a strong advocate for the strength of the dollar, rejecting the efforts to issue additional greenbacks to pay interest on pre-war bonds.  In 1869, Blaine was elected Speaker of the House, winning unanimous Republican support.  Blaine was elevated to the position in part because of his strong parliamentary skills and President Ulysses S. Grant thought he was a skillful leader.  Blaine served six years in the Speaker role.  During the 1872 campaign, rumors and accusations were leveled against Blaine that he had received bribes in the Credit Mobilier scandal, charges that were never proven but continued to haunt Blaine.

On February 4, 1875, after much debate and great watering down of its contents, the Civil Rights Act of 1875 passed the House by a vote of 162 to 99.  Speaker Blaine worked hard and cooperated with President Grant to get the act through the House.

In December 1875, Blaine proposed a joint resolution, the Blaine Amendment, to address the separation of church and state by prohibiting direct federal government aid to religiously affiliated educational institutions.  The bill followed a speech by President Grant at a veterans meeting.  The Amendment would have been an amendment to the United States Constitution. Despite Blaine’s efforts, which were successful in the House, by a vote of 180 to 7, the bill failed in the United States Senate by four votes.  It never became law at the federal level, but 38 of the 50 state constitutions in the United States contain versions of the Amendment.

Blaine was considered a favorite for the 1876 Republican presidential nomination, but a scandal involving railroad bonds emerged. Blaine denied the accusations and was believed until some letters were discovered. Blaine was able to reclaim the letters, but the damage was done.  Although Blaine was nominated at the Republican convention and referred to as “an armed warrior, like a plumed knight,” he lost to Rutherford B. Hayes.

In 1876, Blaine was appointed by Maine Governor Seldon Connor to a vacant Senate seat.  Blaine served five years but did not have any significant leadership role.  In 1880, Blaine was again nominated at the convention, but lost to Garfield.  In 1881, President Garfield nominated Blaine to Secretary of State, which he accepted.

Blaine eventually was the Republican nominee in 1884 but lost to Grover Cleveland.

Conclusion

Blaine had influence during Reconstruction in his role as Speaker of the House and was a leader of the newly formed Republican Party for many years but fell into obscurity not long after his death in 1893.  His most lasting contribution might be the Blaine Amendment, which many states adopted, and which laws are now being reviewed as part of the current discussion of school vouchers and impact of the tax reform bill.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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On June 11, 1963, President John F. Kennedy issued his Report to the American People on Civil Rights, calling on Congress to pass a civil rights bill to address discrimination and segregation against African Americans.  Kennedy’s civil rights bill included a ban on discrimination in places of public accommodation and tackled segregation in schools, but did not address many other issues affecting African Americans, especially in the South.  Kennedy was assassinated before the bill was approved by Congress.  President Lyndon B. Johnson made passage a priority.

The Congressional Debates

Prior to his televised appearance to discuss his Report, President Kennedy met with Congressional Republicans to discuss the legislation. On June 13, 1968, Senate Minority Leader Everett Dirksen and Senate Majority Leader Mike Mansfield expressed support for Kennedy’s proposal, except for the portion dealing with public accommodations.  President Kennedy submitted his bill as originally drafted to Congress on June 19th.  The House Judiciary Committee discussed the bill and held hearings, adding provisions to the bill to enhance protections.  In addition, the Judiciary Committee added Title III, which authorized the Attorney General to pursue legal remedies.

In late October, Kennedy met with the House leadership to figure out a path to sufficient votes for House passage.  The House Judiciary Committee reported the bill out in November and referred to the Rules Committee, chaired by Virginian Howard W. Smith, a segregationist, who promised that the bill would not emerge from his committee.  On November 22, 1963, President Kennedy was assassinated and LBJ was sworn in as President.  President Johnson supported the bill and used his experiences in the Senate to find ways to ensure passage.

On November 27, 1963, President Johnson made clear his position on passage of the civil rights bill when he made his first joint session of Congress, stating:

“No memorial oration or eulogy could more eloquently honor President Kennedy’s memory than the earliest possible passage of the civil rights bill for which he fought so long.”

In a rare parliamentary procedure, Judiciary Committee Chair Emanuel Celler filed a petition to discharge the bill from the Rules Committee and the premises of Chair Smith.  When the winter recess arrived, the petition was short of required signatures.  Upon return from recess, sensing the strong support in the North for the bill, Smith permitted the bill to pass through his Rules Committee.

President Johnson then navigated the Senate.  The Senate Judiciary Committee Chair James O. East land, a Democrat from Mississippi, strongly opposed the bill.  Senator Mansfield invoked a procedural tool to avoid referral to the Judiciary Committee, reading the bill a second time after it had initially been waived, permitting the bill to reach the Senate floor directly for debate.

On March 30, 1964, the bill came for debate on the Senate floor.  The Southern Bloc implemented a filibuster, led by Senator Richard Russell, a Democrat from Georgia, who stated:

“We will resist to the bitter end any measure of movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states.”

Senator Strom Thurmond, who had set a record filibuster of more than twenty-four hours against the Civil Rights Act of 1957, strongly opposed the bill, stating:

“This is the worst civil-rights package ever presented to the Congress and is reminiscent of the Reconstruction proposals and actions of the radical Republican Congress.”

The filibuster continued for 54 days.  Finally on June 10, 1963, Senator Robert C. Byrd finished his 14 hours, 13 minutes speech.  Senator Russell made final opposition comments, then Senator Dirksen from Illinois spoke for the bill proponents, declaring, “the time has come for equality of opportunity in sharing government, in education, and in employment.  It will not be stayed or denied. It is here!”  During roll call on cloture, Senator Clair Engle from California did not respond verbally, having lost his ability to speak from a brain tumor.  However, he pointed to his eye to affirmatively vote.  Cloture passed, 71 to 29, four more votes than needed for cloture.

The resulting vote on cloture of the filibuster was the first time in the Senate’s history that a filibuster on a civil rights bill had been brought to cloture.

On June 19, the compromise bill passed the Senate, 73-27, and then quickly passed through the House-Senate Conference Committee.  On July 2, 1964, President Johnson signed the law, and the long road to passage was complete.

Despite its historic nature, the Civil Rights Act of 1964 had limited impact at the time of its passage, but has been influential on subsequent civil rights bills and was upheld generally in the Supreme Court decision, Heart of Atlanta Motel v. United States.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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The Great Debates – Stephen A. Douglas (1813-1861)

Known as “the Little Giant,” Stephen A. Douglas was a politician from Illinois who designed the Kansas-Nebraska Act and served as a member of the House of Representatives and the Senate, and was the Democratic Party nominee for president against Abraham Lincoln in the election of 1860.  Lincoln and Douglas also faced each other during the 1858 race for Senator from Illinois, and the two engaged in a series of famous debates on the question of slavery and the future of our nation.  Named the Little Giant because he was small in stature, he was not little when it came to politics and his place in our history as a great debater.

Early Life and Rise in Politics

Born in Vermont, Stephan Arnold Douglass, he eventually dropped the second s.  Douglas’ father died when Douglas was a baby.  His mother remarried and they moved to western New York. Eventually Douglas made his way to Illinois and was admitted to the bar.  He courted Mary Todd, who married Lincoln, and the two faced off against each other on many other occasions.  In 1847, he and his wife, Martha Martin, moved to Chicago.

Douglas became active in Illinois politics in the Democratic Party, serving as State’s Attorney of Morgan County in 1834.  He served in the Illinois House of Representatives, served as Illinois Secretary of State and then at age 27, was appointed to a position as Associate Justice of the Illinois Supreme Court when the number of justices was expanded.  In 1843, Douglas was elected as a United States Representative and served in that capacity until 1847, after the Illinois General Assembly voted elected him as a United States Senator.  Douglas would serve the rest of his public career in that position, serving from 1847 until June 3, 1861, when he died at the age of 48.

Congressional Work

In 1850, a sectional crisis ensued when California was admitted as a free state with no slaveholding state admitted at the same time.  Douglas was a strong advocate for compromise, supporting the efforts of Henry Clay.  Clay was a political rival, but Douglas took Clay’s bill for a compromise that had failed to garner adequate support and split it into separate bills, helping to navigate the successful approval of the Compromise of 1850, which reaffirmed the compromise on territories and slavery from the Missouri Compromise.

Douglas strongly advocated popular sovereignty, allowing the people rather than the national government to determine positions on slavery.  Lincoln used this position to try to distinguish himself in 1858 in the United States Senator race.  In 1854, Douglas invoked popular sovereignty during a dispute over the admission of the Nebraska Territory.

Various proposals for a transcontinental railroad were being made, with one potential route going through Chicago that would benefit Douglas.  Southern leaders offered a deal to Douglas- they would support the central route that went through Chicago if Douglas allowed slavery in the new territories.  The agreement effectively repealed the Missouri Compromise and the Compromise of 1850.  Douglas defended his position with popular sovereignty, winning over many from the north.  Lincoln criticized Douglas’ position in a series of speeches. Despite some critiques, Congress passed the Kansas-Nebraska Act, effectively overruling the Missouri Compromise.

In 1856, Douglas was a candidate for the Democratic Presidential nomination but was not the nominee.  In 1857, the United States Supreme Court issued the Dred Scott v. Sandford decision, striking down key provisions of the Missouri and 1850 Compromises and made the Kansas-Nebraska Act largely moot.  Douglas attempted to take a weak position on the decision to keep support from both the North and the South.

Douglas faced Senate reelection in 1859 by the Illinois legislature. Douglas represented the Democrats and the Republicans chose Lincoln.  The two eventually agreed to a series of a joint appearances, which became known as the Lincoln-Douglas Debates.  Douglas stood behind his popular sovereignty views.  Lincoln argued that slavery was a moral issue that the nation must decide.  In what became known as his “House Divided” speech, Lincoln stated in June 1858 (prior to the Lincoln-Douglas Debates, but consistent message):

“A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other. “

In one of the speeches, at Galesburg, Illinois, Douglas asserted the Declaration of Independence did not apply to non-whites, stating, “This Government was made by our fathers on the white basis.”

At a debate in Freeport, Illinois, Lincoln pressed Douglas on his support of Dred Scott. Douglas took the position that the Supreme Court had explicitly prohibited states from not allowing slavery, but people of Territories had the ability to exclude slavery by “unfriendly legislation.”  This position came to be known as the Freeport Doctrine and Douglas was re-elected to the Senate, defeating Lincoln.

Conclusion

In the Presidential election of 1860, the two nemeses would face off again.  Douglas was the Democratic nominee, but the split on slavery positions resulted in splintering of the Democrats, with Southern Democrats nominating John C. Breckinridge and the Constitutional Union Party nominated John Bell.  Lincoln won and the Southern states quickly seceded.  Post-election, Douglas attempted to make compromise to avert secession and denounced it.  Douglas died on June 3, 1861, of typhoid fever.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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When the United States Constitution was ratified in 1789, debates over slavery and how to count slaves for purposes of legislative representation and tax apportionment threatened to derail an agreed upon new constitution.  The Three-Fifths Compromise resulted and while it led to the ratified Constitution, the issue of slavery continued to be a major issue of tension between the North and South.  In 1820, those tensions intensified when Missouri sought admission to the Union.  The Missouri Compromise was the solution that pushed civil war back several decades.

The Missouri Compromise

The Missouri Compromise was an effort by the United States Congress to address slavery and create balance between the slaveholding and free states.  Congress struggled with the issue for some time starting in 1819, when the Missouri Territory applied for statehood.  The Missouri Territory had been part of the Louisiana Purchase in 1803.  The Spanish and French sanctioned slavery in the Louisiana territories prior to the sale, and Louisiana, the first state carved from the Louisiana Purchase, was a slave state when it entered the Union.  If it were admitted, Missouri would throw off the eleven to eleven balance between slaveholder and free states.  On February 3, 1819, New York Jeffersonian Republican Representative James Tallmadge, Jr. proposed two amendments to Missouri’s application for statehood, providing:

“And provided, That the further introduction of slavery or involuntary servitude be prohibited, except for the punishment of crimes, whereof the party shall have been fully convicted; and that all children born with in the said State, after the admission thereof into the Union, shall be free at the age of twenty-five years.”

The Tallmadge Amendment passed the House but failed in the Senate.  The debates in the two chambers of Congress pitted the northern restrictionists against anti-restrictionists from the south.  To further the Tallmadge Amendment in the House, a fellow House member, proposed splitting Tallmadge’s amendments into two separate votes and, despite a 101 to 81 northern advantage in the House, the House voted 87-76 in favor of the further migration into Missouri and 82 to 78 on emancipation at age twenty-five.   But the three days of debate prior to passage have been described as “rancorous” and “fiery” and “blistering,” with rhetoric such as “which seas of blood can only extinguish” and “If a dissolution of the Union must take place, let it be so!”  When the House passed bill made it to the Senate, the Senate rejected both parts, 22-16 and 31-7, respectively.

The Congressional debate on admitting Missouri continued for a year, until Maine (which was part of Massachusetts) sought statehood.  The agreed upon deal was to admit Maine as a free state and Missouri as a slave state- states would be admitted in pairs to keep the balance.  The Senate linked the two bills for Missouri and Maine and Senator Jesse B. Thomas from Illinois introduced a compromise amendment, which excluded slavery from remaining lands of the Louisiana Purchase north of the 36◦, 30’ parallel.

The measure passed the Senate but faced resistance in the House by Northerners who wanted Missouri to be a free state.  Speaker of the House Henry Clay, the “Great Compromiser,” divided the Senate bills and on March 3, 1820, the House voted to admit Maine as a free state, Missouri as a slave state, and made free soil western territories north of Missouri’s southern border, excluding Missouri.  The debate did not end in 1820, however.

When Missouri submitted its new constitution, it excluded “free negroes and mulattoes” from the state.  Clay again saved the matter, approving an act of admission that the exclusionary clause would “never be construed to authorize the passage of any law” that impaired the privileges and immunities of any United States citizen.  Referred to as the Second Missouri Compromise, it helped save the Union for several decades.

Conclusion

The Missouri Compromise was a necessary action to avert continued battles over the balance of power in Congress.  However, Thomas Jefferson predicted the peace gained by the Missouri Compromise could not last, writing to a friend:

“[B]ut this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. it is hushed indeed for the moment. but this is a reprieve only, not a final sentence. A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper.”

The Missouri Compromise helped to issue a “reprieve” as Jefferson noted, and for the next three decades, the issue continued to be debated, but the balance of power remained, until the admission of California as a state in 1850 with no offsetting slaveholding state admitted at the same time.  Effectively overruled by the Kansas-Nebraska Act in 1854, the Missouri Compromise was also found to be unconstitutional by the much-denounced 1857 Supreme Court decision, Dred Scott v. Sandford, which held that Congress had overreached in its enactment of the Missouri Compromise.  Civil war would come four years after Dred.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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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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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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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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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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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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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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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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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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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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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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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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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 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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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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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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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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Justice George Sutherland: One of the Four Horsemen

Introduction 

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

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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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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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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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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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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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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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Anyone who believes that today’s political discourse has reached a new low should consider the political career and rhetoric of George C. Wallace, a 1968 Presidential candidate for the American Independent Party, a party formed by Wallace after the Democratic Party rejected his segregationist agenda.  Wallace was at the forefront of resistance to the Supreme Court’s civil rights decisions, including the landmark Brown v. Board of Education ruling.

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The 1932 Presidential election took place during the height of the Great Depression.  While a number of candidates ran on third party tickets, the main fight for the White House featured the incumbent Republican Herbert Hoover against Democrat Franklin Delano Roosevelt and none of the other candidates garnered more than 2% of the popular vote.  Hoover had won the presidential election in 1928 on a pro-business platform promising continued prosperity.  Nine months into Hoover’s term, on October 24, 1929, the stock market crashed, beginning the period that would become known as the Great Depression.  The challenges created by the downward economic spiral consumed Hoover’s term and were a main focus of the 1932 presidential election.

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The Election of 1920: The Sedition Act, Eugene Debs, and the “Red Scare”

Eugene V. Debs was a founding member of the Industrial Workers of the World and a frequent Presidential candidate for the Socialist Party of America.  Debs became a well-known socialist both through his political activity and as a result of the government’s criminal prosecution of his activities.  Other essays in this series cover the numerous Presidential elections in which Debs ran, as well as the other candidates in the 1920 Presidential election. This essay focuses on the Sedition Act of 1918, Debs, and the “Red Scare.”

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The 1916 Presidential election pitted incumbent Democratic President Woodrow Wilson against Republican Supreme Court Justice Charles Evans Hughes.  The election was a very close one and had significant ramifications for the “progressive” movement.

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The 1908 Presidential election featured the incumbent Republican President Theodore Roosevelt following through on his promise to not seek a third term and encouraging the Republicans to nominate Secretary of War William Howard Taft.  While a number of third party candidates ran against Taft, the only non-Republican candidate who garnered any significant votes was the Democratic nominee, William Jennings Bryan.  Bryan had been the Democratic nominee for President in 1896 and 1900, but the 1908 election was the most lopsided of his three defeats in the race for President.

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The United States Constitution is silent on the subject of corporations.    After the Civil War, as American society began to quickly evolve from agrarian to industrial, politicians from both major parties raised concerns about the rise of corporations, banks, and businesses, and the need for protection of the individual.  Against this backdrop, two important political figures emerged on the national scene.  William Jennings Bryan was a leader of the Populist Party (which would merge with the Democratic Party in 1896) who unsuccessfully ran for President in 1896, 1900 and 1908.  Republican President Theodore Roosevelt proposed a number of “progressive” initiatives through his “Square Deal” program and other policies and positions.  Other essays in this series cover the various Presidential elections in which Bryan and Roosevelt were their parties’ nominees. This essay compares the progressive and populist views of Roosevelt and Bryan, respectively.

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The Election of 1864: Constitutional Issues Raised by Lincoln’s Conduct of the War

The 1864 election pitted the incumbent, Republican President Abraham Lincoln, against George McClellan of the Democratic Party.  It was the first election since 1840 in which an incumbent was renominated by his own party.  A major focus of the election was the Civil War and the divided Union.  Lincoln’s actions as President would also be considered by the electorate, which reelected him in a landslide.

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The election of 1860 featured a number of candidates vying for the Presidency, with the tensions over slavery at the forefront.   Abraham Lincoln would carry the North for the Republican Party and win the election over numerous candidates, including three contenders that garnered significant votes.  Other essays in this series cover the 1860 Presidential election and certain of the candidates.  This essay focuses on John Bell, the 1860 nominee for President from the newly formed Constitutional Union Party, and his understanding of the Constitution.

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The 1852 election pitted Franklin Pierce of the Democratic Party against General Winfield Scott of the Whig Party, John P. Hale of the Free Soil Party, Daniel Webster of the Union Party, Jacob Broom of the Native American Party, and George Troop of the Southern Rights Party.  In nominating Pierce, the Whig party refused to renominate the incumbent, President Millard Fillmore.  Pierce won the election in a significant Electoral College landslide over General Scott, 254-42.  As with the 1848 election, and for the next several presidential elections, a major focus of the election was on the question of slavery, especially the Fugitive Slave Act of 1850 and the Compromise of 1850.

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The 1848 election pitted former President Martin Van Buren of the Free Soil Party against Zachary Taylor of the Whig Party, Gerrit Smith of the Liberty Party, and Lewis Cass of the Democratic Party.  The incumbent, President James Polk, did not seek reelection due to his declining health and his prior promise to serve only one term.  A major focus of election was the question of slavery and whether it would extend to the Western states.   Zachary Taylor narrowly won the election, becoming the third of four Whig Party members to become President of the United States.  As described below, Van Buren’s candidacy on behalf of the Free Soil Party likely influenced the outcome in Taylor’s favor.

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The election of 1844 was notable in that the incumbent Whig President, John Tyler, who ascended to the Presidency when President William Henry Harrison died one month after his inauguration, was not nominated by his party to seek a second term as President.  Tyler’s focus on the annexation of Texas as a slave state set the themes for the 1844 presidential election and also led to James K. Polk becoming the Democratic President.

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The Election of 1836: The Tariff Issue, Nullification and the Constitution

The 1836 Presidential election saw Democratic incumbent Vice President Martin Van Buren win the election in a campaign that featured four candidates from the newly-formed Whig Party running against Van Buren by region against a background of Southern threats of nullification and secession, caused chiefly by opposition to federal tariff laws as well as by the issue of slavery. The two-term incumbent, Democrat President Andrew Jackson, decided not to seek a third term and supported his Vice President, Van Buren.  Jackson’s second term and the tariff issue and nullification strategy helped lead to the formation of the Whig Party, which was formed in 1834 in opposition to Jackson and his policies.  The 1836 election was the first in which the Whig Party sought to have a party member as President.  The Whig Party strategy to regionalize the electoral votes in 1836 failed, with Van Buren capturing the Presidency.

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The election of 1832 featured the incumbent Democratic President, Andrew Jackson, against National Republican Party candidate Henry Clay as the main contender.  Jackson easily won re-election.  A third party, the Anti-Masonic Party, also nominated a candidate, William Wirt, who received just under 8% of the popular vote but only 7 of the 286 Electoral College votes.  Formed as a single-issue party, the Anti-Masonic Party had a short lifespan on the American political stage.

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The Election of 1820: The Uncontested Race and the Missouri Compromise

The election of 1820 was the last presidential contest in which the ticket ran virtually unopposed.  President James Monroe and his Vice President, Daniel D. Tompkins, won all but one electoral vote, which went to John Quincy Adams.  The only other president elected without opposition had been George Washington in 1788 and 1792.  The Federalist Party ran no presidential candidate and the election effectively marked the end of the Federalist Party.  Monroe’s re-election came in the wake of Congressional debate on Missouri Compromise, which had been passed by the Senate and was still pending in the House at the time of the election.

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